<PAGE>
<PAGE>
As filed with the Securities and Exchange Commission on March 26, 1998
Registration No. 333-______
Post-Effective Amendment No. 2 to Registration No. 2-82186
Post-Effective Amendment No. 2 to Registration No. 33-48363
Post-Effective Amendment No. 2 to Registration No. 33-79146
Post-Effective Amendment No. 2 to Registration No. 333-06021
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
AND
POST-EFFECTIVE AMENDMENTS NO. 2
TO FORM S-8 REGISTRATION STATEMENTS
UNDER
THE SECURITIES ACT OF 1933
WMS INDUSTRIES INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 36-2814522
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
3401 NORTH CALIFORNIA AVENUE
CHICAGO, ILLINOIS 60618
(Address, including zip code, of Registrant's principal executive offices)
-----------------
1982 EMPLOYEE STOCK OPTION PLAN
1991 STOCK OPTION PLAN
1993 STOCK OPTION PLAN
1994 STOCK OPTION PLAN
(Full titles of the Plans)
-----------------
ORRIN J. EDIDIN
VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
WMS INDUSTRIES INC.
3401 NORTH CALIFORNIA AVENUE
CHICAGO, ILLINOIS 60618
(773) 961-1111
(Name and address, including zip code, and
telephone number, including area code, of agent for service)
Copy to:
JEFFREY N. SIEGEL, ESQ.
SHACK & SIEGEL, P.C.
530 FIFTH AVENUE
NEW YORK, NEW YORK 10036
<PAGE>
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE(2) PRICE FEE(3)
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par 1982 Employee Stock Option Plan $30.3125 $1,243,570 $366.85
value $.50 per share 41,025 shares
Common Stock, par 1991 Stock Option Plan $30.3125 $4,428,505 $1,306.41
value $.50 per share 146,095 shares
Common Stock, par 1993 Stock Option Plan $30.3125 $7,480,519 $2,206.75
value $.50 per share 246,780 shares
Common Stock, par 1994 Stock Option Plan $30.3125 $2,469,256 $728.43
value $.50 per share 81,460 shares
==========================================================================================================================
Total 515,360 shares $30.3125 $15,621,850 $4,608.45
==========================================================================================================================
</TABLE>
(1) The shares registered hereunder are being issued as an adjustment to option
holders under the Registrant's stock option plans listed in this table. See
"Explanatory Note" below.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) on the basis of the average of the high and low
prices of the Common Stock reported on the New York Stock Exchange on March
23, 1998.
(3) This Registration Statement registers additional shares of the Registrant's
Common Stock issuable pursuant to the same employee benefit plans for which
Registration Statements on Form S-8, Nos. 2-82186, 33-48363, 33-79146 and
333-06021, as amended, are currently effective. Registration fees of
$1,856.25, $7,823.00, $13,502.16 and $11,832.00 were paid, respectively,
upon the initial filings of the Registration Statements registering
750,000, 1,500,000, 1,750,000 and 1,500,000 shares of Common Stock,
respectively, thereunder, and registration fees of $250.06, $1,172.07,
$2,823.17 and $752.47 were paid, respectively, upon the filing of
Post-Effective Amendments No. 1 to each of the Registration Statements
registering 50,804, 201,845, 448,902 and 144,455 additional shares of
Common Stock, respectively, thereunder. Pursuant to Instruction E to Form
S-8, the registration fee is being paid with respect to the additional
securities only.
Pursuant to Rule 429 under the Securities Act of 1933, the prospectus
filed together with this Registration Statement shall be deemed to be a combined
prospectus which shall also relate to the Registrant's Registration Statements
No. 2-82186, 33-48363, 33-79146 and 333-06021 on Form S-8. This Registration
Statement and the Registration Statements being amended hereby are collectively
referred to herein as the "Registration Statement".
<PAGE>
<PAGE>
EXPLANATORY NOTE
Registration Statement Nos. 2-82186, 33-48363, 33-79146 and 333-06021
(collectively, the "Original Registration Statements") were filed previously
with the Securities and Exchange Commission by Registrant to register shares of
its common stock, par value $.50 per share (the "Common Stock"), issuable
pursuant to its 1982 Employee Stock Option Plan, as amended, its 1991 Stock
Option Plan, as amended, its 1993 Stock Option Plan, as amended, and its 1994
Stock Option Plan, as amended (collectively, the "WMS Plans"). On October 1,
1997, Post-Effective Amendments No. 1 were filed with respect to each of the
Original Registration Statements to reflect an adjustment to the number of
options registered due to a spin-off of Registrant's interests in WHG Resorts &
Casinos Inc. Pursuant to the distribution (the "Distribution") of Registrant's
approximately 86.7% interest in Midway Games Inc., shares of Common Stock (the
"Adjustment Shares") are being issued to holders of options to purchase Common
Stock under the WMS Plans in accordance with the antidilution provisions of the
WMS Plans. In addition, in accordance with a Rights Agreement entered into by
the Registrant and The Bank of New York, upon completion of the Distribution,
shares of Common Stock will be accompanied by certain stock purchase rights.
