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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
-------------------------
POST-EFFECTIVE AMENDMENT
NO. 1 TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-------------------------
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)
-------------------------------
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)
----------------------------
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
- ----------- -----------
*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
- ----------- -----------
*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
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Exhibit 1.1
Form of Underwriting Agreement
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Wyman-Gordon Company
[ ]% Senior Notes due 2007
Underwriting Agreement
New York, New York
, 1997
Salomon Brothers Inc
Seven World Trade Center
New York, NY 10048
Ladies and Gentlemen:
Wyman-Gordon Company, a Massachusetts corporation (the "Company"),
proposes to sell to Salomon Brothers Inc (the "Underwriter") the entire
principal amount of its securities identified in Schedule I hereto (the
"Securities"), to be issued under an indenture dated as of December , 1997 (as
supplemented by an indenture supplement dated as of December , 1997, the
"Indenture"), between the Company and State Street Bank and Trust Company, as
trustee (the "Trustee"). Any reference herein to the Registration Statement, the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall
be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the Exchange Act
on or before the Effective Date of the Registration Statement or the issue date
of the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration Statement, the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall
be deemed to refer to and include the filing of any document under the Exchange
Act after the Effective Date of the Registration Statement or the issue date of
the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
as the case may be, deemed to be incorporated therein by reference.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to, and agrees with, the Underwriter as set forth below in this Section
1. Certain terms used in this Section 1 are defined in Section 16 hereof.
(a) The Company meets the requirements for the use of Form S-3
under the Act and has filed with the Securities and Exchange Commission
(the "Commission") a registration statement (the file number of which
is set forth in Schedule I hereto) on such Form, including a basic
prospectus, for registration under the Act of the offering and sale of
the Securities. The Company may have filed one or more amendments
thereto, including a Preliminary Final Prospectus, each of which has
previously been furnished to you. The Company will next file with the
Commission a final prospectus supplement relating to the Securities in
accordance with Rules 430A and 424(b). The Company has included in such
registration statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the Act and
the rules thereunder to be included in such registration statement and
the Final Prospectus. As filed, such final prospectus supplement or
such amendment and form of final prospectus supplement shall contain
all Rule 430A Information, together with all other such required
information, and, except to the extent the Underwriter shall agree in
writing to a modification, shall be in all substantive respects in the
form furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in
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the Basic Prospectus and any Preliminary Final Prospectus) as the
Company has advised you, prior to the Execution Time, will be included
or made therein.
(b) On the Effective Date, the Registration Statement did, and
when the Final Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date, the Final Prospectus (and any
supplement thereto) will, comply in all material respects with the
applicable requirements of the Act, the Exchange Act and the Trust
Indenture Act and the respective rules thereunder; on the Effective
Date and at the Execution Time, the Registration Statement did not or
will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; on the Effective
Date and on the Closing Date the Indenture did or will comply in all
material respects with the requirements of the Trust Indenture Act and
the rules thereunder; and, on the Effective Date, the Final Prospectus,
if not filed pursuant to Rule 424(b), will not, and on the date of any
filing pursuant to Rule 424(b) and on the Closing Date, the Final
Prospectus (together with any supplement thereto) will not, include any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; PROVIDED,
HOWEVER, that the Company makes no representations or warranties as to
(i) that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee or (ii) the information contained in or
omitted from the Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished herein or in writing to the Company by or on behalf of the
Underwriter specifically for inclusion in the Registration Statement or
the Final Prospectus (or any supplement thereto).
(c) Each of the Company and its subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is chartered or
organized with full corporate power and authority to own its properties
and conduct its business as described in the prospectus, and is duly
qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires such
qualification, except where the failure to be so qualified would not
have a material adverse effect on the properties, business, prospects,
results of operations or financial conditions (a "Material Adverse
Effect") on the Company and its subsidiaries, taken as a whole.
(d) All the outstanding shares of capital stock of each of the
Company's subsidiaries have been duly and validly authorized and issued
and are fully paid and nonassessable, and, except as otherwise set
forth in the Final Prospectus or set forth on Schedule A, all
outstanding shares of capital stock of such subsidiaries are owned by
the Company either directly or through wholly owned subsidiaries free
and clear of any perfected security interest and, to the knowledge of
such counsel, after due inquiry, any other security interests, claims,
liens or encumbrances.
(e) The Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriter pursuant to
this Agreement, will constitute legal, valid and binding obligations of
the Company entitled to the benefits of the Indenture; and the
certificates for the Securities are in valid and sufficient form.
(f) There is no franchise, contract or other document of a
character required to be described in the Registration Statement or
Final Prospectus, or to be filed as an exhibit thereto, which is not
described or filed as required; and the statements in the Final
Prospectus under the headings "Summary--Recent Industrial Accident",
2
<PAGE> 4
"Business--Environmental Regulations", "Business--Legal Proceedings"
and "Certain United States Federal Income Tax Consequences" fairly
summarize the matters therein described.
(g) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding obligation
of the Company enforceable in accordance with its terms, except as such
enforcement may be subject to or limited by applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect.
