As filed with the Securities and Exchange Commission on June 9, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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WILLIAMS CONTROLS, INC.
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(Exact name of Registrant specified in its charter)
Delaware 84-1099587
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
14100 SW 72nd Avenue
Portland, OR 97224
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(Address of Principal Executive Offices) Zip Code
WILLIAMS CONTROLS, INC.
1993 STOCK OPTION PLAN
and
1995 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
and
OPTIONS GRANTED PURSUANT TO A CONSULTING AGREEMENT
(Full title of the plan)
CSC The United States Corporation Service Company
1013 Centre Road
Wilmington, Delaware 19805
(Name and address of agent for service)
(800) 927-9800
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(Telephone number, including area code, of agent for service)
Copies to:
Gerald Raskin, Esq.
Seth Weiss, Esq.
Friedlob Sanderson Raskin Paulson & Tourtillott, LLC
1400 Glenarm Place, Suite 300
Denver, Colorado 80202
(303) 571-1400
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Title of Offering Aggregate Amount of
Securities to be Amount to be Price Offering Registration
Registered Registered Per Share Price Fee
(1)
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Common Stock,
$.01 par value 3,000,000 (2) $7,487,172 $2,209
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Common Stock,
$.01 par value 200,000 (3) $588,238 $174
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Common Stock,
$.01 par value 150,000 $.41 $61,500 $18
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TOTALS 3,350,000 $8,136,910 $2,400
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(1) This Registration Statement is being filed to register (a) 3,000,000
shares of common stock which may be issued pursuant to the
Registrant's 1993 Stock Option Plan (the "1993 Option Plan"), (b)
200,000 shares of common stock which may be issued pursuant to the
Registrant's 1995 Stock Option Plan for Non-Employee Directors (the
"1995 Non-Employee Director Plan"); and (c) 150,000 options to
purchase shares of common stock granted pursuant to the terms of a
written consulting agreement (the "Consulting Agreement.")
(2) In accordance with Rule 457(h), the fee has been calculated as
follows: 916,300 shares at $1.938 per share, 418,700 shares at $2.50
per share, 400,000 shares at $2.44 per share, 150,000 shares at
$3.2313 per share, 110,000 shares at $2.6250 per share, 45,600 shares
at $2.9375 per share, 30,000 shares at $2.156 per share, 30,000 shares
at $2.937 per share, 25,000 shares at $3.63 per share, 20,000 shares
at $2.563 per share, 15,000 shares at $2.375 per share, 3,000 shares
at $2.313 per share and 836,400 shares at a price of $2.9219 (pursuant
to Rule 457(c), the average of the high and low price of Williams
Controls, Inc. common stock on Friday, June 5, 1998).
(3) In accordance with Rule 457(h), the fee has been calculated as
follows: 30,000 shares at $2.50 per share, 30,000 shares at $2.656 per
share, 30,000 shares at $3.00 per share, 30,000 shares at $3.66 per
share and 80,000 shares available for grant at a price of $2.9219
(pursuant to Rule 457(c), the average of the high and low price of
Williams Controls, Inc. common stock on Friday, June 5, 1998).
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
Item 1. Plan Information.
Williams Controls, Inc. (the "Registrant") will provide to the option
holders (the "Recipients") the documents which contain information related to
the plans which provide for their options and other information including, but
not limited to, the disclosure required by Item 1 of Form S-8, which information
is not filed as a part of this Registration Statement (the "Registration
Statement"). The foregoing information and the documents incorporated by
reference in response to Item 3 of Part II of this Registration Statement taken
together constitute a prospectus that meets the requirements of Section 10(a) of
the Securities Act of 1933, as amended (the "Securities Act"). A Section 10(a)
prospectus will be given to each Recipient who receives shares of common stock
covered by this Registration Statement in accordance by Rule 428(b)(1) under the
Securities Act.
Item 2. Registrant Information and Employee Plan Annual Information.