This Registration Statement is being filed to: (i) register the Adjustment
Shares; and (ii) amend the Original Registration Statements to reflect the
existence of the stock purchase rights which will accompany the Common Stock.
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 (the "Securities Act"),
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. These documents and the
documents incorporated by reference in this Registration Statement pursuant to
Item 3 of Part II herein, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant's Original Registration Statements, the Registrant's
Annual Report on Form 10-K for the fiscal year ended June 30, 1997, the
Registrant's Quarterly Reports on Form 10-Q for the fiscal quarters ended
September 30, 1997 and December 31, 1997, the Registrant's Current Report on
Form 8-K dated March 6, 1998 and the description of the Registrant's Common
Stock contained in the Company's Registration Statements on Form 8-A (File No.
1-8300) filed on January 21, 1982 and March 25, 1998
-1-
<PAGE>
<PAGE>
pursuant to Section 12(g) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), including all exhibits thereto and any amendment or report
filed for the purpose of updating such information, are incorporated herein by
reference and made a part of this Registration Statement as of the date hereof.
All documents subsequently filed by the Registrant pursuant to Sections
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 Registration Statement and to be a part hereof from the date of filing of
such documents. 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 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the issuance of the shares of Common Stock offered
hereby will be passed upon for the Registrant by Shack & Siegel, P.C., 530 Fifth
Avenue, New York, New York 10036. Shareholders of Shack & Siegel, P.C., hold
options to purchase 62,955 shares of the Registrant's Common Stock at an
exercise price of $21.344 per share. In addition, pursuant to antidilution
provisions of the WMS Plans triggered by the Distribution, 10,731 Adjustment
Shares will be issued to shareholders of Shack & Siegel, P.C.
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 "DGCL"), by the Amended and Restated Bylaws of the
Registrant, as amended (the "Bylaws"), by the Restated Certificate of
Incorporation, as amended, of the Registrant (the "Certificate of
Incorporation") and by certain indemnification agreements entered into with each
of its officers and directors (the "Indemnity Agreements").
Under Section 145 of the DGCL, directors and officers as well as other
employees and individuals may be indemnified against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement in connection
with specified actions, suits or proceedings, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
corporation (a "derivative action")) if they acted in good faith and in a manner
they reasonably believed to be in or not opposed to the best interests of the
Registrant, and with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. A similar standard of
care is applicable in the case of derivative actions, except that
indemnification only extends to expenses (including attorneys' fees) incurred in
connection with
-2-
<PAGE>
<PAGE>
defense or settlement of such an action and the DGCL requires court approval
before there can be any indemnification where the person seeking indemnification
has been found liable to the Registrant.
The Certificate of Incorporation and Bylaws of the Registrant provide
that the Registrant shall, to the fullest extent permitted by Section 145 of the
DGCL, (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 bylaw,
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 DGCL, as amended and supplemented.
The Indemnity Agreements provide for the indemnification of officers
and directors to the fullest extent permitted by the laws of the State of
Delaware, and obligate the Registrant to provide the maximum protection allowed
under Delaware law. In addition, the Indemnity Agreements supplement and
increase such protection in certain respects.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the
Registrant pursuant to the foregoing provisions, the Registrant has been
informed that, in the opinion of the Commission, such indemnification is against
public policy as expressed in the Securities Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit Number Description
4.1 Rights Agreement, incorporated by reference to Exhibit 1 to
the Registrant's Registration Statement on Form 8-A, as
filed with the Commission on March 25, 1998.
4.2(a) 1982 Employee Stock Option Plan, as amended, incorporated
by reference to Exhibit 10(e) to the Registrant's Annual
Report on Form 10-K for the fiscal year ended June 30,
1994.