(h) The Company is not and, after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Final Prospectus, will not be an
"investment company" as defined in the Investment Company Act;
(i) No consent, approval, authorization, filing with or order
of any court or governmental agency or body is required in connection
with the transactions contemplated herein, except such as have been
obtained under the Act and such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriter in the manner
contemplated herein and in the Final Prospectus.
(j) Neither the issue and sale of the Securities nor the
consummation of any other of the transactions herein contemplated nor
the fulfillment of the terms hereof will conflict with, result in a
breach or violation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its subsidiaries
pursuant to, (i) the charter or by-laws of the Company or any of its
subsidiaries or (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which the
Company or any of its subsidiaries is a party or bound or to which its
or their property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or any
of its subsidiaries of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or any of its subsidiaries or any of its
or their properties, except, in the case of clause (ii), for such
breaches or defaults which, individually or in the aggregate, would not
have a Material Adverse Effect.
(k) The consolidated financial statements and schedules of the
Company and its consolidated subsidiaries included in the Final
Prospectus and the Registration Statement present fairly in all
material respects the financial condition, results of operations and
cash flows of the Company as of the dates and for the periods
indicated, comply as to form with the applicable accounting
requirements of the Act and the rules and regulations thereunder and
have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved (except as otherwise noted therein). The selected financial
data set forth or incorporated by reference under the caption "Selected
Consolidated Financial Data" in the Final Prospectus and Registration
Statement fairly present, on the basis stated in the Final Prospectus
and the Registration Statement, the information included therein.
(l) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property is pending
or, to the best knowledge of the Company, threatened that (i) could
reasonably be expected to have a material adverse effect on the
performance of this Agreement or the consummation of any of the
transactions contemplated hereby or (ii) could reasonably be expected
to have a material
3
<PAGE> 5
adverse change in the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in
the Final Prospectus (exclusive of any supplement thereto) (except, in
the case of this clause (ii), for those that have been disclosed in the
Final Prospectus).
(m) Neither the Company nor any subsidiary is in violation or
default of (i) any provision of its charter or bylaws, (ii) the terms
of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which it is a party or bound or to which its
property is subject, or (iii) any statute, law, rule, regulation,
judgment, order or decree of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or such subsidiary or any of its
properties, as applicable, which violation or default would
individually or in the aggregate have a Material Adverse Effect.
(n) Ernst & Young LLP, who have certified certain financial
statements of the Company and its consolidated subsidiaries and
delivered their report with respect to the audited consolidated
financial statements and schedules included in the Final Prospectus,
are independent public accountants with respect to the Company within
the meaning of the Act and the applicable published rules and
regulations thereunder.
(o) There are no transfer taxes or other similar fees or
charges under Federal law or the laws of any state, or any political
subdivision thereof, required to be paid in connection with the
execution and delivery of this Agreement or the issuance by the Company
or sale by the Company of the Securities.
(p) The Company and its subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state or
foreign regulatory authorities necessary to conduct their respective
businesses, and neither the Company nor any such subsidiary has
received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(q) The Company is not required to register and will not as a
result of the transactions contemplated hereby and in the Final
Prospectus be required to register as an "investment company" as
defined in the Investment Company Act of 1940, as amended.
(r) Neither the Company nor any of its subsidiaries is in
violation of any federal or state law or regulation relating to
occupational safety and health or to the storage, handling or
transportation of hazardous or toxic materials and the Company and its
subsidiaries have received all permits, licenses or other approvals
required of them under applicable federal and state occupational safety
and health and environmental laws and regulations to conduct their
respective businesses, and the Company and each such subsidiary is in
compliance with all terms and conditions of any such permit, license or
approval, except any such violation of law or regulation, failure to
receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or
approvals which would not, singly or in the aggregate, result in a
Material Adverse Effect, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated
in the Final Prospectus (exclusive of any supplement thereto).
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<PAGE> 6
(s) The Company has received duly executed Consents (as
defined in the Tender Offer and Solicitation Statement) from the
holders of at least a majority of its 10-3/4% Senior Notes Due 2003
(the "10-3/4% Notes"); the Company, each guarantor of the 10-3/4% Notes
and the Trustee have executed and delivered the Supplemental Indenture
described in the Tender Offer and Solicitation Statement (the 10-3/4%
Notes Supplemental Indenture"); the 10-3/4% Notes Supplemental
Indenture has been duly and validly authorized by all necessary action
on the part of the Company and such guarantors, has been duly executed
and delivered by or on behalf of the Company and such guarantors and
constitutes the legally valid and binding obligation of the Company and
such guarantors, enforceable against each of them in accordance with
its terms (except as such enforcement may be subject to or limited by
bankruptcy, insolvency and general principles of equity); there have
been validly tendered and not withdrawn 10-3/4% Notes representing at
least 66-2/3% of the outstanding aggregate principal amount of the
10-3/4% Notes.
Any certificate signed by any officer of the Company and delivered to
the Underwriter or counsel for the Underwriter in connection with the offering
of the Securities shall be deemed a representation and warranty by the Company,
as to matters covered thereby, to the Underwriter.
