Exhibit 4.01


 


CERTIFICATE OF AMENDMENT


 


TO


 


CERTIFICATE TO PROVIDE FOR THE
DESIGNATION, PREFERENCES,

RIGHTS, QUALIFICATIONS, LIMITATIONS OR

RESTRICTIONS THEREOF, OF THE SERIES B PREFERRED STOCK,

15% REDEEMABLE CONVERTIBLE SERIES


 


OF


 


WILLIAMS CONTROLS, INC.


 


Williams Controls, Inc., a
corporation duly organized and existing under and by virtue of the General
Corporation Law of the State of Delaware (the “Corporation”), does hereby
certify that:


 


1.                                     The Certificate
to Provide for the Designation, Preferences, Rights, Qualifications,
Limitations or Restrictions Thereof, of the Series B Preferred Stock, 15%
Redeemable Convertible Series of the Corporation, is hereby amended to read in
its entirety as set forth on Exhibit A attached here.


 


2.                                     The foregoing
amendment was duly adopted in accordance with the provisions of Sections 242
and 228 (by the written consent of the holders of a majority of the outstanding
shares of the Series B Preferred Stock and a majority in voting power of the
outstanding stock of the Corporation) of the General Corporation Law of the
State of Delaware.


 


IN
WITNESS WHEREOF, Williams Controls, Inc. has caused this Certificate to be
executed by Dennis E. Bunday, its Chief Financial Officer and Secretary on this
28th day of September, 2004.


 


 


	
   

  	
  WILLIAMS CONTROLS, INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Dennis E. Bunday

  	
   

  
	
   

  	
  Name:

  	
  Dennis E. Bunday

  	
   

  
	
   

  	
  Office:

  	
  Chief Financial Officer & Secretary

  	
   

  
						



 


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EXHIBIT A


 


CERTIFICATE TO PROVIDE FOR THE
DESIGNATION, PREFERENCES,

RIGHTS, QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS THEREOF,

OF THE SERIES B PREFERRED STOCK,

15% REDEEMABLE CONVERTIBLE SERIES


 


SECTION 1.                          DESIGNATION,
PAR VALUE AND NUMBER.  160,000 shares of
authorized preferred stock of the Corporation are hereby constituted as a
series of preferred stock, having a par value of $0.01 per share, designated as
“Series B Preferred Stock, Redeemable Convertible Series” (hereinafter called “Series B”).  In accordance with the terms hereof, each
share of Series B shall have the same relative rights as and be identical in
all respects with each other share of Series B.


 


SECTION 2.                          DIVIDENDS.  In the event that the Corporation declares
or pays any dividends upon the Common Stock (whether payable in cash,
securities or other property), the Corporation shall also declare and pay to
the holders of the Series B at the same time that it declares and pays such
dividends to the holders of the Common Stock, the dividends which would have
been declared and paid with respect to the Common Stock issuable upon
conversion of the Series B had all of the outstanding Series B been converted
pursuant to Section 3 immediately prior to the record date for such
dividend, or if no record date is fixed, the date as of which the record
holders of Common Stock entitled to such dividends are to be determined.  “Common Stock” means the
Corporation’s common stock, par value $.01 per share, and any capital stock of
any class of the Corporation hereafter authorized which is not limited to a
fixed sum or percentage of par or stated value in respect to the rights of the
holders thereof to participate in dividends or in the distribution of assets
upon any liquidation, dissolution or winding up of the Corporation.


 


SECTION 3.                          PRIORITY.  All shares of the Series B shall rank on a
parity with each other and shall be senior to the Corporation’s Series A-1
Preferred Stock, Non-Redeemable Convertible Series (the “Series A-1”), the Common Stock of
the Corporation, and any other class or series of stock of the Corporation
hereafter created by the Board of Directors the terms of which do not expressly
provide that it ranks on parity with or senior to the Series B, in all cases as
to the payment of dividends and the distribution of assets upon the
liquidation, dissolution or winding up of the Corporation.


