S-4
As filed with the Securities and Exchange Commission on
December 9, 2005
Registration Statement
No. 333-
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
MOOG INC.
(Exact name of registrant as specified in its charter)
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New York |
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3590 |
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16-0757636 |
(State or other jurisdiction
of incorporation or organization) |
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(Primary Standard Industrial
Classification Code Number) |
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(I.R.S. Employer
Identification No.) |
East Aurora, New York 14052-0018
(716) 652-2000
(Address, including zip code, and telephone number, including
area code, of
registrants principal executive offices)
Robert R. Banta
Executive Vice President and Chief Financial Officer
East Aurora, New York 14052-0018
(716) 652-2000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies of all communications to:
John B. Drenning, Esq.
John J. Zak, Esq.
Hodgson Russ LLP
One M&T Plaza, Suite 2000
Buffalo, New York 14203
(716) 856-4000
Approximate date of commencement of proposed sale of
securities to the public: As soon as practicable after this
registration statement becomes effective and all other
conditions to the exchange offer pursuant to the registration
rights agreement described in the enclosed prospectus have been
satisfied or waived.
If the securities being registered on this Form are being
offered in connection with the formation of a holding company
and there is compliance with General Instruction G, check the
following
box. o
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) 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. o
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. o
CALCULATION OF REGISTRATION FEE
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Proposed Maximum |
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Proposed Maximum |
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Title of Each Class of |
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Amount to Be |
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Offering Price |
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Aggregate |
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Amount of |
Securities to Be Registered |
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Registered |
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per Unit |
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Offering Price(1) |
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Registration Fee |
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61/4% Senior
Subordinated Notes due 2015
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$50,000,000 |
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100% |
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$50,000,000 |
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$5,350 |
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(1) |
Estimated solely for the purpose of calculating the registration
fee in accordance with Rule 457(f) promulgated under the
Securities Act of 1933, as amended. |
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 or until the registration
statement shall become effective on such date as the Commission,
acting pursuant to said Section 8(a), may determine.
SUBJECT TO COMPLETION, DATED
DECEMBER , 2005
PROSPECTUS
$50,000,000
MOOG INC.
Offer to exchange $50.0 million aggregate principal
amount of
61/4% Senior
Subordinated Notes due 2015 (which we refer to as the old notes)
for $50.0 million aggregate principal amount of
61/4% Senior
Subordinated Notes due 2015 which have been registered under the
Securities Act of 1933, as amended (which we refer to as the new
notes). We refer to the offer to exchange the new notes for the
old notes as the exchange offer in this prospectus.
The exchange offer will expire at 5:00 p.m., New York
City time
on, ,
2006, unless we extend the exchange offer in our sole and
absolute discretion.
Terms of the exchange offer:
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We will exchange new notes for all outstanding old notes that
are validly tendered and not withdrawn prior to the expiration
or termination of the exchange offer. |
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You may withdraw tenders of old notes at any time prior to the
expiration or termination of the exchange offer. |
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The terms of the new notes are substantially identical to those
of the outstanding old notes, except that the transfer
restrictions and registration rights to the old notes do not
apply to the new notes. |
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The exchange of old notes for new notes will not be a taxable
transaction for U.S. federal income tax purposes, but you
should see the discussion in this prospectus under the caption
Certain U.S. Federal Income Tax Considerations
for more information. |
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We will not receive any proceeds from the exchange offer. |
We issued the old notes in a transaction not requiring
registration under the Securities Act, and as a result, their
transfer is restricted. We are making the exchange offer to
satisfy your registration right, as a holder of the old notes.
See Risk Factors beginning on page 11 for a
discussion of risks you should consider prior to tendering your
outstanding old notes for exchange.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
This prospectus incorporates important business and financial
information about us that is not included or delivered with this
prospectus. We will provide this information to you at no charge
upon written or oral request directed to: Moog Inc., Seneca
Street at Jamison Road, Corporate Offices, East Aurora, NY
14052, Attention: Investor Relations, (716) 652-2000. In
order to ensure timely delivery of the information, any request
should be made
by ,
2006, which is five business days before the exchange offer
expires, unless extended.
You should rely only on the information contained in this
prospectus. We have not authorized anyone to provide you with
information different from that contained in this prospectus. We
are offering to exchange the new notes only where such exchanges
are permitted. The information contained in this prospectus is
accurate only as of the date of this prospectus, regardless of
the time of delivery of this prospectus or any sale of the new
notes. There may have been changes in our affairs since such
date.
TABLE OF CONTENTS
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, including the documents we incorporate by
reference, contains forward-looking statements within the
meaning of Section 27A of the Securities Act and
Section 21E of the Securities Exchange Act. These
statements are included throughout this prospectus, including in
the section entitled Risk Factors. These
forward-looking statements are not historical facts, but only
predictions and generally can be identified by the use of
statements that include terms such as believe,
expect, anticipate,
estimate, could, plan,
intend, may, project,
predict, will and terms and phrases of
similar import. Although we believe the assumptions upon which
these forward-looking statements are based are reasonable, any
of these assumptions could prove to be inaccurate, and the
forward-looking statements based on these assumptions could be
incorrect. While we have made these forward-looking statements
in good faith and they reflect our current judgment regarding
such matters, actual results could vary materially from the
forward-looking statements. Accordingly, these forward-looking
statements are qualified in their entirety by reference to the
factors described in Risk Factors as
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well as to other factors in this prospectus. The forward-looking
statements included in this prospectus are made only as of their
respective dates, and we undertake no obligation to publicly
update these forward-looking statements to reflect new
information, future events or otherwise. In light of these
risks, uncertainties and assumptions, the forward-looking events
might or might not occur. Actual results and trends in the
future may differ materially depending on a variety of important
factors.
These important factors include the following:
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fluctuations in general business cycles for commercial aircraft,
military aircraft, space and defense products and industrial
capital goods; |
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our dependence on government contracts, which may not be fully
funded or may be terminated; |
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our significant indebtedness, which could limit our cash flow
for operations and flexibility; |
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the possibility that our subcontractors may fail to perform
their contractual obligations, which may adversely affect our
contract performance and our ability to obtain future business; |
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the potential for cost overruns on fixed-price contracts and the
risk that actual results may differ from estimates used,
including those used in long-term accounting; |
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the potential for substantial fines and penalties or suspension
or debarment from future contracts in the event we do not comply
with regulations relating to defense industry contracting; |
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the potential that the demand for our products may be reduced if
we are unable to adapt to technological change; |
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the possibility that our new products and research and
development efforts may not be successful, which would result in
a reduction in our sales and profits; |
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our dependence on certain major customers, such as The Boeing
Company and Lockheed Martin, for a significant percentage of our
sales; |
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intense competition in our business which may require us to
lower prices or offer more favorable terms of sale; |
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higher pension costs and increased cash funding requirements,
which could occur in future years if future actual plan results
differ from assumptions used for our defined benefit plans,
including returns on plan assets and discount rates; |
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a write-off of all or part of our goodwill or other intangible
assets, which could adversely affect our operating results and
net worth and cause us to violate covenants in our bank
agreements; |
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our ability to successfully identify and consummate acquisitions
and integrate the acquired businesses; |
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our dependence on our management team and key personnel; |
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the possibility that future terror attacks, war or other civil
disturbances could negatively impact our business; |
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our operations in foreign countries could expose us to political
risks and adverse changes in local, legal, tax and regulatory
schemes; |
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the possibility that government regulation could limit our
ability to sell our products outside the United States; |
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the possibility of a catastrophic loss of one or more of our
manufacturing facilities; |
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the impact of product liability claims related to our products
used in applications where failure can result in significant
property damage, injury or death and in damage to our reputation; |
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foreign currency fluctuations in those countries in which we do
business and other risks associated with international
operations; and |
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the cost of compliance with environmental laws. |
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SUMMARY
This summary may not contain all of the information that
may be important to you. You should read this entire prospectus
and those documents incorporated by reference into this
prospectus, including the risk factors and financial data and
related notes, before making an investment decision.
Our Company
Overview
We are a leading worldwide designer and manufacturer of high
performance, precision motion and fluid controls and control
systems for a broad range of applications in aerospace, defense
and industrial markets. Our products and systems include
military and commercial aircraft flight controls, satellite
positioning controls, controls for steering tactical and
strategic missiles, thrust vector controls for space launch
vehicles and controls for positioning gun barrels and automatic
ammunition loading for military combat vehicles. Our products
are also used in a wide variety of industrial applications,
including injection molding machines for the plastics markets,
metal forming, power generating turbines, simulators used to
train pilots and certain medical applications. In fiscal 2005,
our sales were $1.1 billion, our net cash provided by
operating activities was $106.9 million, and our net
earnings were $64.8 million.
Our customers fall into three groups, Original Equipment
Manufacturers, or OEMs, that are customers of our aerospace and
defense markets, OEM customers of our industrial business and
aftermarket customers in all of our markets. Aerospace and
defense OEM customers collectively represented 46% of our fiscal
2005 sales. The majority of these sales are to a small number of
large companies. Due to the long-term nature of many of the
programs, many of our relationships with aerospace and defense
OEM customers are based on long-term agreements. Our OEM sales
of industrial controls, which represented 33% of our fiscal 2005
sales, are to a wide diversity of customers around the world and
are normally based on lead times of 90 days or less. We
also provide aftermarket support, consisting of spare and
replacement parts and repair and overhaul services, for all of
our product applications. Our major aftermarket customers are
the U.S. Government and the commercial airlines. In fiscal
2005, aftermarket sales accounted for 21% of total sales. Sales
arising from U.S. Government prime or subcontracts,
including military sales to Boeing and Lockheed Martin, were
approximately 34% of our fiscal 2005 sales.
We have four reportable segments: (1) Aircraft Controls,
(2) Space and Defense Controls, (3) Industrial
Controls, and (4) Components.
Our Aircraft Controls Segment ($451.7 million, or 43%,
of 2005 Sales)
Within Aircraft Controls, we design, manufacture and integrate
primary and secondary flight controls for military and
commercial aircraft, and provide aftermarket support. Our
systems control large commercial transports, supersonic
fighters, multi-role military aircraft, business jets and
rotorcraft.
We are well positioned on both development and production
programs. Typically, development programs require concentrated
periods of research and development by our engineering teams and
involve design, development, testing and integration. We are
currently working on several large development programs
including the F-35 Joint Strike Fighter, Indian Light Combat
Aircraft, Boeings 787 Dreamliner, Airbus A400M and two
unmanned aerial vehicles, the X-45 and X-47. The F-35 is the
largest of these programs. The 787 and the A400M programs began
design and development in 2004. Production programs are
generally long-term manufacturing efforts that extend for as
long as the aircraft builder receives new orders. Our large
military production programs include the F/ A-18 E/ F Super
Hornet, F-15 Eagle and the V-22 Osprey. Our large commercial
production programs include the full line of Boeing 7-series
aircraft.
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Our Space and Defense Controls Segment ($128.5 million,
or 12%, of 2005 Sales)
Our Space and Defense Controls segment provides controls for
satellites and space vehicles, launch vehicles, tactical and
strategic missiles, missile defense and defense controls. For
the commercial and military satellite markets, we design,
manufacture and integrate chemical and electric propulsion
systems and space flight motion controls. Launch vehicles and
missiles use our steering and propulsion controls, and the Space
Station uses our couplings, valves and actuators. We design and
build steering and propulsion controls for tactical and
strategic missile programs, including VT-1, Hellfire and TOW. We
supply valves on the final stage kill vehicle used in the
U.S. National Missile Defense development initiative. We
design and manufacture systems to position gun barrels and
automatically load ammunition on military vehicles.
Our Industrial Controls Segment ($314.9 million, or 30%,
of 2005 Sales)
Industrial Controls is a diverse segment, serving customers
around the world and in many markets. Six major
markets plastics making machinery, power generating
turbines, metal forming, heavy industry, material test and
simulation generate over half of our total sales in
this segment. For the plastics making machinery market, we
design, manufacture and integrate systems for all axes of
injection and blow molding machines using leading edge
technology, both hydraulic and electric. In the power generation
turbine market, we design, manufacture and integrate complete
control assemblies for fuel, steam and variable geometry control
applications that include wind turbines. Metal forming markets
use our designed and manufactured systems that provide precise
control of position, velocity, force, pressure, acceleration and
other critical parameters. Heavy industry uses our high
precision electrical and hydraulic servovalves for steel and
aluminum mill equipment. For the material test markets, we
supply controls for automotive testing, structural testing and
fatigue testing. Our hydraulic and electromechanical motion
simulation bases are used for the flight simulation and training
markets. Other markets include material handling and testing,
auto racing, carpet tufting, paper mills and lumber mills.
Our Components Segment ($156.2 million, or 15%, of 2005
Sales)
Many of the same markets, including military and commercial
aerospace, defense controls and industrial applications, that
drive sales in our other segments affect Components. In
addition, Components serves two medical equipment markets.
This segments three largest product categories, slip
rings, fiber optic rotary joints and motors, serve broad
markets. Slip rings and fiber optic rotary joints use sliding
contacts and optical technology to allow unimpeded rotation
while delivering power and data across a rotating interface.
They come in a range of sizes that allow them to be used in many
applications that include diagnostic imaging, particularly CT
scan medical equipment featuring high-speed data communications,
de-icing and data transfer for rotorcraft, forward-looking
infrared camera installations, radar pedestals, material
handling, surveillance cameras, packaging and robotics. Our
motors are used in equally broad-based markets, many of which
are the same as for slip rings. For the medical pump and blower
market, and particularly sleep apnea equipment, Components
designs and manufactures a series of miniature brushless motors
that provide extremely low noise and reliable long life
operation. Industrial markets use our motors for material
handling, fuel cells and electric pumps. Military applications
use our motors for gimbals, missiles and radar pedestals.
Components has several other product lines including
electromechanical actuators for military, aerospace and
commercial applications, fiber optic modems that provide
electrical-to-optical conversion of communication and data
signals, avionic instrumentation, optical switches and resolvers.
Our Industry
We operate within the aerospace and defense and industrial
products industries. Our Aircraft Controls and Space and Defense
Controls segments are both affected by market conditions within
the aerospace and defense industries, including program funding
levels, while our Industrial Controls segment is affected
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by economic conditions and general market trends. Operations in
our Components segment reflect both of these industries.
Aerospace and Defense
The military aircraft market is dependent on military spending
for development and production programs. Military spending is
expected to remain strong in the near term. Production programs
are typically long-term in nature, offering greater
predictability as to capacity needs and future revenues. We
maintain positions on numerous high priority programs, including
the F/ A-18E/ F, F-35 and V-22, although these and other
government programs can be reduced, delayed or terminated. The
large installed base of our products leads to attractive
aftermarket sales and service opportunities. Aftermarket
revenues are expected to continue to grow, due to military
retrofit programs and increased flight hours resulting from
increased military activity.
The commercial OEM aircraft market has historically exhibited
cyclical swings and sensitivity to economic conditions, while
the aftermarket, which is driven by usage of the existing
aircraft fleet, has proven to be more stable. Higher aircraft
utilization rates result in the need for increased maintenance
and spare parts and improve aftermarket sales. Boeing and Airbus
have both recently increased production levels since air traffic
growth has returned to historical average rates. Further
production increases are projected.