2. PURCHASE AND SALE. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to the Underwriter, and the Underwriter agrees to
purchase from the Company, at the purchase price set forth in Schedule I hereto
the entire principal amount of the Securities set forth in Schedule I hereto.
3. DELIVERY AND PAYMENT. Delivery of and payment for the
Securities shall be made on the date and at the time specified in Schedule I
hereto (or at such time on such later date not more than three Business Days
after the foregoing date as the Underwriter shall designate), which date and
time may be postponed by agreement between the Underwriter and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the Securities
shall be made to the Underwriter against payment by the Underwriter of the
purchase price thereof to or upon the order of the Company by wire transfer
payable in same-day funds to an account specified by the Company. Delivery of
the Securities shall be made through the facilities of The Depository Trust
Company unless the Underwriter shall otherwise instruct.
4. OFFERINGS BY UNDERWRITERS. It is understood that the
Underwriter proposes to offer the Securities for sale to the public as set forth
in the Prospectus.
5. AGREEMENTS. The Company agrees with the Underwriter that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereto, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of
the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus
or any Rule 462(b) Registration Statement unless the Company has
furnished you a copy for your review prior to filing and will not file
any such proposed amendment or supplement to which you reasonably
object. Subject to the foregoing sentence, the Company will cause the
Final Prospectus, properly completed, and any supplement thereto to be
filed with the Commission pursuant to the applicable paragraph of Rule
424(b) within the time period prescribed and will provide evidence
satisfactory to the Underwriter of such timely filing. The Company will
promptly advise the Underwriter (i) when the Registration Statement, if
not effective at the Execution Time, shall have become effective, (ii)
when
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<PAGE> 7
the Final Prospectus, and any supplement thereto, shall have been filed
with the Commission pursuant to Rule 424(b) or when any Rule 462(b)
Registration Statement shall have been filed with the Commission, (iii)
when, prior to termination of the offering of the Securities, any
amendment to the Registration Statement shall have been filed or become
effective, (iv) of any request by the Commission or its staff for any
amendment of the Registration Statement, or any Rule 462(b)
Registration Statement, or for any supplement to the Final Prospectus
or of any additional information, (v) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that
purpose and (vi) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order or the suspension of any
such qualification and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (i) prepare and
file with the Commission, subject to the second sentence of paragraph
(a) of this Section 5, an amendment or supplement which will correct
such statement or omission or effect such compliance and (ii) supply
any supplemented Final Prospectus to you in such quantities as you may
reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Underwriter an earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under
the Act.
(d) The Company will furnish to the Underwriter and counsel
for the Underwriter, without charge, copies of the Registration
Statement (including exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as
many copies of any Preliminary Final Prospectus and the Final
Prospectus and any supplement thereto as the Underwriter may reasonably
request. The Company will pay the expenses of printing or other
production of all documents relating to the offering.
(e) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Underwriter may designate, will maintain such
qualifications in effect so long as required for the distribution of
the Securities, will arrange for the determination of the legality of
the Securities for purchase by institutional investors and will pay any
fee of the National Association of Securities Dealers, Inc., in
connection with its review of the offering.
(f) Until the Business Day set forth on Schedule I hereto, the
Company will not, without the consent of Salomon Brothers Inc, offer,
sell or contract to sell, or otherwise dispose of (or enter into any
transaction which is designed to, or could be expected to, result in
the disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company or any
affiliate of the Company or any person in privity with the Company or
any affiliate of the Company) directly or indirectly, or announce the
offering of, any debt securities issued or guaranteed by the Company
(other than the Securities).
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<PAGE> 8
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITER. The
obligations of the Underwriter to purchase the Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Underwriter agrees in writing
to a later time, the Registration Statement will become effective not
later than (i) 6:00 PM New York City time, on the date of determination
of the public offering price, if such determination occurred at or
prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the
Business Day following the day on which the public offering price was
determined, if such determination occurred after 3:00 PM New York City
time on such date; if filing of the Final Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the Final Prospectus, and
any such supplement, shall have been filed in the manner and within the
time period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or
threatened.
