<PAGE>
<PAGE>
As filed with the Securities and Exchange Commission on June 24, 1998
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
AND
POST-EFFECTIVE AMENDMENT No. 1 to Registration No. 333-48697
POST-EFFECTIVE AMENDMENT No. 3 to Registration No. 2-82186
POST-EFFECTIVE AMENDMENT No. 3 to Registration No. 33-48363
POST-EFFECTIVE AMENDMENT No. 3 to Registration No. 33-79146
POST-EFFECTIVE AMENDMENT No. 3 to Registration No. 333-06021
UNDER
THE SECURITIES ACT OF 1933
WMS INDUSTRIES INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C>
Delaware 36-2814522
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
</TABLE>
3401 North California Avenue
Chicago, Illinois 60618
(Address, including zip code, of Registrant's principal executive offices)
-----------------
1998 NON-QUALIFIED STOCK OPTION PLAN
(Full title of the Plan)
-----------------
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
(212) 782-0700
<PAGE>
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed maximum Proposed maximum Amount of
Title of securities Amount to be offering price aggregate Registration
to be registered registered(1) per share(2) offering price(2) Fee
------------------- ------------- ----------------- ------------------ ------------
<S> <C> <C> <C> <C>
Common Stock, par value $.50(3)(4) 236,000 shares $3.07 $ 724,520 $213.73
Common Stock, par value $.50(4)(5) 764,000 shares $3.07 $2,345,480 $691.92
Total (4) 1,000,000 shares $3.07 $3,070,000 $905.65
=================================== ===================== ======================== =================== ===============
</TABLE>
(1) Pursuant to Rule 416 under the Securities Act of 1933, this registration
statement covers an indeterminable number of shares of Common Stock which
may become issuable pursuant to the anti-dilution provisions of the 1998
Non-Qualified Stock Option Plan (the "1998 Plan").
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h)(1) on the basis of the average of the high and low
prices of the Common Stock reported on the New York Stock Exchange on June
17, 1998.
(3) Shares issuable upon the exercise of options previously granted under the
1998 Plan.
(4) In accordance with a Rights Agreement entered into between the Registrant
and The Bank of New York, dated March 5, 1998, shares of Common Stock are
accompanied by certain stock purchase rights.
(5) Shares issuable upon the exercise of options available for grant under the
1998 Plan.
Pursuant to Rule 429 under the Securities Act of 1933, as amended (the
"Securities Act"), 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 Statement Nos. 2-82186, 33-48363, 33-79146, 333-
06021 and 333-48697 on Form S-8. This Registration Statement and the
Registration Statements being amended hereby are collectively referred to herein
as the "Registration Statement" except where the context requires otherwise.
EXPLANATORY NOTE
Registration Statement Nos. 2-82186, 33-48363, 33-79146, 333-06021 and
333-48697, as amended, were filed previously with the Securities and Exchange
Commission (the "Commission") by the Registrant (i) to register shares of its
common stock, par value $.50 per share ("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") and (ii) to register shares of Common
Stock issued to optionholders in connection with the distribution of
Registrant's interest in Midway Games Inc. in accordance with the antidilution
provisions of the WMS Plans. In addition, in accordance with a Rights Agreement
entered into between the Registrant and The Bank of New York, dated as of March
5, 1998, shares of Common Stock are accompanied by certain stock purchase rights
("Rights"). This Registration Statement is being filed to: (i) register the
shares of Common Stock and Rights issuable pursuant to the Registrant's 1998
Non-Qualified Stock Option Plan (the "1998 Plan"); and (ii) file a prospectus
pursuant to Rule 429 under the Securities Act to be used for reoffers and
resales by certain optionholders pursuant to any of the WMS Plans or the 1998
Plan.