The military and government space market is primarily dependent
on the authorized levels of funding for satellite communications
needs. We believe that government spending on military
satellites will continue to trend upwards as the militarys
need for improved intelligence gathering increases. The
commercial space market comprises large satellite customers,
traditionally telecommunications companies. Trends for this
market, as well as for commercial launch vehicles, follow the
satellite replacement cycle of 7-10 years and the
telecommunications companies need for increased capacity.
The tactical missile, missile defense and defense controls
markets are dependent on many of the same market conditions as
military aircraft, including overall military spending and
program funding levels.
Industrial
The industrial markets we serve are influenced by several
factors, including capital investment, product innovation,
economic growth, cost-reduction efforts and technology upgrades.
However, due to the high degree of sophistication of our
products and the niche markets we serve, we believe we may be
less susceptible to overall macro-industrial trends.
Opportunities for growth include automotive manufacturers that
are upgrading their metal forming, injection molding and
material test capabilities, steel manufacturers that are seeking
to reduce energy costs, advancements in medical technology and
demand in China to support their economic growth particularly in
power generation and steel manufacturing markets.
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SUMMARY DESCRIPTION OF THE EXCHANGE OFFER
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Old Notes |
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61/4% Senior
Subordinated Notes due 2015, which we issued on
September 12, 2005. |
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New Notes |
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61/4% Senior
Subordinated Notes due 2015, the issuance of which has been
registered under the Securities Act of 1933. The form and terms
of the new notes are identical in all material respects to those
of the old notes, except that the transfer restrictions and
registration rights relating to the old notes do not apply to
the new notes. |
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Exchange Offer |
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We are offering to issue up to $50.0 million aggregate
principal amount of the new notes in exchange for a like
principal amount of the old notes to satisfy our obligations
under the registration rights agreement that we entered into
when the old notes were issued in transactions in reliance upon
the exemption from registration provided by Rule 144A and
Regulation S of the Securities Act. |
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Expiration Date; Tenders |
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The exchange offer will expire at 5:00 p.m., New York City
time,
on ,
2006 (the 30th day following the date of this prospectus),
unless extended in our sole and absolute discretion. |
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Withdrawal; Non-Acceptance |
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You may withdraw any old notes tendered in the exchange offer at
any time prior to 5:00 p.m., New York City time,
on ,
2006. If we decide for any reason not to accept any old notes
tendered for exchange, the old notes will be returned to the
registered holder at our expense promptly after the expiration
or termination of the exchange offer. In the case of the old
notes tendered by book-entry transfer into the exchange
agents account at The Depository Trust Company, any
withdrawn or unaccepted old notes will be credited to the
tendering holders account at DTC. For further information
regarding the withdrawal of tendered old notes, see the
discussion in this prospectus under the captions The
Exchange Offer Terms of the Exchange Offer; Period
for Tendering Old Notes and The Exchange
Offer Withdrawal Rights. |
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Conditions to the Exchange Offer |
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The exchange offer is subject to customary conditions, which we
may waive. See the discussion in this prospectus under the
caption The Exchange Offer Conditions to the
Exchange Offer for more information regarding the
conditions to the exchange offer. |
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Procedures for Tendering the Old Notes |
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Unless you comply with the procedures described in this
prospectus under the caption The Exchange
Offer Guaranteed Delivery Procedures, you must
do one of the following on or prior to the expiration or
termination of the exchange offer to participate in the exchange
offer: |
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tender your old notes by sending the certificates
for your old notes, in proper form for transfer, a properly
completed and duly executed letter of transmittal, with any
required signature guarantees, and all other documents required
by the letter of transmittal, to JPMorgan Chase Bank, N.A., as
exchange |
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agent, at one of the addresses listed in this prospectus under
the caption The Exchange Offer Exchange
Agent, or |
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tender your old notes by using the book-entry
transfer procedures described below and transmitting a properly
completed and duly executed letter of transmittal, with any
required signature guarantees, or an agents message
instead of the letter of transmittal, to the exchange agent. In
order for a book-entry transfer to constitute a valid tender of
your old notes in the exchange offer, JPMorgan Chase Bank, N.A.,
as exchange agent, must receive a confirmation of book-entry
transfer of your old notes into the exchange agents
account at DTC prior to the expiration or termination of the
exchange offer. For more information regarding the use of
book-entry transfer procedures, including a description of the
required agents message, see the discussion in this
prospectus under the caption The Exchange
Offer Book-Entry Transfers. |
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Guaranteed Delivery Procedures |
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If you are a registered holder of old notes and wish to tender
your old notes in the exchange offer, but |
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the old notes are not immediately available; |
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time will not permit your old note or other required
documents to reach the exchange agent before the expiration or
termination of the exchange offer; or |
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the procedure for book-entry transfer cannot be
completed prior to the expiration or termination of the exchange
offer; |
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then you may tender old notes by following the procedures
described in this prospectus under the caption The
Exchange Offer Guaranteed Delivery Procedures. |
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Special Procedures for Beneficial Owners |
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If you are a beneficial owner whose old notes are registered in
the name of the broker, dealer, commercial bank, trust company
or other nominee and you wish to tender your old notes in the
exchange offer, you should promptly contact the person in whose
name the old notes are registered and instruct that person to
tender on your behalf. If you wish to tender in the exchange
offer on your behalf, prior to completing and executing the
letter of transmittal and delivering your old notes, you must
either make appropriate arrangements to register ownership of
the old notes in your name or obtain a properly completed bond
power from the person in whose name the old notes are registered. |
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Material Federal Income Tax Considerations |
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The exchange of the old notes for new notes in the exchange
offer will not be a taxable transaction for United States
federal income tax purposes. See the discussion in this
prospectus under the caption Certain U.S. Federal
Income Tax Considerations for more information regarding
the tax consequences to you of the exchange offer. |
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Use of Proceeds |
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We will not receive any proceeds from the exchange offer. |
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Exchange Agent |
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JPMorgan Chase Bank, N.A. is the exchange agent for the exchange
offer. You can find the address and telephone number of the
exchange agent in this prospectus under the caption The
Exchange Offer Exchange Agent. |
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Resales |
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Based on interpretations by the staff of the SEC, as set forth
in no-action letters issued to the third parties, we believe
that the new notes you receive in the exchange offer may be
offered for resale, resold or otherwise transferred without
compliance with the registration and prospectus delivery
provisions of the Securities Act. However, you will not be able
to freely transfer the new notes if: |
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you are our affiliate, as defined in
Rule 405 under the Securities Act; |
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you are not acquiring the new notes in the exchange
offer in the ordinary course of your business; |
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you have an arrangement or understanding with any
person to participate in the distribution, as defined in the
Securities Act, of the new notes you will receive in the
exchange offer; |
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you are holding old notes that have or are
reasonably likely to have the status of an unsold allotment in
the initial offering; or |
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you are a participating broker-dealer that received
new notes for its own account in the exchange offer in exchange
for old notes that were acquired as a result of market-making or
other trading activities. |
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If you fall within one of the exceptions listed
above, you must comply with the registration and prospectus
delivery requirements of the Securities Act in connection with
any resale transaction involving the new notes. See the
discussion in this prospectus under the caption The
Exchange Offer Procedures for Tendering Old
Notes for more information. |
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Broker-Dealer |
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Each broker-dealer that receives new notes for its own account
in exchange for old notes, where such old notes were acquired by
such broker-dealer as a result of market-making activities or
other trading activities, must deliver a prospectus in
connection with any resale of such new notes. See the discussion
in this prospectus under the caption Plan of
Distribution. |
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Registration Rights |
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In connection to our issuing of the old notes in September 2005,
we entered into a registration rights agreement with the initial
purchaser of the old notes. Under the terms of the registration
rights agreement, we agreed to use our best efforts to file with
the SEC and cause to become effective, a registration statement
relating to an offer to exchange the old notes for the new notes. |
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We will pay additional interest on the old notes upon the
occurrence of any of the following events: |
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on or prior to the 90th day after the date of
original issuance of the old notes or the obligation to file a
shelf registration |
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statement arises, neither the exchange offer nor the shelf
registration statement has been filed with the SEC; |
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on or prior to the 180th day after the date of
original issuance of the old notes or the obligation to file a
shelf registration statement arises, neither the exchange offer
registration statement nor the shelf registration statement has
been declared effective; |
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on or prior to the 30th business day following
the date the exchange offer registration statement is declared
effective, the registered exchange offer has been consummated; |
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after either the exchange offer registration
statement or the shelf registration statement has been declared
effective, such registration statement thereafter ceases to be
effective or fails to be usable for its intended purpose without
being succeeded immediately by a post- effective amendment to
such registration statement that cures such failure and that is
itself immediately declared effective in connection with the
resales of old notes or new notes in accordance with and during
the periods specified in the registration rights agreement. |
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Additional interest will accrue on the principal amount of the
old notes (in addition to the stated interest on the old notes)
from and including the date on which any registration default
shall occur to but excluding the date on which all registration
defaults have been cured. Additional interest will accrue at a
rate of 0.25% per annum during the 90-day period
immediately following the occurrence of a registration default
and increases 0.25% per annum at the end of each subsequent
90-day period, but in no event shall such rate exceed
1.0% per annum. |
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A copy of the registration rights agreement is incorporated by
reference as an exhibit to the registration statement of which
this prospectus is a part. See the discussion in this prospectus
under the caption Description of New Notes
Registration Rights; Additional Interest. |
7
CONSEQUENCE OF NOT EXCHANGING OLD NOTES
If you do not exchange your old notes in the exchange offer,
your old notes will continue to be subject to the restrictions
on transfer described in the legend on the certificate for your
old notes. In general, you may offer to sell your old notes only:
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if they are registered under the Securities Act and applicable
state securities laws; |
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if they are offered or sold under an exemption from registration
under the Securities Act and applicable state securities
laws; or |
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if they are offered or sold in a transaction not subject to the
Securities Act and applicable state securities laws. |
We do not currently intend to register the old notes under the
Securities Act. Under some circumstances, however, holders of
the old notes, including holders who are not permitted to
participate in the exchange offer or who do not receive freely
tradable new notes in the exchange offer (other than by reason
of such holder being an affiliate of us), may require us to
file, and to cause to become effective, a shelf registration
statement covering resales of old notes by these holders. For
more information regarding the consequences of not tendering
your old notes and our obligation to file a shelf registration
statement, see the discussion in this prospectus under the
captions The Exchange Offer Consequences of
Exchanging or Failing to Exchange Old Notes and
Description of the New Notes Registration
Rights; Additional Interest.
8
SUMMARY DESCRIPTION OF THE NEW NOTES
The terms of the new notes and those of the outstanding
old notes are substantially identical, except that the transfer
restrictions and registration rights relating to the old notes
do not apply to the new notes. For a more complete understanding
of the new notes, see the discussion in this prospectus under
the caption Description of the New Notes.
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Issuer |
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Moog Inc. |
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Securities |
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$50.0 million in principal amount of senior subordinated
notes due 2015. |
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Maturity |
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January 15, 2015. |
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Interest |
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Annual rate:
61/4%
Payment frequency: every six months on January 15 and
July 15, starting January 15, 2006. |
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Ranking |
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The new notes will be unsecured senior subordinated obligations
of Moog Inc. Accordingly, they will rank: |
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behind all existing and future senior debt of Moog
Inc., including indebtedness under our bank credit facility; |
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effectively behind any existing and future debt and
other liabilities of our subsidiaries; |
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equally with all future unsecured senior
subordinated debt of Moog Inc.; and |
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ahead of all future debt of Moog Inc. that expressly
provides that it is subordinated to the notes. |
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As of September 24, 2005, Moog Inc. had $348.9 million
of debt outstanding, $148.8 million which is senior debt.
Included in the $148.8 million in senior debt is
$11.8 million of debt, not including trade payables, owed
by our subsidiaries. |
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Optional Redemption |
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We may redeem the new notes, in whole or in part, at any time on
or after January 15, 2010 at the redemption prices
discussed in this prospectus under the caption Description
of the New Notes-Optional Redemption plus accrued and
unpaid interest and additional interest, if any. At any time
before January 15, 2010, we may redeem the new notes, in
whole or in part, at a redemption price equal to 100% of their
principal amount plus a make-whole premium discussed in this
prospectus under the caption Description of the New
Notes-Optional Redemption, together with accrued and
unpaid interest if any, to the redemption date. |
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In addition, on or before January 15, 2008, we may redeem
up to 35% of the aggregate principal amount of the new notes, at
the redemption price discussed in this prospectus under the
caption Description of Notes- Optional Redemption,
plus accrued and unpaid interest, if any, with the net proceeds
of certain equity offerings. However, we may only make such
redemptions if at least 65% of the aggregate principal amount of
notes originally issued remains outstanding immediately after
such redemption. |
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Change of Control |
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If we experience specific kinds of changes in control, we must
offer to purchase the new notes at 101% of their face amount,
plus accrued and unpaid interest and additional interest, if any. |
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Covenants |
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The covenants contained in the indenture governing the new notes
will, among other things, limit our ability and the ability of
our restricted subsidiaries to: |
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borrow money or sell preferred stock; |
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create liens; |
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pay dividends on or redeem or repurchase stock or
make certain payments; |
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make certain types of investments; |
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sell stock in our restricted subsidiaries; |
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restrict dividends or other payments from
subsidiaries to us; |
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enter into transactions with affiliates; |
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guarantee debt; and |
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sell certain assets or merge with or into other
companies. |
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These covenants contain important exceptions, limitations and
qualifications that are discussed in this prospectus under the
caption Description of the New Notes. |
Our headquarters are located at Seneca Street at Jamison Road,
East Aurora, New York 14052, and our telephone number is
(716) 652-2000. Our Internet address is
http://www.moog.com. Our two classes of common stock are listed
on the New York Stock Exchange under the trading symbol
MOG.A and MOG.B. Moog Inc. is a New York
corporation formed in 1951.
See Risk Factors beginning on page 11 for a
discussion of risks you should consider prior to tendering your
outstanding old notes for exchange.
10
RISK FACTORS
You should consider carefully the following factors, as well
as the other information set forth or incorporated by reference
in this prospectus before tendering your old notes in the
exchange offer. Additional risks and uncertainties not presently
known to us, or that we currently deem immaterial, may also
impair our business operations. We cannot assure you that any of
the events discussed in the risk factors below will not occur.
If they do, our business, financial condition or results of
operations could be materially and adversely affected, and you
might lose all or part of your investment.
Risks Related to the Exchange Offer and the New Notes
Holders who fail to exchange their old notes will continue
to be subject to restrictions on transfer.
If you do not exchange your old notes for new notes in the
exchange offer, you will continue to be subject to the
restrictions on transfer of your old notes described in the
legend on the certificates for your old notes. The restrictions
on transfer of your old notes arise because we issued the old
notes under exemptions from, or in transactions not subject to,
the registration requirements of the Securities Act and
applicable state securities laws. In general, you may only offer
or sell the old notes if they are registered under the
Securities Act and applicable state securities laws, or offered
and sold under an exemption from these requirements. We do not
plan to register the old notes under the Securities Act. For
further information regarding the consequences of tendering your
old notes in the exchange offer, see the discussion in this
prospectus under the captions The Exchange
Offer Consequences of Exchanging or Failing to
Exchange Old Notes and Certain U.S. Federal
Income Tax Considerations.