(b) The Company shall have furnished to the Underwriter the
opinion of Goodwin, Procter & Hoar LLP, counsel for the Company, dated
the Closing Date, to the effect that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the jurisdiction in which it is chartered or
organized, with full corporate power and authority to own its
properties and conduct its business as described in the Final
Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each
jurisdiction listed in a schedule to such counsel's opinion
(which schedule shall list all jurisdictions in which the
Company has represented to such counsel that the Company
conducts material business or owns or leases material
property);
(ii) the Securities conform in all material respects
to the description thereof contained in the Final Prospectus;
the certificates for the Securities are in valid and
sufficient form;
(iii) the Indenture has been duly authorized,
executed and delivered by the Company, has been duly qualified
under the Trust Indenture Act, and constitutes a legal, valid
and binding instrument enforceable against the Company in
accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect); and the
Securities have been duly authorized by the Company and, when
executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the
Underwriter pursuant to this Agreement, will constitute legal,
valid and binding obligations of the Company entitled to the
benefits of the Indenture;
(iv) the 10-3/4% Notes Supplemental Indenture has
been duly and validly authorized by all necessary action on
the part of the Company and the guarantors of the 10-3/4%
Notes, has been duly executed and delivered by or on behalf of
the Company and such guarantors and constitutes the legally
valid and binding obligation of the Company and such
guarantors, enforceable against
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<PAGE> 9
each of them in accordance with its terms (except as such
enforcement may be subject to or limited by bankruptcy,
insolvency and general principles of equity);
(v) to the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding by or before
any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries,
of a character required to be described in the Registration
State ment which is not so described in the Final Prospectus,
and there is no franchise, contract or other document of a
character required to be described in the Registration
Statement or Final Prospectus, or to be filed as an exhibit
thereto, which is not described or filed as required; and the
descriptions of laws, regulations and rules as set forth under
the captions "Business--Environmental Regulations" and
"Certain United States Federal Income Tax Consequences", and
the descriptions of legal and governmental proceedings under
the headings "Summary--Recent Industrial Accident" and
Business--Legal Proceedings" have been reviewed by such
counsel and are accurate summaries in all material respects of
such information;
(vi) this Agreement has been duly authorized,
executed and delivered by the Company;
(vii) the Company is not and, after giving effect to
the offering and sale of the Securities and the application of
the proceeds thereof as described in the Final Prospectus,
will not be an "investment company" as defined in the
Investment Company Act of 1940, as amended;
(viii) no consent, approval, order or decree,
license, authorization or validation of, or filing with the
Commission or any other United States or Massachusetts
governmental authority is required in connection with the
transactions contemplated herein, except such as have been
obtained under the Act and such as may be required under the
blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the Underwriter
in the manner contemplated in this Agreement and in the Final
Prospectus;
(ix) neither the execution and delivery of the
Indenture, the issue and sale of the Securities, nor the
consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will (A)
conflict with or result in a violation of any of the
provisions of the certificate of incorporation or by-laws of
the Company, (B) conflict with or violate in any material
respect any law, rule or regulation of the United States of
America or the Commonwealth of Massachusetts (other than state
securities or blue sky laws or state laws or regulations
relating to broker-dealer registration that may be applicable,
as to which such counsel need express no opinion), or any
order, judgment or decree of any court or other governmental
authority known to such counsel that is applicable to Company
or any of its subsidiaries or by which any property or asset
of Company or any of its subsidiaries is or may be bound, or
(C) result in a breach of any of the material terms or
provisions of, or constitute a default (with or without due
notice and/or lapse of time) under, any document filed with or
incorporated by reference in any report filed by the Company
under the Exchange Act; and
(xi) the Registration Statement has become effective
under the Act; any required filing of the Basic Prospectus,
any Preliminary Final Prospectus and
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<PAGE> 10
the Final Prospectus pursuant to Rule 424(b) has been made in
the manner and within the time period required by Rule 424(b);
to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued,
no proceedings for that purpose have been instituted or
threatened; and the Registration Statement and the Final
Prospectus (other than the financial statements and supporting
schedules other financial and statistical information
contained therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the
applicable requirements of the Act, the Exchange Act and the
Trust Indenture Act and the respective rules thereunder.
In addition, such counsel shall state that it has participated
in conferences with officers and other representatives of the Company,
representatives of the independent public accountants of the Company
and representatives of the Underwriter at which the contents of the
Registration Statement and the Final Prospectus were discussed and, on
the basis of the foregoing, no facts have come to such counsel's
attention hat causes it to believe that, on the Effective Date or at
the Execution Time, the Registration Statement contains or contained
any untrue statement of a material fact or omitted or omits to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading, or that the Final Prospectus as
of its date and on the Closing Date includes any untrue statement of a
material fact or omitted or omits to state a material fact necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading (in each case, other than the
financial statements and supporting schedules other financial and
statistical information contained therein, and the Statement of
Eligibility on Form T-1 included as an exhibit to the Registration
Statement, as to which such counsel need express no opinion).
In rendering such opinion, such counsel may rely as to matters
of fact, to the extent deemed proper, on certificates of responsible
officers of the Company and public officials. References to the Final
Prospectus in this paragraph (b) include any supplements thereto at the
Closing Date. In rendering the opinion set forth in paragraph (iii)
above as to matters involving the application of laws of the State of
New York, such counsel may rely upon the opinion of Cravath, Swaine &
Moore referred to in Section 6(d) hereof. In rendering the opinion set
forth in paragraph (iv) above, such counsel may assume that the laws of
the State of New York conform to the laws of the Commonwealth of
Massachusetts.
