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As filed with the Securities and Exchange Commission on December 11, 1997
REGISTRATION STATEMENT NO. 333-32149
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT
NO. 1 TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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WYMAN-GORDON COMPANY
(Exact Name of Registrant as Specified in its Charter)
MASSACHUSETTS 04-1992780
(State of Incorporation) (I.R.S. Employer Identification Number)
244 WORCESTER ST.
NORTH GRAFTON, MASSACHUSETTS 01536-8001
(508) 839-4441
(Address, including Zip Code, and Telephone Number, including Area Code, of
Registrant's Principal Executive Offices)
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WALLACE F. WHITNEY, JR., ESQ.
VICE PRESIDENT, GENERAL COUNSEL AND CLERK
WYMAN-GORDON COMPANY
244 Worcester St., North Grafton, Massachusetts 01536-8001
(508) 839-4441
(Name, Address, including Zip Code, and Telephone Number, including Area Code,
of Agent for Service)
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With a copy to:
DAVID F. DIETZ, P.C.
GOODWIN, PROCTER & HOAR LLP
Exchange Place, Boston, Massachusetts 02109-2881
(617) 570-1000
Approximate date of commencement of proposed sale to the public: From time to
time after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box.[ ]
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended, other than securities offered only in connection with dividend
or interest reinvestment plans, check the following box.[ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, as amended, please
check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same offering.[ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act of 1933, as amended, check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering.[ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [X] FILE NO. 333-32149
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box.[ ]
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933, AS AMENDED OR UNTIL THE REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the issuance and distribution of the
securities being registered will be borne by the Company and are set forth in
the following table (all amounts except the registration fee are estimated):
Registration fee $ 45,455
Legal fees and expenses 225,000
Accounting fees and expenses 50,000
Trustee fees and expenses 20,000
Printing fees and expenses 50,000
Miscellaneous 109,545
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TOTAL $500,000
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ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(a) Section 67 of Chapter 156B of the Massachusetts General Laws
("MGL") provides that indemnification of directors, officers, employees or other
agents may be provided by a corporation. Section 13(b) (1-1/2) of Chapter 156B
of the MGL provides that the Articles of Organization may contain a provision
eliminating or limiting the personal liability of a director to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director provided that such provision shall not eliminate or limit the liability
of a director (i) for any breach of the director's duty of loyalty to the
corporation 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
Sections 61 or 62 of the MGL Chapter 156B, or (iv) for any transaction from
which the director derived an improper personal benefit.
Article 6(b) of the Company's Restated Articles of Organization states
that:
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.
Article V of the Company's By-laws further states that:
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1. Right of Indemnification
Every person who is or was a Director, officer or employee of this
Corporation or of any other corporation which he served at the request of the
Corporation and in which the Corporation owns or owned shares of capital stock
or of which it is a creditor shall have a right to be indemnified by this
Corporation against all reasonable expenses incurred by him in connection with
or resulting from any action, suit or proceeding in which he may become involved
as a party or otherwise by reason of his being or having been a Director,
officer or employee of the Corporation or such other corporation, provided (a)
said action, suit or proceeding shall be prosecuted to a final determination and
he shall be vindicated on the merits, or (b) in the absence of such final
determination vindicating him on the merits, the Board of Directors shall
determine that he acted in good faith in the reasonable belief that his action
was in the best interests of the Corporation or such other corporation and that
he cooperated effectively with the Corporation in the defense and disposition of
any said action, suit or proceeding, said determinations to be made by the Board
of Directors acting through a quorum of disinterested directors, or in its
absence on the opinion of the counsel.
2. Definitions
For purposes of Section 1 of this Article V: (a) "reasonable expenses"
shall include but not be limited to reasonable counsel fees and disbursements,
amounts of any judgment, fine or penalty, and reasonable amounts paid in
settlement, but in no event shall "reasonable expenses" include any item for
which indemnification would be contrary to law; (b) "action, suit or proceeding"
shall include every claim, action, suit or proceeding, whether civil or
criminal, derivative or otherwise, administrative, judicial or legislative, any
appeal relating thereto, and shall include any reasonable apprehension or threat
of such a claim, action, suit or proceeding; and (c) a settlement, plea of nolo
contendere, consent judgment, adverse civil judgment, or conviction shall not of
itself create a presumption that the person seeking indemnification did not act
in good faith in the reasonable belief that his action was in the best interests
of this Corporation or such other corporation, but the Board of Directors shall
be bound by a civil judgment or conviction which adjudges that the person did
not act in good faith in the reasonable belief that his action was in the best
interests of this Corporation or such other corporation.
3. Persons Entitled to Indemnification
The right of indemnification shall extend to any person otherwise
entitled to it under this Article V whether or not that person continues to be a
director or officer of this Corporation at the time such liability or expense
shall be incurred. The right of indemnification shall extend to the legal
representatives and heirs of any person otherwise entitled to indemnification.
