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EXHIBIT 3.1
THE COMMONWEALTH OF MASSACHUSETTS
OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE
MICHAEL JOSEPH CONNOLLY, Secretary
ONE ASHBURTON PLACE, BOSTON, MASS 02108
FEDERAL IDENTIFICATION NO. 04-1992780
CERTIFICATE OF VOTE OF DIRECTORS ESTABLISHING
A SERIES OF A CLASS OF STOCK
General Laws, Chapter 156B, Section 26
We, Edward J. Davis, Vice President, and Wallace F. Whitney,
Jr., Clerk, of Wyman-Gordon Company located at 244 Worcester
Street, North Grafton, Massachusetts 01536 do hereby certify that
at a meeting of the directors of the corporation held on October
21, 1998, the following vote establishing and designating a
series of a class of stock and determining the relative rights
and preferences thereof was duly adopted:
(see Exhibit A)
NOTE: Votes for which the space provided above is not sufficient
should be set out on continuation sheets to be numbered
2A, 2B, etc. Continuation sheets must have a left-hand
margin 1 inch wide for fining and shall be 8 1/2 x 11".
Only one side should be used.
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Exhibit A
VOTE OF DIRECTORS ESTABLISHING
SERIES B JUNIOR PARTICIPATING CUMULATIVE
PREFERRED STOCK
of
WYMAN-GORDON COMPANY
Pursuant to Section 26 of Chapter 156B of the General Laws
of The Commonwealth of Massachusetts:
VOTED, that pursuant to authority conferred upon and vested
in the Board of Directors by the Restated Articles of
Organization, as amended (the "Articles"), of Wyman-Gordon
Company (the "Corporation"), the Board of Directors hereby
establishes and designates a series of Preferred Stock of the
Corporation, and hereby fixes and determines the relative rights
and preferences of the shares of such series, in addition to
those set forth in the Articles, as follows:
SECTION 1. DESIGNATION AND AMOUNT. The shares of such
series shall be designated as "Series B Junior Participating
Cumulative Preferred Stock" (the "Series B Preferred Stock"), and
the number of shares constituting such series shall be 100,000.
SECTION 2. DIVIDENDS AND DISTRIBUTIONS.
(A) (i) Subject to the rights of the holders of any shares
of any series of preferred stock (or any similar stock) ranking
prior and superior to the Series B Preferred Stock with respect
to dividends, the holders of shares of Series B Preferred Stock,
in preference to the holders of shares of common stock and of any
other junior stock, shall be entitled to receive, when, as and if
declared by the Board of Directors out of funds legally available
for the purpose, quarterly dividends payable in cash on the first
day of March, June, September and December in each year (each
such date being referred to herein as a "Quarterly Dividend
Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a
share of Series B Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of (a) $1.00
or (b) subject to the provisions for adjustment hereinafter set
forth, 10,000 times the aggregate per share amount of all cash
dividends, and 10,000 times the aggregate per share amount
(payable in kind) of all non-cash dividends or other
distributions other than a dividend payable in shares of common
stock or a subdivision of the outstanding shares of common stock
(by reclassification or otherwise), declared on the common stock
since the immediately preceding Quarterly Dividend Payment Date,
or, with respect to the first Quarterly Dividend Payment Date,
since the first issuance of any share or fraction of a share of
Series B Preferred Stock. The multiple of cash and non-cash
dividends declared on the common stock to which holders of the
Series B Preferred Stock are entitled, which shall be 10,000
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initially but which shall be adjusted from time to time as
hereinafter provided, is hereinafter referred to as the "Dividend
Multiple." In the event the Corporation shall at any time after
October 21, 1998 (the "Rights Declaration Date") (i) declare or
pay any dividend on common stock payable in shares of common
stock, or (ii) effect a subdivision or combination or
consolidation of the outstanding shares of common stock (by
reclassification or otherwise than by payment of a dividend in
shares of common stock) into a greater or lesser number of shares
of common stock, then in each such case the Dividend Multiple
thereafter applicable to the determination of the amount of
dividends which holders of shares of Series B Preferred Stock
shall be entitled to receive shall be the Dividend Multiple
applicable immediately prior to such event multiplied by a
fraction, the numerator of which is the number of shares of
common stock outstanding immediately after such event and the
denominator of which is the number of shares of common stock that
were outstanding immediately prior to such event.
(ii) Notwithstanding anything else contained in this
paragraph (A), the Corporation shall, out of funds legally
available for that purpose, declare a dividend or distribution on
the Series B Preferred Stock as provided in this paragraph (A)
immediately after it declares a dividend or distribution on the
common stock (other than a dividend payable in shares of common
stock); provided that, in the event no dividend or distribution
shall have been declared on the common stock during the period
between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $1.00
per share on the Series B Preferred Stock shall nevertheless be
payable on such subsequent Quarterly Dividend Payment Date.
