<PAGE> 1
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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 12, 2000
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
WELLS-GARDNER ELECTRONICS
CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
ILLINOIS 36-1944630
(STATE OR OTHER JURISDICTION (IRS EMPLOYER IDENTIFICATION
OF INCORPORATION OR ORGANIZATION) NUMBER)
2701 NORTH KILDARE AVENUE, CHICAGO, ILLINOIS 60639, (773) 252-8220
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES INCLUDING ZIP CODE)
WELLS-GARDNER ELECTRONICS CORPORATION EXECUTIVE STOCK AWARD PLAN
(FULL TITLE OF PLAN)
ANTHONY SPIER
2701 NORTH KILDARE AVENUE, CHICAGO, ILLINOIS 60639, (773) 252-8220
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
COPIES TO:
DAVID J. KAUFMAN, ESQ.
KATTEN MUCHIN ZAVIS
525 W. MONROE, SUITE 1600
CHICAGO, IL 60661-3693
FAX NUMBER: (312) 902-1061
---------------------------
CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
Proposed maximum Proposed maximum
Amount to be offering price aggregate offering Amount of
TITLE OF SECURITIES TO BE REGISTERED registered(1) per share price registration fee
Common Stock, $1.00 par value (2)........ 300,000 shares(2) (3) $1,031,250(3) $272
==============================================================================================================
</TABLE>
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(1) Includes an indeterminate number of shares of Wells-Gardner Electronics
Corporation Common Stock that may be issuable by reason of stock splits,
stock dividends or similar transactions. In addition, pursuant to Rule
416(c) under the Securities Act of 1933, this registration also covers an
indeterminate amount of interests to be offered or sold pursuant to the
Wells-Gardner Electronics Corporation Executive Stock Award Plan (the
"Plan").
(2) Represents shares issuable under the Plan.
(3) The amounts are based upon the closing price of the Common Stock as
reported on the American Stock Exchange on May 11, 2000 of $3.4375 with
respect to 300,000 shares and are used solely for purposes of calculating
the registration fee pursuant to Rule 457 under the Securities Act of 1933.
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<PAGE> 2
EXPLANATORY STATEMENT
The information called for in Part I of Form S-8 is currently included in
the prospectus for the Wells-Gardner Electronics Corporation Executive Stock
Award Plan (the "Plan") and is not being filed with or included in this Form S-8
in accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission").
I-1
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed by the Company with the Commission
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
are incorporated in this Registration Statement by reference:
1. The Company's annual report on Form 10-K for the fiscal year ended
December 31, 1999.
2. The Company's quarterly report on Form 10-Q for the quarter ended
March 31, 2000.
In addition, all documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act, subsequent to the date hereof and prior
to the filing of a post-effective amendment indicating that all securities
offered pursuant to this Registration Statement have been sold or deregistering
all such securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be part hereof from the date of filing of such
documents. 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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Certain provisions of the Illinois Business Corporation Act provide that
the Registrant may indemnify the directors and officers of the Registrant and
affiliated companies against liabilities and expenses incurred by reason of the
fact that such persons were serving in such capacities, subject to certain
limitations and conditions set forth in the statute. Article X of the By-Laws of
the Registrant provides that the Registrant shall indemnify its directors and
officers to the fullest extent permitted by Illinois law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
4.1 Wells-Gardner Electronics Corporation Executive Stock Award Plan
(the "Plan").
4.2 Form of Restricted Stock Agreement for the Plan.
4.3 Articles of Incorporation of the Company, as amended, filed as
Exhibit 3.1 of the Company's Annual Report on Form 10-K for the
year ended December 31, 1994, and incorporated herein by
reference.
II-1
<PAGE> 4
4.4 By-Laws of the Company, as amended, filed as Exhibit 3.2 of the
Company's Annual Report on Form 10-K for the year ended December
31, 1994, and incorporated herein by reference.
5 Opinion of counsel as to legality of shares of Common Stock being
offered (including consent).
23.1 Consent of KPMG LLP with respect to the Company's financial
statements.
24 Power of Attorney (included on the signature page of this
Registration Statement).
99 Description of Capital Stock.
ITEM 9. UNDERTAKINGS.