(c) The Company shall have furnished to the Underwriter the
opinion of Wallace R. Whitney, Jr., General Counsel of the Company,
dated the Closing Date, to the effect that:
(i) each of the Company and the Material Subsidiaries
has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the
jurisdiction in which it is chartered or organized, with full
corporate power and authority to own its properties and
conduct its business as described in the Final Prospectus, and
is duly qualified to do business as a foreign corporation and
is in good standing under the laws of each jurisdiction which
requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(ii) all the outstanding shares of capital stock of
each Material Subsidiary have been duly and validly authorized
and issued and are fully paid and nonassessable, and, except
as otherwise set forth in the Final Prospectus or on
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<PAGE> 11
Schedule A hereto, all outstanding shares of capital stock of
the Material Subsidiaries are owned by the Company either
directly or through wholly owned subsidiaries free and clear
of any perfected security interest and, to the knowledge of
such counsel, after due inquiry, any other security interests,
claims, liens or encumbrances;
(iii) the holders of outstanding shares of capital
stock of the Company are not entitled to preemptive or other
rights to subscribe for the Securities;
(iv) no holders of securities of the Company have
rights to the registration of such securities under the
Registration Statement; and
(v) neither the execution and delivery of the
Indenture, the issue and sale of the Securities, nor the
consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will (A)
conflict with or result in a violation of any of the
provisions of the certificate of incorporation or by-laws of
the Company, (B) conflict with or violate in any material
respect any law, rule or regulation of the United States of
America or the Commonwealth of Massachusetts (other than state
securities or blue sky laws or state laws or regulations
relating to broker-dealer registration that may be applicable,
as to which such counsel need express no opinion), or any
order, judgment or decree of any court or other governmental
authority known to such counsel that is applicable to Company
or any of its subsidiaries or by which any property or asset
of Company or any of its subsidiaries is or may be bound, or
(C) result in a breach of any of the terms or provisions of,
or constitute a default (with or without due notice and/or
lapse of time) under, any agreement to which the Company or
any of its subsidiaries is a party or bound, except, in the
case of clause (C), for such breaches or defaults which would
not, individually or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole;
(vi) to the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding by or before
any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries,
of a character required to be described in the Registration
Statement which is not so described in the Final Prospectus,
and there is no franchise, contract or other document of a
character required to be described in the Registration
Statement or Final Prospectus, or to be filed as an exhibit
thereto, which is not described or filed as required; and the
descriptions of laws, regulations and rules as set forth under
the captions "Business--Environmental Regulations" and
"Certain United States Federal Income Tax Consequences", and
the descriptions of legal and governmental proceedings under
the headings "Summary--Recent Industrial Accident" and
Business--Legal Proceedings" have been reviewed by such
counsel and are accurate summaries in all material respects of
such information;
(vii) to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued, no proceedings for that purpose have been
instituted or threatened, and the Registration Statement and
the Final Prospectus (other than the financial statements and
supporting schedules other financial and statistical
information contained therein, as to which such counsel need
express no opinion) comply as to form in all material respects
with the applicable requirements of the Act, the Exchange Act
and the Trust Indenture Act and the respective rules
thereunder; and such counsel has no reason to believe that on
the Effective Date or at the Execution Time the Regis-
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<PAGE> 12
tration Statement contains or contained any untrue statement
of a material fact or omitted or omits to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading or that the Final Prospectus
as of its date and on the Closing Date includes any untrue
statement of a material fact or omitted or omits to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading (in each case, other than the financial statements
and supporting schedules other financial and statistical
information contained therein, as to which such counsel need
express no opinion).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of Massachusetts or the Federal laws of the United States, to the
extent deemed proper and specified in such opinion, upon the opinion of
other counsel of good standing believed to be reliable and who are
satisfactory to counsel for the Underwriter and (B) as to matters of
fact, to the extent deemed proper, on certificates of responsible
officers of the Company and public officials. References to the Final
Prospectus in this paragraph (c) include any supplements thereto at the
Closing Date.
(d) The Underwriter shall have received from Cravath, Swaine &
Moore, counsel for the Underwriter, such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of the Securities,
the Indenture, the Registration Statement, the Final Prospectus
(together with any supplement thereto) and other related matters as the
Underwriter may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Underwriter a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
Final Prospectus, any supplements to the Final Prospectus and this
Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date and the Company has complied with
all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing
Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus (exclusive of any
supplement thereto), there has been no material adverse change
in the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Final Prospectus (exclusive
of any supplement.