-2-
<PAGE>
<PAGE>
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 and are not being filed with the Securities
and Exchange Commission.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registration Statement, 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, December 31, 1997 and
March 31, 1998, the Registrant's Current Reports on Form 8-K filed on March 17,
1998 and April 17, 1998 and the description of the Registrant's Common Stock and
Rights 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 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. As of June 22, 1998, Shareholders of Shack &
Siegel, P.C., hold, in the aggregate, 10,731 shares of Common Stock and options
to purchase 62,955 shares of Common Stock at an exercise price of $3.519 per
share.
-3-
<PAGE>
<PAGE>
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 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.
-4-
<PAGE>
<PAGE>
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit Number Description
- -------------- ------------
<C> <S>
4.1 Rights Agreement, dated March 5, 1998 between the Registrant and
The Bank of New York, as Rights Agent, 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.
</TABLE>
-5-
<PAGE>
<PAGE>
<TABLE>
<C> <S>
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.
4.6(a) 1998 Non-Qualified Stock Option Plan.
4.6(b) Form of Option Agreement under the 1998 Non-Qualified Stock
Option Plan.
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).
</TABLE>
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
-6-
<PAGE>
<PAGE>
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 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.
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<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 22nd day of June,
1998.
WMS INDUSTRIES INC.
By:/s/ Louis J. Nicastro
---------------------
Louis J. Nicastro
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/ Louis J. Nicastro June 22, 1998 Chairman of the Board of Directors, President
- ---------------------------------- and Chief Executive Officer (Principal Executive
Louis J. Nicastro Officer)
/s/ Harold H. Bach, Jr. June 22, 1998 Vice President - Finance and Treasurer (Principal
- ---------------------------------- Financial and Principal Accounting Officer)
Harold H. Bach, Jr.
/s/ Norman J. Menell June 22, 1998 Vice Chairman of the Board of Directors
- ----------------------------------
Norman J. Menell
/s/ Neil D. Nicastro June 22, 1998 Director
- ----------------------------------
Neil D. Nicastro
/s/ David M. Satz, Jr. June 22, 1998 Director
- ----------------------------------
David M. Satz, Jr.
/s/ William C. Bartholomay June 22, 1998 Director
- -----------------------------
William C. Bartholomay
/s/ William E. McKenna June 22, 1998 Director
- ----------------------------------
William E. McKenna
/s/ Harvey Reich June 22, 1998 Director
- ----------------------------------
Harvey Reich
/s/ Ira S. Sheinfeld June 22, 1998 Director
- ----------------------------------
Ira S. Sheinfeld
</TABLE>
<PAGE>
<PAGE>
PROSPECTUS
WMS INDUSTRIES INC.
2,507,401 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, 1994 Stock Option Plan and 1998
Non-Qualified Stock Option Plan (as amended, collectively, 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 with the Securities and
Exchange Commission (the "Commission") 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 June 23, 1998
<PAGE>
<PAGE>
ADDITIONAL INFORMATION
The Company has filed with 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,
333-48697 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, December 31, 1997 and March 31, 1998;
(c) the Company's Current Reports on Form 8-K filed on March 17, 1998 and April
17, 1998; and (d) the description of the Common Stock and accompanying rights
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 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.
-2-
<PAGE>
<PAGE>
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, as well as the matters discussed under "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 and the other risks discussed in the
documents incorporated herein by reference.
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 27,980,454 shares (excluding
treasury shares) were issued and outstanding as of June 22, 1998. In the event
that all of the issued and outstanding options were exercised as of such date,
approximately 32,336,478 shares of Common Stock (excluding treasury shares)
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 June 22, 1998, the Company had outstanding
options to purchase an aggregate of approximately 4,500,000 shares of Common
Stock exercisable at an average exercise price of approximately $3.50 per share.
The Company's Plans also authorize the grant of options to purchase
approximately an additional 1,000,000 shares of Common Stock. During the terms
of the options, which average approximately seven years from the date hereof,
the holders 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
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<PAGE>
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
discontinued operations, 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 or for the 1999 fiscal year.
