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As filed with the Securities and Exchange Commission on June 14, 1996
Registration No. 33-
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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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WMS INDUSTRIES INC.
(Exact name of registrant as specified in its charter)
DELAWARE 36-2814522
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3401 North California Avenue
Chicago, IL 60618
(312) 961-1000
(Address of principal executive offices)
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1994 STOCK OPTION PLAN
(Full title of the Plan)
------------------
Neil D. Nicastro
President
WMS Industries Inc.
3401 North California Avenue
Chicago, IL 60618
(312) 961-1000
(Name, address and telephone
number of agent for service)
Copy to:
Barbara M. Norman
Vice President, Secretary and General Counsel
WMS Industries Inc.
3401 N. California Avenue
Chicago, Illinois 60618
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
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PROPOSED PROPOSED
TITLE OF SECURITIES TO BE AMOUNT TO BE MAXIMUM OFFERING MAXIMUM AGGREGATE AMOUNT OF
REGISTERED REGISTERED (1) PRICE PER SHARE (2) OFFERING PRICE (2) REGISTRATION FEE
1,500,000
Common Stock, $.50 par value shares $22.875 $34,312,500 $11,832
=========================================================================================================
</TABLE>
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, the
number of shares of the issuer's Common Stock registered hereunder will be
adjusted in the event of stock splits, stock dividends or similar
transactions.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (h) on the basis of the average of the high
and low prices of the Common Stock on the New York Stock Exchange on June
10, 1996.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified by this Part I will be
sent or given to eligible participants as specified by Rule 428(b)(1)
promulgated under the Securities Act of 1933, as amended, and are not being
filed with the Securities and Exchange Commission (the "Commission")
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424.
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Company's Annual Report on Form 10-K for the fiscal year ended June
30, 1995, which was filed with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), the Quarterly Reports on
Form 10-Q for the fiscal quarters ended September 30 and December 31, 1995 and
March 31, 1996, the Form 8-K Report filed April 12, 1996, the Form 8-K/A Report
filed June 7, 1996 and the information under the caption "Capital Stock to be
Registered" contained in the Company's Registration Statement on Form 8-A,
dated January 21, 1982, with respect to the Company's Common Stock, as filed
with the Commission pursuant to the Exchange Act, are incorporated herein by
reference and made a part of this Registration Statement as of the date hereof.
All reports subsequently filed pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act after the effective date of this Registration Statement and
prior to the termination of the offering of the Common Stock offered hereby
shall be deemed to be incorporated by reference into this Prospectus and be a
part hereof from the date of filing of such reports. Any statement contained
herein or in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in
any document which is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's authority to indemnify its officers and directors is
governed by the provisions of Section 145 of the General Corporation Law of the
State of Delaware (the "GCL") and by the Certificate of Incorporation of the
Registrant. The Certificate of Incorporation of the Registrant provides that
the Registrant shall, to the fullest extent permitted by Section 145 of the
GCL, (i) indemnify any and all persons whom it shall have power to indemnify
under said section from and against any and all of the expenses, liabilities or
other matters referred to in or covered by said section, and (ii) advance
expenses related thereto to any and all said persons. The indemnification and
advancement of expenses provided for therein shall not be deemed to be
exclusive of any other rights to which those indemnified may be entitled under
any by-law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in their official capacities and as to action in
another capacity while holding such offices, and shall continue as to persons
who have ceased to be directors, officers, employees or agents and shall inure
to the benefit of the heirs, executors and administrators of such person. In
addition, the Certificate of Incorporation of the Registrant provides for the
elimination of personal liability of directors of the Registrant to the
Registrant or its stockholders for monetary damages for breach of fiduciary
duty as a director, to the fullest extent permitted by the GCL, as amended and
supplemented.
The Registrant has entered into an indemnification agreement (the
"Indemnity Agreement") with each of its officers and directors providing for
the indemnification of such officers and directors to the fullest extent
permitted by the laws of the State of Delaware. The Indemnity Agreement
obligates the Registrant to provide the maximum protection allowed under
Delaware law and supplements and increases the protection afforded to officers
and directors in the following respects:
1. The Indemnity Agreement establishes the presumption that the officer or
director has met the standard of conduct required for indemnification, as
prescribed under the GCL. Indemnification will be made unless the Board of
Directors or independent counsel determines that the applicable standard of
conduct has not been met.
2. The Indemnity Agreement provides that litigation expenses shall be
advanced promptly to an officer or director in advance of indemnification,
provided that he or she undertakes to repay the amount advanced if it is
ultimately determined there is no entitlement to indemnification for such
expenses.
