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ARTICLES OF ORGANIZATION
As Amended May 24, 1994
THE COMMONWEALTH OF MASSACHUSETTS
1. The name by which the corporation shall be known is Wyman-
Gordon Company.
2. The purposes for which the corporation is formed are as
follows: forgings, forgings of all kinds, castings,
machinery, tools, metal work of any kind and any and all
things made in whole or in part from metals. To carry on a
general forging business. To carry on a general
manufacturing business and to do all things necessary or
incidental to any of the above purposes or powers. To carry
on the general business or merchants and dealers in any or
all things manufactured by the company or used or acquired
in connection with such manufacture. To acquire personal
property of any kind and any amount, and real property, so
far as the same may be necessary or desirable in connection
with any of the foregoing powers, and to sell, mortgage,
pledge, lease or otherwise dispose of such personal and real
property. To acquire, hold, use, sell and deal in patented
articles, patent rights, patents, licenses under patents,
trade-marks, trade names, processes and formulae. To
acquire, hold and dispose of its own stock and securities
and stocks, bonds or securities of any other corporations
and associations. To carry on the business heretofore
conducted by the Wyman and Gordon Company, a Massachusetts
corporation. To do any and all acts desirable in connection
with or incidental to any of the above powers or purposes or
calculated to enhance the value of the company's business or
property.
3.(a) The total number of shares of common stock which the Company
is authorized to issue is Seventy Million (70,000,000)
having a par value of one dollar ($1.00) per share (the
"Common Stock").
(b) The total number of shares of Preferred Stock which the
Company is authorized to issue is Five Million (5,000,000)
having no par value.
4. If more than one class is authorized, a description of each
of the different classes of stock with, if any, the
preferences, voting powers, qualifications, special or
relative rights or privileges as to each class thereof and
any series now established: Shares of Preferred Stock may
be issued from time to time in one or more series, each such
series to have such distinctive designation or title as may
be fixed by the Board of Directors prior to the issuance of
any shares of such series. Each such series of Preferred
Stock shall have such preferences, voting powers,
qualifications, restrictions and special or relative rights
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or privileges, and to the fullest extent now or hereafter
permitted under Massachusetts law, as shall be stated in
such resolution or resolutions providing for the issuance of
shares of Preferred Stock as may be adopted from time to
time by the Board of Directors in accordance with the laws
of the Commonwealth of Massachusetts.
5. The restrictions, if any, imposed by the articles of
organization upon the transfer of shares of stock of any
class are as follows: None.
6.(a) The Board of Directors may make, amend or repeal the Bylaws
in whole or in part except with respect to any provision
thereof which by law the Articles of Organization or the
Bylaws requires action by the Stockholders.
(b) No director of the Company shall have any personal liability
to the Company or its Stockholders for monetary damages for
breach of fiduciary duty as a director notwithstanding any
provision of law imposing such liability; provided, however,
that this Article 6(b) shall not eliminate or limit the
liability of a director (i) for any breach of the director's
duty of loyalty to the Company or its Stockholders, (ii) for
acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii)
under Section 61 or 62 of Chapter 156B of the Massachusetts
General Laws, or (iv) for any transaction from which the
director derived an improper personal benefit. The
preceding sentence shall not eliminate or limit the
liability of a director for any act or omission occurring
prior to the date upon which this Article 6(b) becomes
effective. No amendment to or repeal of this Article 6(b)
shall apply to or have any effect on the elimination
pursuant hereto of liability or alleged liability of any
director of the Company for or with respect to any acts or
omissions of such director occurring prior to such amendment
or repeal. Nothing in this Article 6(b) shall limit any
lawful right to indemnification existing independently of
this Article.