If a person meets the requirements of this Article V with respect to some
matters in an action, suit or proceeding, but not with respect to others, he
shall be entitled to indemnification as to the former. Advances against
liability and expenses may be made by the Corporation on terms fixed by the
Board of Directors subject to an obligation to repay if indemnification proves
unwarranted.
4. Bylaw Not Exclusive
This Article V shall not exclude any other rights of indemnification or
other rights to which any Director, officer or employee may be entitled by
contract, by vote of the Board of Directors, or as a matter of law. If any
clause, provision or application of this Article V shall be determined to be
invalid, the other clauses, provisions or applications of these Bylaws shall not
be affected but shall remain in full force and effect. The provisions of this
Article V shall be applicable to actions, suits or proceedings commenced after
the adoption hereof, whether arising form acts or omissions occurring before or
after the adoption hereof.
(b) In addition to the indemnification provided under the Company's
By-laws, the Company has entered into agreements with its directors and certain
of its executive officers which, subject to certain
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limitations, provide for indemnification of such directors and executive
officers to the full extent authorized by Section 67 of the Massachusetts
Business Corporation Law or Article V of the By-laws, whichever is more
favorable to the director or executive officer. In addition, the agreements
provide that if the Company elects not to maintain director and officer
liability insurance policies, the Company will indemnify the officer or director
to the full extent of the coverage which would otherwise have been provided
pursuant to the insurance policy as it was last in effect between the insurer
and the Company.
(c) The Company maintains insurance covering the directors and
executive officers of the Company and its subsidiaries against certain
liabilities.
ITEM 16. EXHIBITS.
EXHIBIT NO. DESCRIPTION
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*1.1 Form of Underwriting Agreement
3.1 Restated Articles of Organization of Wyman-Gordon Company
(incorporated by reference to Exhibit 3A to the Company's Form 10-K
for the year ended June 3, 1995).
3.2 Bylaws of Wyman-Gordon Company, as amended through May 24, 1994
(incorporated by reference to Exhibit 3B to the Company's Form 10-K
for the year ended June 3, 1995).
**4.1 Form of Indenture for Senior Debt Securities.
4.2 Form of Senior Debt Security (included in Exhibit No. 4.1).
**4.3 Form of Indenture for Subordinated Debt Securities.
4.4 Form of Subordinated Debt Security (included in Exhibit No. 4.3).
**5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
Debt Securities being registered.
**12.1 Calculation of Ratio of Earnings to Fixed Charges.
**23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1
hereto).
**24.1 Powers of Attorney (included in Part II of this registration
statement).
25.1 Form T-1 Statement of Eligibility of Trustee under the Trust
Indenture Act of 1939 (incorporated by reference to Exhibit 26.1 to
the Company's Registration Statement on Form S-2, No. 33-55650).
* filed herewith
** previously filed
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers
or sales are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required
by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any
facts or events arising after the effective date of
the registration statement (or the most recent
post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change
in the information set forth in the registration
statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered
(if the total dollar value of securities offered
would not exceed that which was registered) and any
deviation from the low or high and of the estimated
maximum offering range may be
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reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent
no more than a 20 percent change in the maximum
aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement; and
(iii) To include any material information
with respect to the plan of distribution not
previously disclosed in the registration statement or
any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
herein do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained
in periodic reports filed with or furnished to the Commission
by the undersigned registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any
liability under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the
provisions described under Item 15 above, or otherwise, the
registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it
is against public policy as expressed in the Securities Act
and will be governed by the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes to file an
application for the purpose of determining the eligibility of
the trustee to act under subsection (a) of Section 310 of the
Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section
305(b)(2) of the Trust Indenture Act.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
Wyman-Gordon Company certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the city of North Grafton, Commonwealth of Massachusetts, on
the 10th day of December, 1997.
WYMAN-GORDON COMPANY
By: /s/ Wallace F. Whitney, Jr,
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Wallace F. Whitney, Jr.
Vice President, General Counsel and Clerk
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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*1.1 Form of Underwriting Agreement
3.1 Restated Articles of Organization of Wyman-Gordon Company
(incorporated by reference to Exhibit 3A to the Company's Form 10-K
for the year ended June 3, 1995).
3.2 Bylaws of Wyman-Gordon Company, as amended through May 24, 1994
(incorporated by reference to Exhibit 3B to the Company's Form 10-K
for the year ended June 3, 1995).
**4.1 Form of Indenture for Senior Debt Securities.
4.2 Form of Senior Debt Security (included in Exhibit No. 4.1).
**4.3 Form of Indenture for Subordinated Debt Securities.
4.4 Form of Subordinated Debt Security (included in Exhibit No. 4.3).
**5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the Debt
Securities being registered.
**12.1 Calculation of Ratio of Earnings to Fixed Charges.
**23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1
hereto).
24.1 Powers of Attorney (included in Part II of this registration
statement).
25.1 Form T-1 Statement of Eligibility of Trustee under the Trust
Indenture Act of 1939 (incorporated by reference to Exhibit 26.1 to
the Company's Registration Statement on Form S-2, No. 33-55650).
* filed herewith
** previously filed