3. The Indemnity Agreement explicitly provides that the indemnification
provisions are applicable to amounts paid in settlement of a derivative suit.
4. In the event of a determination by the Board of Directors or
independent legal counsel that an officer or director did not meet the standard
of conduct required for indemnification, the Indemnity Agreement allows such
officer or director to contest this determination by petitioning a court to
make an independent determination of whether such officer or director is
entitled to indemnification under the Indemnity Agreement.
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5. The Indemnity Agreement explicitly provides for partial indemnification
of costs and expenses in the event that an officer or director is not entitled
to full indemnification under the terms of the Indemnity Agreement.
6. Unlike the indemnification provisions in the Registrant's Certificate
of Incorporation, the Indemnity Agreement cannot be unilaterally modified or
amended by the Board of Directors or the stockholders, a fact which would be
significant if there were a change in control of the Registrant at the time of
a claim, proceeding or litigation.
ITEM 8. EXHIBITS.
4. (a) 1994 Stock Option Plan
(b) Form of Option Agreement under the 1994 Stock Option Plan
5. Opinion of Shack & Siegel, P.C., counsel for Registrant
23. (a) Consent of Shack & Siegel, P.C. (included in Exhibit 5 hereof)
(b) Consent of Ernst & Young LLP
24. Power of Attorney (contained on the signature page hereof)
ITEM 9. UNDERTAKINGS.
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act 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 a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) above do not apply
if the Registration Statement is on Form S-3, Form S-8 or Form F-3, and 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 Registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining 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.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
the offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act of 1934 (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act of 1934) 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 he deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
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 Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements 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 the 14th day of June,
1996.
WMS INDUSTRIES INC.
(Registrant)
By: /s/ Neil D. Nicastro
Neil D. Nicastro
President
Each person whose signature to this registration statement appears below
hereby appoints Neil D. Nicastro and Harold H. Bach, Jr., and each of them
acting singly, as his attorney-in-fact to sign in his behalf individually and
in the capacity stated below and to file all amendments and post-effective
amendments to this Registration Statement, which amendment or amendments may
make such changes and additions to this Registration Statement as such
attorney-in-fact may deem necessary or appropriate.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
Signature Title Date
--------- ------ -----
/s/Louis J. Nicastro Chairman of the Board June 14, 1996
----------------------- and Co-Chief Executive Officer
Louis J. Nicastro (Principal Executive Officer)
/s/ Harold H. Bach, Jr. Vice President-Finance & Treasurer June 14, 1996
----------------------- (Principal Financial
Harold H. Bach, Jr. and Principal Accounting Officer)
/s/ Neil D. Nicastro President, Co-Chief Executive June 14, 1996
----------------------- Officer and Director
Neil D. Nicastro
/s/ Norman J. Menell Vice Chairman of the Board June 14, 1996
-----------------------
Norman J. Menell
/s/ George R. Baker Director June 14, 1996
-----------------------
George R. Baker
/s/ Kenneth J. Fedesna Director June 14, 1996
-----------------------
Kenneth J. Fedesna
/s/ William C. Bartholomay Director June 14, 1996
--------------------------
William C. Bartholomay
/s/ William E. McKenna Director June 14, 1996
-----------------------
William E. McKenna
/s/ Harvey Reich Director June 14, 1996
-----------------------
Harvey Reich
/s/ Ira S. Sheinfeld Director June 14, 1996
---------------------
Ira S. Sheinfeld
</TABLE>
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
- ------- ------------------------------
4. (a) 1994 Stock Option Plan
(b) Form of Option Agreement under 1994 Stock Option Plan
5. Opinion of Shack & Siegel, P.C., counsel for Registrant
23. (a) Consent of Shack & Siegel, P.C. (included in Exhibit 5 hereof)
(b) Consent of Ernst & Young LLP
24. Power of Attorney (contained on the signature page hereof)
4
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WMS INDUSTRIES INC.
1994 STOCK OPTION PLAN
ARTICLE I
PURPOSE OF THE PLAN
The 1994 Stock Option Plan (the "Plan") is intended to provide a method
whereby "Employees" and "Consultants and Advisers" of WMS Industries Inc. (the
"Company") and its "Subsidiaries" (as such quoted terms are hereinafter defined)
may be encouraged to acquire a proprietary interest in the Company and whereby
such individuals may realize benefits from an increase in the value of the
shares of the Common Stock, $.50 par value (the "Common Stock"), of the Company;
to provide such Employees and Consultants and Advisers with greater incentive
and to encourage their continued provision of services to the Company; and,
generally, to promote the interests of the Company and all of its stockholders.