-3-
<PAGE>
<PAGE>
4.2(b) Amendment to Article III, Section 3 (Option Adjustments) of
1982 Employee Stock Option Plan, incorporated by reference
to Proposal No. 2 to the Registrant's Definitive Proxy
Statement on Schedule 14A as filed with the Commission on
December 11, 1996.
4.2(c) Form of Option Agreement under the 1982 Employee Stock
Option Plan, incorporated by reference to Exhibit 4(b) to
Registration Statement No. 2-82186 as filed with the
Commission on March 3, 1983.
4.3(a) 1991 Stock Option Plan, as amended, incorporated by
reference to Exhibit 10(f) to the Registrant's Annual
Report on Form 10-K for the fiscal year ended June 30,
1994.
4.3(b) Amendment to Article III, Section 3 (Option Adjustments) of
1991 Stock Option Plan, incorporated by reference to
Proposal No. 2 to the Registrant's Definitive Proxy
Statement on Schedule 14A as filed with the Commission on
December 11, 1996.
4.3(c) Form of Option Agreement under the 1991 Stock Option Plan,
incorporated by reference to Exhibit 4(b) to Registration
Statement No. 33-48363 as filed with the Commission on June
3, 1992.
4.4(a) 1993 Stock Option Plan, as amended, incorporated by
reference to Exhibit 10(g) to the Registrant's Annual
Report on Form 10-K for the fiscal year ended June 30,
1994.
4.4(b) Amendment to Article III, Section 3 (Option Adjustments) of
1993 Stock Option Plan, incorporated by reference to
Proposal No. 2 to the Registrant's Definitive Proxy
Statement on Schedule 14A as filed with the Commission on
December 11, 1996.
4.4(c) Form of Option Agreement under the 1993 Stock Option Plan,
incorporated by reference to Exhibit 4(b) to the
Registrant's Registration Statement No. 33-79146 on Form
S-8 as filed with the Commission on May 19, 1994.
4.5(a) 1994 Stock Option Plan, as originally adopted, incorporated
by reference to Appendix A to the Registrant's Definitive
Proxy Statement on Schedule 14A as filed with the
Commission on December 11, 1994.
4.5(b) Amendment to Article III, Section 3 (Option Adjustments) of
1994 Stock Option Plan, incorporated by reference to
Proposal No. 2 to the Registrant's Definitive Proxy
Statement on Schedule 14A as filed with the Commission on
December 11, 1996.
-4-
<PAGE>
<PAGE>
4.5(c) Form of Option Agreement under the 1994 Stock Option Plan,
incorporated by reference to Exhibit 4(b) to the
Registrant's Registration Statement No. 333-06021 on Form
S-8 as filed with the Commission on June 14, 1994.
5 Opinion of Shack & Siegel, P.C., counsel for Registrant.
23.1 Consent of Shack & Siegel, P.C. (contained in the Opinion
filed as Exhibit 5 hereto).
23.2 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 and 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) 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 l3 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
-5-
<PAGE>
<PAGE>
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 Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities 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 be 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 Act 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 Act and will
be governed by the final adjudication of such issue.
-6-
<PAGE>
<PAGE>
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 this 25th day of March,
1998.
WMS INDUSTRIES INC.
By:/s/ Neil D. Nicastro
---------------------------------------
Neil D. Nicastro
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature to this Registration Statement appears
below hereby appoints Louis J. Nicastro, Harold H. Bach, Jr. and Orrin J.
Edidin, and each of them acting singly, as his attorney-in-fact, to sign on 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>
<CAPTION>
SIGNATURE DATE TITLE
<S> <C> <C>
/s/ Neil D. Nicastro March 25, 1998 President, Chief Executive Officer, Chief
- ---------------------------------- Operating Officer and Director (Principal
Neil D. Nicastro Executive Officer)
/s/ Harold H. Bach, Jr. March 25, 1998 Vice President - Finance and Treasurer (Principal
- ---------------------------------- Financial and Principal Accounting Officer)
Harold H. Bach, Jr.
/s/ Louis J. Nicastro March 25, 1998 Chairman of the Board of Directors
- ----------------------------------
Louis J. Nicastro
/s/ Norman J. Menell March 25, 1998 Vice Chairman of the Board of Directors
- ----------------------------------
Norman J. Menell
/s/ Kenneth J. Fedesna March 25, 1998 Director
- ----------------------------------
Kenneth J. Fedesna
/s/ William C. Bartholomay March 25, 1998 Director
- ----------------------------------
William C. Bartholomay
/s/ William E. McKenna March 25, 1998 Director
- ----------------------------------
William E. McKenna
/s/ Harvey Reich March 25, 1998 Director
- ----------------------------------
Harvey Reich
/s/ Ira S. Sheinfeld March 25, 1998 Director
- ----------------------------------
Ira S. Sheinfeld
</TABLE>
<PAGE>
<PAGE>
PROSPECTUS
WMS INDUSTRIES INC.