1. The Company hereby undertakes:
(a) 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 of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually, or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information
in the Registration Statement;
provided, however, that paragraphs (a)(i) and (a)(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 the Registration Statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
II-2
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2. The Company hereby undertakes that, for the purpose of determining any
liability under the Securities Act of 1933, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in the Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Company pursuant to the foregoing provisions, 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 of 1933 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 of 1933 and will be governed by the
final adjudication of such issue.
II-3
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 City of Chicago, State of Illinois, on this 12th day of May,
2000.
WELLS-GARDNER ELECTRONICS CORPORATION
By: /s/ Anthony Spier
----------------------------------
Anthony Spier
Chairman of the Board, President
and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Anthony Spier and George Toma, and each of them, his true and lawful
attorneys-in-fact and agents, with full power of substitution, to sign on his
behalf, individually and in each capacity stated below, all amendments and
post-effective amendments to this Registration Statement on Form S-8 (including
registration statements filed pursuant to Rule 462(b) under the Securities Act
of 1933, and all amendments thereto) and to file the same, with all exhibits
thereto and any other documents in connection therewith, with the Securities and
Exchange Commission under the Securities Act of 1933, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as each might or could do in
person, hereby ratifying and confirming each act that said attorneys-in-fact and
agents may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on May 12, 2000.
Signature Title
--------- -----
/s/ Anthony Spier
- -------------------------- CHAIRMAN OF THE BOARD, PRESIDENT AND CHIEF EXECUTIVE
ANTHONY SPIER OFFICER (PRINCIPAL EXECUTIVE OFFICER) AND A DIRECTOR
/S/ GEORGE B. TOMA
- -------------------------- CHIEF FINANCIAL OFFICER AND TREASURER (PRINCIPAL
GEORGE B. TOMA FINANCIAL AND ACCOUNTING OFFICER)
- --------------------------
ERNEST R. WISH DIRECTOR
/S/ FRANK R. MARTIN
- --------------------------
FRANK R. MARTIN DIRECTOR
- --------------------------
MARSHALL BURMAN DIRECTOR
/S/ JERRY KALOV
- --------------------------
JERRY KALOV DIRECTOR
II-4
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Sequential
EXHIBITS Description Page No.
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4.1 Wells-Gardner Electronics Corporation Executive Stock Award Plan (the "Plan"). 6
4.2 Form of Restricted Stock Agreement for the Plan. 14
4.3 Articles of Incorporation of the Company, as amended, filed as Exhibit 3.1 of the -
Company's Annual Report on Form 10-K for the year ended December 31,
1994, and incorporated herein by reference.
4.4 By-Laws of the Company, as amended, filed as Exhibit 3.2 of the Company's Annual -
Report on Form 10-K for the year ended December 31, 1994, and incorporated herein by
reference.
5 Opinion of counsel as to legality of shares of Common Stock being offered (including 17
consent).
23.1 Consent of KPMG LLP with respect to the Company's financial statements. 19
24 Power of Attorney (included on the signature page of this Registration Statement). -
99 Description of Capital Stock. 20
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II-5
<PAGE> 1
EXHIBIT 4.1
WELLS-GARDNER ELECTRONICS CORPORATION
EXECUTIVE STOCK AWARD PLAN
SECTION 1. PURPOSE AND NUMBER OF SHARES.
The purpose of the Wells-Gardner Electronics Corporation Executive Stock
Award Plan is:
(a) to increase the proprietary interest in the Company of those Key
Employees whose responsibilities and decisions directly affect
the performance of the Company;
(b) to provide rewards for those Key Employees who make contributions
to the success of the Company; and
(c) to attract and retain persons of superior ability as Key
Employees of the Company.
(d) a maximum of 300,000 shares of Wells-Gardner stock will be
allocated to the Plan.
SECTION 2. DECISIONS.
"AWARD" means an award of Restricted Stock granted to any Key Employee in
accordance with the provisions of the Plan.
"BOARD" means the Board of Directors of the Company.
"COMMITTEE" means the Compensation Committee appointed by the Board to
Administer the Plan pursuant to Section 4 hereof.
"COMPANY" means Wells-Gardner Electronics Corporation and its successors
and assigns.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended from
time to time.