4. Disclosure Relating to Low-Priced Stocks. On June 22, 1998, the last
sale price of the Common Stock was $3.38. Where a stock's market price is
relatively low, institutional investors and other members of the investing
public and brokerage community may be reluctant to trade in the stock.
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.
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<PAGE>
The table below sets forth with respect to each Selling Stockholder, based
upon information available to the Company as of June 22, 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.
<TABLE>
<CAPTION>
Amount and Shares Percent of Class(2)
Nature of Beneficially ---------------------
Beneficial Shares to be Owned After Before After
Name and Position Ownership Sold(1) Offering Offering Offering
- -------------------------------------- ---------- ------------ ----------- -------- ---------
<S> <C> <C> <C> <C> <C>
Louis J. Nicastro 7,422,332(3) 500,000 6,922,332 26.1% 24.3%
Chairman of the Board of Directors,
President and Chief Executive
Officer
Neil D. Nicastro 8,200,000(4) 1,257,286 6,942,714 28.1% 23.7%
Director
Kevin L. Verner 15,177(5) 125,911(5) 2,586 * *
Vice President and Chief Operating
Officer
Harold H. Bach, Jr. 112,530(6) 110,530(6) 2,000 * *
Vice President - Finance, Treasurer,
Chief Financial and Chief
Accounting Officer
Orrin J. Edidin 2,500(7) 50,000(7) -0- -0- -0-
Vice President, Secretary and
General Counsel
Norman J. Menell 75,902(8) 73,686(8) 2,216 * *
Vice Chairman of the Board of
Directors
William C. Bartholomay 92,486(8) 73,686(8) 18,800 * *
Director
David M. Satz, Jr. 51,000(9) 50,000(9) 1,000 * *
Director
William E. McKenna 76,280(8) 73,686(8) 2,594 * *
Director
Harvey Reich 74,876(8) 73,686(8) 1,190 * *
Director
Ira S. Sheinfeld 118,930(10) 118,930(10) -0- -0- -0-
Director
* Less than 1%
</TABLE>
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<PAGE>
<PAGE>
(1) 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.
(2) Based on 27,980,454 shares outstanding as of June 22, 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 of class.
(3) 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 pursuant to the exercise of stock options.
(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 1,257,286 shares which may be
acquired pursuant to the exercise of stock options.
(5) Includes 125,911 shares which may be acquired pursuant to the exercise of
stock options, only 12,591 of which are currently exercisable.
(6) Includes 94,433 shares which may be acquired pursuant to the exercise of
stock options.
(7) Includes 50,000 shares which may be acquired pursuant to the exercise of
stock options, 2,500 of which are currently exercisable.
(8) Includes 62,955 shares which may be acquired pursuant to the exercise of
stock options.
(9) Includes 50,000 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 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.
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<PAGE>
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. As of June 22,
1998, stockholders of Shack & Siegel, P.C. hold, in the aggregate, 10,731 shares
of Common Stock and options to purchase 62,955 shares of Common Stock at an
exercise price of $3.519 per share.
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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<PAGE>
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Description
- -------------- ------------
<C> <S>
4.1 Rights Agreement, dated March 5, 1998 between the Registrant and
The Bank of New York, as Rights Agent, 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.
</TABLE>
<PAGE>
<PAGE>
<TABLE>
<C> <S>
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.
4.6(a) 1998 Non-Qualified Stock Option Plan.
4.6(b) Form of Option Agreement under the 1998 Non-Qualified Stock
Option Plan.
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).
<PAGE>
</TABLE>
<PAGE>
Exhibit 4.6(a)
WMS INDUSTRIES INC.
1998 NON-QUALIFIED STOCK OPTION PLAN
ARTICLE I
PURPOSE OF THE PLAN
The 1998 Non-Qualified Stock Option Plan (the "Plan") is intended to
provide a method whereby "Employees," "Directors" 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 Common Stock, $.50 par value per share
(the "Common Stock"), of the Company; to provide such Employees, Directors 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 May 13, 2008, options to purchase shares of Common Stock and
related Stock Appreciation Rights 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. Capitalized terms are defined in Article XV
hereof.