You must comply with the exchange offer procedures in
order to receive freely tradable new notes.
Delivery of new notes in exchange for old notes tendered and
accepted for exchange pursuant to the exchange offer will be
made only after timely receipt by the exchange agent of the
following:
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certificates for old notes or a book-entry confirmation of a
book-entry transfer of old notes into the Exchange Agents
account at DTC, New York, New York as depository, including an
Agents Message (as defined herein) if the tendering holder
does not deliver a letter of transmittal; |
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a completed and signed letter of transmittal (or facsimile
thereof), with any required signature guarantees, or an
Agents Message in lieu of the letter of
transmittal; and |
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any other documents required by the letter of transmittal. |
Therefore, holders of old notes who would like to tender old
notes in exchange for new notes should be sure to allow enough
time for the old notes to be delivered on time. We are not
required to notify you of defects or irregularities in tenders
of old notes for exchange. Old notes that are not tendered or
that are tendered but we do not accept for exchange will,
following consummation of the exchange offer, continue to be
subject to the existing transfer restrictions under the
Securities Act and, upon consummation of the exchange offer,
certain registration and other rights under the registration
rights agreement will terminate. See the discussion in this
prospectus under the captions The Exchange
Offer Procedures for Tendering Old Notes and
The Exchange Offer Consequences of Exchanging
or Failing to Exchange Old Notes.
Some holders who exchange their old notes may be deemed to
be underwriters and these holders will be required to comply
with the registration and prospectus delivery requirements in
connection with any resale transaction.
If you exchange your old notes in the exchange offer for the
purpose of participating in a distribution of the new notes, you
may be deemed to have received restricted securities and, if so,
will be required to comply with the registration and prospectus
delivery requirements of the Securities Act in connection with
any resale transaction.
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Our significant indebtedness could limit our cash flow
available for operations and our flexibility.
We have incurred substantial debt to finance our growth.
The degree to which we are leveraged could have important
consequences to holders of the new notes, including the
following:
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we will have greater difficulty satisfying our obligations with
respect to the new notes, including repurchase obligations under
the new notes; |
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we must dedicate a substantial portion of our cash flow from
operations to the payment of principal and interest on our debt,
reducing the funds available for our operations; |
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our ability to obtain additional financing in the future for
working capital, capital expenditures, acquisitions or other
purposes may be impaired; |
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our flexibility in planning for, or reacting to, changes in the
markets in which we compete may be limited; |
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a portion of our current debt is at variable rates of interest,
which makes us vulnerable to increases in interest rates; for
example, interest expense for fiscal 2005 ended
September 24, 2005 would increase $0.6 million for
every percentage point increase in interest rates based on
average variable rate debt outstanding; |
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we are at a competitive disadvantage relative to our competitors
with less indebtedness; and |
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we are rendered more vulnerable to general adverse economic and
industry conditions. |
The rights of the holders of the new notes to receive
payments will be unsecured and subordinated to the rights of the
holders of our senior debt.
The new notes we are offering will be junior to all existing and
future senior debt of Moog Inc. If we default in the payment of
principal or interest with respect to any senior debt, the
holders of the new notes will not receive any amounts owing on
the new notes unless and until we have cured the default or our
senior lenders have waived it. In addition, no payments in
respect of the new notes may be made during certain periods when
an event of default under certain of our senior debt permits the
senior debt lenders to accelerate the maturity of that senior
debt.
In the event of any liquidation, dissolution, reorganization,
bankruptcy or other similar proceeding regarding our assets,
whether voluntary or involuntary, the holders of our senior debt
will be entitled to receive payment before we can make any
payment with respect to the new notes. If any of these events
occur, we cannot assure you that we will have sufficient assets
to pay amounts due under all of our debt obligations. As a
result, the holders of the new notes may receive less, ratably,
than the holders of senior debt and other creditors, or recover
nothing, if any liquidation, dissolution, reorganization,
bankruptcy or other similar proceeding occurs.
The new notes are unsecured obligations of Moog Inc. A
substantial portion of our operations is conducted through our
direct and indirect subsidiaries, and the claims of creditors of
our subsidiaries are effectively senior to claims of holders of
the new notes.
The new notes are unsecured obligations exclusively of Moog Inc.
and will rank equally in right of payment with all other
existing and future unsecured, unsubordinated obligations of
Moog Inc. The new notes are not secured by any of our assets.
Any claims of secured lenders (including under our bank credit
facility) with respect to assets securing their loans will be
prior to any claim of the holders of the new notes with respect
to these assets.
A substantial portion of our operations is conducted through our
subsidiaries. As a result, our ability to service our debts,
including our obligations under the new notes, and other
obligations is dependent on the earnings of our subsidiaries and
the payment of those earnings to us in the form of dividends,
loans or
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advances and through repayment of loans or advances from us. Our
subsidiaries are separate and distinct legal entities. Our
subsidiaries have no obligation to pay any amounts due on the
new notes or to provide us with funds for our payment
obligations, whether in the form of dividends, distributions,
loans or other payments. In addition, any payment of dividends,
loans or advances by our subsidiaries could be subject to
statutory or contractual restrictions. Payments to us by our
subsidiaries will also be contingent upon our subsidiaries
earnings and business considerations.
Our right to receive any assets of any of our subsidiaries upon
their liquidation or reorganization, and therefore the right of
the holders of the new notes to participate in those assets,
will be effectively subordinated to the claims of that
subsidiarys creditors, including trade creditors. In
addition, even if we are a creditor of any of our subsidiaries,
our rights as a creditor would be subordinate to any security
interest in the assets of our subsidiaries and any indebtedness
of our subsidiaries senior to that held by us.
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Restrictive covenants in the indenture governing the new
notes and under our bank credit facility may reduce our
operating and financial flexibility. |
The terms of the indenture governing the new notes will contain
a number of operating and financial covenants that will restrict
our ability to, among other things:
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borrow money or sell preferred stock; |
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create liens; |
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pay dividends on or redeem or repurchase stock or make certain
payments; |
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make certain types of investments; |
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sell stock in our restricted subsidiaries; |
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restrict dividends or other payments from subsidiaries to us; |
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enter into transactions with affiliates; |
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guarantee debt; and |
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sell certain assets or merge with or into other companies. |
Our ability to comply with covenants contained in the indenture
may be affected by events beyond our control, including
economic, financial and industry conditions. Our failure to
comply with these covenants could result in an event of default
which, if not cured or waived, could require us to repay the new
notes prior their maturity, which we may be unable to do. Even
if we are able to comply with all the applicable covenants, the
restrictions on our ability to manage our business in our sole
discretion could adversely affect our business by, among other
things, limiting our ability to take advantage of financings,
mergers, acquisitions and other corporate opportunities that we
believe would be beneficial to us.
In addition, our bank credit facility requires us to maintain
compliance with certain covenants, including covenants regarding
minimum consolidated net worth, limits on capital expenditures,
a minimum interest coverage ratio, a maximum leverage ratio and
a minimum fixed charge coverage ratio. See the discussion in
this prospectus under the caption Description of Certain
Indebtedness. Our ability to comply with these covenants
may be affected by events beyond our control. Our inability to
comply with the required financial ratios or limits could result
in a default under our bank credit facility. In the event of any
such default, the lenders under the bank credit facility could
elect to:
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declare all outstanding debt, accrued interest and fees to be
due and immediately payable; |
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require us to apply all of our available cash to repay our
outstanding senior debt; and |
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prevent us from making debt service payments on our other debt,
including the new notes. |
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If we are unable to repay any of these borrowings when due, the
lenders under our bank credit facility could foreclose on our
assets pledged to them as security. If the indebtedness under
our bank credit facility were to be accelerated, our assets may
not be sufficient to repay such indebtedness in full.
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Our financial failure may hinder the receipt of payment on
the new notes. |
An investment in the new notes, as in any type of security,
involves insolvency and bankruptcy considerations that investors
should carefully consider. If we become debtors subject to
insolvency proceedings under the bankruptcy code, the
proceedings are likely to result in delays in the payment of the
new notes and in the exercise of enforcement remedies under the
new notes. Provisions under the bankruptcy code or general
principles of equity that could result in the impairment of your
rights include the automatic stay, avoidance of preferential
transfers by a trustee or debtor in-possession, substantive
consolidation, limitations on collectibility of unmatured
interest or attorneys fees and forced restructuring of the
new notes.
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Our ability to generate cash to service our indebtedness
or to refinance our indebtedness at maturity depends on many
factors beyond our control. |
Our ability to make payments on our indebtedness, including the
new notes, will depend on our ability to generate cash flow in
the future. This, to a certain extent, is subject to general
economic, financial, competitive, legislative, regulatory and
other factors that are beyond our control. Our business may not
generate sufficient cash flow from operations, and future
borrowings may not be available to us under our bank credit
facility in amounts sufficient to enable us to pay our
indebtedness, including the new notes, or to fund other
liquidity needs.
In addition, our bank credit facility matures in 2008. We may
not be able to refinance or obtain sufficient funds to enable us
to repay our bank indebtedness on commercially reasonable terms
or at all.
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We may not be able to finance a change of control offer as
required by the indenture because we may not have sufficient
funds at the time of the change of control or our bank credit
facility may not allow the repurchases. |
If we were to experience a change of control as described in
this prospectus under the caption Description of New
Notes Repurchase at Option of Holders
Change of Control, we would be required to make an offer
to purchase all of the new notes then outstanding at 101% of
their principal amount, plus accrued and unpaid interest, if
any, to the date of purchase. However, we may not have
sufficient funds at the time of the change of control to make
the required repurchase of the new notes, and restrictions in
our existing or any future bank credit facility may not allow
such repurchases.
In addition, under our bank credit facility, a change of control
may result in an event of default. Any future credit agreement
or other agreements relating to our senior indebtedness to which
we become a party may contain similar provisions. Our failure to
purchase the new notes upon a change of control would constitute
an event of default under the indenture. The defaults would, in
turn, constitute an event of default under our bank credit
facility and may constitute an event of default under future
senior indebtedness. Any default by us may cause the related
debt to be accelerated after any applicable notice or grace
periods. If our debt is accelerated, we may not have sufficient
funds to repurchase the new notes and repay the debt.
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We may be able to incur substantially more debt, which
could increase the risks described above. |
The terms of our bank credit facility and the indenture
governing the new notes will not fully prohibit us from
incurring additional debt. As a result, we may be able to incur
substantial additional debt in the future. Our restricted
subsidiaries will also not be fully prohibited from incurring
additional debt, and any indebtedness they incur will rank
effectively senior to the new notes. If we or our subsidiaries
incur more debt, the risks described above could intensify.
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The market price of the new notes may be volatile. |
The market for non-investment grade debt has historically been
subject to disruptions that have caused volatility in prices. It
is possible that the market for the new notes will be subject to
disruptions. Any such disruptions may have a negative effect on
you, as a holder of the new notes, regardless of our prospects
and financial performance. If any of the new notes are traded
after their initial issuance, they may trade at a discount from
the initial offering price of the old notes. In addition to
disruptions in the non-investment grade debt market, factors
that could cause the notes to trade at a discount include an
increase in interest rates, a decline in economic conditions
generally and a decline in our financial condition.
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Risks Related to Our Industry
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The markets we serve are cyclical and sensitive to
domestic and foreign economic conditions and events, which may
cause our operating results to fluctuate. |
The markets we serve are sensitive to fluctuations in general
business cycles and domestic and foreign economic conditions and
events. For example, demand for our industrial controls products
is dependent upon several factors, including capital investment,
product innovations, economic growth, cost-reduction efforts and
technology upgrades. In addition, the commercial airline
industry is highly cyclical and sensitive to fuel price
increases, labor disputes and economic conditions. These factors
could result in a reduction in the amount of air travel. A
reduction in air travel would reduce orders for new aircraft for
which we supply flight controls and for spare parts and services
and reduce our sales. A reduction in air travel may also result
in our commercial airline customers being unable to pay our
invoices on a timely basis or at all.
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We depend heavily on government contracts that may not be
fully funded or may be terminated, and the failure to receive
funding or the termination of one or more of these contracts
could reduce our sales and increase our costs. |
Sales to the U.S. Government and its prime contractors and
subcontractors represent a significant portion of our business.
In fiscal 2005, sales under U.S. Government contracts
represented 34% of our total sales, primarily within Aircraft
Controls, Space and Defense Controls and Components. Sales to
foreign governments represented 10% of our total sales. We
expect that the percentage of our revenues from government
contracts will continue to be substantial in the future.
Government programs can be structured into a series of
individual contracts. The funding of these programs is generally
subject to annual congressional appropriations, and
congressional priorities are subject to change. In addition,
government expenditures for defense programs may decline or
these defense programs may be terminated. A decline in
governmental expenditures may result in a reduction in the
volume of contracts awarded to us. We may have resources applied
to specific government contracts and, if any of those contracts
were terminated, we may incur substantial costs redeploying
these resources.
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If our subcontractors or suppliers fail to perform their
contractual obligations, our prime contract performance and our
ability to obtain future business could be materially and
adversely impacted. |
Many of our contracts involve subcontracts with other companies
upon which we rely to perform a portion of the services we must
provide to our customers. There is a risk that we may have
disputes with our subcontractors, including disputes regarding
the quality and timeliness of work performed by the
subcontractor, customer concerns about the subcontractor, our
failure to extend existing task orders or issue new task orders
under a subcontract or our hiring of personnel of a
subcontractor. Failure by our subcontractors to satisfactorily
provide on a timely basis the agreed-upon supplies or perform
the agreed-upon services may materially and adversely impact our
ability to perform our obligations as the prime contractor.
Subcontractor performance deficiencies could result in a
customer terminating our contract for default. A default
termination could expose us to liability and substantially
impair our ability to compete for future contracts and orders.
In addition, a delay in our ability to obtain components and
equipment parts from our suppliers may affect our ability to
meet our customers needs and may have an adverse effect
upon our profitability.
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Our results of operations are affected by our fixed-price
contracts. |
The nature of our business activities, primarily in Aircraft
Controls and Space and Defense Controls, involves fixed-price
contracts. Our contractual arrangements include customers
requirements for delivery of hardware and funded nonrecurring
development work that we anticipate will lead to follow-on
production orders.
Revenue representing 35% of fiscal 2005 sales was accounted for
using the percentage of completion, cost-to-cost method of
accounting in accordance with the American Institute of
Certified Public
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Accountants Statement of Position 81-1, Accounting for
Performance of Construction-Type and Certain Production-Type
Contracts. We recognize revenue on contracts using the
percentage of completion, cost-to-cost method of accounting as
work progresses toward completion as determined by the ratio of
cumulative costs incurred to date to estimated total contract
costs at completion, multiplied by the total estimated contract
revenue, less cumulative revenue recognized in prior periods.
Changes in estimates affecting sales, costs and profits are
recognized in the period in which the change becomes known using
the cumulative catch-up method of accounting, resulting in the
cumulative effect of changes reflected in the period. A
significant change in an estimate on one or more contracts could
have a material effect on our results of operations. For
contracts with anticipated losses at completion, we establish a
provision for the entire amount of the estimated remaining loss
and charge it against income in the period in which the loss
becomes known. Amounts representing performance incentives,
penalties, contract claims or change orders are considered in
estimating revenues, costs and profits when they can be reliably
estimated and realization is considered probable.