"KEY EMPLOYEE" means an officer or other key employee of the Company who,
in the judgment of the Committee, is responsible for or contributes to the
management growth, technology or profitability of the business.
"PLAN" means the Wells-Gardner Electronics Corporation Executive Stock
Award Plan.
"RESTRICTED STOCK" means Stock delivered under the Plan subject to the
requirements of Section 7 hereof and such other restrictions as the
Committee deems appropriate or desirable.
"STOCK" means the common stock ($1.00 par value) of the Company.
"TOTAL DISABILITY" means the complete and permanent inability of a Key
Employee to perform substantially all of his or her duties under the terms
of his or her employment with the Company as determined by the Committee
upon the basis of such evidence, including independent medical reports or
data, as the Committee deems appropriate or necessary.
<PAGE> 2
SECTION 3. EFFECTIVE DATE.
The effective date of the Plan shall be April 25, 2000, subject to approval
of the Plan by the Company's stockholders. Notwithstanding anything in the
Plan to the contrary, if the Plan shall have been approved by the Board
prior to such stockholder approval, Key Employees may be selected and Award
criteria may be determined and Awards may be made as provided herein
subject to subsequent stockholder approval.
SECTION 4. PLAN ADMINISTRATION.
(a) COMMITTEE. The Plan shall be administered by the Compensation
Committee of the Board.
(b) POWERS. The Committee is authorized, subject to the provisions of the
Plan, to establish such rules and regulations as it deems necessary or
advisable for the proper administration of the Plan and to take such
other action in connection with or in relation to the Plan as it deems
necessary or advisable. Each decision made or action taken pursuant to
the Plan, including interpretation of the Plan and the Awards granted
hereunder by the Committee, shall be final and conclusive for all
purposes and upon all persons, including without limitation, the
Company, the Committee, the Board, Key Employees and their respective
successors in interest.
(c) INDEMNIFICATION. No member or former member of the Committee or the
Board shall be liable for any action or determination made in good
faith with respect to the Plan or any Award granted under it. Each
member or former member of the Committee or the Board shall be
indemnified and held harmless by the Company against all costs and
expenses (including counsel fees) and liability (including any sum
paid in settlement of a claim with the approval of the Board) arising
out of any act or omission to act in connection with the Plan unless
arising out of such member's own fraud or bad faith. Such
indemnification shall be in addition to any rights of indemnification
the members or former members may have as directors or under the
by-laws of the Company.
(d) INDEPENDENT ADVISORS. The Committee may employ such independent
professional advisors, including without limitation independent legal
counsel and counsel regularly employed by the Company, consultants and
agents as the Committee may deem appropriate for the administration of
the Plan and may rely upon any opinion received from any such counsel
or consultant and any computations received from any such consultant
or agent. All expenses incurred by the Committee in interpreting and
administering the Plan, including without limitation meeting fees and
expenses and professional fees, shall be paid by the Company.
SECTION 5. PARTICIPATION.
Participation in the Plan shall be limited to Key Employees who have
received written notification from the Committee, or from a person
designated by the Committee, that they have been selected to participate in
the Plan. No employee shall at any time have any right to be selected to
participate in the Plan. No Key Employee having been granted an Award shall
have any right to be granted an additional Award in the future. Neither the
Plan nor any action taken
2
<PAGE> 3
thereunder shall be construed as giving any Key Employee any right to be
retained in the employ of the Company. The right and power of the Company
to dismiss or discharge any Key Employee, with or without cause, is
specifically reserved.
SECTION 6. AWARD GRANTS AND AGREEMENTS.
(a) AWARDS. The President of the Company may recommend Key Employees to
participate in the Plan, and may recommend the timing, amount and
restrictions, if any, and other terms and conditions of an Award,
subject to the terms of the Plan. The Committee, in its sole
discretion, has the authority to grant Awards under the Plan, which
may be made in accordance with the recommendations of the President or
otherwise.
(b) AGREEMENTS. Each Award shall be evidenced by a written Award
Agreement, in a form adopted by the Committee. Each Award Agreement
shall be subject to and incorporate the express terms and conditions,
if any, required by the Plan, and contain such restrictions, terms and
conditions as the Committee may determine.
SECTION 7. RESTRICTED STOCK.
(a) CUSTODY OF SHARES.