2,681,487 SHARES
COMMON STOCK, PAR VALUE $.50
This Prospectus has been prepared by WMS Industries Inc., a Delaware
corporation (the "Company"), for use upon resale of shares of the Company's
common stock, par value $.50 per share (the "Common Stock"), by certain officers
and directors of the Company (the "Selling Stockholders") who have acquired or
may acquire Common Stock upon exercise or adjustment of options ("Options")
granted or to be granted under the Company's 1982 Employee Stock Option Plan,
1991 Stock Option Plan, 1993 Stock Option Plan and 1994 Stock Option Plan (as
amended, the "Plans"). The maximum number of shares which may be offered or sold
hereunder is subject to adjustment in the event of stock splits or dividends,
recapitalizations, spinoffs and certain other changes affecting the Common
Stock, as described in the Plans. The Common Stock is listed on the New York
Stock Exchange, and it is anticipated that the Selling Stockholders will offer
shares of Common Stock for resale at prevailing prices on such exchange on the
date of sale. See "Plan of Distribution" below. All selling and other expenses
incurred by individual Selling Stockholders will be borne by such Selling
Stockholders. Each share of Common Stock is sold together with certain rights to
purchase securities of the Company. These rights are described in a Registration
Statement on Form 8-A (File No. 1-8300) which was filed by the Company on March
25, 1998. See "Documents Incorporated by Reference" below.
SEE "RISK FACTORS" BEGINNING ON PAGE 3 BELOW FOR A
DISCUSSION OF CERTAIN RISKS OF AN INVESTMENT IN THE COMMON
STOCK. ADDITIONAL RISK "FACTORS AFFECTING FUTURE
PERFORMANCE" ARE INCORPORATED HEREIN BY REFERENCE TO ITEM 1
IN THE COMPANY'S ANNUAL REPORT ON FORM 10-K FOR THE FISCAL
YEAR ENDED JUNE 30, 1997.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION; NOR HAS THE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
--------------
No person is authorized to give any information or to make any
representations other than those contained in this Prospectus in connection with
any offer to sell or sale of the securities to which this Prospectus relates
and, if given or made, such information or representations must not be relied
upon as having been authorized. Neither the delivery of this Prospectus nor any
sale made hereunder shall, under any circumstances, imply that there has been no
change in the facts herein set forth since the date hereof. This Prospectus does
not constitute an offer to sell to or a solicitation of any offer to buy from
any person in any state in which any such offer or solicitation would be
unlawful.
--------------
The date of this Prospectus is March 26, 1998
<PAGE>
<PAGE>
ADDITIONAL INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") the following Registration Statements (which term shall include
any amendment thereto) on Form S-8 under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to the shares offered hereby: File Nos.
2-82186, 33-48363, 33-79146, 333-06021 and 333-______. This Prospectus, which
constitutes a part of each of these Registration Statements, does not contain
all the information set forth in the Registration Statements, and the exhibits
and schedules thereto, certain items of which are omitted in accordance with the
rules and regulations of the Commission. For further information with respect to
the Company and the Common Stock, reference is made to the Registration
Statements including the exhibits and schedules to such Registration Statements,
copies of which may be obtained as noted below. Any statements contained herein
concerning the provisions of any document are not necessarily complete, and, in
each instance, reference is made to the copy of such document filed as an
exhibit to the Registration Statements or otherwise filed with the Commission.
Each such statement is qualified by the provisions of such document, to which
such reference is made.
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports and other information with the Commission.
The Registration Statements and the reports, proxy statements and other
information filed by the Company can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 and at the Regional Offices of the Commission at Seven
World Trade Center, New York, New York 10048 and at 500 West Madison Street,
Chicago, Illinois 60661. Copies can be obtained from the Commission at
prescribed rates by writing to the Public Reference Section of the Commission at
450 Fifth Street N.W., Washington, D.C. 20549. The Commission maintains an
internet site on the Worldwide Web at www.sec.gov. that contains reports, proxy
and information statements and other information regarding the Company and other
registrants that file electronically with the Commission.