(B) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series B Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such
shares of Series B Preferred Stock, unless the date of issue of
such shares is prior to the record date for the first Quarterly
Dividend Payment Date, in which case dividends on such shares
shall begin to accrue from the date of issue of such shares, or
unless the date of issue is a Quarterly Dividend Payment Date or
is a date after the record date for the determination of holders
of shares of Series B Preferred Stock entitled to receive a
quarterly dividend and before such Quarterly Dividend Payment
Date, in either of which events such dividends shall begin to
accrue and be cumulative from such Quarterly Dividend Payment
Date. Accrued but unpaid dividends shall not bear interest.
Dividends paid on the shares of Series B Preferred Stock in an
amount less than the total amount of such dividends at the time
accrued and payable on such shares shall be allocated pro rata on
a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix in accordance with
applicable law a record date for the determination of holders of
shares of Series B Preferred Stock entitled to receive payment of
a dividend or distribution declared thereon, which record date
shall be not more than such number of days prior to the date
fixed for the payment thereof as may be allowed by applicable
law.
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SECTION 3. VOTING RIGHTS. In addition to any other voting
rights required by law, the holders of shares of Series B
Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Series B Preferred Stock shall entitle the
holder thereof to 10,000 votes on all matters submitted to a vote
of the stockholders of the Corporation. The number of votes
which a holder of a share of Series B Preferred Stock is entitled
to cast, which shall initially be 10,000 but which may be
adjusted from time to time as hereinafter provided, is
hereinafter referred to as the "Vote Multiple." In the event the
Corporation shall at any time after the Rights Declaration Date
(i) declare or pay any dividend on common stock payable in shares
of common stock, or (ii) effect a subdivision or combination or
consolidation of the outstanding shares of common stock (by
reclassification or otherwise than by payment of a dividend in
shares of common stock) into a greater or lesser number of shares
of common stock, then in each such case the Vote Multiple
thereafter applicable to the determination of the number of votes
per share to which holders of shares of Series B Preferred Stock
shall be entitled shall be the Vote Multiple immediately prior to
such event multiplied by a fraction, the numerator of which is
the number of shares of common stock outstanding immediately
after such event and the denominator of which is the number of
shares of common stock that were outstanding immediately prior to
such event.
(B) Except as otherwise provided herein or by law, the
holders of shares of Series B Preferred Stock and the holders of
shares of common stock and the holders of shares of any other
capital stock of this Corporation having general voting rights,
shall vote together as one class on all matters submitted to a
vote of stockholders of the Corporation.
(C) Except as otherwise required by applicable law or as
set forth herein, holders of Series B Preferred Stock shall have
no special voting rights and their consent shall not be required
(except to the extent they are entitled to vote with holders of
common stock as set forth herein) for taking any corporate
action.
SECTION 4. CERTAIN RESTRICTIONS.
(A) Whenever dividends or distributions payable on the
Series B Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series B
Preferred Stock outstanding shall have been paid in full, the
Corporation shall not:
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise
acquire for consideration any shares of stock ranking
junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series B Preferred
Stock;
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(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a
parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series B Preferred
Stock, except dividends paid ratably on the Series B
Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to
the total amounts to which the holders of all such
shares are then entitled;
(iii) except as permitted in subsection 4(A)(iv) below,
redeem, purchase or otherwise acquire for
consideration shares of any stock ranking on a
parity (either as to dividends or upon
liquidation, dissolution or winding up) with the
Series B Preferred Stock, provided that the
Corporation may at any time redeem, purchase or
otherwise acquire shares of any such parity stock
in exchange for shares of any stock of the
Corporation ranking junior (either as to dividends
or upon dissolution, liquidation or winding up) to
the Series B Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any
shares of Series B Preferred Stock, or any shares of
any stock ranking on a parity (either as to dividends
or upon liquidation, dissolution or winding up) with
the Series B Preferred Stock, except in accordance with
a purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of
such shares upon such terms as the Board of Directors,
after consideration of the respective annual dividend
rates and other relative rights and preferences of the
respective series and classes, shall determine in good
faith will result in fair and equitable treatment among
the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration
any shares of stock of the Corporation unless the Corporation
could, under subsection (A) of this Section 4, purchase or
otherwise acquire such shares at such time and in such manner.
SECTION 5. REACQUIRED SHARES. Any shares of Series B
Preferred Stock purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired and
canceled promptly after the acquisition thereof. All such shares
shall upon their cancellation become authorized but unissued
shares of preferred stock and may be reissued as part of a new
series of preferred stock to be created by resolution or
resolutions of the Board of Directors, subject to the conditions
and restrictions on issuance set forth herein.