Under the Plan, from time to time on or before June 20, 2004, options to
purchase shares of Common Stock and related Stock Appreciation Rights (as
hereinafter defined) may be granted to such persons as may be selected in the
manner hereinafter provided on the terms and subject to the conditions
hereinafter set forth.
ARTICLE II
ADMINISTRATION OF THE PLAN
SECTION 1. Subject to the authority as described herein of the Board of
Directors (the "Board") of the Company, the Plan shall be administered by the
Stock Option Committee of the Company's Board of Directors (the "Committee")
which is composed of at least two members of the Board who are Disinterested
Persons (as hereinafter defined). The Committee is authorized to interpret the
Plan and may from time to time adopt such rules and regulations for carrying out
the Plan as it may deem best. All determinations by the Committee shall be made
by the affirmative vote of a majority of its members but any determination
reduced to writing and signed by a majority of its members shall be fully as
effective as if it had been made by a majority vote at a meeting duly called and
held. Subject to any applicable provisions of the Plan, all determinations by
the Committee or by the Board pursuant to the provisions of the Plan, and all
related orders or resolutions of the Committee or the Board, shall be final,
conclusive and binding on all persons, including the Company and its
stockholders, employees, directors and optionees.
SECTION 2. All authority delegated to the Committee pursuant to the Plan,
other than decisions relating to selection of individuals for participation and
decisions concerning the timing, pricing and the amount of a grant, may also be
exercised by the Board. No action of the Board taken pursuant to the provisions
of the Plan shall be effective unless at the time both a majority of the Board
and a majority of the directors acting in the matter are Disinterested Persons.
In the event of any conflict or inconsistency between determinations, orders,
resolutions or other actions of the Committee and the Board taken in connection
with the Plan, other than with respect to those decisions set forth in the first
sentence hereof which may only be made by the Committee, the actions of the
Board shall control.
SECTION 3. With respect to persons subject to Section 16 of the Securities
Exchange Act of 1934, as amended ("1934 Act"), transactions under the Plan are
intended to comply with all applicable conditions of Rule 16b-3 or its
successors under the 1934 Act. To the extent any provision of the Plan or action
by the Committee fails to so comply, it shall be deemed null and void to the
extent permitted by law and deemed advisable by the Committee.
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ARTICLE III
STOCK SUBJECT TO THE PLAN
SECTION 1. The shares to be issued or delivered upon exercise of options
or rights granted under the Plan shall be made available, at the discretion of
the Board, either from the authorized but unissued shares of Common Stock of the
Company or from shares of Common Stock reacquired by the Company, including
shares purchased by the Company in the open market or otherwise obtained.
SECTION 2. Subject to the provisions of Section 3 of this Article III, the
aggregate number of shares of Common Stock which may be purchased pursuant to
options granted at any time under the Plan shall not exceed one million five
hundred thousand (1,500,000). Such number shall be reduced by the aggregate
number of shares covered by options in respect of which Stock Appreciation
Rights are exercised. Shares subject to any options which are canceled, lapse or
are otherwise terminated shall be immediately available for reissuance under the
Plan.
SECTION 3. In the event of the payment of any dividends payable in Common
Stock or in the event of any subdivision or combination of the Common Stock, the
number of shares which may be purchased under this Plan shall be increased or
decreased proportionately, as the case may be, and the number of shares
deliverable upon the exercise thereafter of any option theretofore granted
(whether or not then exercisable) shall be increased or decreased
proportionately, as the case may be, without change in the aggregate purchase
price. Subject to any required action by its stockholders, if the Company shall
be the surviving corporation in any merger or consolidation, any option granted
hereunder shall be adjusted so as to pertain and apply to the securities to
which the holder of the number of shares of the Common Stock subject to the
option would have been entitled. In the event that the Company is merged or
consolidated into or with another corporation, or substantially all of its
assets are sold to another corporation, provision shall be made for the
protection and continuation of any outstanding options by the substitution, on
an equitable basis, of such stock, other securities, cash or combination thereof
as shall be appropriate.
ARTICLE IV
PURCHASE PRICE OF OPTIONED SHARES
Unless the Committee shall fix a greater purchase price, the purchase price
per share of Common Stock under each option granted to Employees and Consultants
and Advisers shall not be less than one hundred percent (100%) of the Fair
Market Value (as hereinafter defined) of the Common Stock at the time such
option is granted; but in no case shall such price be less than the par value of
the Common Stock; provided, however, that in the case of an incentive stock
option (as hereinafter defined) granted to an Employee who, at the time of the
grant, owns stock possessing more than ten percent (10%) of the total combined
voting power of all classes of stock of the Company (a "Ten Percent
Stockholder"), such purchase price per share shall be at least one hundred and
ten percent (110%) of the Fair Market Value.