The Registrant will provide to the Recipients a written statement
advising them of the availability without charge, upon written or oral notice,
of documents incorporated by reference in Item 3 of Part II of this Registration
Statement and of documents required to be delivered pursuant to Rule 428(b)
under the Securities Act. The statement will include the address and telephone
number to which their requests should be directed.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission by the Registrant
are incorporated into this Registration Statement by this reference:
(1) Registrant's Annual Report on Form 10-K for the year ended
September 30, 1997;
(2) Registrant's Quarterly Report on Form 10-Q for the quarter ended
December 31, 1997;
(3) Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998; and
(4) The description of the common stock contained in the Registrant's
Registration Statement on Form 8-A, Commission File No. 0-18083,
filed with the Commission on November 1, 1989.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act"), prior to the filing of a post-effective amendment which indicates that
all shares offered hereunder have been sold or deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law and Article Ninth
of the Registrant's Certificate of Incorporation, under certain circumstances
provide for the indemnification of the Registrant's officers, directors,
employees and agents against liabilities which they may incur in such
capacities. A summarization of the circumstances in which such indemnifications
provided for is contained herein, but that description is qualified in its
entirety by reference to Article Ninth of the Registrant's Certificate of
Incorporation and the relevant Section of the Delaware General Corporation Law.
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In general, the statute provides that any director, officer, employee
or agent of a corporation may be indemnified against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement, actually and
reasonably incurred in a proceeding (including any civil, criminal,
administrative or investigative proceeding) to which the individual was a party
by reason of such status. Such indemnity may be provided if the indemnified
person's actions resulting in the liabilities: (i) were taken in good faith;
(ii) were reasonably believed to have been in or not opposed to the Registrant's
best interest; and (iii) with respect to any criminal action, such person had no
reasonable cause to believe the actions were unlawful. Unless ordered by a
court, indemnification generally may be awarded only after a determination of
independent members of the Board of Directors or a committee thereof, by
independent legal counsel or by vote of the stockholders that the applicable
standard of conduct was met by the individual to be indemnified.
The statutory provisions further provide that to the extent a director,
officer, employee or agent is wholly successful on the merits or otherwise in
defense of any proceeding to which he was a party, he is entitled to receive
indemnification against expenses, including attorneys' fees, actually and
reasonably incurred in connection with the proceeding.
Indemnification in connection with a proceeding by or in the right of
the Corporation in which the director, officer, employee or agent is successful
is permitted only with respect to expenses, including attorneys' fees actually
and reasonably incurred in connection with the defense. In such actions, the
person to be indemnified must have acted in good faith, in a manner believed to
have been in the Corporation's best interest and must not have been adjudged
liable to the Corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability, in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expense which the Court of Chancery or such other court shall
deem proper. Indemnification is otherwise prohibited in connection with a
proceeding brought on behalf of the Registrant in which a director is adjudged
liable to the Registrant, or in connection with any proceeding charging improper
personal benefit to the director in which the director is adjudged liable for
receipt of an improper personal benefit.
Delaware law authorizes the Registrant to reimburse or pay reasonable
expenses incurred by a director, officer, employee or agent in connection with a
proceeding in advance of a final disposition of the matter. Such advances of
expenses are permitted if the person furnishes to the Registrant a written
agreement to repay such advances if it is determined that he is not entitled to
be indemnified by the Corporation.
The statutory section cited above further specifies that any provisions
for indemnification of or advances for expenses does not exclude other rights
under the Registrant's Certificate of Incorporation, Bylaws, resolutions of its
stockholders or disinterested directors, or otherwise. These indemnification
provisions continue for a person who has ceased to be a director, officer,
employee or agent of the corporation and inure to the benefit of the heirs,
executors and administrators of such persons.
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The statutory provision cited above also grants the power to the
Registrant to purchase and maintain insurance policies which protect any
director, officer, employee or agent against any liability asserted against or
incurred by him in such capacity arising out of his status as such. Such
policies may provide for indemnification whether or not the corporation would
otherwise have the power to provide for it. No such policies providing
protection against liabilities imposed under the securities laws have been
obtained by the Registrant.
Article VIII of the Registrant's Bylaws provides that the Registrant
shall indemnify its directors, officers, employees and agents to the fullest
extent permitted by the Delaware General Corporation Law. In addition, the
Registrant has entered into agreements with its directors indemnifying them to
the fullest extent permitted by the Delaware General Corporation Law.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following is a complete list of exhibits filed as a part of this
Registration Statement, which Exhibits are incorporated herein.
4.1 Certificate of Incorporation of the Registrant as amended. (Incorporated
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by reference to Exhibit 3.1 to the Registrant's Annual Report on Form
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10-K for the Fiscal Year Ended September 1995)
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5.1 Opinion of Counsel and Consent of Friedlob Sanderson Raskin Paulson &
Tourtillott, LLC
23.1 Consent of Friedlob Sanderson Raskin Paulson & Tourtillott, LLC - See
Exhibit 5.1.