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SECTION 6. LIQUIDATION, DISSOLUTION OR WINDING UP. Upon
any liquidation (voluntary or otherwise), dissolution or winding
up of the Corporation, no distribution shall be made (x) to the
holders of shares of stock ranking junior (either as to dividends
or upon liquidation, dissolution or winding up) to the Series B
Preferred Stock unless, prior thereto, the holders of shares of
Series B Preferred Stock shall have received an amount equal to
accrued and unpaid dividends and distributions thereon, whether
or not declared, to the date of such payment, plus an amount
equal to the greater of (1) $10,000.00 per share or (2) an
aggregate amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 10,000 times the
aggregate amount to be distributed per share to holders of common
stock, or (y) to the holders of stock ranking on a parity (either
as to dividends or upon liquidation, dissolution or winding up)
with the Series B Preferred Stock, except distributions made
ratably on the Series B Preferred Stock and all other such parity
stock in proportion to the total amounts to which the holders of
all such shares are entitled upon such liquidation, dissolution
or winding up. In the event the Corporation shall at any time
after the Rights Declaration Date (i) declare or pay any dividend
on common stock payable in shares of common stock, or (ii) effect
a subdivision or combination or consolidation of the outstanding
shares of common stock (by reclassification or otherwise than by
payment of a dividend in shares of common stock) into a greater
or lesser number of shares of common stock, then in each such
case the aggregate amount per share to which holders of shares of
Series B Preferred Stock were entitled immediately prior to such
event under clause (x) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction, the numerator
of which is the number of shares of common stock outstanding
immediately after such event and the denominator of which is the
number of shares of common stock that were outstanding
immediately prior to such event.
Neither the consolidation of nor merging of the Corporation
with or into any other corporation or corporations, nor the sale
or other transfer of all or substantially all of the assets of
the Corporation, shall be deemed to be a liquidation, dissolution
or winding up of the Corporation within the meaning of this
Section 6.
SECTION 7. CONSOLIDATION, MERGER, ETC. In case the
Corporation shall enter into any consolidation, merger,
combination or other transaction in which the shares of common
stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case
the shares of Series B Preferred Stock shall at the same time be
similarly exchanged or changed in an amount per share (subject to
the provision for adjustment hereinafter set forth) equal to
10,000 times the aggregate amount of stock, securities, cash
and/or any other property (payable in kind), as the case may be,
into which or for which each share of common stock is changed or
exchanged, plus accrued and unpaid dividends, if any, payable
with respect to the Series B Preferred Stock. In the event the
Corporation shall at any time after the Rights Declaration Date
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(i) declare or pay any dividend on common stock payable in shares
of common stock, or (ii) effect a subdivision or combination or
consolidation of the outstanding shares of common stock (by
reclassification or otherwise than by payment of a dividend in
shares of common stock) into a greater or lesser number of shares
of common stock, then in each such case the amount set forth in
the preceding sentence with respect to the exchange or change of
shares of Series B Preferred Stock shall be adjusted by
multiplying such amount by a fraction, the numerator of which is
the number of shares of common stock outstanding immediately
after such event and the denominator of which is the number of
shares of common stock that were outstanding immediately prior to
such event.
SECTION 8. REDEMPTION. The shares of Series B Preferred
Stock shall not be redeemable.
SECTION 9. RANKING. Unless otherwise expressly provided in
the Articles or a Certificate of Vote of Directors Establishing a
Class of Stock relating to any other series of preferred stock of
the Corporation, the Series B Preferred Stock shall rank junior
to every other series of the Corporation s preferred stock
previously or hereafter authorized, as to the payment of
dividends and the distribution of assets on liquidation,
dissolution or winding up and shall rank senior to the common
stock.
SECTION 10. AMENDMENT. The Articles and this Certificate
of Vote of Directors Establishing a Class of Stock shall not be
amended in any manner which would materially alter or change the
powers, preferences or special rights of the Series B Preferred
Stock so as to affect them adversely (within the meaning of
Section 77 of Chapter 156B of the Massachusetts General Laws)
without the affirmative vote of the holders of two-thirds or more
of the outstanding shares of Series B Preferred Stock, voting
separately as a class.
SECTION 11. FRACTIONAL SHARES. Series B Preferred Stock
may be issued in whole shares or in any fraction of a share that
is one ten-thousandth (1/10,000th) of a share or any integral
multiple of such fraction, which shall entitle the holder, in
proportion to such holder s fractional shares, to exercise voting
rights, receive dividends, participate in distributions and to
have the benefit of all other rights of holders of Series B
Preferred Stock. In lieu of fractional shares, the Corporation
may elect to make a cash payment as provided in the Rights
Agreement for fractions of a share other than one ten-thousandth
(1/10,000th) of a share or any integral multiple thereof.
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IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we
have hereto signed our names this 23rd Day of October in the Year
1998.
/S/ EDWARD J. DAVIS
Edward J. Davis
Vice President
/S/ WALLACE F. WHITNEY, JR.
Wallace F. Whitney, Jr.
Clerk
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THE COMMONWEALTH OF MASSACHUSETTS
Certificate of Vote of directors Establishing
A Series of a Class of Stock
(General Laws, Chapter 156B, Section 26)
I hereby approve the within certificate and, the
filing fee in the amount of $
having been paid, said certificate is hereby filed this
day of , 19 .
MICHAEL JOSEPH CONNOLLY
Secretary of State
TO BE FILLED IN BY CORPORATION
PHOTO COPY OF CERTIFICATE TO BE SENT
TO: Lynn D. Holdsworth
Goodwin, Procter & Hoar LLP
53 State Street
Boston, Massachusetts 02109
Telephone: (617) 570-1079
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