ARTICLE V
ELIGIBILITY OF RECIPIENTS
Options will be granted only to persons who are Employees of the Company or
a Subsidiary or who are Consultants or Advisers of the Company or a Subsidiary.
ARTICLE VI
GRANT OF OPTIONS TO EMPLOYEES AND CONSULTANTS AND ADVISERS
SECTION 1. Each option granted under the Plan to Employees shall
constitute either an option intended to qualify under Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code") ("incentive stock
option"), or an option not intended to qualify under such Section 422
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("nonqualified stock option"), as determined in each case by the Committee and
each option granted under the Plan to Consultants and Advisers shall constitute
a nonqualified stock option. With respect to incentive stock options granted to
Employees, to the extent that the aggregate Fair Market Value (determined at
the time an option is granted) of Common Stock of the Company with respect to
which such incentive stock options are exercisable for the first time by any
individual during any calendar year (under the Plan and any other stock option
plan of the Company) exceeds $100,000, such incentive stock options shall be
treated as nonqualified stock options. The foregoing rule shall be applied by
taking incentive stock options into account in the order in which they were
granted. In the event outstanding incentive stock options become immediately
exercisable under the terms hereof, such incentive stock options will, to the
extent the aggregate Fair Market Value thereof exceeds $100,000, be treated as
nonqualified stock options.
SECTION 2. The Committee shall from time to time determine the Employees
and Consultants and Advisers to be granted options, it being understood that
options may be granted at different times to the same person, provided, however,
that no one person may receive an option or options under the Plan covering more
than thirty percent (30%) of the total number of shares subject to the Plan. In
addition, the Committee shall determine subject to the terms of the Plan: (a)
the number of shares subject to each option, (b) the time or times when the
options will be granted, (c) whether such options shall be incentive stock
options, nonqualified stock options or both, (d) whether Stock Appreciation
Rights will be granted in connection with the grant of options, (e) the purchase
price of the shares subject to each option, which price shall be not less than
that specified in Article IV, and (f) the time or times when each option and any
related Stock Appreciation Rights may be exercised (provided that no option may
be exercised until six months following the approval of the Plan by stockholders
of the Company and, provided further, that no option or any related Stock
Appreciation Rights may be exercised until the expiration of six months from the
date of grant thereof).
SECTION 3. All instruments evidencing options granted to Employees and
Consultants and Advisers under the Plan shall be in such form, which shall be
consistent with the Plan and any applicable determinations, orders, resolutions
or other actions of the Committee or the Board.
SECTION 4. The Committee, in its sole discretion, on the granting of an
option to an Employee, Consultant or Adviser under the Plan may also grant Stock
Appreciation Rights relating to any number of shares but, except as hereinafter
provided, not more than fifty percent (50%) of the number of shares covered by
such option shall include Stock Appreciation Rights. Such options shall be
subject to such terms and conditions, not inconsistent with the Plan, that the
Committee shall impose, including the following:
(i) Stock Appreciation Rights may be granted only in writing and only
attached to an underlying option at the time of the grant of the option;
(ii) Stock Appreciation Rights may be exercised only at the time when
the option to which it is attached is exercisable and further only within
the ten-day period referred to in subsection (e)(3) of Rule 16b-3 ("Rule
16b-3") of the the 1934 Act;
(iii) Stock Appreciation Rights shall entitle the optionee (or any
person entitled to act under the provisions of the Plan) to surrender
unexercised all or part of the then exercisable portion of the option to
which the Stock Appreciation Rights are attached to the Company and to
receive from the Company in exchange therefor a payment in cash equal to
the excess, if any, of the then value of one share covered by such portion
over the option price per share specified in such option, multiplied by the
number of shares covered by the portion of the option so surrendered (which
excess is herein called the "Appreciated Value"). For purposes of
computation of the Appreciated Value, the value of one share shall be
deemed to be the average Fair Market Value of such share during the
four-week period immediately preceding the date of notice of exercise of
the Stock Appreciation Rights;
(iv) if Stock Appreciation Rights attached to an option are exercised,
such option shall be deemed to have been canceled to the extent of the
number of shares surrendered on exercise of the Stock Appreciation Rights
and no further options may be granted covering such shares; and
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(v) if an option to which Stock Appreciation Rights are attached is
exercised, such Stock Appreciation Rights shall be canceled to the extent
necessary to cause the number of shares to which such Stock Appreciation
Rights relate not to exceed the number of remaining shares subject to such
option.