(i) Each certificate representing shares of Restricted Stock issued
pursuant to an Award shall be registered in the name of the Key
Employee and held, together with a stock power endorsed in blank,
by the Company. Unless and until such shares of Restricted Stock
fail to vest and are forfeited as provided herein, the Key
Employee shall be entitled to vote all such shares of Restricted
Stock and receive all cash dividends, if any, with respect
thereto. All other distributions with respect to such Restricted
Stock, including, but not limited to, Stock received as a result
of a stock dividend, stock split, combination of shares or
otherwise, shall be retained by the Company in escrow. Each
certificate of Restricted Stock issued pursuant to an Award shall
bear the following (or similar) legend:
"The transferability of this certificate and of the shares
of Common Stock represented hereby are subject to the terms
and conditions (including vesting) contained in the
Wells-Gardner Electronics Corporation Executive Stock Award
Plan and an Award Agreement entered into between the
registered owner and Wells-Gardner Electronics Corporation.
A copy of such Plan and Award Agreement is on file in the
office of the Secretary of Wells-Gardner Electronics
Corporation."
In lieu of the foregoing, the Company may issue stop transfer
instructions to its transfer agent or take such other steps as
are necessary to preclude the transfer of Restricted Stock.
(ii) Certificates representing shares of Restricted Stock which have
become vested pursuant to Section 7 hereof and which have been
held by the Company shall be
3
<PAGE> 4
delivered by the Company to the Key Employee (or the Key
Employee's legal representative) in the form of a freely
transferable certificate, without legend (provided that the Key
Employee is not an "affiliate" of the Company within the meaning
of Rule 405 adopted pursuant to the Securities Act of 1933, as
amended) promptly after becoming vested, provided, however, that
the Company need not deliver such certificates to a Key Employee
until the Key Employee has paid or caused to be paid all taxes
required to be withheld pursuant to Section 8 hereof.
(b) RESTRICTION PERIOD.
(i) Vesting Schedule. Except as provided in Section 7(b)(ii) or
7(b)(iii) hereof, to the extent that a Key Employee remains
continuously employed by the Company, Restricted Stock
received as an award shall become vested and shall not be
subject to forfeiture in accordance with the following
schedule:
PERIOD OF EMPLOYMENT PORTION OF AWARD
VESTED
------------------------------ -------------------------
On or after the second 40%
anniversary date of the
award
On or after the fifth 100%
anniversary date of the
award
EXCEPT AS PROVIDED IN SECTION 7(B)(II) OR 7(B)(III) HEREOF, UPON
THE TERMINATION OF A KEY EMPLOYEE'S EMPLOYMENT WITH THE COMPANY,
FOR ANY REASON WHATSOEVER, ALL REMAINING NONVESTED RESTRICTED
STOCK RECEIVED BY SUCH KEY EMPLOYEE AS AN AWARD SHALL BE
IMMEDIATELY FORFEITED.
(ii) Waiver of Vesting Schedule. Notwithstanding the provisions of
Section 7(b)(i) hereof, with respect to any Key Employee or group
of Key Employees, the Committee may elect to waive or accelerate
the vesting schedule set forth in Section 7(b)(i) hereof, in
whole or in part, at any time at or after the time an Award is
granted, based on such corporate, personal or other performance
criteria as the Committee may determine and require, in its sole
discretion.
(iii) Death or Disability. Notwithstanding the provisions of Section
7(b)(i) hereof, upon a Key Employee's death or Total Disability,
shares of Restricted Stock shall vest on a pro rata basis,
comparing the number of years from the date of the Award to the
date of death or Total Disability. Shares of Restricted Stock
which do not so vest shall be forfeited to the Company.
4
<PAGE> 5
(c) RESTRICTIONS.
Until shares of Restricted Stock have vested in accordance with
Section 7(b) hereof, an Award shall be subject to the following
restrictions:
(i) Nontransferability. Except as otherwise required by law,
Restricted Stock which has not vested may not be sold,
assigned, exchanged, transferred, pledged, hypothecated or
otherwise disposed of, except to the Company as provided
herein.
(ii) Other Restrictions. The Committee may impose such other
restrictions on any Award as it may deem advisable,
including without limitation, stop-transfer orders and other
restrictions set forth in the terms of the Award Agreement
or as the Committee may deem advisable under the rules and
regulations, and other requirements of the Securities and
Exchange Commission, and any applicable federal or state
securities or other laws.