For the year ended September 24, 2005, fixed-price
contracts represented 76% of our sales that were accounted for
using the percentage of completion, cost-to-cost method of
accounting. On fixed-price contracts, we agree to perform the
scope of work specified in the contract for a predetermined
price. Depending on the fixed price negotiated, these contracts
may provide us with an opportunity to achieve higher profits
based on the relationship between our total contract costs and
the contracts fixed price. However, we bear the risk that
increased or unexpected costs may reduce our profit or cause us
to incur a loss on the contract, which could reduce our net
sales and net earnings. Loss reserves are more common on
fixed-price contracts that involve, to varying degrees, the
design and development of new and unique controls or control
systems to meet the customers specifications.
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Contracting in the defense industry is subject to
significant regulation, including rules relating to bidding,
billing and accounting kickbacks and false claims, and any
non-compliance could subject us to fines and penalties or
possible debarment. |
Like all government contractors, we are subject to risks
associated with this contracting. These risks include the
potential for substantial civil and criminal fines and
penalties. These fines and penalties could be imposed for
failing to follow procurement integrity and bidding rules,
employing improper billing practices or otherwise failing to
follow cost accounting standards, receiving or paying kickbacks
or filing false claims. We have been, and expect to continue to
be, subjected to audits and investigations by government
agencies. The failure to comply with the terms of our government
contracts could harm our business reputation. It could also
result in our progress payments being withheld or our suspension
or debarment from future government contracts.
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If we are unable to adapt to technological change, demand
for our products may be reduced. |
The technologies relating to our products have undergone, and in
the future may undergo, significant changes. To succeed in the
future, we will need to continue to design, develop,
manufacture, assemble, test, market and support new products and
enhancements on a timely and cost-effective basis. Historically,
our technology has been developed through customer-funded and
internally funded research and development and through business
acquisitions. In addition, our competitors may develop
technologies and products that are more effective than those we
develop or that render our technology and products obsolete or
uncompetitive. Furthermore, our products could become
unmarketable if new industry standards emerge. We may have to
modify our products significantly in the future to remain
competitive, and new products we introduce may not be accepted
by our customers.
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Our new product and research and development efforts may
not be successful, which would result in a reduction in our
sales and earnings. |
In the past, we have incurred, and we expect to continue to
incur, expenses associated with research and development
activities and the introduction of new products. For instance,
we are currently incurring
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substantial development costs in connection with our work on the
787. We may experience difficulties that could delay or prevent
the successful development of new products or product
enhancements, and new products or product enhancements may not
be accepted by our customers. In addition, the research and
development expenses we incur may exceed our cost estimates, and
new products we develop may not generate sales sufficient to
offset our costs. If any of these events occur, our sales and
profits could be adversely affected.
18
Risks Related to Our Business
|
|
|
The loss of Boeing or Lockheed Martin as a customer or a
significant reduction in sales to either company would reduce
our sales and earnings. |
Our largest customer is Boeing. We provide Boeing with controls
for both military and commercial applications, which, in total,
were 11% of our fiscal 2005 sales. Sales to Boeings
commercial airplane group were 3% of fiscal 2005 sales. These
commercial sales are generally made under a long-term supply
agreement through 2012. Our next largest customer is Lockheed
Martin. Sales to Lockheed Martin were 10% of our fiscal 2005
sales. The loss of Boeing or Lockheed Martin as a customer or a
significant reduction in sales to either company would
significantly reduce our sales and earnings.
|
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|
We operate in highly competitive markets with competitors
who may have greater resources than we possess, which could
reduce the volume of products we can sell and our operating
margins. |
Many of our products are sold in highly competitive markets.
Some of our competitors, especially in our industrial markets,
are larger, more diversified corporations and have greater
financial, marketing, production, and research and development
resources. As a result, they may be better able to withstand the
effects of periodic economic downturns. Our operations and
financial performance will be negatively impacted if our
competitors:
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develop products that are superior to our products; |
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|
develop products that are more competitively priced than our
products; |
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|
develop methods of more efficiently and effectively providing
products and services; or |
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|
adapt more quickly than we do to new technologies or evolving
customer requirements. |
We believe that the principal points of competition in our
markets are product quality, price, design and engineering
capabilities, product development, conformity to customer
specifications, quality of support after the sale, timeliness of
delivery and effectiveness of the distribution organization.
Maintaining and improving our competitive position will require
continued investment in manufacturing, engineering, quality
standards, marketing, customer service and support, and our
distribution networks. If we do not maintain sufficient
resources to make these investments or are not successful in
maintaining our competitive position, our operations and
financial performance will suffer.
|
|
|
Our defined benefit pension plan contributions could
substantially increase as a result of matters beyond our
control. |
The level of contributions required to fund our defined benefit
pension plans is significantly affected by matters outside our
control, including the investment performance of the plans
assets and the level of market interest rates. Higher pension
costs and increased cash funding requirements could occur in
future years if actual plan investment performance or actual
interest rate levels, among other matters, differ from the
assumptions we used for these defined benefit plans.
|
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|
A write-off of all or part of our goodwill or other
intangible assets could adversely affect our operating results
and net worth and cause us to violate covenants in our bank
credit facility. |
Goodwill and other intangible assets are a substantial portion
of our assets. At September 24, 2005, goodwill was
$378.2 million and other intangible assets were
$24.8 million of our total assets of $1.3 billion. Our
goodwill may increase in the future since our strategy includes
growing through acquisitions. We may have to write off all or
part of our goodwill or other intangible assets if their value
becomes impaired. Although this write-off would be a non-cash
charge, it could reduce our earnings and net worth
significantly. A write-off of goodwill or other intangible
assets could also cause us to violate covenants in our bank
credit facility that require a minimum level of net worth. This
could result in our being unable to borrow under the line of
credit portion of our bank credit facility or being obliged to
refinance or renegotiate the terms of our bank indebtedness.
19
|
|
|
Our sales and earnings growth may be reduced if we cannot
implement our acquisition strategy. |
Acquisitions are a key part of our growth strategy. Our
historical growth has depended, and our future growth is likely
to depend, in large part, on our ability to implement
successfully our acquisition strategy, and the successful
integration of acquired businesses into our existing operations.
We intend to continue to seek additional acquisition
opportunities in accordance with our acquisition strategy, both
to expand into new markets and to enhance our position in
existing markets throughout the world. If we are unable to
successfully identify suitable candidates, negotiate appropriate
acquisitions, successfully integrate acquired businesses into
our existing operations or expand into new markets, our sales
and earnings growth would be reduced.
|
|
|
We may incur losses and liabilities as a result of our
acquisition strategy. |
Growth by acquisition involves risks that could adversely affect
our financial condition and operating results, including:
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|
|
diversion of management time and attention from our core
business; |
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|
the potential exposure to unanticipated liabilities; |
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|
|
the potential that expected benefits or synergies are not
realized and that operating costs increase; |
|
|
|
the risks associated with incurring additional acquisition
indebtedness, including that additional indebtedness could limit
our cash flow availability for operations and our flexibility; |
|
|
|
difficulties in integrating the operations and personnel of
acquired companies; |
|
|
|
the potential impairment of a significant amount of intangible
assets; and |
|
|
|
the potential loss of key employees, suppliers or customers of
acquired businesses. |
In addition, any acquisition, once successfully integrated,
could negatively impact our financial performance if it does not
perform as planned, does not increase earnings, or does not
prove otherwise to be beneficial to us.
|
|
|
Our future growth and continued success is dependent on
our key personnel. |
Our future success depends to a significant degree upon the
continued contributions of our management team and technical
personnel. The loss of members of our management team could have
a material and adverse effect on our business. In addition,
competition for qualified technical personnel in our industries
is intense, and we believe that our future growth and success
will depend on our ability to attract, train and retain such
personnel.
|
|
|
Future terror attacks, war, or other civil disturbances
could negatively impact our business. |
Continued terrorist attacks, war or other disturbances could
lead to further economic instability and decreases in demand for
commercial products, which could negatively impact our business,
financial condition and results of operations. Terrorist attacks
world-wide have caused instability from time to time in global
financial markets and the aviation industry. In fiscal 2005, 15%
of our net sales was related to commercial aircraft. The
long-term effects of terrorist attacks on us are unknown. These
attacks and the U.S. Governments continued efforts
against terrorist organizations may lead to additional armed
hostilities or to further acts of terrorism and civil
disturbance in the United States or elsewhere, which may further
contribute to economic instability.
|
|
|
Our operations in foreign countries expose us to political
risks and adverse changes in local legal, tax and regulatory
schemes. |
In fiscal 2005, 42% of our consolidated revenue was from
customers outside of North America. We expect international
operations and export sales to continue to contribute to our
earnings for the
20
foreseeable future. Both the sales from international operations
and export sales are subject in varying degrees to risks
inherent in doing business outside of the United States. Such
risks include, without limitation, the following:
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|
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|
|
the possibility of unfavorable circumstances arising from host
country laws or regulations; |
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|
|
partial or total expropriation; |
|
|
|
potential negative consequences from changes to significant
taxation policies, laws or regulations; |
|
|
|
changes in tariff and trade barriers and import or export
licensing requirements; |
|
|
|
political or economic instability, insurrection, civil
disturbance or war; and |
|
|
|
potential negative consequences from the requirements of partial
local ownership of operations in certain countries. |
|
|
|
Government regulations could limit our ability to sell our
products outside the United States. |
In fiscal 2005, 15% of our sales were subject to compliance with
the United States Export Administration regulations. Our failure
to obtain the requisite licenses, meet registration standards or
comply with other government export regulations would hinder our
ability to generate revenues from the sale of our products
outside the United States. Compliance with the government
regulations may also subject us to additional fees and costs.
The absence of comparable restrictions on competitors in other
countries may adversely affect our competitive position. In
order to sell our products in European Union countries, we must
satisfy certain technical requirements. If we are unable to
comply with those requirements with respect to a significant
quantity of our products, our sales in Europe would be
restricted.
|
|
|
Our facilities could be damaged by catastrophes which
could reduce our production capacity and result in a loss of
customers. |
We conduct our operations in facilities located throughout the
world. Any of these facilities could be damaged by fire, floods,
earthquakes, power loss, telecommunication and information
systems failure or similar events. Our facilities in Southern
California, Japan and the Philippines are particularly
susceptible to earthquakes. These facilities accounted for 21%
of our manufacturing, assembly and test capacity in fiscal 2005.
Although we carry property insurance, including earthquake
insurance and business interruption insurance, our inability to
meet customers schedules as a result of catastrophe may
result in a loss of customers or significant additional costs
such as penalty claims under customer contracts.
|
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|
The failure of our products may damage our reputation,
necessitate a product recall or result in claims against us that
exceed our insurance coverage, thereby requiring us to pay
significant damages. |
Defects in the design and manufacture of our products may
necessitate a product recall. We include complex system design
and components in our products that could contain errors or
defects, particularly when we incorporate new technology into
our products. If any of our products are defective, we could be
required to redesign or recall those products or pay substantial
damages or warranty claims. Such an event could result in
significant expenses, disrupt sales and affect our reputation
and that of our products. We are also exposed to product
liability claims. Our products are used in applications where
their failure is likely to result in significant property loss
and serious personal injury or death. We carry aircraft and
non-aircraft product liability insurance consistent with
industry norms. However, this insurance coverage may not be
sufficient to fully cover the payment of any potential claim. A
product recall or a product liability claim not covered by
insurance could have a material adverse effect on our business,
financial condition and results of operations.
|
|
|
Our international operations pose currency and other risks
that may adversely impact sales and earnings. |
We have significant manufacturing and sales operations in
foreign countries. In addition, our domestic operations have
sales to foreign customers. Our financial results may be
adversely affected by fluctuations
21
in foreign currencies and by the translation of the financial
statements of our foreign subsidiaries from local currencies
into U.S. dollars. The translation of our sales in foreign
currencies, primarily the euro, British pound and Japanese yen,
to the U.S. dollar had a $11.8 million positive impact
on sales for fiscal 2005 using average exchange rates for fiscal
2005 compared to average exchange rates for fiscal 2004 and a
$28.6 million positive impact on sales for fiscal 2004
using average exchange rates for fiscal 2004 compared to average
exchange rates for fiscal 2003.
|
|
|
Our operations are subject to environmental laws, and the
cost of compliance with those laws may cause us to incur
significant costs. |
Our operations and facilities are subject to numerous stringent
environmental laws and regulations. Although we believe that we
are in material compliance with these laws and regulations,
future changes in these laws, regulations, or interpretations of
them, or changes in the nature of our operations may require us
to make significant capital expenditures to ensure compliance.
We have been and are currently involved in environmental
remediation activities, the cost of which may become significant
depending on the discovery of additional environmental exposures
at sites that we currently own or operate and at sites that we
formerly owned or operated, or at sites to which we have sent
hazardous substances or wastes for treatment, recycling or
disposal.
22
USE OF PROCEEDS
This exchange offer is intended to satisfy our obligations under
the registration rights agreement dated as of September 12,
2005, by and between Moog Inc. and Banc of America Securities,
LLC, the initial purchaser of the old notes. We will not receive
any proceeds from the exchange offer. Any old notes that are
properly tendered and exchanged pursuant to the exchange offer
will be retired and cancelled.
RATIO OF EARNINGS TO FIXED CHARGES
Our ratio of earnings to fixed charges for each of the periods
indicated is as follows:
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|
|
|
|
|
|
|
|
|
|
Fiscal Year |
|
2005 | |
|
2004 |
|
2003 |
|
2002 |
|
2001 |
| |
|
|
|
|
|
|
|
|
|
5.8 |
|
|
6.0 |
|
3.6 |
|
2.7 |
|
2.1 |
For these ratios, earnings consist of pre-tax income
from continuing operations before fixed charges.