 


SECTION 4.                          REDEMPTION.


 


(a)                                  Redemption.  Up to 98,114 shares of the outstanding
Series B shall be subject to redemption on September 30, 2004 (the “Redemption
Date”) at the option of the holders thereof, at a price per share equal to $265.00 (the “Redemption
Price”).


 


(b)                                 Notice of Redemption.  The Corporation shall give written notice by
certified mail, return receipt requested, postage prepaid (the “Redemption
Notice”) to each holder of the Series B, at each such holder’s last address
appearing on the books of the Corporation not later


 


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than
September 28, 2004.  Each
Redemption Notice shall state (i) the
Redemption Price, (ii) the place or places where certificates for such shares
of the Series B to be redeemed are to be surrendered for conversion or for payment
of the Redemption Price, and (iii) the address to which the holder’s Notice of
Acceptance should be sent.


 


(c)                                  Notice of Acceptance.  Not later than September 29, 2004, each
holder of Series B that wishes to exercise his, her or its option to cause the
redemption of his, her or its Series B shall give written notice (the
“Acceptance Notice”) to the Corporation. 
Each Acceptance Notice shall set forth the integral number of shares of
Series B the holder wishes to have redeemed pursuant to this Section 4.  If the Corporation receives Acceptance
Notices requesting the redemption of 98,114 or fewer shares of Series B, the
Corporation shall redeem all shares of Series B specified in the Acceptance
Notices on the Redemption Date, and thereafter the right of redemption pursuant
to this Section 4 shall expire with respect to any remaining shares
of Series B.  If the Corporation
receives Acceptance Notices requesting the redemption of more than 98,114
shares of Series B, the Corporation shall redeem, on the Redemption Date, a
ratable portion of the shares of Series B specified in the Acceptance Notices,
rounded down to the nearest integral number of shares, based on the total number
of shares of Series B held by each holder thereof who submits an Acceptance
Notice.  The right of redemption under
this Section 4 shall expire as to all shares of Series B held by
any holder thereof who fails to deliver an Acceptance Notice to the Corporation
within five (5) days after his, her or its receipt of the Redemption Notice.


 


(d)                                 Rights Following Redemption.  If Notice of Redemption shall have been duly
given as provided in Section 4(b), and if, on the Redemption Date,
funds necessary for such redemption have been deposited in trust with a bank or
trust company, or have been set aside, in trust, by the Corporation, for the purpose of
redeeming shares of the Series B, the shares of the Series B called for
redemption shall, as of the close of business on the Redemption Date, no longer
be transferable on the books of the Corporation and shall no longer be deemed
to be outstanding, the right to receive dividends thereon shall cease to
accrue, and all rights with respect to such shares so called for redemption
shall terminate, except only the right of the holders thereof to receive,
without interest thereon, upon surrender of the certificates for such shares
(i) payment of the Redemption Price therefor,
and (ii) a certificate representing any shares of Series B which were
represented by the certificate or certificates delivered to the Corporation in
connection with such redemption but which were not redeemed.


 


(e)                                  Insufficient Funds.  Subject to the rights of series of preferred
stock which may from time to time come into existence, if funds of the
Corporation legally available for redemption of shares of Series B on the
Redemption Date are insufficient to redeem the shares of Series B called for
redemption, those funds which are legally available will be used to redeem the
maximum possible number of such shares ratably among the holders of such shares
who have submitted Acceptance Notices. 
Subject to the rights of series of preferred stock which may from time
to time come into existence, at any time thereafter when additional funds of
the Corporation become legally available for the redemption of shares of Series
B called for redemption, such funds will immediately be used to redeem the
balance of the shares ratably among the holders of such shares who have
submitted Acceptance Notices.