SECTION 8. MISCELLANEOUS.
(a) AWARDS NOT CONSIDERED COMPENSATION. No Award made under the Plan
shall be deemed salary or compensation for the purpose of
computing benefits under any employee benefit plan or other
arrangement for the benefit of its employees unless the Company
shall determine otherwise.
(b) ABSENCES. Absence on leave approved by a duly constituted officer
of the Company shall not be considered interruption or
termination of employment for purposes of the Plan; provided,
however, that no Award may be granted to an employee while he or
she is absent on leave.
(c) DELIVERY TO PERSONS OTHER THAN KEY EMPLOYEE. If the Committee
finds that shares of Restricted Stock are to be delivered under
the Plan to a Key Employee who is unable to care for his or her
affairs then any payment due him or her (unless a prior claim
therefor has been made by a duly appointed legal representative)
may, if the Committee so directs, be paid to his or her spouse, a
child, a relative, an institution maintaining or having custody
of such person, or any other person deemed by the Committee to be
a proper recipient on behalf of such person otherwise entitled to
delivery. Any such delivery shall be a complete discharge of the
liability of the Company therefor.
5
<PAGE> 6
(d) PLAN COPIES. Copies of the Plan and all amendments,
administrative rules and procedures and interpretations shall be
made available to all Key Employees at all reasonable times at
the Company's headquarters.
(e) WITHHOLDING TAXES. The Company may withhold any taxes in
connection with the Plan that the Company determines it is
required to withhold under the laws and regulations of any
governmental authority, whether federal, state or local and
whether domestic or foreign, including, without limitation, taxes
in connection with the delivery of shares of Restricted Stock or
the vesting of Restricted Stock. A Key Employee may elect to
satisfy such withholding requirements either by (i) delivery to
the Company of a certified check prior to the delivery of shares
of Restricted Stock which are vested pursuant to Section 7
hereof, (ii) instructing the Company to retain a sufficient
number of shares of Stock to cover the withholding requirements,
or (iii) instructing the Company to satisfy the withholding
requirements from the Key Employee's salary.
(f) GOVERNING LAW. The Plan and all rights hereunder shall be
governed by and constructed in accordance with the law of the
State of Illinois, without giving effect to its rules on
conflicts of law.
(g) KEY EMPLOYEE COMMUNICATIONS. All elections, designations,
requests, notices, instructions and other communications from a
Key Employee or other person to the Committee required or
permitted under the Plan shall be in such form as is prescribed
from time to time by the Committee and shall be mailed by first
class or delivered to such location as shall be specified by the
Committee.
(h) BINDING ON SUCCESSORS. The terms of the Plan shall be binding
upon the Company and its successors and assigns.
(i) CAPTIONS. Captions preceding the sections and clauses hereof are
inserted solely as a matter of convenience and in no way define
or limit the scope or intent of any provisions hereof.
(j) SEVERABILITY. Whenever possible, each provision of the Plan shall
be interpreted in such manner as to be effective and valid under
applicable law. If any provision of the Plan or the application
thereof to any person or circumstances is prohibited by or
invalid under applicable law, such provision shall be ineffective
to the minimal extent of such prohibition or invalidity without
invalidating the reminder of such provision or the remaining
provisions of the Plan or the application of such provision to
other persons or circumstances.
6
<PAGE> 7
(k) DURATION, AMENDMENT AND TERMINATION. The Board may at any time
amend or terminate this Plan as of any date specified in a
resolution adopted by the Board. The Plan may also be amended by
the Committee, provided that all such amendments are reported to
the Board. Each amendment shall be subject to stockholder
approval if required by Rule 16b-3 under the Exchange Act or a
successor rule or regulation. No amendment of the Plan may affect
an Award theretofore granted under the Plan without the written
consent of the Key Employee affected. No Award may be granted
after this Plan has terminated. After the Plan has terminated,
the functions of the Committee shall be limited to supervising
the administration of Awards previously granted. Termination of
the Plan shall not affect any Award previously granted.