For these ratios, fixed charges consist of:
|
|
|
|
|
interest on all indebtedness; |
|
|
|
amortization of capitalized expenses related to debt; |
|
|
|
an interest factor attributable to rentals; and |
|
|
|
preferred stock dividends. |
23
SELECTED FINANCIAL DATA
The following table sets forth selected financial data for each
of the fiscal years ended September 24, 2005,
September 25, 2004, September 27, 2003,
September 28, 2002 and September 29, 2001, which is
derived from our audited consolidated financial statements filed
with the SEC.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal Years | |
|
|
| |
|
|
2005(1) | |
|
2004(2) | |
|
2003(3) | |
|
2002(4) | |
|
2001(5) | |
|
|
| |
|
| |
|
| |
|
| |
|
| |
|
|
(Dollars in thousands except per share data) | |
RESULTS FROM OPERATIONS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net sales
|
|
$ |
1,051,342 |
|
|
$ |
938,852 |
|
|
$ |
755,490 |
|
|
$ |
718,962 |
|
|
$ |
704,378 |
|
|
Net earnings
|
|
$ |
64,792 |
|
|
$ |
57,287 |
|
|
$ |
42,695 |
|
|
$ |
37,599 |
|
|
$ |
27,938 |
|
|
Net earnings per share(6)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
$ |
1.68 |
|
|
$ |
1.48 |
|
|
$ |
1.24 |
|
|
$ |
1.13 |
|
|
$ |
.95 |
|
|
|
Diluted
|
|
$ |
1.64 |
|
|
$ |
1.45 |
|
|
$ |
1.22 |
|
|
$ |
1.11 |
|
|
$ |
.94 |
|
|
Weighted-average shares outstanding(6)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
38,608,235 |
|
|
|
38,796,381 |
|
|
|
34,328,052 |
|
|
|
33,322,154 |
|
|
|
29,465,483 |
|
|
|
Diluted
|
|
|
39,498,834 |
|
|
|
39,592,224 |
|
|
|
34,860,206 |
|
|
|
33,825,591 |
|
|
|
29,812,763 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FINANCIAL POSITION
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets
|
|
$ |
1,303,327 |
|
|
$ |
1,124,928 |
|
|
$ |
991,580 |
|
|
$ |
885,547 |
|
|
$ |
856,541 |
|
|
Working capital
|
|
|
312,706 |
|
|
|
321,805 |
|
|
|
340,776 |
|
|
|
276,097 |
|
|
|
257,379 |
|
|
Indebtedness senior
|
|
|
148,773 |
|
|
|
311,289 |
|
|
|
256,660 |
|
|
|
196,463 |
|
|
|
253,329 |
|
|
|
|
senior subordinated
|
|
|
200,124 |
|
|
|
|
|
|
|
|
|
|
|
120,000 |
|
|
|
120,000 |
|
|
Shareholders equity
|
|
|
521,037 |
|
|
|
471,656 |
|
|
|
424,148 |
|
|
|
300,006 |
|
|
|
235,828 |
|
|
Shareholders equity per common share outstanding(6)
|
|
|
13.48 |
|
|
|
12.23 |
|
|
|
10.93 |
|
|
|
8.80 |
|
|
|
8.02 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SUPPLEMENTAL FINANCIAL DATA
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Capital expenditures
|
|
$ |
41,188 |
|
|
$ |
34,297 |
|
|
$ |
28,139 |
|
|
$ |
27,280 |
|
|
$ |
26,955 |
|
|
Depreciation and amortization
|
|
|
36,207 |
|
|
|
35,508 |
|
|
|
29,535 |
|
|
|
25,597 |
|
|
|
31,693 |
|
|
Research and development
|
|
|
43,561 |
|
|
|
29,729 |
|
|
|
30,497 |
|
|
|
33,035 |
|
|
|
26,461 |
|
|
Twelve-month backlog
|
|
|
539,186 |
|
|
|
449,896 |
|
|
|
367,983 |
|
|
|
364,574 |
|
|
|
364,331 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
RATIOS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net return on sales
|
|
|
6.2 |
% |
|
|
6.1 |
% |
|
|
5.7 |
% |
|
|
5.2 |
% |
|
|
4.0 |
% |
|
Return on shareholders equity
|
|
|
12.8 |
% |
|
|
12.6 |
% |
|
|
12.5 |
% |
|
|
13.3 |
% |
|
|
12.2 |
% |
|
Current ratio
|
|
|
2.09 |
|
|
|
2.42 |
|
|
|
2.61 |
|
|
|
2.52 |
|
|
|
2.38 |
|
|
Long-term debt to capitalization(7)
|
|
|
40.1 |
% |
|
|
39.8 |
% |
|
|
37.7 |
% |
|
|
51.3 |
% |
|
|
61.3 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
Includes the effects of the acquisition of the stock of the
Power and Data Technologies Group of the Kaydon Corporation on
July 26, 2005, the acquisition of the stock of FCS Control
Systems on August 11, 2005 and the acquisition of an
industrial systems engineering business and a commercial
aircraft repair business in the second quarter of 2005. Also
includes the effects of the issuance of the $200,000 senior
subordinated notes, $150,000 on January 10, 2005 and
$50,000 on September 12, 2005. See Notes 2 and 7 of
the Consolidated Financial Statements at Item 8 of our
report on Form 10-K filed with the SEC on December 7,
2005. |
24
|
|
(2) |
Includes the effects of the acquisition of the net assets of the
Poly-Scientific division of Litton Systems, Inc., a subsidiary
of Northrup Grumman Corporation, on September 30, 2003. See
Note 2 to the Consolidated Financial Statements at
Item 8 of our report on Form 10-K filed with the SEC
on December 7, 2005. |
|
(3) |
Includes the effects of the redemption of the senior
subordinated notes on May 1, 2003 and the Class A
Common Stock offering completed in September 2003. See
Note 11 to the Consolidated Financial Statements at
Item 8 of our report on Form 10-K filed with the SEC
on December 7, 2005. |
|
(4) |
Includes the effects of the adoption of SFAS No. 142,
Goodwill and Other Intangible Assets, under which
goodwill was no longer amortized beginning in 2002, the effects
of the Class A Common Stock offering completed in November
2001 and the effects of the acquisition of the satellite and
space product lines of the Electro Systems Division of Tecstar,
Inc. and 81% of the stock of Tokyo Precision Instruments Co. Ltd. |
|
(5) |
Includes the effects of the acquisitions of the space valve
business of PerkinElmer Fluid Sciences, the radial piston pump
business of Robert Bosch GmbH, Whitton Technology, Vickers
Electric Division and the remaining 25% minority interest of
Hydrolux Sarl. |
|
(6) |
Share and per share data prior to the April 1, 2005
three-for-two split of the Companys Class A and
Class B Common Stock have been restated. |
|
(7) |
Capitalization is the sum of total debt and shareholders
equity. |
25
DESCRIPTION OF CERTAIN INDEBTEDNESS
We maintain a bank credit facility to fund our short and
long-term capital requirements, including for acquisitions, with
a syndicate of banks led by HSBC Bank USA, National
Association, as agent. This bank credit facility consists of a
$75.0 million term loan and a $315.0 million revolver
that had outstanding balances of $37.5 million and
$99.4 million, respectively, at September 24, 2005.
Interest on outstanding bank credit facility borrowings is based
on LIBOR plus the applicable margin, which is currently
125 basis points. During the second quarter of fiscal 2006,
the applicable margin will increase to 150 basis points as
a result of a change in our leverage ratio. The bank credit
facility expires on March 31, 2008 and requires quarterly
principal payments on the term loan of $3.75 million. The
bank credit facility is secured by substantially all of our
U.S. assets.
The bank credit facility contains various covenants. The
covenant for minimum consolidated net worth, defined as the sum
of capital stock and additional paid-in capital plus retained
earnings, adjusts over the term of the facility and was
$275.0 million at September 24, 2005. The covenant for
minimum interest coverage ratio, defined as the ratio of
adjusted EBITDA to total interest expense for the most recent
four quarters, is 3.0. The covenant for minimum fixed charge
coverage ratio, defined as the ratio of (i) adjusted EBITDA
minus capital expenditures to (ii) the sum of interest
expense, income tax expense and regularly scheduled principal
payments on debt, all for the most recent four quarters, is 1.2.
The covenant for the maximum leverage ratio, defined as the
ratio of total debt (including letters of credit) less cash to
adjusted EBITDA for the most recent four quarters, is 3.5. The
covenant for maximum capital expenditures is $50 million in
any one fiscal year. Adjusted EBITDA is defined in the bank
credit facility agreement as (i) the sum of net income,
interest expense, income tax expense, depreciation expense,
amortization expense and other non-cash items reducing net
income minus (ii) other non-cash items increasing net
income. The bank credit facility contains other customary
covenants as to, among other things, financial statements,
corporate existence, insurance, properties, pension obligations
and environmental legal compliance. The bank credit facility
contains customary negative covenants which, among other things,
limit indebtedness, liens, mergers and consolidations, asset
sales, dividends and other distributions and transactions with
affiliates. At September 24, 2005, we were in compliance
with all covenants. The bank credit facility also contains
various events of default, including non-payment, cross-defaults
on other obligations in excess of $5.0 million, merger or
cessation of our business, insolvency, pension default, change
in control and impairment of loan documents or liens.
In addition to the bank credit facility, we maintain short-term
credit facilities with banks throughout the world to meet the
short-term financing needs of our subsidiaries. These short-term
facilities are principally demand lines subject to revision by
the banks. We also had indebtedness associated with the
financing of buildings in Germany and Italy totaling
$9.2 million as of September 24, 2005.
26
THE EXCHANGE OFFER
Terms of the Exchange Offer; Period for Tendering Old
Notes
Subject to terms and conditions detailed in this prospectus, we
will accept for exchange old notes which are properly tendered
on or prior to the expiration date and not withdrawn as
permitted below. As used herein, the term expiration
date means 5:00 p.m., New York City time,
on ,
2006, the 30th day following the date of this prospectus.
We may, however, in our sole discretion, extend the period of
time during which the exchange offer is open. The term
expiration date means the latest time and date to
which the exchange offer is extended.
As of the date of this prospectus, $50.0 million aggregate
principal amount of old notes are outstanding. This prospectus,
together with the letter of transmittal, is first being sent on
or about the date hereof, to all holders of old notes known to
us.
We expressly reserve the right, at any time, to extend the
period of time during which the exchange offer is open, and
delay acceptance for exchange of any old notes, by giving oral
or written notice of such extension to the holders thereof as
described below. During any such extension, all old notes
previously tendered will remain subject to the exchange offer
and may be accepted for exchange by us. Any old notes not
accepted for exchange for any reason will be returned without
expense to the tendering holder as promptly as practicable after
the expiration or termination of the exchange offer.
Old notes tendered in the exchange offer must be in
denominations of principal amount of $1,000 and any integral
multiple thereof.
We expressly reserve the right to amend or terminate the
exchange offer, and not to accept for exchange any old notes,
upon the occurrence of any of the conditions of the exchange
offer set forth in this prospectus under the caption
Conditions to the Exchange Offer. We
will give oral or written notice of any extension, amendment,
non-acceptance or termination to the holders of the old notes as
promptly as practicable. Such notice, in the case of any
extension, will be issued by means of a press release or other
public announcement no later than 9:00 a.m., New York City
time, on the next business day after the previously scheduled
expiration date.
Procedures for Tendering Old Notes
The tender to us of old notes by you as set forth below and our
acceptance of the old notes will constitute a binding agreement
between us and you upon the terms and subject to the conditions
set forth in this prospectus and in the accompanying letter of
transmittal. Except as set forth below, to tender old notes for
exchange pursuant to the exchange offer, you must transmit a
properly completed and duly executed letter of transmittal,
including all other documents required by such letter of
transmittal or, in the case of a book-entry transfer, an
agents message in lieu of such letter of transmittal, to
JPMorgan Chase Bank, N.A., as exchange agent, at the address set
forth in this prospectus under the caption
Exchange Agent on or prior to the
expiration date. In addition, either:
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certificates for such old notes must be received by the exchange
agent along with the letter of transmittal; |
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a timely confirmation of a book-entry transfer (a
book-entry confirmation) of such old notes, if such
procedure is available, into the exchange agents account
at DTC pursuant to the procedure for book-entry transfer must be
received by the exchange agent, prior to the expiration date,
with the letter of transmittal or an agents message in
lieu of such letter of transmittal; or |
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the holder must comply with the guaranteed delivery procedures
described below. |
The term agents message means a message,
transmitted by DTC to and received by the exchange agent and
forming a part of a book-entry confirmation, which states that
DTC has received an express acknowledgment from the tendering
participant stating that such participant has received and
agrees to be
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bound by the letter of transmittal and that we may enforce such
letter of transmittal against such participant.
The method of delivery of old notes, letters of transmittal and
all other required documents is at your election and risk. If
such delivery is by mail, it is recommended that you use
registered mail, properly insured, with return receipt
requested. In all cases, you should allow sufficient time to
assure timely delivery. No letter of transmittal or old notes
should be sent to us.
Signatures on a letter of transmittal or a notice of withdrawal,
as the case may be, must be guaranteed unless the old notes
surrendered for exchange are tendered:
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by a holder of the old notes who has not completed the box
entitled Special Issuance Instructions or
Special Delivery Instructions on the letter of
transmittal; or |
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for the account of an eligible institution (as defined below). |
In the event that signatures on a letter of transmittal or a
notice of withdrawal are required to be guaranteed, such
guarantees must be by a firm which is a member of the Securities
Transfer Agent Medallion Program, the Stock Exchanges Medallion
Program or the New York Stock Exchange Medallion Program (each
such entity being hereinafter referred to as an eligible
institution). If old notes are registered in the name of a
person other than the signer of the letter of transmittal, the
old notes surrendered for exchange must be endorsed by, or be
accompanied by a written instrument or instruments of transfer
or exchange, in satisfactory form as we or the exchange agent
determine in our sole discretion, duly executed by the
registered holders with the signature thereon guaranteed by an
eligible institution.
We or the exchange agent in our sole discretion will make a
final and binding determination on all questions as to the
validity, form, eligibility (including time of receipt) and
acceptance of old notes tendered for exchange. We reserve the
absolute right to reject any and all tenders of any particular
old note not properly tendered or to not accept any particular
old note which acceptance might, in our judgment or our
counsels, be unlawful. We also reserve the absolute right
to waive any defects or irregularities or conditions of the
exchange offer as to any particular old note either before or
after the expiration date (including the right to waive the
ineligibility of any holder who seeks to tender old notes in the
exchange offer). Our or the exchange agents interpretation
of the term and conditions of the exchange offer as to any
particular old note either before or after the expiration date
(including the letter of transmittal and the instructions
thereto) will be final and binding on all parties. Unless
waived, any defects or irregularities in connection with tenders
of old notes for exchange must be cured within a reasonable
period of time, as we determine. We are not, nor is the exchange
agent or any other person, under any duty to notify you of any
defect or irregularity with respect to your tender of old notes
for exchange, and no one will be liable for failing to provide
such notification.
If the letter of transmittal is signed by a person or persons
other than the registered holder or holders of old notes, such
old notes must be endorsed or accompanied by powers of attorney
signed exactly as the name(s) of the registered holder(s) that
appear on the old notes.
If the letter of transmittal or any old notes or powers of
attorney are signed by trustees, executors, administrators,
guardians, attorneys-in-fact, officers of corporations or others
acting in a fiduciary or representative capacity, such persons
should so indicate when signing. Unless waived by us or the
exchange agent, proper evidence satisfactory to us of their
authority to so act must be submitted with the letter of
transmittal.
By tendering old notes, you represent to us that, among other
things, the new notes acquired pursuant to the exchange offer
are being obtained in the ordinary course of business of the
person receiving such new notes, whether or not such person is
the holder, that neither the holder nor such other person has
any arrangement or understanding with any person, to participate
in the distribution of the new notes, and that you are not
holding old notes that have, or are reasonably likely to have,
the status of an unsold allotment in the initial offering. If
you are our affiliate, as defined under
Rule 405 under the Securities Act, and engage in or intend
to engage in or have an arrangement or understanding with any
person to participate in
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a distribution of such new notes to be acquired pursuant to the
exchange offer, you or any such other person:
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could not rely on the applicable interpretations of the staff of
the SEC; and |
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must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with any resale
transaction. |
Each broker-dealer that receives new notes for its own account
in exchange for old notes, where such old notes were acquired by
such broker-dealer as a result of market-making activities or
other trading activities, must acknowledge that it will deliver
a prospectus in connection with any resale of such new notes.