(f) At the Closing Date, Ernst & Young LLP shall have
furnished to the Underwriter letters (which may refer to letters
previously delivered to one or more of the Underwriter), dated as of
the Closing Date, in form and substance satisfactory to
11
<PAGE> 13
the Underwriter, confirming that they are independent accountants
within the meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder and that they
have performed a review of the unaudited interim financial information
of the Company for the three-month period ended August 31, 1997, and as
at August 31, 1997, in accordance with Statement on Accounting
Standards No. 71 and stating in effect that:
(i) in their opinion the audited financial statements
and financial statement schedules included or incorporated in
the Registration Statement and the Final Prospectus and
reported on by them comply in form in all material respects
with the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the Company
and its subsidiaries; their limited review, in accordance with
standards established under Statement on Auditing Standards
No. 71, of the unaudited interim financial information,
carrying out certain specified procedures (but not an
examination in accordance with generally accepted auditing
standards) which would not necessarily reveal matters of
significance with respect to the comments set forth in such
letter; a reading of the minutes of the meetings of the
stockholders, board of directors and committees of the board
of directors of the Company and its subsidiaries; and
inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the
Company and its subsidiaries as to transactions and events
subsequent to the date of the most recent audited financial
statements in or incorporated in the Registration Statement
and Final Prospectus, nothing came to their attention which
caused them to believe that:
(1) any unaudited financial statements
included or incorporated in the Registration
Statement and the Final Prospectus do not comply in
form in all material respects with applicable
accounting requirements and with the published rules
and regulations of the Commission with respect to
financial statements included or incorporated in
quarterly reports on Form 10-Q under the Exchange
Act; and said unaudited financial statements are not
in conformity with generally accepted accounting
principles applied on a basis substantially
consistent with that of the audited financial
statements included or incorporated in the
Registration Statement and the Final Prospectus;
(2) with respect to the period subsequent to
the date of the most recent financial statements
(other than any capsule information), audited or
unaudited, in or incorporated in the Registration
Statement and the Final Prospectus, there were any
changes, at a specified date not more than five days
prior to the date of the letter, in the long-term
debt of the Company and its subsidiaries or capital
stock of the Company or decreases in the
stockholders' equity of the Company or decreases in
net current assets of the Company and its
subsidiaries as compared with the amounts shown on
the most recent consolidated balance sheet included
or incorporated in the Registration Statement and the
Final Prospectus, or for the period from the date of
the most recent financial statements included or
incorporated in the Registration Statement and the
Final Prospectus to such specified date there were
any decreases, as compared with the corresponding
period in the preceding year in revenues, income from
operations or income before income taxes or in total
or per share amounts of net income of the Company and
its subsidiaries, except in all
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<PAGE> 14
instances for changes or decreases set forth in such
letter, in which case the letter shall be accompanied
by an explanation by the Company as to the
significance thereof unless said explanation is not
deemed necessary by the Underwriter;
(3) the information included in the
Registration Statement and Final Prospectus in
response to Regulation S-K, Item 301 (Selected
Financial Data), Item 302 (Supplementary Financial
Information), Item 402 (Executive Compensation) and
Item 503(d) (Ratio of Earnings to Fixed Charges) is
not in conformity with the applicable disclosure
requirements of Regulation S-K; and
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of
the Company and its subsidiaries) set forth in the
Registration Statement and the Final Prospectus and in Exhibit
12 to the Registration Statement, including the information
included or incorporated in Items 1, 6, 7 and 11 of the
Company's Annual Report on Form 10-K, incorporated in the
Registration Statement and the Final Prospectus, and the
information included in the "Management's Discussion and
Analysis of Financial Condition and Results of Operations"
included or incorporated in the Company's Quarterly Reports on
Form 10-Q, incorporated in the Registration Statement and the
Final Prospectus, agrees with the accounting records of the
Company and its subsidiaries, excluding any questions of legal
interpretation.
References to the Final Prospectus in this paragraph (f)
include any supplement thereto at the date of the letter.
In addition, except as provided in Schedule I hereto, at the
Execution Time, Ernst & Young LLP shall have furnished to the Underwriter a
letter or letters, dated as of the Execution Time, in form and substance
satisfactory to the Underwriter, to the effect set forth above.
(g) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to
in paragraph (f) of this Section 6 or (ii) any change, or any
development involving a prospective change, in or affecting the
condition (financial or otherwise), earnings, business or properties of
the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Final Prospectus (exclusive of any
supplement thereto) the effect of which, in any case referred to in
clause (i) or (ii) above, is, in the sole judgment of the Underwriter,
so material and adverse as to make it impractical or inadvisable to
proceed with the offering or delivery of the Securities as contemplated
by the Registration Statement (exclusive of any amendment thereof) and
the Final Prospectus (exclusive of any supplement thereto).
(h) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt securities
by any "nationally recognized statistical rating organization" (as
defined for purpose of Rule 436(g) under the Act) or any notice given
of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the direction
of the possible change.
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<PAGE> 15
(i) On the Closing Date, the Company shall have furnished to
the Underwriter evidence satisfactory to the Underwriter that the
Company has accepted for payment and paid for 10-3/4% Notes
representing at least [66-2/3%] of the outstanding aggregate principal
amount of the 10-3/4% Notes pursuant to the Company's offer to purchase
for cash any and all outstanding 10-3/4% Notes.
(j) Prior to the Closing Date, the Company shall have
furnished to the Underwriter such further information, certificates and
documents as the Underwriter may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Underwriter and counsel for the
Underwriter, this Agreement and all obligations of the Underwriter hereunder may
be canceled at, or at any time prior to, the Closing Date by the Underwriter.
Notice of such cancelation shall be given to the Company in writing or by
telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall
be delivered at the office of Cravath, Swaine & Moore, counsel for the
Underwriter, at Worldwide Plaza, 825 Eighth Avenue, New York, New York, on the
Closing Date.
7. REIMBURSEMENT OF UNDERWRITER'S EXPENSES. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriter set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriter, the Company will reimburse the Underwriter on
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by it in connection with
the proposed purchase and sale of the Securities.