DOCUMENTS INCORPORATED BY REFERENCE
The Company hereby incorporates by reference (a) the Company's Annual
Report on Form 10-K for the fiscal year ended June 30, 1997, including the
exhibits thereto; (b) the Company's Quarterly Reports on Form 10-Q for the
fiscal quarters ended September 30, 1997 and December 31, 1997; (c) the
Company's Current Report on Form 8-K dated March 6, 1998; and (d) the
description of the Common Stock contained in the Company's Registration
Statements on Form 8-A (File No. 1-8300) filed on January 21, 1982 and March 25,
1998 pursuant to Section 12(b) of the Exchange Act, including any amendment or
report filed for the purpose of updating such information.
All documents subsequently filed by the Company after the date of this
Prospectus pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
prior to the termination of this offering shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such
documents. Any statement contained in a previously filed document incorporated
by reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement herein modifies or supersedes
such statement; and any statement contained herein shall be deemed to be
modified or superseded to the extent that a statement in any document
subsequently filed, which is incorporated by
-2-
<PAGE>
<PAGE>
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 Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, upon written
or oral request of such person, a copy of any or all of the information that has
been incorporated by reference in this Prospectus (not including exhibits to
such information, unless such exhibits are specifically incorporated by
reference into the information which this Prospectus incorporates). Requests for
copies of such information should be directed to the Company at its principal
executive office: 3401 North California Avenue, Chicago, IL 60618 (773)
961-1111, Attention: Vice President--Finance.
RISK FACTORS
In addition to considering the other information set forth in, or
incorporated by reference into, this Prospectus, prospective investors should
carefully consider the following factors in evaluating an investment in the
Company, including "Item 1. Business - Factors Affecting Future Performance" in
the Company's Annual Report on Form 10-K for the fiscal year ended June 30,
1997.
1. Blank Check Preferred Stock and Control of the Company. The
Company's Restated Certificate of Incorporation, as amended, authorizes the
issuance of 5,000,000 shares of Preferred Stock with such designations, rights
and preferences as may be determined from time to time by the Board of
Directors. Accordingly, the Board of Directors is empowered, without stockholder
approval, to issue Preferred Stock with dividend, liquidation, conversion,
voting or other rights which could adversely affect the voting power or other
rights of the holders of the Common Stock. Although there are no present plans,
agreements, commitments or undertakings with respect to the Company's issuance
of any shares of Preferred Stock, any such issuances may be deemed to be an
anti-takeover device which could be utilized as a method of discouraging,
delaying or preventing a change in control of the Company or to dilute the
public ownership of the Company, and there can be no assurance that the Company
will not issue such shares.
2. Adverse Effect of Potential Future Sales of Common Stock; Dilutive
Nature of Options and Other Derivative Securities. The Company has 100,000,000
authorized shares of Common Stock, of which 27,886,021 shares will be issued and
outstanding as of April 6, 1998. In the event that all of the issued and
outstanding options were exercised as of such date, approximately 32,100,000
shares of Common Stock would be outstanding. Management will have broad
discretion with respect to the issuance of the remaining authorized but unissued
shares, including discretion to issue such shares in compensatory and
acquisition transactions. In the event that the Company seeks to procure
additional financing through the sale and issuance of its securities, the then
current stockholders of the Company may suffer dilution in their percentage
ownership of shares of the Common Stock. In addition, the future issuance of
shares at a price below the then current market price of the Common Stock
pursuant to this Prospectus or the registration statements listed under
"Additional Information" above, or otherwise, or even the potential of such
sales, may have a depressive effect on the future market price of the Common
Stock. As of March 26, 1998, the Company had outstanding options to purchase an
aggregate of approximately 3,500,000 shares of Common Stock exercisable at an
average exercise price of approximately $19 per share. The Company's Plans also
authorize the grant of options to purchase approximately an additional 1,100,000
shares of Common Stock. During the terms of the options, which average
approximately six years from the date hereof, the holders
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thereof are given the opportunity to profit from a rise in the market price of
the Common Stock. The percentage increase or decrease in the market price of an
option tends generally to be greater than the percentage increase or decrease in
the market price of the underlying common shares. The holders of options would
be most likely to exercise them and purchase the Common Stock at a time when the
Company could obtain capital by a new offering of securities on terms more
favorable to the Company than those provided by the options. Consequently, the
terms on which the Company could obtain additional capital during such periods
may be adversely affected.
