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Exhibit 4.5
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED ("1933 ACT") OR ANY STATE SECURITIES
LAWS AND SHALL NOT BE SOLD, PLEDGED, HYPOTHECATED, DONATED, OR
OTHERWISE TRANSFERRED, WHETHER OR NOT FOR CONSIDERATION, BY THE HOLDER
EXCEPT UPON THE ISSUANCE TO THE COMPANY OF A FAVORABLE OPINION OF ITS
COUNSEL OR THE SUBMISSION TO THE COMPANY OF SUCH OTHER EVIDENCE AS MAY
BE SATISFACTORY TO COUNSEL FOR THE COMPANY, IN EITHER CASE, TO THE
EFFECT THAT ANY SUCH TRANSFER SHALL NOT BE IN VIOLATION OF THE 1933 ACT
AND APPLICABLE STATE SECURITIES LAWS.
WILLIAMS CONTROLS, INC.
Common Stock Purchase Warrant
to
Purchase [______] Shares
of
Common Stock
This Common Stock Purchase Warrant is issued to:
[________________]
C/O TAGLICH BROTHERS,, INC.
1370 AVENUE OF THE AMERICAS
31ST FLOOR
NEW YORK, NY 10019
by WILLIAMS CONTROLS, INC., a Delaware corporation (hereinafter called the
"Company", which term shall include its successors and assigns).
FOR VALUE RECEIVED and subject to the terms and conditions hereinafter
set out, the registered holder of this Warrant as set forth on the books and
records of the Company (the "Holder") is entitled upon surrender of this Warrant
to purchase from the Company [_________________] fully paid and nonassessable
shares of Common Stock, $.01 par value (the "Common Stock"), at the Exercise
Price (as defined below) per share.
This Warrant shall expire at the close of business on April 20, 2005.
1. (a) The right to purchase shares of Common Stock represented by this
Warrant may be exercised by the Holder, in whole or in part, by the surrender of
this Warrant (properly endorsed if required) at the principal office of the
Company at 14100 S.W. 72nd Avenue, Portland, Oregon 97224
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(or such other office or agency of the Company as it may designate by notice in
writing to the Holder at the address of the Holder appearing on the books of the
Company), and upon payment to the Company, by cash or by certified check or bank
draft, of the Exercise Price for such shares. The Company agrees that the shares
of Common Stock so purchased shall be deemed to be issued to the Holder as the
record owner of such shares of Common Stock as of the close of business on the
date on which this Warrant shall have been surrendered and payment made for such
shares of Common Stock as aforesaid. Certificates for the shares of Common Stock
so purchased (together with a cash adjustment in lieu of any fraction of a
share) shall be delivered to the Holder within a reasonable time, not exceeding
five (5) business days, after the rights represented by this Warrant shall have
been so exercised, and, unless this Warrant has expired, a new Warrant
representing the number of shares of Common Stock, if any, with respect to which
this Warrant shall not then have been exercised, in all other respects identical
with this Warrant, shall also be issued and delivered to the Holder within such
time, or, at the request of the Holder, appropriate notation may be made on this
Warrant and the same returned to the Holder.
(b) This Warrant may be exercised to acquire, from and after the
date hereof, the number of shares of Common Stock set forth on the first page
hereof; provided, however, the right hereunder to purchase such shares of Common
Stock shall expire at the close of business on April 20, 2005.
2. This Warrant is being issued by the Company to Taglich Brothers, Inc.
("Taglich Brothers"), or its designee, pursuant to a Debenture Placement
Agreement between the Company and Taglich Brothers dated as of April 20, 2000
(the "Placement Agreement"), whereby the Company agreed to issue a five (5) year
warrant exercisable at the Exercise Price per share to Taglich Brothers, or its
designee, equal to seven (7%) percent of the total number of shares of Common
Stock issuable upon conversion of the 7.5% Convertible Subordinated Debentures
due March 31, 2003 (the "Debentures") sold by Taglich Brothers in a Private
Placement pursuant to the Company's Confidential Private Placement Memorandum
dated March 27, 2000, as amended (the "Memorandum").