See the discussion in this prospectus under the caption
Plan of Distribution. The letter of transmittal
states that by so acknowledging and by delivering a prospectus,
a broker-dealer will not be deemed to admit that it is an
underwriter within the meaning of the Securities Act.
Acceptance of Old Notes for Exchange; Delivery of New
Notes
Upon satisfaction or waiver of all of the conditions to the
exchange offer, we will accept, promptly after the expiration
date, all old notes properly tendered and will issue the new
notes promptly after acceptance of the old notes. See the
discussion in this prospectus under the caption
Conditions to the Exchange Offer. For
purposes of the exchange offer, we will be deemed to have
accepted properly tendered old notes for exchange if and when we
give oral (confirmed in writing) or written notice to the
exchange agent.
The holder of each old note accepted for exchange will receive a
new note in the amount equal to the surrendered old note.
Holders of new notes on the relevant record date for the first
interest payment date following the consummation of the exchange
offer will receive interest accruing from the most recent date
to which interest has been paid on the old notes. Holders of new
notes will not receive any payment in respect of accrued
interest on old notes otherwise payable on any interest payment
date, the record date for which occurs on or after the
consummation of the exchange offer.
In all cases, issuance of new notes for old notes that are
accepted for exchange will be made only after timely receipt by
the exchange agent of:
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a timely book-entry confirmation of such old notes into the
exchange agents account at DTC; |
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a properly completed and duly executed letter of transmittal or
an agents message in lieu thereof; and |
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all other required documents. |
If any tendered old notes are not accepted for any reason set
forth in the terms and conditions of the exchange offer or if
old notes are submitted for a greater principal amount than the
holder desires to exchange, such unaccepted or non-exchanged old
notes will be returned without expense to the tendering holder
(or, in the case of old notes tendered by book entry transfer
into the exchange agents account at DTC pursuant to the
book-entry procedures described below), such non-exchanged old
notes will be credited to an account maintained with DTC as
promptly as practicable after the expiration or termination of
the exchange offer.
Book-Entry Transfers
For purposes of the exchange offer, the exchange agent will
request that an account be established with respect to the old
notes at DTC within two business days after the date of this
prospectus, unless the exchange agent already has established an
account with DTC suitable for the exchange offer. Any financial
institution that is a participant in DTC may make book-entry
delivery of old notes by causing DTC to transfer such old notes
into the exchange agents account at DTC in accordance with
DTCs procedures for transfer. Although delivery of old
notes may be effected through book-entry transfer at DTC, the
letter of transmittal or facsimile thereof or an agents
message in lieu thereof, with any required
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signature guarantees and any other required documents, must, in
any case, be transmitted to and received by the exchange agent
at the address set forth in this prospectus under the caption
Exchange Agent on or prior to the
expiration date or the guaranteed delivery procedures described
below must be complied with.
Guaranteed Delivery Procedures
If you desire to tender your old notes and your old notes are
not immediately available, or time will not permit your old
notes or other required documents to reach the exchange agent
before the expiration date, a tender may be effected if:
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the tender is made through an eligible institution; |
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prior to the expiration date, the exchange agent received from
such eligible institution a notice of guaranteed delivery,
substantially in the form we provide (by telegram, telex,
facsimile transmission, mail or hand delivery), setting forth
your name and address, the amount of old notes tendered, stating
that the tender is being made thereby and guaranteeing that
within three New York Stock Exchange trading days after the date
of execution of the notice of guaranteed delivery, the
certificates for all physically tendered old notes, in proper
form for transfer, or a book-entry confirmation, as the case may
be, together with a properly completed and duly executed
appropriate letter of transmittal or facsimile thereof or
agents message in lieu thereof, with any required
signature guarantees and any other documents required by the
letter of transmittal will be deposited by such eligible
institution with the exchange agent; and |
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the certificates for all physically tendered old notes, in
proper form for transfer, or a book-entry confirmation, as the
case may be, together with a properly completed and duly
executed appropriate letter of transmittal or facsimile thereof
or agents message in lieu thereof, with any required
signature guarantees and all other documents required by the
letter of transmittal, are received by the exchange agent within
three NYSE trading days after the date of execution of the
notice of guaranteed delivery. |
Withdrawal Rights
You may withdraw your tender of old notes at any time prior to
the expiration date. To be effective, a written notice of
withdrawal must be received by the exchange agent at one of the
addresses set forth in this prospectus under the caption
Exchange Agent. This notice must specify:
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the name of the person having tendered the old notes to be
withdrawn; |
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the old notes to be withdrawn (including the principal amount of
such old notes); and |
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where certificates for old notes have been transmitted, the name
in which such old notes are registered, if different from that
of the withdrawing holder. |
If certificates for old notes have been delivered or otherwise
identified to the exchange agent, then, prior to the release of
such certificates, the withdrawing holder must also submit the
serial numbers of the particular certificates to be withdrawn
and a signed notice of withdrawal with signatures guaranteed by
an eligible institution, unless such holder is an eligible
institution. If old notes have been tendered pursuant to the
procedure for book-entry transfer described above, any notice of
withdrawal must specify the name and number of the account at
DTC to be credited with the withdrawn old notes and otherwise
comply with the procedures of DTC.
We or the exchange agent will make a final and binding
determination on all questions as to the validity, form and
eligibility (including time of receipt) of such notices. Any old
notes so withdrawn will be deemed not to have been validly
tendered for exchange for purposes of the exchange offer. Any
old notes tendered for exchange but not exchanged for any reason
will be returned to the holder without cost to such holder (or,
in the case of old notes tendered by book-entry transfer into
the exchange agents account at DTC pursuant to the
book-entry transfer procedures described above), such old notes
will be
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credited to an account maintained with DTC for the old notes as
soon as practicable after withdrawal, rejection of tender or
termination of the exchange offer. Properly withdrawn old notes
may be retendered by following one of the procedures set forth
in this prospectus under the caption
Procedures for Tendering Old Notes above
at any time on or prior to the expiration date.
Conditions to the Exchange Offer
Notwithstanding any other provision of the exchange offer, we
are not required to accept for exchange, or to issue new notes
in exchange for, any old notes and may terminate or amend the
exchange offer, if any of the following events occur prior to
acceptance of such old notes:
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(a) the exchange offer violates any applicable law or
applicable interpretation of the staff of the SEC; or |
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(b) there is threatened, instituted or pending any action
or proceeding before, or any injunction, order or decree has
been issued by, any court of governmental agency or other
governmental regulatory or administrative agency or commission, |
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(1) seeking to restrain or prohibit the making or
consummation of the exchange offer or any other transaction
contemplated by the exchange offer, or assessing or seeking any
damages as a result thereof, or |
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(2) resulting in a material delay in our ability to accept
for exchange or exchange some or all of the old notes pursuant
to the exchange offer; |
or any statute, rule, regulation, order or injunction has been
sought, proposed, introduced, enacted, promulgated or deemed
applicable to the exchange offer or any of the transactions
contemplated by the exchange offer by any government or
governmental authority, domestic or foreign, or any action has
been taken, proposed or threatened, by any government,
governmental authority, agency or court, domestic or foreign,
that in our sole judgment might, directly or indirectly, result
in any of the consequences referred to in clauses (1) or
(2) above or, in our reasonable judgment, might result in
the holders of new notes having obligations with respect to
resales and transfers of new notes which are greater than those
described in the interpretation of the SEC referred to in this
prospectus under the caption Plan of Distribution,
or would otherwise make it inadvisable to proceed with the
exchange offer; or
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(1) any general suspension of or general limitation on
prices for, or trading in, securities on any national securities
exchange or in the over-the-counter market, |
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(2) any limitation by a governmental agency or authority
which may adversely affect our ability to complete the
transactions contemplated by the exchange offer, |
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(3) a declaration of a banking moratorium or any suspension
of payments in respect of banks in the United States or any
limitation by any governmental agency or authority which
adversely affects the extension of credit, or |
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(4) a commencement of a war, armed hostilities or other
similar international calamity directly or indirectly involving
the United States, or, in the case of any of the foregoing
existing at the time of the commencement of the exchange offer,
a material acceleration or worsening thereof; or |
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(d) any change (or any development involving a prospective
change) has occurred or is threatened in our business,
properties, assets, liabilities, financial condition,
operations, results of operations or prospects and our
subsidiaries taken as a whole that, in our reasonable judgment,
is or may be adverse to us, or we have become aware of facts
that, in our reasonable judgment, have or may have adverse
significance with respect to the value of the old notes or the
new notes; |
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which in our reasonable judgment in any case, and regardless of
the circumstances (including any action by us) giving rise to
any such condition, makes it inadvisable to proceed with the
exchange offer and/or with such acceptance for exchange or with
such exchange.
The foregoing conditions are for our sole benefit and may be
asserted by us regardless of the circumstances giving rise to
any condition or may be waived by us in whole or in part at any
time in our reasonable discretion. Our failure at any time to
exercise any of the foregoing rights will not be deemed a waiver
of any such right and each such right will be deemed an ongoing
right which may be asserted at any time.
In addition, we will not accept for exchange any old notes
tendered, and no new notes will be issued in exchange for any
such old notes, if at such time any stop order is threatened or
in effect with respect to the registration statement, of which
this prospectus constitutes a part, or the qualification of the
indenture under the Trust Indenture Act.
Exchange Agent
We have appointed JPMorgan Chase Bank, N.A. as the exchange
agent for the exchange offer. All executed letters of
transmittal should be directed to the exchange agent at the
address set forth below.
Questions and requests for assistance, requests for additional
copies of this prospectus or of the letter of transmittal and
requests for notices of guaranteed delivery should be directed
to the exchange agent addressed as follows:
JPMorgan Chase Bank, N.A., Exchange Agent
By First-Class, Registered or Certified Mail,Express Delivery
or Hand Delivery after
4:30 p.m. on the Expiration Date as follows:
By First-Class/ Registered/ Certified Mail:
JPMorgan Chase Bank, N.A.
Worldwide Securities Services
P.O. Box 2320
Dallas, Texas 75221-2320
By Express Delivery Only:
JPMorgan Chase Bank, N.A.
Worldwide Securities Services
2001 Bryan Street, 9th Floor
Dallas, Texas 75201
By Hand Only:
JPMorgan Chase Bank, N.A.
Worldwide Securities Services Window
4 New York Plaza 1st Floor
New York, New York 10004
For Information
Call: (214) 468-6464
By Facsimile Transmission
(for Eligible Institutions only):
(214) 468-6494
Attention: Mr. Frank Ivins
Confirmation of Receipt:
(214) 468-6464
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DELIVERY OF THE LETTER OF TRANSMITTAL TO AN ADDRESS OTHER
THAN AS SET FORTH ABOVE OR TRANSMISSION OF SUCH LETTER OF
TRANSMITTAL VIA FACSIMILE OTHER THAN AS SET FORTH ABOVE DOES NOT
CONSTITUTE A VALID DELIVERY OF THE LETTER OF TRANSMITTAL.
Fees and Expenses
The principal solicitation is being made by mail by JPMorgan
Chase Bank, N.A., as exchange agent. We will pay the exchange
agent customary fees for its services, reimburse the exchange
agent for its reasonable out-of-pocket expenses incurred in
connection with the provision of these services and pay other
registration expenses, including fees and expenses of the
trustee under the indenture relating to the new notes, filing
fees, blue sky fees and printing and distribution expenses. We
will not make any payment to brokers, dealers or others
soliciting acceptances of the exchange offer.
Additional solicitation may be made by telephone, facsimile or
in person by our and our affiliates officers and regular
employees and by persons so engaged by the exchange agent.
Accounting Treatment
We will record the new notes at the same carrying value as the
old notes, as reflected in our accounting records on the date of
the exchange. Accordingly, we will not recognize any gain or
loss for accounting purposes. The expenses of the exchange offer
will be amortized over the term of the new notes.
Transfer Taxes
You will not be obligated to pay any transfer taxes in
connection with the tender of old notes in the exchange offer
unless you instruct us to register new notes in the name of, or
request that old notes not tendered or not accepted in the
exchange offer be returned to, a person other than the
registered tendering holder. In those cases, you will be
responsible for the payment of any applicable transfer tax.
Consequences of Exchanging or Failing to Exchange Old
Notes
If you do not exchange your old notes for new notes in the
exchange offer, your old notes will continue to be subject to
the provisions of the indenture relating to the notes regarding
transfer and exchange of the old notes and the restrictions on
transfer of the old notes described in the legend on your
certificates. These transfer restrictions are required because
the old notes were issued under an exemption from, or in
transactions not subject to, the registration requirements of
the Securities Act and applicable state securities laws. In
general, the old notes may not be offered or sold unless
registered under the Securities Act, except under an exemption
from, or in a transaction not subject to, the Securities Act and
applicable state securities laws. We do not plan to register the
old notes under the Securities Act. Based on interpretations by
the staff of the SEC, as set forth in no-action letters issued
to third parties, we believe that the new notes you receive in
the exchange offer may be offered for resale, resold or
otherwise transferred without compliance with the registration
and prospectus delivery provisions of the Securities Act.
However, you will not be able to freely transfer the new notes
if:
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you are our affiliate, as defined in Rule 405
under the Securities Act; |
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your are not acquiring the new notes in the exchange offer in
the ordinary course of your business; |
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you have an arrangement or understanding with any person to
participate in the distribution, as defined in the Securities
Act, of the new notes you will receive in the exchange offer; |
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you are holding old notes that have, or are reasonably likely to
have, the status of any unsold allotment in the initial
offering; or |
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you are a participating broker-dealer |
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We do not intend to request the SEC to consider, and the SEC has
not considered, the exchange offer in the context of a similar
no-action letter. As a result, we cannot guarantee that the
staff of the SEC would make a similar determination with respect
to the exchange offer as in the circumstances described in the
no-action letters discussed above. Each holder, other than a
broker-dealer, must acknowledge that it is not engaged in, and
does not intend to engage in, a distribution of new notes and
has no arrangement or understanding to participate in a
distribution of new notes. If you are our affiliate, are engaged
in or intend to engage in a distribution of the new notes or
have any arrangement or understanding with respect to the
distribution of the new notes you will receive in the exchange
offer, you may not rely on the applicable interpretations of the
staff of the SEC and you must comply with the registration and
prospectus delivery requirements of the Securities Act in
connection with any resale transaction involving the new notes.
If you are a participating broker-dealer, you must acknowledge
that you will deliver a prospectus in connection with any resale
of the new notes. In addition, to comply with state securities
laws, you may not offer or sell the new notes in any state
unless they have been registered or qualified for sale in that
state or an exemption from registration or qualification is
available and is complied with. The offer and sale of the new
notes to qualified institutional buyers (as defined
in Rule 144A of the Securities Act) is generally exempt
from registration or qualification under state securities laws.
We do not plan to register or qualify the sale of the new notes
in any state where an exemption from registration or
qualification is required and not available.
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DESCRIPTION OF THE NEW NOTES
New Notes Versus Old Notes
The new notes are substantially identical to the old notes,
except that the transfer restrictions and registration rights
relating to the old notes do not apply to the new notes.