 


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(f)                                    Escheat.  In case any holder of shares of the Series B
which shall have been redeemed shall not, within three years of the date of
redemption thereof, claim the amount deposited in trust for the redemption of
such shares, the bank or trust company with which such funds were deposited,
upon request of the Corporation, shall pay over to the Corporation such
unclaimed amount and shall thereupon be relieved of all responsibility in
respect thereof.  The Corporation shall
not be required to hold the amount so paid over to it, or any amount
theretofore set aside by it, in trust after such three-year period, separate
and apart from its other funds, and thereafter the holders of such shares of
the Series B shall look only to the Corporation for payment of the Redemption
Price thereof, without interest.  All
liability of the Corporation to any holder of shares of the Series B for payment
of the Redemption Price for shares of the Series B called for redemption shall
cease and terminate as of the close of business on the fourth anniversary of
the redemption date for such shares.


 


(g)                                 Cancellation of Shares.  Shares of the Series B redeemed pursuant to
this Section 4 shall be canceled by the Corporation and thereafter
shall be authorized and unissued shares of preferred stock, undesignated as to
series, subject to reissuance by the Corporation as shares of any series of preferred stock other
than the Series B.


 


SECTION 5.                          AUTOMATIC CONVERSION


 


(a)                                  Conversion.  Each outstanding share of Series B shall be
automatically converted on such date as there are fewer than 10,000 shares of
the Series A-1 outstanding (the “Automatic Conversion Date”) into
212.1635 validly issued, fully paid and non-assessable shares of the Company’s
Common Stock.


 


(b)                                 Surrender of Certificates.  Following the automatic conversion of Series
B, the holder of each share of Series B shall surrender the certificate or
certificates therefor, duly endorsed in blank at the principal office of the
Corporation or its transfer agent, if any, or at such other office or offices,
located in the United States as the Board of Directors shall designate by
written notice to all holders of Series B shares. Shares of the Series B shall
be deemed to have been converted as of the Automatic Conversion Date, and the
person or persons entitled to receive the Conversion Stock issuable upon such
conversion shall be treated for all purposes as the record holder or holders of
such Conversion Stock on such date.


 


(c)                                  Fractional Shares.  No fractional shares of Common Stock are to
be issued upon conversion.  The
Corporation shall pay a cash adjustment out of surplus in respect to any
fraction of a share which would otherwise be issuable, in an amount equal to
$0.85 per share of Common Stock.


 


(d)                                 Deliveries.  As soon as practicable after receipt of the
certificate or certificates for the Series B surrendered by each holder
thereof, but in no event more than five (5) business days thereafter, the
Corporation will deliver by Federal Express or other nationally recognized
overnight delivery service to the address of each holder who surrendered a
certificate or certificates representing the Series B:  (i) a certificate or certificates for the
number of full shares of Common Stock issuable upon such conversion in such
name or names and such denomination or denominations as the converting holder
has specified, and (ii) payment of the amount payable under Section 5(c)
with respect to such conversion.


 


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SECTION 6.                          VOTING


 


(a)                                  Election of Directors.  Until there are no shares of Series B
outstanding, in the election of directors of the Corporation, the holders of
the Common Stock, the Series A-1 and the Series B shall be entitled to vote on
the election of all of the directors as a single class with (i) each share of
Common Stock entitled to one vote, (ii) each share of Series A-1 entitled to
one vote for each share of Common Stock issuable upon conversion pursuant to
Section 4 of that certain Certificate to Provide for the Designation,
Preferences, Rights, Qualifications, Limitations or Restrictions Thereof, of
the Series A-1 Preferred Stock, Non-Redeemable Convertible Series (the “Series
A-1 Designation”), and (iii) each share of Series B entitled to one vote
for each share of Common Stock issuable upon conversion pursuant to
Section 5 hereof.  Upon such date
as there are no shares of Series B outstanding, the holders of the Common Stock
and the Series A-1 shall thereafter be entitled to vote on the election of all
of the directors as a single class with each share of Common Stock entitled to
one vote, and each share of Series A-1 entitled to one vote for each share of
Common Stock issuable upon conversion pursuant to Section 4 of the Series
A-1 Designation.