3. Losses from Continuing Operations. The Company, apart from its
subsidiary, Midway Games Inc., which is scheduled to be spun off from the
Company on April 6, 1998, has not generated a net income during its last three
fiscal years and is not expected to generate a net income for the current fiscal
year.
USE OF PROCEEDS; DILUTION
The Company will receive none of the proceeds from the sale of the
Common Stock offered hereby, but it will receive the exercise price upon the
exercise of Options for cash. The Company plans to use any such proceeds for
working capital. For a discussion of the possible dilutive effects of the shares
to be sold hereby, see paragraph number 2 under "Risk Factors" above.
SELLING STOCKHOLDERS
The shares of Common Stock to which this Prospectus relates are being
registered for reoffers and resales by Selling Stockholders of the Company who
have acquired or may acquire such shares pursuant to the exercise of Options.
The Selling Stockholders named below may resell all, a portion or none of such
shares from time to time.
Participants under the Plans who are deemed to be "affiliates" of the
Company who acquire Common Stock under the Plans may be added to the Selling
Stockholders listed below from time to time by use of a prospectus supplement
filed pursuant to Rule 424(b) under the Securities Act. An "affiliate" is
defined in Rule 405 under the Securities Act as a "person that directly, or
indirectly, through one or more intermediaries, controls or is controlled by, or
is under common control with", the Company. Non-affiliates who hold restricted
securities (as defined in Rule 144(a)(3) under the Securities Act) purchased
under the Plans or other employee benefit plans and who are not named below may
use this Prospectus for the offer or sale of their Common Stock if they hold
1,000 shares or less. The inclusion of a person's name in the table below shall
not be deemed to be an admission by such person that he or she is an "affiliate"
of the Company.
The table below sets forth with respect to each Selling Stockholder,
based upon information available to the Company as of March 26, 1998, the number
of shares of Common Stock beneficially owned before and after the sale of the
shares offered hereby; the number of shares to be sold; and the percent of the
outstanding shares of Common Stock owned before and after the sale of the Common
Stock offered hereby.
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<TABLE>
<CAPTION>
Amount and Shares Percent of Class(3)
Nature of Beneficially -------------------
Beneficial Shares to be Owned After Before After
Name and Position Ownership(1) Sold(1)(2) Offering Offering Offering
- ----------------- ------------ ---------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Louis J. Nicastro 7,422,332(4) 500,000 6,922,332 26.1% 24.8%
Chairman of the Board of
Directors
Neil D. Nicastro 8,420,000(5) 1,440,300 6,979,700 29.1% 25.0%
President, Chief Executive
Officer, Chief Operating Officer
and Director
Harold H. Bach, Jr. 112,530(6) 110,530 2,000 * *
Vice President - Finance,
Treasurer, Chief Financial and
Chief Accounting Officer
Orrin J. Edidin -0- 25,000(7) -0- -0- -0-
Vice President, Secretary and
General Counsel
Kenneth J. Fedesna 192,041(8) 191,983 58 * *
Vice President and General
Manager of Williams Electronic
Games, Inc.; Director
Norman J. Menell 75,902(9) 73,686 2,216 * *
Vice Chairman of the Board of
Directors
William C. Bartholomay 92,486(9) 73,686 18,800 * *
Director
William E. McKenna 76,280(9) 73,686 2,594 * *
Director
Harvey Reich 74,876(9) 73,686 1,190 * *
Director
</TABLE>
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<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C>
Ira S. Sheinfeld 118,930(10) 118,930 -0- * -0-
Director
</TABLE>
- -------------------
* Less than 1%
(1) Includes shares to be issued on April 6, 1998 as an antidilution adjustment
to the Company's option holders pursuant to provisions in the Company's
stock option plans triggered by the spin-off scheduled to be completed on
such date of the Company's approximately 86.7% interest in Midway Games
Inc. to the Company's stockholders.
(2) Does not constitute a commitment to sell any or all of the stated number of
shares of Common Stock. The number of shares to be sold shall be determined
from time to time by each Selling Stockholder in his discretion.
(3) Based on 27,886,021 shares outstanding as of April 6, 1998. Shares issuable
upon the exercise of options exercisable within 60 days by such person are
deemed to be outstanding with respect to the calculation of such person's
percent class.
(4) Includes 6,917,700 shares owned by Sumner M. Redstone and National
Amusements, Inc. for which the reporting person has shared voting power but
no dispositive power. Additionally, includes 500,000 shares which may be
acquired upon the exercise of stock options to be granted as of April 6,
1998 to Mr. Louis J. Nicastro as part of a compensation arrangement with
the Company.