(c) No Business Combination (as hereinafter defined) shall be
consummated or effected unless such Business Combination
shall have been approved by the affirmative vote of the
holders or not less than eighty-five percent (85%) of the
total voting power of all outstanding shares of voting stock
of the Company, voting as a single class. Such vote shall
be required notwithstanding the fact that no vote for such a
transaction may be required by law or that approval by some
lesser percentage of stockholders may be specified by law or
in any agreement with any national securities exchange or
otherwise; provided, however, that such eighty-five percent
(85%) vote shall not be required, and the provisions of
Massachusetts law relating to the vote required for the
approval of stockholders, if any, shall apply to any such
Business Combination if either of the following conditions
is satisfied:
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1. The aggregate amount of the cash and the Fair Market
Value (as hereinafter defined) of the property,
securities or other consideration to be received per
share of capital stock of the Company incident to the
consummation of such Business Combination by a holder
of such stock, other than an Interested Stockholder
(as hereinafter defined) involved in such Business
Combination, is not less than the highest of (a) the
Highest Per Share Price or the Highest Equivalent
Price (as those terms are hereinafter defined), paid
by such Interested Stockholder in acquiring any of
its holdings of the Company's capital stock during
the five-year period preceding the announcement of
such Business Combination; (b) a price that includes
the same or a greater premium over the market price
of such capital stock immediately prior to the
announcement of such Business Combination as the
greatest premium over market price paid by such
Interested Stockholder in the purchase of any shares
of any class of the Company's capital stock during
the five-year period preceding the announcement of
such Business Combination; or (c) the Highest Per
Share Price or the Highest Equivalent Price that such
Interested Stockholder shall, during the five-year
period preceding the announcement of such Business
Combination, have offered to the stockholders of the
Company for any shares of the Company's capital stock
or indicated in writing that it would be prepared to
offer under specified conditions; or
2. The Continuing Directors (as hereinafter defined)
shall have expressly approved such Business
Combination by a two-thirds vote either in advance of
or subsequent to the acquisition of outstanding
shares of capital stock of the Company that caused
the Interested Stockholder involved to become an
Interested Stockholder. In determining whether or
not to approve any such Business Combination, the
Continuing Directors may give due consideration to
all factors they consider relevant, including without
limitation (a) the long-term and short-term effects
on the profitability of the Company, (b) its social,
legal, environmental and economic effects, both
short-term and long-term, on the employees of the
Company and its subsidiaries and on the communities
and the geographic areas in which the Company and its
subsidiaries operate or are located, and on any of
the business and properties of the Company and its
subsidiaries, and (c) the adequacy of the
consideration offered in relation not only to the
current market price of the Company's outstanding
securities, but also to the current value of the
Company in a freely negotiated transaction and the
Continuing Directors' estimate of the Company's
future value (including the unrealized value of its
properties and assets) as an independent going
concern.
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(d) Prior to the consummation of any Business Combination and
prior to any vote of the Company's stockholders under
Section (c) of this Article 6, a proxy statement or
information statement complying with the requirements of the
Securities Exchange Act of 1934, as amended, shall have been
mailed to all stockholders of the Company for the purpose of
informing the Company's stockholders about such proposed
Business Combination and, if their approval is required by
Section (c) of this Article 6, for the purpose of soliciting
stockholder approval of such Business Combination. Such
proxy statement or information statement shall contain at
the front thereof, in a prominent place, a statement by the
Continuing Directors of their position on the advisability
(or inadvisability) of the proposed Business Combination.
(e) For the purpose of Sections (c), (d), (e) and (f) of this
Article 6:
1. The term "Business Combination" shall mean (a) any
merger, consolidation or share exchange of the
Company or any of its subsidiaries with or into an
Interested Stockholder, in each case irrespective of
which corporation or company is to be the surviving
entity; (b) any sale, lease, exchange, mortgage,
pledge, transfer or other disposition to or with an
Interested Stockholder (in a single transaction or a
series of related transactions) of all or a
substantial part of the assets of the Company
(including without limitation any securities of a
subsidiary of the Company) or all or a substantial
part of the assets of any of its subsidiaries; (c)
any sale, lease, exchange, mortgage, pledge, transfer
or other disposition to or with the Company, or to or
with any of its subsidiaries (in a single transaction
or series of related transactions) of all or a
substantial part of the assets of an interested
Stockholder; (d) the issuance or transfer by the
Company or any of its subsidiaries of any securities
of the Company or any of its subsidiaries to an
Interested Stockholder (other than an issuance or
transfer of securities which is effected on a pro-
rata basis to all stockholders of the Company); (e)
any acquisition by the Company or any of its
subsidiaries of any securities issued by an
Interested Stockholder; (f) any recapitalization or
reclassification of shares of any class of voting
stock of the Company or any merger or consolidation
of the Company with any of its subsidiaries which
would have the effect, directly or indirectly, of
increasing the proportionate share of the outstanding
shares of any class of capital stock of the Company
(or any securities convertible into any class of such
capital stock) owned by any Interested Stockholder;
(g) any merger or consolidation of the Company with
any of its subsidiaries after which the provisions of
Sections (c), (d), (e) and (f) of this Article 6
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shall not appear in the articles of organization (or
the equivalent charter documents) of the surviving
entity; (h) any plan or proposal for the liquidation
or dissolution of the Company; and (i) any agreement,
contract or other arrangement providing for any of
the transactions described in this definition of
Business Combination.