7
<PAGE> 1
EXHIBIT 4.2
RESTRICTED STOCK AGREEMENT
THIS RESTRICTED STOCK AGREEMENT, entered into this ____ day of
_______________, 2000, by Wells-Gardner Electronics Corporation, an Illinois
corporation (the "Company"), and _________________ (the "Key Employee").
WITNESSETH:
WHEREAS, the Board of Directors of the Company is of the opinion that the
interests of the Company will be advanced by increasing the proprietary interest
in the Company of those key employees whose responsibilities and decisions
directly affect the performance of the Company, providing rewards for those key
employees who make contributions to the success of the Company and attracting
and retaining persons of superior ability as key employees of the Company; and
WHEREAS, the Board believes that the acquisition of such an interest in the
Company will stimulate such employees and strengthen their desire to remain with
the Company.
NOW, THEREFORE, in consideration of the services to be performed by the Key
Employee, the Company hereby grants this restricted stock award to the Key
Employee on the terms hereinafter expressed.
1. RESTRICTED STOCK GRANT. The Company hereby grants to the Key Employee a
total of ___________ shares of restricted Common Stock of the Company (the
"Restricted Stock"), subject to the restrictions set forth below.
2. TIME OF VESTING. The Restricted Stock shall become vested and
unrestricted (except as provided in Sections 3 and 4 below) in accordance with
the following schedule, provided that the Key Employee remains continuously
employed by the Company.
Vesting Date Percentage of Restricted Stock
------------ ------------------------------
Two (2) calendar years
after the date hereof 40
Five (5) calendar years
after the date hereof 100
Except as provided in Section 3 and/or 4 hereof, upon the termination of a
Key Employee's employment with the Company, for any reason whatsoever, all
remaining nonvested Restricted Stock received by the Key Employee shall be
immediately forfeited.
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<PAGE> 2
3. WAIVER OF VESTING SCHEDULE. Notwithstanding the provisions of Section 2
hereof, the Compensation Committee of the Company's Board of Directors (the
"Committee") may elect to waive or accelerate the vesting schedule set forth in
Section 2 hereof, in whole or in part, at any time based on such corporate,
personal or other performance criteria as the Committee may determine and
require, in its sole discretion.
4. DEATH OR DISABILITY. Notwithstanding the provisions of Section 2 hereof,
upon the Key Employee's death or Total Disability (as defined below), shares of
Restricted Stock shall vest on a pro rata basis, comparing the number of years
from the date hereof to the date of death or Total Disability. Shares of
Restricted Stock which do not so vest shall be forfeited to the Company. "Total
Disability" as used herein shall mean the complete and permanent inability of
the Key Employee to perform substantially all of his or her duties under the
terms of his or her employment with the Company as determined by the Committee
upon the basis of such evidence, including independent medical reports or data,
as the Committee deems appropriate or necessary.
5. NON-TRANSFERABILITY. Shares of Restricted Stock which have not vested
may not be sold, assigned, exchanged, transferred, pledged, hypothecated or
otherwise disposed of, except to the Company as provided in the Plan (as defined
below).
6. REGISTRATION. The Company shall not be required to issue or deliver any
certificate for Restricted Stock which becomes unrestricted hereunder prior to
the admission of such shares to listing on any stock exchange on which shares
may at that time be listed. In the event that any shares of Restricted Stock
become unvested, the Company shall make prompt application for such listing. If
at any time the Company shall be advised by its counsel that shares deliverable
hereunder are required to be registered under the Federal Securities Act of
1933, as amended, or that delivery of the shares must be accompanied or preceded
by a prospectus meeting the requirements of such act, the Company will use its
best efforts to effect such registration or provide such prospectus not later
than a reasonable time following the vesting date hereunder, but delivery of
shares by the Company may be deferred until registration is effected or a
prospectus is available. The Key Employee shall have no interest in shares
covered by this award until certificates for the shares are issued.
7. SUBJECT TO PLAN. This award of Restricted Stock is subject to all of the
terms and conditions set forth in the Company's Executive Stock Award Plan (the
"Plan"). Any capitalized terms not defined herein shall be subject to the
definitions set forth in the Plan.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Company has caused this Restricted Stock Agreement
to be executed on the date first above written.