(5) Includes 6,917,700 shares owned by Sumner M. Redstone and National
Amusements, Inc. for which the reporting person has shared voting power but
no dispositive power. Additionally, includes 1,007,286 shares which may be
acquired pursuant to the exercise of stock options, 250,000 of which are to
be granted to Mr. Neil D. Nicastro as of April 6, 1998 as part of a
compensation arrangement with the Company.
(6) Includes 94,433 shares which may be acquired pursuant to the exercise of
stock options.
(7) Includes 25,000 shares which may be acquired pursuant to the exercise of
stock options.
(8) Includes 163,684 shares which may be acquired pursuant to the exercise of
stock options.
(9) Includes 62,955 shares which may be acquired pursuant to the exercise of
stock options.
(10) Includes 100,728 shares which may be acquired pursuant to the exercise of
stock options.
PLAN OF DISTRIBUTION
The Common Stock is being sold by the Selling Stockholders for their
own accounts. The Common Stock may be sold or transferred for value by the
Selling Stockholders, or by pledgees, donees, transferees or other successors in
interest to the Selling Stockholders, in one or more transactions on the
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New York Stock Exchange (or any successor stock exchange), in negotiated
transactions or in a combination of such methods of sale, at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at prices otherwise negotiated. The Selling Stockholders may effect
such transactions by selling the Common Stock to or through brokers-dealers, and
such broker-dealers may receive compensation in the form of underwriting
discounts, concessions or commissions from the Selling Stockholders and/or the
purchasers of the Common Stock for whom such broker-dealers may act as agent
(which compensation may be less than or in excess of customary commissions). The
Selling Stockholders and any broker-dealers that participate in the distribution
of the Common Stock may be deemed to be "underwriters" within the meaning of
Section 2(11) of the Securities Act, and any commissions received by them and
any profit on the resale of the Common Stock sold by them may be deemed to be
underwriting discounts and commissions under the Securities Act. All selling and
other expenses incurred by individual Selling Stockholders will be borne by such
Selling Stockholders.
There can be no assurance that any of the Selling Stockholders will
sell any or all of the Common Stock offered by them hereunder.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby has been
passed upon for the Company by Shack & Siegel, P.C., New York, New York.
Stockholders of Shack & Siegel, P.C. hold options to purchase 62,955 shares of
Common Stock at an exercise price of $21.344 per share. In addition, pursuant to
certain antidilution adjustments to the Company's options, 10,731 shares of
Common Stock are expected to be issued on April 6, 1998 to shareholders of Shack
& Siegel, P.C.
EXPERTS
The consolidated financial statements of WMS Industries Inc.
incorporated by reference in the WMS Industries Inc. Annual Report (Form 10-K)
for the year ended June 30, 1997, have been audited by Ernst & Young LLP,
independent auditors, as set forth in their report thereon included therein and
incorporated herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
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EXHIBIT INDEX
Exhibit Number Description
4.1 Rights Agreement, incorporated by reference to Exhibit 1 to
the Registrant's Registration Statement on Form 8-A, as
filed with the Commission on March 25, 1998.
4.2(a) 1982 Employee Stock Option Plan, as amended, incorporated
by reference to Exhibit 10(e) to the Registrant's Annual
Report on Form 10-K for the fiscal year ended June 30,
1994.
4.2(b) Amendment to Article III, Section 3 (Option Adjustments) of
1982 Employee Stock Option Plan, incorporated by reference
to Proposal No. 2 to the Registrant's Definitive Proxy
Statement on Schedule 14A as filed with the Commission on
December 11, 1996.
4.2(c) Form of Option Agreement under the 1982 Employee Stock
Option Plan, incorporated by reference to Exhibit 4(b) to
Registration Statement No. 2-82186 as filed with the
Commission on March 3, 1983.
4.3(a) 1991 Stock Option Plan, as amended, incorporated by
reference to Exhibit 10(f) to the Registrant's Annual
Report on Form 10-K for the fiscal year ended June 30,
1994.
4.3(b) Amendment to Article III, Section 3 (Option Adjustments) of
1991 Stock Option Plan, incorporated by reference to
Proposal No. 2 to the Registrant's Definitive Proxy
Statement on Schedule 14A as filed with the Commission on
December 11, 1996.
4.3(c) Form of Option Agreement under the 1991 Stock Option Plan,
incorporated by reference to Exhibit 4(b) to Registration
Statement No. 33-48363 as filed with the Commission on June
3, 1992.