2. The term "Interested Stockholder" shall mean any
individual, corporation, partnership or other person
or entity which, as of the record date for the
determination of stockholders entitled to notice of
and to vote on any Business Combination, or
immediately prior to the consummation of any such
Business Combination, is a "Beneficial Owner" (as
defined in Rule 13d-3 of the General Rules and
Regulations under the Securities Exchange Act of 1934
as in effect at the date of the adoption of the
provisions contained in Sections (c), (d), (e) and
(f) of this Article 6 by the stockholders of the
Company) (the "Exchange Act") of shares of any class
or series of capital stock of the Company which, when
combined with the shares of such class or series of
stock of which any "Affiliates" or "Associates" (as
defined in Rule 12b-2 under the Exchange Act) of such
individual, corporation, partnership or other person
or entity are Beneficial Owners, amount to ten
percent (10%) or more of the outstanding shares of
such class or series of stock and any Affiliate or
Associate of any such Interested Stockholder.
Notwithstanding the foregoing, Cooper Industries,
Inc. ("Cooper") and its Affiliates and Associates
(together, the "Cooper Group") shall not be deemed to
be an Interested Stockholder for so long as (A) the
Cooper Group beneficially own at least 10% or more of
the outstanding shares of Common Stock continuously
from and after the Closing Date (as defined in the
Stock Purchase Agreement, dated as of January 10,
1994, between Cooper and the Company) and (B) Cooper
Group shall not acquire beneficial ownership of any
shares of Common Stock in breach of the Investment
Agreement, dated as of January 10, 1994 between
Cooper and the Company (other than an inadvertent
breach which is remedied as promptly as practicable
by a transfer of the shares of Common Stock so
acquired to a person or entity which is not a member
of the Cooper Group).
3. The term "Continuing Director" shall mean any
director of the Company who was a director on
February 22, 1989, and any other director whose
election as a director was recommended or approved by
a majority of Continuing Directors.
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4. An action required to be taken by vote of the
Continuing Directors shall be effective only if taken
at a meeting at which a Continuing Director Quorum is
present. A Continuing Director Quorum shall mean
two-thirds of the Continuing Directors capable of
exercising the powers conferred upon them under the
provisions of these Articles of Organization or the
Bylaws of the Company or by law.
5. Whether or not any proposed sale, lease, exchange,
mortgage, pledge, transfer or other disposition of
part of the assets of any entity involves a
"substantial part" of the assets of such entity shall
be conclusively determined by a two-thirds vote of
the Continuing Directors; provided, however, that any
such determination shall be effective only if made at
a meeting at which a Continuing Director Quorum was
present; and provided further that assets involved in
any single transaction or series of related
transactions having an aggregate Fair Market Value of
more than fifteen percent (15%) of the total
consolidated assets of an entity and its subsidiaries
as at the end of such entity's last full fiscal year
prior to such determination shall always be deemed to
constitute a "substantial part."
6. For the purposes of Subsection (1) of Section (c) of
this Article 6, the term "other consideration to be
received" shall include, without limitation, Common
Stock or other capital stock of the Company retained
by stockholders of the Company other than any
Interested Stockholders or parties to such Business
Combination in the event of a Business Combination in
which the Company is the surviving corporation.
7. An "Interested Stockholder" shall be deemed to have
acquired a share of the capital stock of the Company
at the time when such Interested Stockholder became
the Beneficial Owner thereof. With respect to shares
owned by Affiliates or Associates of an Interested
Stockholder or other persons whose ownership is
attributed to an Interested Stockholder under the
foregoing definition of Interested Stockholder, for
purposes of Subsection 8 of this Section (e), such
Interested Stockholder shall be deemed to have
purchased such shares at the higher of (a) the price
paid upon the acquisition thereof by the Affiliate,
Associate or other person who owns such shares, or
(b) the market price of the shares in question at the
time when the Interested Stockholder became the
Beneficial Owner thereof.