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless the Underwriter, the directors, officers, employees
and agents of the Underwriter and each person who controls Underwriter within
the meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the registration statement for the registration of the
Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; PROVIDED, HOWEVER,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of the Underwriter specifically for inclusion
therein. This indemnity agreement will be in addition to any liability which the
Company may otherwise have.
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<PAGE> 16
(b) The Underwriter agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the Registration
Statement, and each person who controls the Company within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity from
the Company to the Underwriter, but only with reference to written information
relating to the Underwriter furnished to the Company by or on behalf of the
Underwriter specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which Underwriter may otherwise have. The Company acknowledges that
the statements set forth in the last paragraph of the cover page regarding
delivery of the Securities, the stabilization legend in block capital letters on
page S-2 and under the heading "Underwriting", (i) the sentences related to
concessions and reallowances and (ii) the paragraph related to stabilization in
any Preliminary Final Prospectus or the Final Prospectus constitute the only
information furnished in writing by or on behalf of the Underwriter for
inclusion in the documents referred to in the foregoing indemnity.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
PROVIDED, HOWEVER, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriter agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and one or
15
<PAGE> 17
more of the Underwriter may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company and by the Underwriter
from the offering of the Securities; PROVIDED, HOWEVER, that in no case shall
the Underwriter be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by the Underwriter
hereunder. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Underwriter shall contribute in
such proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company and of the Underwriter in connection with
the statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company shall be
deemed to be equal to the total net proceeds from the offering (before deducting
expenses) received by it, and benefits received by the Underwriter shall be
deemed to be equal to the total underwriting discounts and commissions, in each
case as set forth on the cover page of the Final Prospectus. Relative fault
shall be determined by reference to, among other things, whether any untrue or
any alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information provided by the Company
on the one hand or the Underwriter on the other, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and the Underwriter agree
that it would not be just and equitable if contribution were determined by pro
rata allocation or any other method of allocation which does not take account of
the equitable considerations referred to above. Notwithstanding the provisions
of this paragraph (d), no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 8, each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of an Underwriter shall have the same rights to contribution as the
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
9. TERMINATION. This Agreement shall be subject to termination
in the absolute discretion of the Underwriter, by notice given to the Company
prior to delivery of and payment for the Securities, if at any time prior to
such time (i) trading in the Company's Common Stock shall have been suspended by
the Commission or the NASDAQ National Market or trading in securities generally
on the New York Stock Exchange or the NASDAQ National Market shall have been
suspended or limited or minimum prices shall have been established on such
Exchange or National Market, (ii) a banking moratorium shall have been declared
either by Federal or New York State authorities or (iii) there shall have
occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war or other calamity or crisis the effect of
which on financial markets is such as to make it, in the sole judgment of the
Underwriter, impractical or inadvisable to proceed with the offering or delivery
of the Securities as contemplated by the Final Prospectus (exclusive of any
supplement thereto).
10. REPRESENTATIONS AND INDEMNITIES to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriter set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of Underwriter or the Company or any of the
officers, directors or controlling persons referred to in Section 8 hereof, and
will survive delivery of and payment for the Securities. The provisions of
Sections 7 and 8 hereof shall survive the termination or cancelation of this
Agreement.
11. NOTICES. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Underwriter, will be mailed,
delivered or telefaxed to the
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<PAGE> 18
Salomon Brothers Inc General Counsel (fax no.: (212) 783-1752) and confirmed to
him at Salomon Brothers Inc, Seven World Trade Center, New York, New York,
10048, Attention: General Counsel; or, if sent to the Company, will be mailed,
delivered or telefaxed to the Chief Financial Officer (fax no.: (508) 839-7500)
and confirmed to him at Wyman-Gordon Company, 244 Worcester Street, Box 8001,
North Grafton, MA 01536-8001, Attention: Chief Financial Officer.
12. SUCCESSORS. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8 hereof,
and no other person will have any right or obligation hereunder.
13. APPLICABLE LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
14. COUNTERPARTS. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
15. HEADINGS. The section headings used herein are for
convenience only and shall not affect the construction hereof.
16. DEFINITIONS. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended.
"Basic Prospectus" shall mean the prospectus referred to in
paragraph 1(a) above contained in the Registration Statement at the
Effective Date.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New York
City.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Final Prospectus" shall mean the form of final prospectus
relating to the Securities, including the Basic Prospectus included in
the Registration Statement at the Effective Date and the final
prospectus supplement filed after the Effective Date in accordance with
Rules 430A and 424(b).
"Material Subsidiary" means any of the following subsidiaries
of the Company: Wyman Gordon Forgings, Inc., a Delaware corporation;
Wyman-Gordon Limited, an English corporation; Wyman-Gordon Investment
Castings, Inc., a Delaware corporation; Precision Founders, Inc., a
California corporation; Wyman-Gordon Receivables Corporation, a
Delaware corporation; Wyman-Gordon Composite Technologies, Inc., a
California corporation; and Scaled Composites, Inc., a California
corporation. [TO BE UPDATED BY WYMAN]
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"Preliminary Final Prospectus" shall mean any preliminary
prospectus supplement to the Basic Prospectus which describes the
Securities and the offering thereof and is used prior to filing of the
Final Prospectus.