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
Compensation and 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
Non-Employee Directors. 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 enforceable and
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
may also be exercised by the Board. Subject to the foregoing, in the event of
any conflict or inconsistency between determinations, orders, resolutions or
other actions of the Committee and the Board, the actions of the Board shall
control.
SECTION 3. With respect to Section 16 of the 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
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<PAGE>
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.
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 Article X, 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 1,000,000. 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.
ARTICLE IV
PURCHASE PRICE OF OPTIONED SHARES
Unless the Committee shall fix a greater or lesser purchase price, the
purchase price per share of Common Stock under each option granted to Employees,
Directors, Consultants and Advisers shall be one hundred percent (100%) of the
Fair Market Value (as hereinafter defined) of the Common Stock at the time such
option is granted.
ARTICLE V
ELIGIBILITY OF RECIPIENTS
Options will be granted only to Persons who are Employees, Directors,
Consultants or Advisers of the Company or a Subsidiary.
ARTICLE VI
DURATION OF THE PLAN
Unless previously terminated by the Committee or the Board, the Plan will
terminate on May 13, 2008. Such termination will not terminate any option or
Stock Appreciation Right then outstanding.
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<PAGE>
ARTICLE VII
GRANT OF OPTIONS TO EMPLOYEES,
DIRECTORS, CONSULTANTS AND ADVISERS
SECTION 1. Each option granted under the Plan to Employees shall constitute
a Non-Qualified Stock Option.
SECTION 2. The Committee shall from time to time determine the Employees,
Directors, Consultants and Advisers to be granted options, it being understood
that options may be granted at different times to the same person. 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 Stock Appreciation Rights will be granted in connection
with the grant of options, (d) the purchase price of the shares subject to each
option, (e) the time or times when each option and any related Stock
Appreciation Rights may be exercised and (f) any other matters which the
Committee shall deem appropriate.
SECTION 3. All instruments evidencing options granted to Employees,
Directors, Consultants and Advisers under the Plan shall be in such form as the
Committee shall from time to time determine, which form 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, Director, 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;
(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;
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<PAGE>
(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
(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 VIII
TRANSFERABILITY OF OPTIONS
An option may be transferable by the optionee to the extent specifically
permitted by the Committee as specified in the instrument evidencing the option
as the same may be amended from time to time. Except to the extent permitted by
such instrument, no option shall be transferable except by will or by the laws
of descent and distribution.
ARTICLE IX
EXERCISE OF OPTIONS
SECTION 1. Each option (and any related Stock Appreciation Rights) granted
under the Plan shall terminate on the date specified by the Committee which date
shall be not later than the expiration of ten years from the date on which it
was granted.
SECTION 2. 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 3 of this Article IX, 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;
provided, however, that payment in shares of common stock already owned shall
not be permitted unless the chief financial officer of the Company determines
that such payment will not require the Company to recognize a compensation
expense under applicable accounting rules. 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, distributee or
transferee 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.
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<PAGE>
SECTION 3. 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 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.
SECTION 4. 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 Act, the holder of such option
shall deliver a certification (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 5. 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 or any other
matters 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 X
ADJUSTMENTS
SECTION 1. New option rights may be substituted for the options granted
under the Plan, or the Company's duties as to options outstanding under the Plan
may be assumed, by a corporation other than the Company, or by a parent or
subsidiary of the Company or such corporation, in connection with any merger,
consolidation, acquisition, separation, reorganization, liquidation or other
similar corporate transaction in which the Company is involved. Notwithstanding
the foregoing or the provisions of this Article X, in the event such
corporation, or parent or subsidiary of the Company or such corporation, does
not substitute new option rights for, and substantially equivalent to, the
options granted hereunder, or assume the options
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<PAGE>
granted hereunder, the options granted hereunder shall terminate and thereupon
become null and void (i) upon dissolution or liquidation of the Company, or
similar occurrence, (ii) upon any merger, consolidation, acquisition,
separation, reorganization, or similar occurrence, where the Company will not be
a surviving entity or (iii) upon a transfer of substantially all of the assets
of the Company or more than 80% of the outstanding Common Stock in a single
transaction; provided, however, that each optionee shall have the right
immediately prior to or concurrently with such dissolution, liquidation, merger,
consolidation, acquisition, separation, reorganization or other similar
corporate transaction, to exercise any unexpired option granted hereunder
whether or not then exercisable.