23.2 Consent of Horwath Gelfond Hochstadt Pangburn & Co.
24.1 Power of Attorney - Included on Signature Page
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Item 9. Undertakings
The undersigned Registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to include
any additional or changed material information on the plan of distribution.
(a) (2) That, for determining any liability under the Securities Act,
it will treat each post-effective amendment as a new registration statement of
the securities offered, and the offering of such securities at that time to be
the initial bona fide offering.
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(a) (3) To file a post-effective amendment to remove from registration
any of the securities that remain unsold at the end of the offering.
(b) Not applicable.
(c) Not Applicable.
(d) Not Applicable.
(e) Not Applicable.
(f) Not Applicable.
(g) Not Applicable.
(h) Not Applicable.
(i) Not Applicable.
(j) Not Applicable.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of W. Bloomfield, State of Michigan, on June 9, 1998.
WILLIAMS CONTROLS, INC.
By:/s/ Thomas W. Itin
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Thomas W. Itin, Chief
Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officers and/or
directors of Williams Controls, Inc., by virtue of their signatures appearing
below, hereby constitute and appoint Thomas W. Itin and Gerald A. Herlihy, each
with full power of substitution, as attorneys-in-fact in their names, places and
steads to execute any and all amendments to this Registration Statement on Form
S-8 in the capacities set forth opposite their names below and hereby ratify all
that said attorneys-in-fact may do by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signatures Title Date
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/s/ Thomas W. Itin Director, President, June 9, 1998
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Thomas W. Itin Chief Executive
Officer and Chief
Operating Officer
/s/ Gerard A. Herlihy Chief Financial Officer June 9, 1998
------------------------- and Chief Administrative
Gerard A. Herlihy Officer
/s/ R. William Caldwell Director June 9, 1998
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R. William Caldwell
/s/ H. Samuel Greenawalt Director June 9, 1998
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H. Samuel Greenawalt
/s/ Timothy S. Itin Director June 9, 1998
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Timothy S. Itin
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EXHIBIT 5.1
June 3, 1998
Board of Directors
Williams Controls, Inc.
14100 SW 72nd Avenue
Portland, Oregon 97224
Re: Registration Statement on Form S-8
Opinion of Counsel
Gentlemen:
As counsel for Williams Controls, Inc. (the "Corporation"), a Delaware
corporation, we have examined the Certificate of Incorporation, the Bylaws and
minutes of the Corporation and such other corporate records, documents and
proceedings, and have considered such questions of law as we deemed relevant for
the purpose of this opinion. We have also, as such counsel, examined the
Corporation's Registration Statement on Form S-8 (the "Registration Statement"),
which will be filed with the Securities and Exchange Commission today or shortly
thereafter, covering the sale of an aggregate of up to 3,350,000 shares (the
"Shares") of the Corporation's common stock under the Corporation's 1993 Stock
Option Plan, 1995 Stock Option Plan for Non-Employee Directors and options
granted pursuant to a Consulting Agreement as described in and in accordance
with the terms of the Registration Statement.
Based upon the foregoing, we are of the opinion that the Shares will be
duly and validly issued as fully paid and non-assessable shares of common stock
upon exercise of options in accordance with their terms.
We hereby consent to the use of our name in such Registration Statement and
to the filing of this opinion as Exhibit 5.1 thereto. In giving this consent, we
do not thereby admit that we come within the category of persons whose consent
is required under Section 7 of the Securities Act of 1933 or the Rules and
Regulations of the Securities and Exchange Commission promulgated thereunder.
Very truly yours,
Friedlob Sanderson Raskin
Paulson & Tourtillott, LLC
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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement
on Form S-8 of Williams Controls, Inc. of our reports dated December 18, 1997
relating to the consolidated balance sheets of Williams Controls, Inc. and
subsidiaries as of September 30, 1997 and 1996, and the related consolidated
statements of operations, shareholders' equity, and cash flows for each of the
years in the three-year period ended September 30, 1997, and the related
financial statement schedule, which reports appear in the September 30, 1997
annual report on Form 10-K of Williams Controls, Inc.
HORWATH GELFOND HOCHSTADT PANGBURN & CO.
Denver, Colorado
June 8, 1998
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