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8. The terms "Highest Per Share Price" and "Highest
Equivalent Price" shall mean the following: If there
is only one class of capital stock of the Company
issued and outstanding, the Highest Per Share Price
shall mean the highest price than can be determined
to have been paid or offered to be paid during the
preceding five years by the interested Stockholder
involved for any share or shares of that class of
capital stock. If there is more than one class of
capital stock of the Company issued and outstanding,
the Highest Equivalent Price shall mean with respect
to each class and series of capital stock of the
Company, the amount determined by two-thirds of the
Continuing Directors, on whatever basis they believe
to be appropriate, to be the highest per share price
equivalent to the highest price that can be
determined to have been paid or offered to be paid
during the preceding five years by the Interested
Stockholder involved or any Affiliate or Associate of
such Interested Stockholder for any share or shares
of any other class or series of capital stock of the
Company. In determining the Highest Per Share Price
and Highest Equivalent Price, all purchases by such
Interested Stockholder or any such Affiliate or
Associate shall be taken into account regardless of
whether the shares were purchased before or after
such Interested Stockholder became an Interested
Stockholder. The Highest Per Share Price and the
Highest Equivalent Price shall include any brokerage
commissions, transfer taxes and soliciting dealers'
fees paid by such Interested Stockholder of any such
Affiliate or Associate with respect to the shares of
capital stock of the Company acquired by such
Interested Stockholder or such Affiliate or
Associate. In the event any Business Combination
involving an Interested Stockholder shall be
proposed, the Continuing Directors shall determine
the Highest Equivalent Price for each class and
series of the capital stock of the Company of which
there are shares issued and outstanding.
9. The term "Fair Market Value" shall mean (a) in the
case of stock, the highest closing sale price during
the thirty day period immediately preceding the date
in question of a share of such stock on the Composite
Tape for New York Stock Exchange Listed Stocks, or,
if such stock is not quoted on the Composite Tape, on
the New York Stock Exchange, or if such stock is not
listed on the New York Stock Exchange, or the
principal United States securities exchange
registered under the Exchange Act on which such stock
is listed, or if such stock is not listed on any such
exchange, the highest closing bid quotation with
respect to a share of such stock during the thirty
day period preceding the date in question on the
National Association of Securities Dealers, Inc.
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Automated Quotations System or any system then in
use, or, if no such quotations are available, the
fair market value on the date in question of a share
of such stock as determined by a two-thirds vote of
the Continuing Directors, and (b) in the case of
property on the date in question as determined by a
two-thirds vote of the Continuing Directors;
provided, however, that any determination made by the
Continuing Directors pursuant to this Subsection 9
shall be effective only if made at a meeting at which
a Continuing Director Quorum was present; and
provided further than in the event the number of
Continuing Directors in office shall be less than a
Continuing Director Quorum, any determination of fair
market value that would otherwise be made by a vote
of the Continuing Directors shall be made by a court
of competent jurisdiction.
(f) No proposal to amend or repeal Sections (c), (d), (e) or (f)
of this article 6 may be authorized and approved except by
the affirmative vote of the holders of voting stock
entitling them to exercise eighty-five percent (85%) of the
voting power of the Company voting together as a class,
unless required to vote separately by law or by other
provisions of those Articles of Organization or by the terms
of the stock entitling them to vote and, if a proposal upon
which holders of shares of a particular class or classes are
so required to vote separately, then by the affirmative vote
of the holders of shares entitling them to exercise eighty-
five percent (85%) of the voting power of each such class or
classes; provided, however, that the provisions of this
Section (f) shall not apply to any such amendment or repeal
of this Article 6 that has been favorably recommended to the
stockholders by resolution of the Board of Directors adopted
by a two-thirds vote of the Continuing Directors at a
meeting at which a Continuing Director Quorum was present,
in which case any such amendment or repeal of Sections (c),
(d), (e) or (f) of this Article 6 may be authorized and
approved by the affirmative vote of such number of the
holders of voting stock as may be required by law.
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