SECTION 2. In the event that the Committee determines that any dividend or
other distribution (whether in the form of cash, shares, other securities, or
other property), recapitalization, stock split, reverse stock split,
reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase, or exchange of shares or other securities of the Company, issuance
of warrants or other rights to purchase shares or other securities of the
Company, or other corporate transaction or event affects the shares such that an
adjustment is determined by the Committee to be appropriate in order to prevent
dilution or enlargement of the benefits or potential benefits intended to be
made available under the Plan, then, the Committee shall, in such manner as it
may deem equitable, adjust any or all of (i) the number of shares of Common
Stock or other securities of the Company (or number and kind of other securities
or property) with respect to which options may be granted and any limitations
set forth in the Plan, (ii) the number of shares of Common Stock or other
securities of the Company (or number and kind of other securities or property)
subject to outstanding options and (iii) the grant or exercise or target price
with respect to any option or, if deemed appropriate, make provision for a cash
payment to the holder of an outstanding option including, if necessary, the
termination of such an option. Without limiting the generality of the foregoing,
any such adjustment shall be deemed to have prevented any dilution and
enlargement of an optionee's rights if such optionee receives in any such
adjustment rights which are substantially similar (after taking into account the
fact that the optionee has not paid the applicable exercise price) to the rights
the optionee would have received had he exercised his outstanding options and
become a stockholder of the Company immediately prior to the event giving rise
to such adjustment.
SECTION 3. Adjustments and elections under this Article X shall be made by
the Committee whose determination as to what adjustments, if any, shall be made
and the extent thereof shall be final, binding and conclusive. Adjustments
required under this Article X shall also be deemed to increase by a like number
the aggregate number of shares authorized for purchase pursuant to options
granted under the Plan as set forth in Section 2 of Article III hereof.
ARTICLE XI
PRIVILEGES OF STOCK OWNERSHIP
No optionee shall be entitled to the privileges of stock ownership as to
any shares of Common Stock not actually issued and delivered to him or her.
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<PAGE>
ARTICLE XII
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, unless
otherwise provided in the instrument evidencing such option, the option and any
associated Stock Appreciation Rights 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 terminated by the Company or a Subsidiary for reasons
other than cause, unless otherwise provided in the instrument evidencing such
option, 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 or a
Director.
SECTION 3. Should an optionee die during the existence of the optionee's
relationship with the Company or after the cessation of the optionee's
relationship with the Company, unless otherwise provided in the instrument
evidencing such option, 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
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.
ARTICLE XIII
AMENDMENTS TO PLAN
The Board may at any time terminate or from time to time amend, modify or
suspend 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 XIV
EFFECTIVE DATE OF PLAN
The Plan shall be effective on May 14, 1998.
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ARTICLE XV
DEFINITIONS
For the purposes of this Plan, the following terms shall have the meanings
indicated:
Act: The Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
Code: The Internal Revenue Code of 1986, as amended and the regulations
promulgated thereunder.
Committee: Such term is defined in Article II, Section 1.
Common Stock: Such term is defined in Article I.
Consultants and Advisers: Such term includes 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.
Director: Such term includes any director of the Company.