ARTICLE VII
NON-TRANSFERABILITY OF OPTIONS
No option or any related Stock Appreciation Rights granted under the Plan
shall be transferable by the optionee otherwise than by will or by the laws of
descent and distribution, and any such option or any related Stock Appreciation
Rights shall be exercised during the lifetime of the optionee solely by him or
her.
ARTICLE VIII
EXERCISE OF OPTIONS
SECTION 1. Each option (and any related Stock Appreciation Rights) granted
under the Plan shall terminate not later than the expiration of ten (10) years
from the date on which it was granted; provided, however, that in the case of an
incentive stock option granted to an Employee who, at the time of the grant is a
Ten Percent Stockholder, such period shall not exceed five (5) years from the
date of grant.
SECTION 2. Except in cases provided for in Article IX hereof, each option
(and any related Stock Appreciation Rights) granted under the Plan may be
exercised only while the optionee is an Employee or a Consultant or Adviser of
the Company.
SECTION 3. A person electing to exercise an option or Stock Appreciation
Rights then exercisable shall give written notice to the Company of such
election and, if electing to exercise an option, of the number of shares of
Common Stock such person has elected to purchase. A person exercising an option
shall at the time of purchase tender the full purchase price of such shares,
which tender, except as provided in Section 4 of this Article VIII, shall be
made in cash or cash equivalent (which may be such person's personal check) or,
to the extent permitted by applicable law, in shares of Common Stock already
owned by such person (which shares shall be valued for such purpose on the basis
of their Fair Market Value on the date of exercise), or in any combination
thereof. In the event of payment in shares of Common Stock already owned, such
shares shall be appropriately endorsed for transfer to the Company. The Company
shall have no obligation to deliver shares of Common Stock pursuant to the
exercise of any option, in whole or in part, until such payment in full of the
purchase price therefor is received by the Company. No optionee, or legal
representative, legatee or distributee of such optionee, shall be or be deemed
to be a holder of any shares of Common Stock subject to such option or entitled
to any rights of a stockholder of the Company in respect of any shares of Common
Stock covered by such option until such shares have been paid for in full and
issued or delivered by the Company.
SECTION 4. In order to assist an optionee in the exercise of an option
granted under the Plan, the Committee or Board may, in its discretion,
authorize, either at the time of the grant of the option or thereafter (a) the
extension of a loan to the optionee by the Company, (b) the payment by the
optionee of the purchase price of the Common Stock in installments, (c) the
guarantee by the Company of a loan obtained by the optionee from a third party
or (d) make such other reasonable arrangements to facilitate the exercise of
options in accordance with applicable law. The Committee or Board shall
authorize the terms of any such loan, installment payment arrangement or
guarantee, including the interest rate (which, in the case of incentive stock
options, shall be not less than the higher of (i) the "prime rate" as from time
to time in effect of a commercial bank of recognized standing, and (ii) the rate
of interest from time to time imputed under Section 483 of the Code) and terms
of repayment thereof, and shall cause the instrument evidencing any such option
to be amended, if required, to provide for any such extension of credit. Loans,
installment payment arrangements and guarantees may be authorized without
security, and the maximum amount of any such loan or guarantee shall be the
purchase price of the Common Stock being acquired, plus related interest
payments.
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SECTION 5. Each option shall be subject to the requirement that if at any
time the Board shall in its discretion determine that the listing, registration
or qualification of the shares of Common Stock subject to such option upon any
securities exchange or under any state or federal law, or the consent or
approval of any governmental regulatory body, is necessary or desirable as a
condition of or in connection with, the granting of such option or the issuance
or purchase of shares thereunder, such option may not be exercised in whole or
in part unless such listing, registration, qualification, consent or approval
shall have been effected or obtained free from any conditions not reasonably
acceptable to the Board. Unless at the time of exercise of an option and the
issuance of Common Stock so purchased, there shall be in effect as to such
Common Stock a registration statement under the Securities Act of 1933, as
amended (the "Act"), the holder of such option shall deliver a certificate (a)
acknowledging that such shares of Common Stock may be "restricted securities" as
defined in Rule 144 promulgated under the Act; and (b) containing such
optionee's agreement that such Common Stock may not be sold or otherwise
disposed of except in compliance with applicable provisions of the Act. In the
event that the Common Stock is then listed on a national securities exchange,
the Company shall use its best efforts to cause the listing of the shares of
Common Stock subject to options upon such exchange.