 


(b)                                 Voting as a Separate Class.  The Corporation shall not, without the
consent of the holders of at least a majority of the shares of the Series B
then outstanding, voting as a separate class to the exclusion of all other
classes:


 


(i)                                     create, authorize or issue any stock ranking equal to or
senior to the Series B as to dividends or distributions, or any obligation or
security convertible into shares of any such senior stock;


 


(ii)                                  amend, alter, change, or repeal any of the express terms of
the Series B; or


 


(iii)                               pay any dividends to any holder of any class of capital stock
of the Corporation.


 


(c)                                  Other Voting Rights.  The holders of the Series B shall be
entitled to vote on all matters, other than those described above in clause (a)
or (b) of this Section 6, in which holders of Common Stock and
Series A-1 are entitled to vote, voting together with holders of the Common
Stock and the Series A-1 as a single class with (i) each share of Common Stock
entitled to one vote, (ii) each share of Series A-1 entitled to one vote for
each share of Common Stock issuable upon conversion pursuant to Section 4
of the Series A-1 Designation, and (iii) each share of Series B entitled to one
vote for each share of Common Stock issuable upon conversion pursuant to
Section 5 hereof, in all cases as of the record date of such vote or, if
no record date is specified, as of the date of such vote.  The holders of the Series B shall be
entitled to receive all communications sent by the Corporation to the holders
of Common Stock.


 


(d)                                 Except as provided in Section 6(b) or by Delaware
law, holders of shares of the Series B shall not be entitled to vote as a
separate class.


 


SECTION 7.                          REPLACEMENT CERTIFICATES.


 


(a)                                  Mutilated Certificate.  If any mutilated certificate of Series B is
surrendered to the Corporation, the Corporation shall execute and deliver in exchange
therefor a new certificate for


 


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Series
B of like tenor and principal amount, bearing a number not contemporaneously
outstanding.


 


(b)                                 Destroyed, Lost or Stolen Certificate.  If there is
delivered to the Corporation (i) evidence to its reasonable satisfaction of the
destruction,
loss or theft of any certificate of Series B and (ii) such reasonable security
or indemnity as may be required by it to save it harmless, then, in the absence
of notice to the Corporation that such certificate of Series B has been
acquired by a bona fide purchaser, the Corporation shall execute and deliver in
lieu of any such destroyed, lost or stolen certificate of Series B, a new
certificate of Series B of like tenor and principal amount and bearing a number
not contemporaneously outstanding.


 


(c)                                  Status of New Certificate.  Upon the issuance of any new certificate of
Series B under this Section 7, the Corporation may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses connected therewith.  Every new certificate of Series B issued
pursuant to this Section 7 in lieu of any destroyed, lost or stolen
certificate of Series B, shall constitute an original additional contractual
obligation of the Corporation, whether or not the destroyed, lost or stolen
certificate of Series B shall be at any time enforceable by anyone.  Any new certificate for Series B delivered
pursuant to this Section 7 shall be so dated that neither gain nor
loss in interest shall result from such exchange.  The provisions of this Section 7 are exclusive and
shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
certificate of Series B.


 


SECTION 8.                          AMENDMENT AND
WAIVER.  No amendment, modification or
waiver shall be binding or effective with respect to any provision of Sections
1 to 9 hereof without the prior written consent of the holders of a
majority of the shares of Series B outstanding at the time such action is
taken.


 


SECTION 9.                          NOTICES.  Except as otherwise expressly provided
hereunder, all notices referred to herein shall be in writing and shall be
delivered by registered or certified mail, return receipt requested and postage
prepaid, or by reputable overnight courier service, charges prepaid, and shall
be deemed to have been given when so mailed or sent (i) to the Corporation, at
its principal executive offices and (ii) to any stockholder, at such holder’s
address as it appears in the stock records of the Corporation (unless otherwise
indicated by any such holder).


 


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