WELLS-GARDNER ELECTRONICS CORPORATION
-------------------------------------
By:
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Its
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Key Employee
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EXHIBIT 5
[letterhead of Katten Muchin Zavis]
May 12, 2000
Wells-Gardner Electronics Corporation
2701 North Kildare Avenue
Chicago, Illinois 60639
Ladies and Gentlemen:
We have acted as counsel for Wells-Gardner Electronics Corporation, an
Illinois corporation (the "Company"), in connection with the preparation and
filing of a Registration Statement on Form S-8 (the "Registration Statement")
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "Act"). The Registration Statement relates to 300,000 shares of the
Company's Common Stock, $1.00 par value (the "Common Stock"), issuable upon
exercise of awards under the Wells-Gardner Electronics Corporation Executive
Stock Award Plan (the "Plan"). The Plan has been approved by the Board of
Directors and shareholders of the Company.
In connection with this opinion, we have relied as to matters of fact,
without investigation, upon certificates of public officials and others and upon
affidavits, certificates and written statements of directors, officers and
employees of, and the accountants for, the Company. We have also examined
originals or copies, certified or otherwise identified to our satisfaction, of
such instruments, documents and records as we have deemed relevant and necessary
to examine for the purpose of this opinion, including the following:
1. The Registration Statement;
2. The Articles of Incorporation of the Company, as amended;
3. The Bylaws of the Company, as amended;
4. Resolutions adopted by the Board of Directors of the Company;
5. Minutes from the Annual Meeting of the Shareholders of the
Company held on April 25, 2000;
6. Form of Restricted Stock Agreement; and
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7. The Plan.
In connection with this opinion, we have assumed the accuracy and
completeness of all documents and records that we have reviewed, the genuineness
of all signatures, the authenticity of the documents submitted to us as
originals and the conformity to authentic original documents of all documents
submitted to us as certified, conformed or reproduced copies.
Based upon and subject to the foregoing, we are of the opinion that the
300,000 shares of Common Stock covered by the Registration Statement, when
issued and delivered by the Company in accordance with the provisions of the
Plan, will be validly issued, fully paid and nonassessable shares of Common
Stock.
Our opinion expressed above is limited to the laws of the State of
Illinois, and we do not express any opinion herein concerning any other laws.
This opinion is solely for the information of the addressee hereof and is not to
be quoted in full or in part or otherwise referred to, nor is it to be filed
with any governmental agency or any other person without our prior written
consent. This opinion is given as of the date hereof and we assume no obligation
to advise you of changes that may hereafter be brought to our attention.
We hereby consent to the use of this opinion for filing as Exhibit 5 to the
Registration Statement. In giving this consent we do not thereby admit that we
are included in the category of persons whose consent is required under Section
7 of the Act or the related rules and regulations promulgated thereunder.
Very truly yours,
/s/ Katten Muchin Zavis
KATTEN MUCHIN ZAVIS
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EXHIBIT 23.1
CONSENT OF KPMG LLP
The Board of Directors
Wells-Gardner Electronics Corporation:
We consent to incorporation by reference in this registration statement on Form
S-8 of Wells-Gardner Electronics Corporation of our reports dated January 27,
2000, relating to the balance sheets of Wells-Gardner Electronics Corporation as
of December 31, 1999 and 1998, and the related statements of operations,
shareholders' equity, and cash flows, and the related financial statement
schedule, for each of the years in the three-year period ended December 31,
1999, which reports appear in or are incorporated by reference in the December
31, 1998 annual report on Form 10-K of Wells-Gardner Electronics Corporation.
KPMG LLP
Chicago, Illinois
May 12, 2000
<PAGE> 1
EXHIBIT 99.1
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of 25,000,000 shares
of Common Stock, par value $1.00 per share. Holders of Common Stock are entitled
to receive ratably such dividends as may be declared by the Board of Directors
out of funds legally available therefor. Holders of Common Stock are entitled to
one vote for each share held of record on all matters voted upon by them and to
cumulative voting in the election of directors. Holders of Common Stock have no
preemptive rights and no rights to convert their Common Stock into any other
securities and there are no redemption provisions with respect to such shares.
All outstanding shares of Common Stock are, and the shares of Common Stock to be
sold hereunder, when issued, will be fully paid and nonassessable. The transfer
agent and registrar of the Common Stock is LaSalle National Bank.