Employee: Such term includes any officer as well as any full-time salaried
executive, managerial, professional, administrative or other employee of the
Company or a Subsidiary. Such term also includes 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 and any consultant, independent contractor, professional advisor
or other person who is paid by the Company or a Subsidiary for rendering
services or furnishing materials or goods to the Company or a Subsidiary.
Fair Market Value: The fair market value as of any date shall be determined
by the Committee or Board after giving consideration to the price of the Common
Stock in the public market and shall be determined otherwise in a manner
consistent with the provisions of the Code.
1934 Act: The Securities Exchange Act of 1934, as amended and the rules and
regulations promulgated thereunder.
Non-Employee Director: Any director of the Company who is a Non-Employee
Director as that term is defined in Rule 16b-3 promulgated under the 1934 Act
and who also qualifies as an outside director within the meaning of Section
162(m) and the related regulations under the Code, except as otherwise
determined by the Board of Directors.
Non-Qualified Stock Option: An option which does not qualify under Section
422 of the Code.
Person: Such term shall have the meaning ascribed to it under the 1934 Act.
Plan: Such term is defined in Article I and includes all amendments hereof.
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Stock Appreciation Rights: The rights granted by the Committee pursuant to
Section 4 of Article VI hereof.
Subsidiary: A "Subsidiary Corporation" of the Company as defined in Section
424 of the Code.
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Exhibit 4.6(b)
OPTION AGREEMENT
[Date of Option]
TO: [Name of Optionee]
Re: Non-Qualified Stock Option
1998 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 1998 Non-Qualified
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 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 voluntary termination
of employment or a termination of your employment by the Company for cause, 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.
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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 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 as follows: ________________________________.
This option, to the extent not previously exercised, shall expire on the day
preceding the tenth anniversary of the Grant Date.
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 Orrin J. Edidin, Vice President and
Secretary of the Company.
Very truly yours,
WMS INDUSTRIES INC.
By:_______________________
Orrin J. Edidin
Vice President, Secretary & General Counsel
Attachments
ACCEPTED AND AGREED TO
this____ day of_________________, 19___
_______________________________________
[Name of Optionee]
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EXHIBIT A
<TABLE>
<CAPTION>
If your "Employer" is: A "Competitor" is an entity engaged in:
- ---------------------- ---------------------------------------
<S> <C>
Williams Electronics Games, Inc. The design, manufacture or sale of
Fun House Games Inc. coin-operated pinball, novelty and
Lenc-Smith Inc. redemption games
WMS Gaming Inc. The design, manufacture or sale of
gaming equipment
WMS Industries Inc. Any or all of the foregoing operations
</TABLE>
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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 1998 Non-Qualified Stock Option Plan.
Enclosed is my check made payable to the Company 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 if my employer) in payment of the tax due on
exercise of the Option.
The following information is supplied for use in issuing the shares
purchased hereby:
Number of certificates: ________________
Denomination of
each certificate: ________________
Name: ________________
Address: ________________
Social Security Number: ________________
Very truly yours,
_____________________
[Name of Optionee]
<PAGE>
<PAGE>
Exhibit 5
(212) 782-0700
June 22, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: WMS Industries Inc. Form S-8 Registration Statement
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 a registration
statement on Form S-8 registering 1,000,000 shares (the "Shares") of the
Company's common stock, par value $.50 per share ("Common Stock"), underlying
options that may be granted pursuant to the Company's 1998 Non-Qualified Stock
Option Plan (the "Plan") and the stock purchase rights which accompany the
Common Stock issued upon exercise of options granted or to be granted under
the 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 Plan; (ii) the registration statement 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 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
issuance of Shares underlying the options granted in accordance with the terms
of the Plan has 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
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in such Item 5, shareholders of this firm hold 10,731 Shares and options to
purchase an aggregate of 62,955 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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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-_________), Post-Effective Amendment
No. 1 to the Registration Statement on Form S-8 (No. 333-48697) Post Effective
Amendments No. 3 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
June 22, 1998
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