3. The Company covenants and agrees that all Common Stock upon issuance
against payment in full of the Exercise Price by the Holder pursuant to this
Warrant will be validly issued, fully paid and nonassessable and free from all
taxes, liens and charges with respect to the issue thereof; and, without
limiting the generality of the foregoing, the Company covenants and agrees that
it will take from time to time all such action as may be requisite to assure
that the par value per share of the Common Stock is at all times equal to or
less than the then effective Exercise Price. The Company further covenants and
agrees that during the period within which the rights represented by this
Warrant may be exercised, the Company will have at all times authorized, and
reserved for the purpose of issue or transfer upon exercise of the rights
evidenced by this Warrant, a sufficient number of shares of Common Stock to
provide for the exercise of the rights represented by this Warrant, and will
procure at its sole expense upon each such reservation of shares the listing
thereof (subject to issuance or notice of issuance) on all stock exchanges on
which the Common Stock is
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then listed or inter-dealer trading systems on which the Common Stock is then
traded. The Company will take all such action as may be necessary to assure that
such shares of Common Stock may be so issued without violation of any applicable
law or regulation, or of any requirements of any national securities exchange
upon which the Common Stock may be listed or inter-dealer trading system on
which the Common Stock is then traded. The Company will not take any action
which would result in any adjustment in the number of shares of Common Stock
purchasable hereunder if the total number of shares of Common Stock issuable
pursuant to the terms of this Warrant after such action upon full exercise of
this Warrant and, together with all shares of Common Stock then outstanding and
all shares of Common Stock then issuable upon exercise of all options and other
rights to purchase shares of Common Stock then outstanding, would exceed the
total number of shares of Common Stock then authorized by the Company's
Certificate of Incorporation, as then amended.
4. The Initial Exercise Price is $ 2.40 per share of Common Stock (the
"Initial Exercise Price").
The Initial Exercise Price shall be adjusted as provided for below in this
Section 4 (the Initial Exercise Price, and the Initial Exercise Price, as
thereafter then adjusted, shall be referred to as the "Exercise Price") and the
Exercise Price from time to time shall be further adjusted as provided for below
in this Section 4. Upon each adjustment of the Exercise Price, the Holder shall
thereafter be entitled to receive upon exercise of this Warrant, at the Exercise
Price resulting from such adjustment, the number of shares of Common Stock
obtained by (i) multiplying the Exercise Price in effect immediately prior to
such adjustment by the number of shares of Common Stock purchasable hereunder
immediately prior to such adjustment, and (ii) dividing the product thereof by
the Exercise Price resulting from such adjustment. The Exercise Price shall be
adjusted as follows:
(i) In the case of any amendment to the Certificate of
Incorporation of the Company to change the rights, privileges,
restrictions or conditions in respect to the Common Stock or
division of the Common Stock, this Warrant shall be adjusted so
as to provide that upon exercise thereof, the Holder shall
receive, in lieu of each share of Common Stock theretofore
issuable upon such exercise, the kind and amount of shares,
other securities, money and property receivable upon such change
or division by the Holder issuable upon such exercise had the
exercise occurred immediately prior to such designation, change
or division. This Warrant shall be deemed thereafter to provide
for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 4.
The provisions of this Subsection 4(i) shall apply in the same
manner to successive reclassifications, changes, consolidations
and mergers.
(ii) If the Company shall at any time subdivide its
outstanding shares of Common Stock into a greater number of
shares of Common Stock, or declare a dividend or make any other
distribution upon the Common Stock payable in shares of Common
Stock, the Exercise Price in effect immediately prior to such
subdivision or
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dividend or other distribution shall be proportionately reduced,
and conversely, in case the outstanding shares of Common Stock
shall be combined into a smaller number of shares of Common
Stock, the Exercise Price in effect immediately prior to such
combination shall be proportionately increased.