4.4(a) 1993 Stock Option Plan, as amended, incorporated by
reference to Exhibit 10(g) to the Registrant's Annual
Report on Form 10-K for the fiscal year ended June 30,
1994.
4.4(b) Amendment to Article III, Section 3 (Option Adjustments) of
1993 Stock Option Plan, incorporated by reference to
Proposal No. 2 to the Registrant's Definitive Proxy
Statement on Schedule 14A as filed with the Commission on
December 11, 1996.
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4.4(c) Form of Option Agreement under the 1993 Stock Option Plan,
incorporated by reference to Exhibit 4(b) to the
Registrant's Registration Statement No. 33-79146 on Form
S-8 as filed with the Commission on May 19, 1994.
4.5(a) 1994 Stock Option Plan, as originally adopted, incorporated
by reference to Appendix A to the Registrant's Definitive
Proxy Statement on Schedule 14A as filed with the
Commission on December 11, 1994.
4.5(b) Amendment to Article III, Section 3 (Option Adjustments) of
1994 Stock Option Plan, incorporated by reference to
Proposal No. 2 to the Registrant's Definitive Proxy
Statement on Schedule 14A as filed with the Commission on
December 11, 1996.
4.5(c) Form of Option Agreement under the 1994 Stock Option Plan,
incorporated by reference to Exhibit 4(b) to the
Registrant's Registration Statement No. 333-06021 on Form
S-8 as filed with the Commission on June 14, 1994.
5 Opinion of Shack & Siegel, P.C., counsel for Registrant.
23.1 Consent of Shack & Siegel, P.C. (contained in the Opinion
filed as Exhibit 5 hereto).
23.2 Consent of Ernst & Young LLP.
24 Power of Attorney (contained on the signature page hereof).
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Exhibit 5
(212) 782-0700
March 24, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: WMS Industries Inc. Form S-8 Registration Statement
and Post-Effective Amendments No. 2 to Form S-8
Registration Statements
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 under the Securities Act of 1933, as amended, of: (1) a Registration
Statement on Form S-8 registering 515,360 shares (the "Shares") of the Company's
common stock, par value $.50 per share ("Common Stock"), to be issued pursuant
to certain antidilution provisions of the Company's 1982 Employee Stock Option
Plan, 1991 Stock Option Plan, 1993 Stock Option Plan and 1994 Stock Option Plan
(collectively, the "WMS Plans") which will be triggered by the spin-off of the
Company's approximately 86.75% interest in Midway Games Inc. to the Company's
stockholders; and (2) Post-Effective Amendments No. 2 to Registration Statements
Nos. 2-82186, 33-48363, 33-79146 and 333-06021, each on Form S-8, amending the
prior respective registration statements to reflect the existence of certain
stock purchase rights which shall accompany the Common Stock issued upon
exercise of options granted or to be granted under each of the WMS Plans.
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 WMS Plans; (ii) the registration statements and post-effective
registration statements referenced above; (iii) the Company's Restated
Certificate of Incorporation, as amended; (iv) the Company's Amended and
Restated Bylaws; (v) proceedings of the Board of Directors of the Company and
(vi) 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
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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 to be issued upon the adjustment of options granted in accordance with
the terms of the WMS Plans have been duly authorized and that such Shares, when
issued and delivered, will be validly issued, fully paid and non-assessable.
We consent to the filing of this opinion as Exhibit 5 to the
Registration Statement, and we further consent to the reference made to us under
"Item 5. Interests of Named Experts and Counsel" contained therein and under the
caption "Legal Matters" in the accompanying prospectus. Please note that, as
described in such Item 5, shareholders of this firm hold options to purchase an
aggregate of 62,955 shares of Common Stock and will receive 10,731 Shares.
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/ Paul S. Goodman
---------------------
Paul S. Goodman
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<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
the Registration Statement on Form S-8 (No. 333-______), the Post Effective
Amendments No. 2 to the Registration Statements on Form S-8 (Nos. 2-82186,
33-48363, 33-79146 and 333-06021) and the related Prospectus of WMS Industries
Inc. and to the incorporation by reference therein of our reports dated August
19, 1997, with respect to the consolidated financial statements of WMS
Industries Inc. incorporated by reference in its Annual Report (Form 10-K) for
the year ended June 30, 1997 and the related financial statement schedule
included therein, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Chicago, Illinois
March 24, 1998