The new notes will be issued under an indenture, dated as of
January 10, 2005, between Moog Inc. and JPMorgan Chase
Bank, N.A., as trustee (the Trustee) as supplemented
by a first supplemental indenture dated as of September 12,
2005 (such indenture, as supplemented, the
Indenture), in exchange for old notes issued in a
private transaction that was not subject to the registration
requirements of the Securities Act. The terms of the new notes
include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as
amended (the Trust Indenture Act). The following
summaries of certain provisions of the Indenture and the
Registration Rights Agreement do not purport to be complete and
are subject to, and are qualified in their entirety by reference
to, all of the provisions of the Indenture and the Registration
Rights Agreement, including the definition in the Indenture and
the Registration Rights Agreement of certain terms.
You can find the definitions of certain terms used in this
Description of New Notes under the caption
Certain Definitions. Certain defined
terms used in this Description of New Notes but not
defined below under the Certain
Definitions or elsewhere in this Description of New
Notes have the meanings assigned to them in the Indenture.
In this description, the word Moog refers only to
Moog Inc. and not to any of its subsidiaries.
The Indenture does not limit the aggregate principal amount of
notes that may be issued thereunder. We issued
$150.0 million principal amount of notes under the
Indenture (the Existing Notes) on January 10,
2005 and the old notes in an additional $50.0 million
principal amount under the Indenture on September 12, 2005.
General
The form and terms of the Existing Notes and the new notes to be
issued in this offer will be the same in all material respects,
except that the Existing Notes were registered under the
Securities Act at the time they were issued. The old notes have
not been registered under the Securities Act and are subject to
transfer restrictions.
The Existing Notes, the old notes and the new notes to be
received in the exchange offering will be treated as a single
series under the Indenture, including for purposes of
determining whether the required percentage of Holders have
given their approval or consent to an amendment or waiver or
joined in directing the Trustee to take certain actions on
behalf of all Holders. However, the new notes will not have the
same CUSIP number as the old notes.
The notes that may be issued under the Indenture are not limited
in aggregate principal amount. Additional senior subordinated
notes (the Additional Notes) may be issued under the
Indenture. Any offering of Additional Notes is subject to the
covenant described in this prospectus under the caption
Certain Covenants Incurrence of
Indebtedness and Issuance of Preferred Stock. The new
notes offered hereby, the Existing Notes, the old notes and any
Additional Notes subsequently issued under the Indenture would
be treated as a single class for all purposes under the
Indenture, including, without limitation, waivers, amendments,
redemptions and offers to purchase. When we use the term
notes in this Description of the New
Notes, the term includes the new notes, the Existing
Notes, the old notes.
The new notes:
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will be Moogs general unsecured obligations; |
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will be subordinated in right of payment to all of Moogs
existing and future Senior Debt, including the Indebtedness
under the Credit Agreement; |
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will be pari passu in right of payment with any of
Moogs future senior subordinated Indebtedness; |
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will be senior in right of payment to any of Moogs future
subordinated Indebtedness; and |
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will be effectively subordinated to any existing and future
Indebtedness and other liabilities of Moogs Subsidiaries. |
As of the Issue Date, all of Moogs subsidiaries will be
Restricted Subsidiaries. However, under the circumstances
described in this prospectus under the caption
Certain Covenants Designation of
Restricted and Unrestricted Subsidiaries, Moog will be
permitted to designate certain of its subsidiaries as
Unrestricted Subsidiaries. Any Unrestricted Subsidiaries will
not be subject to any of the restrictive covenants in the
Indenture.
Maturity and Interest
The new notes will be issued in fully registered form, without
coupons, in denominations of $1,000 in principal amount and
integral multiples thereof. The new notes will mature on
January 15, 2015.
Interest on the new notes will accrue at the rate of
6.25% per annum and will be payable semi-annually in
arrears on January 15 and July 15. Moog will make each interest
payment to the Holders of record on the immediately preceding
January 1 and July 1. Any Additional Interest due on the old
notes will be paid on the same dates as interest on the new
notes. See the discussion in this prospectus under the caption
Registration Rights; Additional Interest.
Interest on the new notes will accrue from July 15, 2005
or, if interest has already been paid, from the date it was most
recently paid. Interest will be computed on the basis of a
360-day year comprised of twelve 30-day months.
Payments of Principal and Interest
The Indenture will require that payments in respect of the new
notes (including principal, premium and interest) held of record
by DTC be made in same-day funds. Payments in respect of new
notes held of record by holders other than DTC may, at the
option of Moog, be made by check and mailed to such holders of
record as shown on the register for the new notes. However, if a
Holder has given wire transfer instructions to Moog, Moog will
pay all principal, interest and premium on that Holders
new notes in accordance with those instructions.
Transfer and Exchange
A holder may transfer or exchange the notes in accordance with
the Indenture. The Registrar and the Trustee may require a
Holder, among other things, to furnish appropriate endorsements
and transfer documents and Moog may require a Holder to pay any
taxes and fees required by law or permitted by the Indenture.
Moog is not required to transfer or exchange any note selected
for redemption. Also, Moog is not required to transfer or
exchange any note for a period of 15 days before a
selection of notes to be redeemed.
The registered Holder of a note will be treated as the owner of
it for all purposes.
Subordination
The payment of principal, interest and premium on the new notes
will be subordinated to the prior payment in full in cash or
Cash Equivalents of all Senior Debt of Moog, including Senior
Debt of Moog incurred after the Issue Date.
The holders of Senior Debt of Moog will be entitled to receive
payment in full of all Obligations due in respect of Senior Debt
of Moog (including interest after the commencement of any
bankruptcy proceeding at the rate specified for the applicable
Senior Debt of Moog) before the Holders of notes will be
entitled to receive any payment with respect to the notes
(except that Holders of notes may receive and
36
retain Permitted Junior Securities and payments made from the
trust described in this prospectus under the caption
Legal Defeasance and Covenant
Defeasance), in the event of any distribution to creditors
of Moog in connection with:
|
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|
(1) |
any liquidation, dissolution or winding up of Moog; |
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(2) |
any bankruptcy, reorganization, insolvency, receivership or
similar proceeding relating to Moog or its property; |
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|
(3) |
any assignment by Moog for the benefit of creditors; or |
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|
(4) |
any marshaling of Moogs assets and liabilities. |
Moog also may not make any payment in respect of the notes
(except in Permitted Junior Securities or from the trust
described in this prospectus under the caption
Legal Defeasance and Covenant
Defeasance) if:
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|
(1) |
a payment default on Designated Senior Debt of Moog occurs and
is continuing beyond any applicable grace period; or |
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(2) |
any other default occurs and is continuing on any series of
Designated Senior Debt of Moog that permits holders of that
series of Designated Senior Debt of Moog to accelerate its
maturity and the Trustee receives a notice of such default (a
Payment Blockage Notice) from the holders of such
Designated Senior Debt (a nonpayment default). |
Payments on the notes may and shall be resumed:
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|
(1) |
in the case of a payment default on Designated Senior Debt of
Moog, upon the date on which such default is cured or
waived; and |
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(2) |
in case of a nonpayment default on Designated Senior Debt of
Moog, the earlier of (x) the date on which such default is
cured or waived, (y) 179 days after the date on which
the applicable Payment Blockage Notice is received and
(z) the date the Trustee receives notice from the
representative for such Designated Senior Debt rescinding the
Payment Blockage Notice, unless the maturity of such Designated
Senior Debt of Moog has been accelerated. |
No new Payment Blockage Notice may be delivered unless and until:
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|
(1) |
360 days have elapsed since the delivery of the immediately
prior Payment Blockage Notice; and |
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(2) |
all scheduled payments of principal, interest and premium and
Additional Interest, if any, on the notes that have come due
have been paid in full in cash. |
No nonpayment default that existed or was continuing on the date
of delivery of any Payment Blockage Notice to the Trustee shall
be, or be made, the basis for a subsequent Payment Blockage
Notice unless such default has been cured or waived for a period
of not less than 90 days.
If the Trustee or any Holder of the notes receives a payment in
respect of the notes (except in Permitted Junior Securities or
from the trust described below under the caption
Legal Defeasance and Covenant
Defeasance) when:
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|
(1) |
the payment is prohibited by these subordination
provisions; and |
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(2) |
the Trustee or the Holder has actual knowledge that the payment
is prohibited (provided that such actual knowledge shall
not be required in the case of any payment default on Designated
Senior Debt of Moog), |
the Trustee or the Holder, as the case may be, shall hold the
payment in trust for the benefit of the holders of Senior Debt
of Moog. Upon the proper written request of the holders of
Senior Debt of Moog, the Trustee or the Holder, as the case may
be, shall deliver the amounts in trust to the holders of Senior
Debt or their proper representative.
37
Moog must promptly notify holders of its Senior Debt if payment
of the notes is accelerated because of an Event of Default.
As a result of the subordination provisions described above, in
the event of a bankruptcy, liquidation or reorganization of
Moog, Holders of the notes may recover less ratably than
creditors of Moog who are holders of Senior Debt of Moog.
Designated Senior Debt means:
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(1) |
any Indebtedness outstanding under the Credit Agreement; and |
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(2) |
after payment in full of all Obligations under the Credit
Agreement, any other Senior Debt permitted under the Indenture
the principal amount of which is $50.0 million or more and
that has been designated by Moog as Designated Senior
Debt. |
Permitted Junior Securities means:
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|
(1) |
Equity Interests in Moog or any other business entity provided
for by a plan of reorganization; and |
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(2) |
debt securities of Moog or any other business entity provided
for by a plan of reorganization that are subordinated to all
Senior Debt and to any debt securities issued in exchange for
Senior Debt to the same extent as, or to a greater extent than,
the notes are subordinated to Senior Debt under the Indenture. |
Senior Debt means:
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|
(1) |
all Indebtedness of Moog or any Guarantor outstanding under the
Credit Agreement and all Hedging Obligations with respect
thereto, whether outstanding on the Issue Date or incurred
thereafter; |
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(2) |
any other Indebtedness of Moog or any Guarantor permitted to be
incurred under the terms of the Indenture, unless the instrument
under which such Indebtedness is incurred expressly provides
that it is on a parity with or subordinated in right of payment
to the notes or the relevant Note Guarantee, respectively; |
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(3) |
all Obligations with respect to the items listed in the
preceding clauses (1) and (2) (including any interest
accruing subsequent to the filing of a petition of bankruptcy at
the rate provided for in the documentation with respect thereto,
whether or not such interest is an allowed claim under
applicable law); and |
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(4) |
Indebtedness of Moog pursuant to the Supplemental Plan. |
Notwithstanding anything to the contrary in the preceding
paragraph, Senior Debt will not include:
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|
(1) |
any liability for federal, state, local or other taxes owed or
owing by Moog or any Guarantor; |
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(2) |
any Indebtedness of Moog or any Guarantor to any of its
Subsidiaries or other Affiliates; |
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(3) |
any trade payables; |
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(4) |
the portion of any Indebtedness that is incurred in violation of
the Indenture; |
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(5) |
any Indebtedness of Moog or any Guarantor that, when incurred,
was without recourse to Moog or such Guarantor; |
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(6) |
any repurchase, redemption or other obligation in respect of
Disqualified Stock; or |
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(7) |
any Indebtedness owed to any employee of Moog or any of its
Subsidiaries (other than pursuant to the Supplemental Plan,
except to the extent exceeding $20.0 million). |
38
Optional Redemption
At any time prior to January 15, 2008, Moog may redeem up
to 35% of the aggregate principal amount of notes (including any
Additional Notes) at a redemption price of 106.250% of the
principal amount thereof, plus accrued and unpaid interest and
Additional Interest, if any, thereon to the redemption date,
with the net cash proceeds of one or more Equity Offerings;
provided that:
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|
(1) |
at least 65% of the aggregate principal amount of notes
(including any Additional Notes) originally issued remains
outstanding immediately after the occurrence of such redemption
(excluding notes held by Moog or its Subsidiaries); and |
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(2) |
the redemption must occur within 120 days of the date of
the closing of such Equity Offering. |
At any time prior to January 15, 2010, Moog may redeem all
or part of the notes upon not less than 30 nor more than
60 days prior notice at a redemption price equal to
the sum of (i) 100% of the principal amount thereof, plus
(ii) the Applicable Premium as of the date of redemption,
plus (iii) accrued and unpaid interest and
Additional Interest, if any, to the date of redemption. Except
pursuant to this paragraph and the preceding paragraph, the
notes will not be redeemable at Moogs option prior to
January 15, 2010.
On or after January 15, 2010, Moog may redeem all or a part
of the notes upon not less than 30 nor more than
60 days notice, at the redemption prices (expressed
as percentages of principal amount) set forth below plus accrued
and unpaid interest and Additional Interest, if any, thereon, to
the applicable redemption date, if redeemed during the
twelve-month period beginning on January 15 of the years
indicated below:
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|
Year |
|
Percentage | |
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| |
2010
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|
103.125% |
|
2011
|
|
|
102.083% |
|
2012
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101.042% |
|
2013 and thereafter
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100.000% |
|
If less than all of the notes are to be redeemed at any time,
the Trustee will select notes for redemption as follows:
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(1) |
if the notes are listed, in compliance with the requirements of
the principal national securities exchange on which the notes
are listed; or |
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(2) |
if the notes are not so listed, on a pro rata basis, by lot or
by such method as the Trustee shall deem appropriate. |
No notes of $1,000 or less shall be redeemed in part. Notices of
redemption shall be mailed by first class mail at least 30 but
not more than 60 days before the redemption date to each
Holder of notes to be redeemed at its registered address.
Notices of redemption may not be conditional.
If any note is to be redeemed in part only, the notice of
redemption that relates to that note shall state the portion of
the principal amount thereof to be redeemed. A replacement note
in principal amount equal to the unredeemed portion of the
original note will be issued in the name of the Holder thereof
upon cancellation of the original note. Notes called for
redemption become due on the date fixed for redemption. On and
after the redemption date, interest ceases to accrue on notes or
portions of them called for redemption.
Mandatory Redemption
Moog is not required to make mandatory redemption or sinking
fund payments with respect to the notes.
39
Repurchase at the Option of Holders
If a Change of Control occurs, each Holder of notes will have
the right to require Moog to repurchase all or any part (equal
to $1,000 or an integral multiple thereof) of that Holders
notes pursuant to an offer (a Change of Control
Offer) on the terms set forth in the Indenture. In the
Change of Control Offer, Moog will offer to repurchase the notes
at a price (the Change of Control Payment) in cash
equal to 101% of the aggregate principal amount of notes
repurchased, plus accrued and unpaid interest and Additional
Interest, if any, thereon to the date of purchase (the
Change of Control Payment Date). Within 30 days
following any Change of Control, Moog will mail a notice to each
Holder describing the transaction or transactions that
constitute the Change of Control and offering to repurchase
notes on the Change of Control Payment Date specified in such
notice, which date shall be no earlier than 30 days and no
later than 60 days from the date such notice is mailed,
pursuant to the procedures required by the Indenture and
described in such notice. Moog will comply with the requirements
of Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder to the extent such
laws and regulations are applicable in connection with the
repurchase of the notes as a result of a Change of Control. To
the extent that the provisions of any securities laws or
regulations conflict with the Change of Control provisions of
the Indenture, Moog will comply with the applicable securities
laws and regulations and will not be deemed to have breached its
obligations under the Change of Control provisions of the
Indenture by virtue of such compliance.