(iii) If any capital reorganization or reclassification
of the capital stock of the Company, or any consolidation or
merger of the Company with another corporation or entity, or the
sale of all or substantially all of the Company's assets to
another corporation or other entity shall be effected in such a
way that holders of shares of Common Stock shall be entitled to
receive stocks, securities, other evidence of equity ownership
or assets with respect to or in exchange for shares of Common
Stock, then, as a condition of such reorganization,
reclassification, consolidation, merger or sale (except as
otherwise provided below in this Section 4), lawful and adequate
provisions shall be made whereby the Holder shall thereafter
have the right to receive upon the basis and upon the terms and
conditions specified herein, such shares of stock, securities,
other evidence of equity ownership or assets as may be issued or
payable with respect to or in exchange for a number of
outstanding shares of such Common Stock equal to the number of
shares of Common Stock immediately theretofore purchasable and
receivable upon the exercise of this Warrant under this Section
4 had such reorganization, reclassification, consolidation,
merger or sale not taken place, and in any such case appropriate
provisions shall be made with respect to the rights and
interests of the Holder to the end that the provisions hereof
(including, without limitation, provisions for adjustments of
the Exercise Price and of the number of shares of Common Stock
receivable upon the exercise of this Warrant) shall thereafter
be applicable, as nearly as may be, in relation to any shares of
stock, securities, other evidence of equity ownership or assets
thereafter deliverable upon the exercise hereof (including an
immediate adjustment, by reason of such consolidation or merger,
of the Exercise Price to the value for the Common Stock
reflected by the terms of such consolidation or merger if the
value so reflected is less than the Exercise Price in effect
immediately prior to such consolidation or merger). Subject to
the terms of this Warrant, in the event of a merger or
consolidation of the Company with or into another corporation or
other entity as a result of which the number of shares of common
stock of the surviving corporation or other entity issuable to
holders of Common Stock of the Company, is greater or lesser
than the number of shares of Common Stock of the Company
outstanding immediately prior to such merger or consolidation,
then the Exercise Price in effect immediately prior to such
merger or consolidation shall be adjusted in the same manner as
though there were a subdivision or combination of the
outstanding shares of Common Stock of the Company. The Company
shall not effect any consolidation, merger or sale, unless,
prior to the consummation thereof, the successor corporation (if
other than the Company) resulting from such consolidation or
merger or the corporation purchasing such assets shall assume by
written instrument executed and mailed or delivered to the
Holder, the obligation to deliver to the Holder such shares of
stock, securities, other evidence of
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equity ownership or assets as, in accordance with the foregoing
provisions, the Holder may be entitled to receive or otherwise
acquire. If a purchase, tender or exchange offer is made to and
accepted by the holders of more than fifty (50%) percent of the
outstanding shares of Common Stock of the Company, the Company
shall not effect any consolidation, merger or sale with the
Person having made such offer or with any Affiliate of such
Person, unless prior to the consummation of such consolidation,
merger or sale the Holder of this Warrant shall have been given
a reasonable opportunity to then elect to receive upon the
exercise of this Warrant the amount of stock, securities, other
evidence of equity ownership or assets then issuable with
respect to the number of shares of Common Stock of the
Corporation in accordance with such offer.
Whenever the Exercise Price shall be adjusted pursuant to this
Section 4, the Company shall issue a certificate signed by its President or Vice
President and by its Treasurer, Assistant Treasurer, Secretary or Assistant
Secretary, setting forth, in reasonable detail, the event requiring the
adjustment, the amount of the adjustment, the method by which such adjustment
was calculated (including a description of the basis on which the Board of
Directors of the Company made any determination hereunder), and the Exercise
Price after giving effect to such adjustment, and shall cause copies of such
certificates to be mailed (by first-class mail, postage prepaid) to the Holder
of this Warrant.
No fractional Common Stock shall be issued in connection with
any exercise of this Warrant, but in lieu of such fractional shares, the Company
shall make a cash payment therefor equal in amount to the product of the
applicable fraction multiplied by the Exercise Price then in effect.
5. In the event the Company grants rights to all shareholders to
purchase Common Stock, the Holder shall have the same rights as if this Warrant
had been exercised immediately prior to such grant.