"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in paragraph 1(a) above and any preliminary prospectus
included in the Registration Statement at the Effective Date that omits
Rule 430A Information.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto or any Rule
462(b) Registration Statement becomes effective prior to the Closing
Date (as hereinafter defined), shall also mean such registration
statement as so amended or such Rule 462(b) Registration Statement, as
the case may be. Such term shall include any Rule 430A Information
deemed to be included therein at the Effective Date as provided by Rule
430A.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to Rule
430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the initial registration statement.
"Tender Offer and Solicitation" means the Company's offer to
purchase for cash any and all outstanding 10-3/4% Notes and the related
consent solicitation.
"Tender Offer and Solicitation Statement" means the Offer to
Purchase and Consent Solicitation Statement dated [ ], 1997,
relating to the Company's offer to purchase for cash any and all
outstanding 10-3/4% Notes and the related consent solicitation.
"Trust Indenture Act" shall mean the Trust Indenture Act of
1939, as amended.
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<PAGE> 20
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Company and the Underwriter.
Very truly yours,
WYMAN-GORDON COMPANY,
By:
-------------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
SALOMON BROTHERS INC
By:
------------------------------------
Name:
Title:
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<PAGE> 21
SCHEDULE I
Underwriting Agreement dated December __, 1997
Registration Statement No. 33-63459
Title, Purchase Price and Description of Securities:
Title: ___% Senior Notes Due 2007
Principal amount: $100,000,000
Purchase price (include accrued
interest or amortization, if
any): $________
Sinking fund provisions: None.
Redemption provisions: Redeemable at the option of the Company during
the 12-month periods commencing on the following dates at the following
redemption prices (expressed as a percentage of principal amount): [ ],
2002 -- [ ]%; [ ], 2003 -- [ ]%; [ ], 2004 -- [ ]%;
[ ], 2005 and thereafter -- [ ]%.
Closing Date, Time and Location: December [__], 1997
Type of Offering: Public
Date referred to in Section 5(f) after which the Company may offer or sell debt
securities issued or guaranteed by the Company without the consent of the
Underwriter: [ ], 1997
Modification of items to be covered by the letter from
Ernst & Young LLP delivered pursuant to
Section 6(f) at the Execution Time: None
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<PAGE> 22
ANNEX A
SUBSIDIARIES
- --------------------------------------------------------------------------------
Subsidiary(1) Ownership
- ----------- ---------
- --------------------------------------------------------------------------------
Cameron Forged Products Limited, a U.K. company 100%
- --------------------------------------------------------------------------------
Cameron Pipeline, Inc., a Texas corporation 100%
- --------------------------------------------------------------------------------
ForCast FSC, Ltd., a Virgin Islands corporation 100%
- --------------------------------------------------------------------------------
Precision Founders Inc., a California corporation 100%
- --------------------------------------------------------------------------------
Reisner Metals, Inc., a California corporation 100%
- --------------------------------------------------------------------------------
Scaled Composites, Inc., a California corporation
("SCI") 84.4%(2)
- --------------------------------------------------------------------------------
Scaled Manufacturing Inc., a [ ] corporation [ ]%
- --------------------------------------------------------------------------------
Wyman-Gordon Composites, Inc., a Delaware
corporation 100%
- --------------------------------------------------------------------------------
Wyman-Gordon Composite Technologies, Inc., a
California corporation ("WGCT") 84.4%(3)
- --------------------------------------------------------------------------------
Wyman-Gordon Forgings, Inc., a
Delaware corporation 100%
- --------------------------------------------------------------------------------
Wyman-Gordon Investment Castings, Inc., a
Delaware corporation 100%
- --------------------------------------------------------------------------------
Wyman-Gordon Limited, a U.K. corporation 100%
- --------------------------------------------------------------------------------
Wyman-Gordon Receivables Corporation, a
Delaware corporation 100%
- --------------------------------------------------------------------------------
- --------------------------
(1)The Company participates in a joint venture to produce
nickel-based superalloy ingots under a Joint Venture Agreement dated
November 20, 1991 by and among the Company, Western Aerospace Limited
and United Technologies International Corporation.
(2)SCI is 100% owned by WGCT. The Company is thus the indirect
beneficial owner of 84.4% of the shares of capital stock of SCI.
(3)The Company is the direct beneficial owner of 84.4% of the
shares of capital stock of WGCT (formerly Scaled Composites Ventures
Inc.). The remaining shares are directly beneficially owned by managers
of WGCT ("WGCT Management"). Pursuant to Section 8(a) of the
Shareholders Agreement dated March 2, 1989 (the "Agreement") among
WGCT, the Company and WGCT Management, the members of WGCT Management
have a right of first refusal on any sales by the Company of WGCT
stock. Pursuant to Section 5(c) of the Agreement, the members of WGCT
Management have certain rights to resell their shares to WGCT, and
pursuant to Section 7 of the Agreement, the Company has an option to
purchase such shares.
1