SECTION 6. All payments made by the Company pursuant to Section 4 of
Article VI shall be subject to withholding in respect of such income or other
taxes as may be required by law to be paid or withheld. The Company may
establish appropriate procedures to provide for payment or withholding of such
income or other taxes as may be required by law to be paid or withheld in
connection with the exercise of options under the Plan, and to ensure that the
Company receives prompt advice concerning the occurrence of any event which may
create, or affect the timing or amount of, any obligation to pay or withhold any
such taxes or which may make available to the Company any tax deduction
resulting from the occurrence of such event.
ARTICLE IX
TERMINATION OF SERVICE OR EMPLOYMENT
SECTION 1. In the event that an optionee shall cease his or her
relationship with the Company or a Subsidiary by voluntarily terminating such
relationship without the written consent of the Company or a Subsidiary, or if
the Company or a Subsidiary shall terminate for cause such relationship, the
option held by such optionee shall terminate forthwith.
SECTION 2. If the holder of an option shall voluntarily terminate his or
her relationship with the Company or a Subsidiary with the written consent of
the Company, which written consent expressly sets forth a statement to the
effect that options which are exercisable on the date of such termination shall
remain exercisable, or if the optionee's relationship with the Company or a
Subsidiary shall have been terminated by the Company or a Subsidiary for reasons
other than cause, such optionee may exercise his or her option to the extent
exercisable at the time of such termination, at any time prior to the expiration
of three months after such termination or the date of expiration of the option
as fixed at the time of grant, whichever shall first occur. Options granted
under the Plan to Employees shall not be affected by any change in the position
of employment so long as the holder thereof continues to be an Employee.
SECTION 3. Should an optionee die during the existence of his or her
relationship with the Company, all of the optionee's options shall be terminated
except that any option (and any related Stock Appreciation Rights) to the extent
exercisable by the optionee at the time of such death, may be exercised within
one year after the date of such death but not later than the expiration date of
the option solely in accordance with all of the terms and conditions of the Plan
by the optionee's personal representatives or by the person or persons to whom
the optionee's rights under the option shall pass by will or by the applicable
laws of descent and distribution.
SECTION 4. Should an optionee die after cessation of the optionee's
relationship with the Company or a Subsidiary, all of the optionee's options
shall be terminated except that any option (and any related Stock Appreciation
Rights) to the extent exercisable by the optionee at the time of such death may
be exercised within one year after the date of such death but not later than the
expiration date of the option solely in accordance with all of the terms and
conditions of the Plan by the optionee's personal representatives or by the
person or persons to whom the optionee's rights under the option shall pass by
will or by the applicable laws of descent and distribution.
A-5
<PAGE> 6
ARTICLE X
AMENDMENTS TO PLAN
The Board may at any time terminate or from time to time amend, modify or
suspend the Plan; provided, however, that no such amendment or modification
without the approval of the stockholders of the Company shall:
(i) materially increase the benefits accruing to participants under
the Plan;
(ii) materially increase the maximum number (determined as provided
in the Plan) of shares of Common Stock which may be purchased pursuant to
options granted under the Plan; or
(iii) materially modify the requirements as to eligibility for
participation in the Plan.
The amendment or termination of the Plan shall not, without the written consent
of an optionee, adversely affect any rights or obligations under any option
theretofore granted to such optionee under the Plan.
ARTICLE XI
EFFECTIVE DATE OF PLAN
The Plan shall be effective on June 21, 1994, subject to approval by
stockholders of the Company at their next annual or special meeting.
ARTICLE XII
DEFINITIONS
For the purposes of this Plan, the following terms shall have the meanings
indicated:
Disinterested Persons: Such term shall have the meaning ascribed thereto
in Rule 16b-3 of the 1934 Act.
Employee: Such term shall include any officer as well as any full-time
salaried key executive, managerial, professional, administrative, or key
employee of the Company or a Subsidiary. Such term shall also include an
employee on approved leave of absence provided such employee's right to continue
employment with the Company or a Subsidiary upon expiration of such employee's
leave of absence is guaranteed either by statute or by contract with or by a
policy of the Company or a Subsidiary.
Fair Market Value: The closing sale price of a share of Common Stock on
the date in question (or, if there is no reported sale on such date, on the last
preceding date on which any reported sale occurred) on the consolidated tape for
New York Stock Exchange-listed stocks or, if on such date the Common Stock is
not quoted on such consolidated tape, on the New York Stock Exchange, or if on
such date the Common Stock is not listed on the New York Stock Exchange, such
value as shall be determined by the Committee or Board in a manner consistent
with the provisions of the Code.