6. The Holder shall, with respect to the shares of Common Stock issuable
upon the exercise of this Warrant, have the registration rights and "piggy back"
registration rights set forth in the Placement Agreement between the Company and
the Holder, pursuant to which the Holders subscribed for Debentures and this
Warrant pursuant to the Memorandum. Such registration rights and "piggy back"
registration rights are incorporated herein by this reference as if such
provisions had been set forth herein in full.
7. This Warrant need not be changed because of any change in the
Exercise Price or in the number of shares of Common Stock purchased hereunder.
8. The terms defined in this paragraph, whenever used in this Warrant,
shall, unless the context otherwise requires, have the respective meanings
hereinafter specified. The term "Common Stock" shall mean and include the
Company's Common Stock, $0.01 par value per share, authorized on the date of the
original issue of this Warrant and shall also include in case of any
reorganization, reclassification, consolidation, merger or sale of assets of the
character referred to in paragraph 4
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hereof, the stock, securities or assets provided for in such paragraph. The term
"Company" shall also include any successor corporation to WILLIAMS CONTROLS,
INC. by merger, consolidation or otherwise. The term "outstanding" when used
with reference to Common Stock shall mean at any date as of which the number of
shares thereof is to be determined, all issued shares of Common Stock, except
shares then owned or held by or for the account of the Company. The term "1933
Act" shall mean the Securities Act of 1933, as amended, or any similar Federal
statute, and the rules and regulations of the Securities and Exchange
Commission, or any other Federal agency then administering such Securities Act,
thereunder, all as the same shall be in effect at the time.
9. This Warrant is exchangeable, upon the surrender hereby by the Holder
at the office or agency of the Company, for new Warrants of like tenor
representing in the aggregate the right to subscribe for and purchase the number
of shares of Common Stock which may be subscribed for and purchased hereunder,
each of such new Warrants to represent the right to subscribe for and purchase
such number of shares of Common Stock as shall be designated by the Holder at
the time of such surrender. Upon receipt of evidence satisfactory to the Company
of the loss, theft, destruction or mutilation of this Warrant or any such new
Warrants and, in the case of any such loss, theft, or destruction, upon delivery
of a bond of indemnity, reasonably satisfactory to the Company, or, in the case
of any such mutilation, upon surrender or cancellation of this Warrant or such
new Warrants, the Company will issue to the Holder a new Warrant of like tenor,
in lieu of this Warrant or such new Warrants, representing the right to
subscribe for and purchase the number of shares of Common Stock which may be
subscribed for and purchased hereunder.
10. The Company agrees to use its best efforts to file timely all
reports required to be filed by it pursuant to Sections 13 or 15 of the
Securities Exchange Act of 1934, as amended, and to provide such information as
will permit the Holder to sell this Warrant or any shares of Common Stock
acquired upon exercise of this Warrant in accordance with Rule 144 under the
1933 Act.
11. The Company will at no time close its transfer books against the
transfer of this Warrant or of any shares of Common Stock issued or issuable
upon the exercise of this Warrant in any manner which interferes with the timely
exercise of this Warrant. This Warrant shall not entitle the Holder to any
voting rights or any rights as a stockholder of the Company. The rights and
obligations of the Company, of the Holder, and of any holder of shares of Common
Stock issuable hereunder, shall survive the exercise of this Warrant.
12. This Warrant sets forth the entire agreement of the Company and the
Holder of the Common Stock issuable upon the exercise of this Warrant with
respect to the rights of the Holder and the Common Stock issuable upon the
exercise of this Warrant, notwithstanding the knowledge of such Holder of any
other agreement or the provisions of any agreement, whether or not known to the
Holder and the Company represents that there are no agreements inconsistent with
the terms hereof or which purport in any way to bind the Holder of this Warrant
or the Common Stock.
13. The validity, interpretation and performance of this Warrant and
each of its terms and provisions shall be governed by the laws of the State of
New York.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer under its corporate seal and dated as of April 20,
2000.
WILLIAMS CONTROLS, INC.
By:_______________________________________
Gerard A. Herlihy, Chief Financial Officer
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