Consultants and Advisers: Such term shall include any third party retained
or engaged by the Company or any Subsidiary to provide services to the Company
or such Subsidiary, including any employee of such third party providing such
services.
Person: Such term shall have the meaning ascribed to it under the 1934
Act.
Stock Appreciation Rights: Means the rights granted by the Committee
pursuant to Section 4 of Article VI hereof.
Subsidiary: Means and includes a "Subsidiary Corporation" of the Company
(as defined in Section 424 of the Code).
A-6
<PAGE> 1
EXHIBIT 4(b)
Form of
OPTION AGREEMENT
[Date _________]
TO: [Optionholder]
Re: [Incentive] [Non-Qualified] Stock Option
1994 Stock Option Plan
This letter will evidence the grant to you on _________ ("Grant Date") by
the Stock Option Committee of the Board of Directors of WMS Industries Inc.
(the "Company") of an option pursuant to the Company's 1994 Stock Option Plan
(the "Plan") to purchase __________________ (______) shares of the Common
Stock, par value $.50 per share ("Common Stock"), of the Company at a price of
$_____ per share (the "Option"). Under applicable provisions of the Internal
Revenue Code of 1986, as amended, the Option is treated as [an incentive]
[a non-qualified] stock option.
This Option is issued in accordance with and is subject to and conditioned
upon all of the terms and conditions of this Agreement and of the Plan as from
time to time amended, provided, however, that no future amendment or
termination of the Plan shall, without your consent, alter or impair any of
your rights or obligations under the Plan, all of which are incorporated by
reference in this Option Agreement as if fully set forth herein.
In consideration of the granting of this Option by the Company, you hereby
agree to render faithful and efficient services to the Company or to the
subsidiary of the Company which is your primary "Employer," with such duties
and responsibilities as your Employer shall from time to time prescribe, for a
period of at least one (1) year from the date this Option is granted and you
further agree that for a period of one (1) year after your termination of
employment, you will not own, manage, control or associate with -- as an agent,
officer, employee, investor, lender, or otherwise -- any business entity in the
United States which is a "Competitor" of your Employer. The terms "Employer"
and "Competitor" are defined on Exhibit A. You hereby specifically agree that
the scope of the above covenant is reasonable and fair. Should, however, a
Court of competent jurisdiction deem it to be impermissibly overbroad, it is
the intention of the parties to this Agreement that the covenant be enforced as
to the greatest extent deemed to be enforceable. Further, you hereby agree that
during your employment and thereafter, you will not disclose, discuss, copy or
otherwise use or allow to be used, in any manner, in competition with or
contrary to the interests of the Company or any of its subsidiaries, the
customer lists, product research, engineering data or other trade secrets of
the Company or any of its subsidiaries. Nothing in this Option Agreement or in
the Plan shall confer upon you any right to continue in the employ of the
Company or any subsidiary of the Company or shall interfere with or restrict in
any way the rights of the Company and its subsidiaries, which are hereby
expressly reserved.
The Company shall not be obligated to issue any shares pursuant to this
Option if, in the opinion of counsel to the Company, the shares to be so issued
are required to be registered or otherwise qualified under the Securities Act
of 1933, as amended, or under any other applicable statute, regulation or
ordinance affecting the sale of securities, unless and until such shares have
been so registered or otherwise qualified.
It is understood that the Company may establish, from time to time,
appropriate procedures to provide for payment or withholding of such income or
other taxes as may be required by law to be paid or withheld in connection with
the exercise of this Option. By the execution hereof, you hereby agree to pay
to the Company or your Employer all such amounts requested by the Company to
permit the Company to take any tax deduction available to it resulting from the
exercise of this Option. You also agree to comply with any procedures
established, from time to time, by the Company to ensure that the Company
receives prompt advice concerning the occurrence of any event which may create,
or affect the timing or amount of, any obligation to pay or withhold any such
taxes or which may make available to the Company any tax deduction resulting
from the occurrence of such event.
This Option may be exercised [in its entirety][in the following
percentages] on the following [date] [dates] [______]. This Option, to the
extent not previously exercised, shall expire on the day preceding the tenth
anniversary of the Grant Date.
<PAGE> 2
This Option is to be exercised by delivering to the Company a written
notice of exercise in the form attached hereto as Exhibit B, together with
payment as provided in the Plan.
Would you kindly evidence your acceptance of this Option and your
agreement to comply with the provisions of this Option Agreement and of the
Plan by executing the enclosed copy of this Option Agreement under the words
"ACCEPTED AND AGREED TO" and returning a copy to Barbara M. Norman, Vice
President and Secretary of the Company.
Very truly yours,
WMS INDUSTRIES INC.
By:___________________
ACCEPTED AND AGREED TO
this______ day of______.
EXHIBIT A
IF YOUR "EMPLOYER" IS: A "COMPETITOR" IS AN ENTITY ENGAGED IN:
Williams Electronics Games, Inc. The design, manufacture or sale of
Midway Manufacturing Company coin-operated pinball, novelty and
(Bally Pinball) redemption games
Fun House Games Inc.
Lenc-Smith Inc.
WMS Games Parts & Service Inc.
Midway Manufacturing Company The design, manufacture or sale of
(Video Coin-Op) coin-operated video games or product
Williams Innovative Technologies Inc. for home video game systems
Lenc-Smith Inc.
WMS Games Parts & Service Inc.
Williams Entertainment Inc.
Atari Games Corporation
WMS Gaming Inc. The design, manufacture or sale of
gaming equipment
Williams Hospitality Group The ownership or operation of hotels and
Inc. casinos in Puerto Rico
WMS Industries Inc. Any or all of the foregoing operations
<PAGE> 3
EXHIBIT B
Dated:___________
Vice President and Secretary
WMS INDUSTRIES INC.
3401 North California Avenue
Chicago, IL 60618
Gentlemen:
Notice is hereby given of my election to purchase________shares of Common
Stock, par value $.50 per share (the "Common Stock"), of WMS Industries Inc.
(the "Company") at a price of $_____ per share pursuant to the provisions of
the stock option ("Option") granted to me on___________ under the terms of the
1994 Stock Option Plan.
Enclosed is my check made payable to WMS Industries Inc. in the amount of
$_______________in payment of the exercise price of the Option and my check
in the amount of $_____________made payable to the subsidiary of the Company
which is my employer (or to the Company as my employer) in payment of the tax
due on exercise of the Option.
The following information is supplied for use in issuing and registering
the shares purchased hereby:
Number of certificates: _________________
Denomination of
each certificate: _________________
Name: _________________
Address: _________________
_________________
Social Security Number: _________________
Very truly yours,
_____________________
<PAGE> 1
EXHIBIT 5
June 14, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Form S-8 Registration Statement
1,500,000 shares of common stock of
WMS Industries Inc.
-----------------------------------
Ladies and Gentlemen:
We have acted as counsel to WMS Industries Inc., a Delaware corporation
(the "Company"), in connection with the filing with the Securities and Exchange
Commission of a registration statement on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities
Act"), relating to 1,500,000 shares of the Company's common stock, par value
$.50 per share ("Common Stock"), which may be issued and sold pursuant to the
Company's 1994 Stock Option Plan (the "1994 Plan").
In connection with this opinion, we have examined and are familiar with
originals or copies, certified or otherwise identified to our satisfaction, of
(i) the 1994 Plan; (ii) the Registration Statement; (iii) the Certificate of
Incorporation, as amended and restated, of the Company; (iv) the By-Laws, as
amended and restated, of the Company; and (v) such other documents as we have
deemed necessary or appropriate as a basis for the opinion set forth below. In
our examination, we have assumed the genuineness of all signatures, the legal
capacity of all natural persons, the authenticity of all documents submitted to
us as originals, the conformity to the original documents of all documents
submitted to us as certified or photostatic copies and the authenticity of the
originals of such latter documents. As to any facts material to this opinion
that we did not independently establish or verify, we have relied upon
statements and representations of officers and other representatives of the
Company and others.
Based upon and subject to the foregoing, we are of the opinion that the
shares of Common Stock reserved for issuance upon the exercise of options have
been duly authorized and that such shares of Common Stock, when issued and
delivered upon exercise of the options granted in accordance with the terms of
the 1994 Plan, and assuming full payment for the shares of Common Stock thereby
issued, will be validly issued, fully paid and nonassessable.
We consent to the filing of this opinion as Exhibit 5 to the Registration
Statement.
The law covered by the opinions expressed herein is limited to the
corporate laws of the State of Delaware.
Very truly yours,
SHACK & SIEGEL, P.C.
By: /s/ Jeffrey N. Siegel
Jeffrey N. Siegel
11
<PAGE> 1
EXHIBIT 23(b)
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the 1994 Stock Option Plan of WMS Industries
Inc. of our report dated August 31, 1995, with respect to the consolidated
financial statements and schedules of WMS Industries Inc. included in its
Annual Report (Form 10-K) for the year ended June 30, 1995, filed with the
Securities and Exchange Commission.
Ernst & Young LLP
Chicago, Illinois
June 12, 1996
13