On the Change of Control Payment Date, Moog will, to the extent
lawful:
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(1) |
accept for payment all notes or portions thereof properly
tendered pursuant to the Change of Control Offer; |
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|
(2) |
deposit with the Paying Agent an amount equal to the Change of
Control Payment in respect of all notes or portions thereof so
tendered; and |
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(3) |
deliver or cause to be delivered to the Trustee the notes so
accepted together with an Officers Certificate stating the
aggregate principal amount of notes or portions thereof being
purchased by Moog. |
The Paying Agent will promptly mail or wire transfer to each
Holder of notes so tendered the Change of Control Payment for
such notes, and the Trustee will promptly authenticate and mail
(or cause to be transferred by book entry) to each Holder a
replacement note equal in principal amount to any unpurchased
portion of the notes surrendered, if any; provided that
each such new note will be in a principal amount of $1,000 or an
integral multiple thereof.
Prior to repurchasing any notes pursuant to the provisions of
this Change of Control covenant, but in any event
within 90 days following a Change of Control, Moog will
either repay all outstanding Senior Debt or obtain the requisite
consents, if any, under all agreements governing outstanding
Senior Debt to permit the repurchase of notes required by this
covenant. Moog will publicly announce the results of the Change
of Control Offer on or as soon as practicable after the Change
of Control Payment Date.
The Credit Agreement currently restricts Moogs right to
purchase the notes and also provides that certain change of
control events with respect to Moog would constitute, or may
result in, a default under the Credit Agreement. Any future
credit agreements or other agreements relating to Senior Debt to
which Moog becomes a party may contain similar restrictions and
provisions. In the event a Change of Control occurs at a time
when Moog is prohibited from purchasing the notes, Moog could
seek the consent of its senior lenders to the purchase of notes
or could attempt to refinance the borrowings that contain such
prohibition. If Moog does not obtain such consent or repay such
borrowings, Moog will remain prohibited from purchasing the
notes. In such case, Moogs failure to purchase tendered
notes would constitute an Event of Default under the Indenture,
which would, in turn, constitute a default under such Senior
Debt. In such circumstances, the subordination provisions in the
Indenture would likely restrict payments to the Holders of notes.
40
The provisions described above that require Moog to make a
Change of Control Offer following a Change of Control will be
applicable regardless of whether any other provisions of the
Indenture are applicable. Except as described above with respect
to a Change of Control, the Indenture does not contain
provisions that permit the Holders of the notes to require that
Moog repurchase or redeem the notes in the event of a takeover,
recapitalization or similar transaction. Moog will not be
required to make a Change of Control Offer upon a Change of
Control if a third party makes the Change of Control Offer in
the manner, at the times and otherwise in compliance with the
requirements set forth in the Indenture applicable to a Change
of Control Offer made by Moog and purchases all notes validly
tendered and not withdrawn under such Change of Control Offer.
The definition of Change of Control includes a phrase relating
to the direct or indirect sale, lease, transfer, conveyance or
other disposition of all or substantially all of the
properties or assets of Moog and its Subsidiaries taken as a
whole. Although there is a limited body of case law interpreting
the phrase substantially all, there is no precise
established definition of the phrase under applicable law.
Accordingly, the ability of a Holder of notes to require Moog to
repurchase such notes as a result of a sale, lease, transfer,
conveyance or other disposition of less than all of the assets
of Moog and its Restricted Subsidiaries taken as a whole to
another Person or group may be uncertain.
Moog will not, and will not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless:
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|
|
(1) |
Moog (or the Restricted Subsidiary, as the case may be) receives
consideration at the time of such Asset Sale at least equal to
the fair market value of the assets or Equity Interests issued
or sold or otherwise disposed of; |
|
|
(2) |
such fair market value is determined in good faith by
Moogs Board of Directors and evidenced by a resolution of
the Board of Directors set forth in an Officers
Certificate delivered to the Trustee; and |
|
|
(3) |
at least 75% of the consideration therefor received by Moog or
such Restricted Subsidiary is in the form of cash or Replacement
Assets or a combination of both. For purposes of this provision,
each of the following shall be deemed to be cash: |
|
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|
|
(a) |
any liabilities (as shown on Moogs or such Restricted
Subsidiarys most recent balance sheet) of Moog or such
Restricted Subsidiary (other than contingent liabilities,
Indebtedness that is by its terms pari passu with or
subordinated to the notes or any Note Guarantee and liabilities
to the extent owed to Moog or any Affiliate of Moog) that are
assumed by the transferee of any such assets pursuant to a
customary written novation agreement that releases Moog or such
Restricted Subsidiary from further liability; |
|
|
(b) |
any securities, notes or other obligations received by Moog or
any such Restricted Subsidiary from such transferee that are
(subject to ordinary settlement periods) converted by Moog or
such Restricted Subsidiary into cash (to the extent of the cash
received in that conversion) within 60 days after such
Asset Sale; and |
|
|
(c) |
any Designated Non-cash Consideration received by Moog or any of
its Restricted Subsidiaries in such Asset Sale having an
aggregate fair market value, taken together with all other
Designated Non-cash Consideration received since the Issue Date
pursuant to this clause (c) that is at that time
outstanding, not to exceed $25.0 million (with the fair
market value of each item of Designated Non-cash Consideration
being measured at the time received and without giving effect to
subsequent changes in value). |
41
Within 365 days after the receipt of any Net Proceeds from
an Asset Sale, Moog may apply such Net Proceeds at its option:
|
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|
(1) |
to repay Senior Debt of Moog or any Guarantor or Indebtedness of
any other Restricted Subsidiary and, if such Indebtedness repaid
is revolving credit Indebtedness, to correspondingly reduce
commitments with respect thereto; or |
|
|
(2) |
to purchase Replacement Assets or make a capital expenditure in,
or that is used or useful in, a Permitted Business. |
Pending the final application of any such Net Proceeds, Moog may
temporarily reduce revolving credit borrowings or otherwise
invest such Net Proceeds in any manner that is not prohibited by
the Indenture.
Any Net Proceeds from Asset Sales that are not applied or
invested as provided in the preceding paragraph will constitute
Excess Proceeds. Within 10 days after the
aggregate amount of Excess Proceeds exceeds $25.0 million,
Moog will make an offer (an Asset Sale Offer) to all
Holders of notes, and to all holders of other Indebtedness that
is pari passu with the notes or any Note Guarantee
containing provisions similar to those set forth in the
Indenture with respect to offers to purchase with the proceeds
of sales of assets, to purchase the maximum principal amount of
notes and such other pari passu Indebtedness that may be
purchased out of the Excess Proceeds. The offer price in any
Asset Sale Offer will be equal to 100% of the principal amount
of the notes and such other pari passu Indebtedness plus
accrued and unpaid interest and Additional Interest, if any, to
the date of purchase, and will be payable in cash. If any Excess
Proceeds remain after consummation of an Asset Sale Offer, Moog
may use such Excess Proceeds for any purpose not otherwise
prohibited by the Indenture. If the aggregate principal amount
of notes and such other pari passu Indebtedness tendered
in such Asset Sale Offer exceeds the amount of Excess Proceeds,
the notes and such other pari passu Indebtedness shall be
purchased on a pro rata basis based on the principal amount of
notes and such other pari passu Indebtedness tendered.
Upon completion of each Asset Sale Offer, the amount of Excess
Proceeds shall be reset at zero.
Moog will comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are
applicable in connection with each repurchase of notes pursuant
to an Asset Sale Offer. To the extent that the provisions of any
securities laws or regulations conflict with the Asset Sales
provisions of the Indenture, Moog will comply with the
applicable securities laws and regulations and will not be
deemed to have breached its obligations under the Asset Sale
provisions of the Indenture by virtue of such compliance.
The Credit Agreement currently restricts Moogs right to
purchase the notes and also provides that certain asset sale
events with respect to Moog would constitute a default under the
Credit Agreement. Any future credit agreements or other
agreements relating to Senior Debt to which Moog becomes a party
may contain similar restrictions and provisions. In the event an
Asset Sale occurs at a time when Moog is prohibited from
purchasing the notes, Moog could seek the consent of its senior
lenders to the purchase of notes or could attempt to refinance
the borrowings that contain such prohibition. If Moog does not
obtain such consent or repay such borrowings, Moog will remain
prohibited from purchasing the notes. In such case, Moogs
failure to purchase tendered notes would constitute an Event of
Default under the Indenture, which would, in turn, constitute a
default under such Senior Debt. In such circumstances, the
subordination provisions in the Indenture would likely restrict
payments to the Holders of notes.
Certain Covenants
(A) Moog will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly:
|
|
|
|
(i) |
declare or pay any dividend or make any other payment or
distribution on account of Moogs or any of its Restricted
Subsidiaries Equity Interests (including, without
limitation, any payment in connection with any merger or
consolidation involving Moog or any of its |
42
|
|
|
|
|
Restricted Subsidiaries) or to the direct or indirect holders of
Moogs or any of its Restricted Subsidiaries Equity
Interests in their capacity as such (other than dividends,
payments or distributions payable in Equity Interests (other
than Disqualified Stock) of Moog or to Moog or a Restricted
Subsidiary of Moog); |
|
|
|
|
(ii) |
purchase, redeem or otherwise acquire or retire for value
(including, without limitation, in connection with any merger or
consolidation involving Moog) any Equity Interests of Moog or
any Guarantor held by Persons other than Moog or any of its
Restricted Subsidiaries; |
|
|
|
|
(iii) |
make any voluntary payment on or with respect to, or purchase,
redeem, defease or otherwise acquire or retire for value any
Indebtedness that is subordinated to the notes or any Note
Guarantee; or |
|
|
|
|
(iv) |
make any Restricted Investment (all such payments and other
actions set forth in clauses (i) through (iv) above
being collectively referred to as Restricted
Payments), |
unless, at the time of and after giving effect to such
Restricted Payment:
|
|
|
|
(1) |
no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and |
|
|
(2) |
Moog would, at the time of such Restricted Payment and after
giving pro forma effect thereto as if such Restricted Payment
had been made at the beginning of the applicable four-quarter
period, have been permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage
Ratio test set forth in the first paragraph of the covenant
described in this prospectus under the caption
Incurrence of Indebtedness and Issuance of
Preferred Stock; and |
|
|
(3) |
such Restricted Payment, together with the aggregate amount of
all other Restricted Payments made by Moog and its Restricted
Subsidiaries after the Issue Date (excluding Restricted Payments
permitted by clauses (2), (3), (5), (6) and
(7) of the next succeeding paragraph (B)), is less
than the sum, without duplication, of: |
|
|
|
|
(a) |
50% of the Consolidated Net Income of Moog for the period (taken
as one accounting period) from September 26, 2004 to the
end of Moogs most recently ended fiscal quarter for which
internal financial statements are available at the time of such
Restricted Payment (or, if such Consolidated Net Income for such
period is a deficit, less 100% of such deficit), plus |
|
|
(b) |
100% of the aggregate net cash proceeds received by Moog since
the Issue Date as a contribution to its common equity capital or
from the issue or sale of Equity Interests (other than
Disqualified Stock) of Moog or from the issue or sale of
Disqualified Stock or debt securities of Moog that have been
converted into or exchanged for such Equity Interests (other
than Equity Interests (or Disqualified Stock or debt securities)
sold to a Subsidiary of Moog), plus |
|
|
(c) |
with respect to Restricted Investments made by Moog and its
Restricted Subsidiaries after the Issue Date, an amount equal to
the net reduction in such Investments in any Person resulting
from dividends or other distributions, repayments of loans or
advances, or other transfers of assets, in each case to Moog or
any Restricted Subsidiary of Moog or from the net cash proceeds
from the sale of any such Investment (except, in each case, to
the extent any such payment or proceeds are included in the
calculation of Consolidated Net Income), from the release of any
Guarantee (except to the extent any amounts are paid under such
Guarantee) or from redesignations of Unrestricted Subsidiaries
as Restricted Subsidiaries, not to exceed, in each case, the
amount of such Investment previously made by Moog or any
Restricted Subsidiary of Moog in such Person or Unrestricted
Subsidiary. |
43
(B) So long as no Default has occurred and is continuing or
would be caused thereby, the preceding provisions will not
prohibit:
|
|
|
|
(1) |
the payment of any dividend within 60 days after the date
of declaration thereof, if at said date of declaration such
payment would have complied with the provisions of the Indenture; |
|
|
(2) |
the redemption, repurchase, retirement, defeasance or other
acquisition of any subordinated Indebtedness of Moog or any
Guarantor or of any Equity Interests of Moog or any Guarantor in
exchange for, or out of the net cash proceeds of a contribution
to the common equity of Moog or a substantially concurrent sale
(other than to a Subsidiary of Moog) of, Equity Interests (other
than Disqualified Stock) of Moog; provided that the
amount of any such net cash proceeds that are utilized for any
such redemption, repurchase, retirement, defeasance or other
acquisition shall be excluded from clause (3)(b) of the
preceding paragraph (A); |
|
|
(3) |
the defeasance, redemption, repurchase or other acquisition of
subordinated Indebtedness of Moog or any Guarantor with the net
cash proceeds from an incurrence of Permitted Refinancing
Indebtedness; |
|
|
(4) |
the payment of any dividend by a Restricted Subsidiary of Moog
to the holders of its common Equity Interests on a pro rata
basis; |
|
|
(5) |
the redemption, repurchase or other acquisition or retirement
for value of any Equity Interests of Moog or any Restricted
Subsidiary of Moog held by any member of Moogs or any
Restricted Subsidiarys management or by employees, former
employees, directors or former directors of Moog or any of its
Restricted Subsidiaries pursuant to any equity subscription
agreement, stock option agreement, shareholders agreement
or similar agreement; provided that the aggregate price
paid for such redeemed, repurchased, acquired or retired Equity
Interests shall not exceed $750,000 in any twelve-month period
or $5 million in the aggregate; |
|
|
(6) |
the repurchase of Capital Stock deemed to occur upon the
exercise of options or warrants if such Capital Stock represents
all or a portion of the exercise price thereof; or |
|
|
(7) |
Restricted Payments which, when taken together with all other
Restricted Payments made pursuant to this clause (7), do
not exceed $25.0 million at any time. |
The amount of all Restricted Payments (other than cash) shall be
the fair market value on the date of the Restricted Payment of
the asset(s) or securities proposed to be transferred or issued
to or by Moog or such Subsidiary, as the case may be, pursuant
to the Restricted Payment. The fair market value of any assets
or securities that are required to be valued by this covenant
shall be determined by the Board of Directors whose resolution
with respect thereto shall be delivered to the Trustee. The
Board of Directors determination must be based upon an
opinion or appraisal issued by an accounting, appraisal or
investment-banking firm of national standing if the fair market
value exceeds $5.0 million. Not later than the date of
making any Restricted Payment, Moog shall deliver to the Trustee
an Officers Certificate stating that such Restricted
Payment is permitted and setting forth the basis upon which the
calculations required by this Restricted Payments
covenant were computed, together with a copy of any fairness
opinion or appraisal required by the Indenture.
If Moog or any of its Restricted Subsidiaries makes a Restricted
Payment that, at the time of the making of such Restricted
Payment, would, in Moogs good faith determination, be
permitted under the requirements of this covenant, such
Restricted Payment shall be deemed to have been made in
compliance with this covenant notwithstanding any subsequent
adjustments made in good faith to Moogs financial
statements for any period affecting the calculations set forth
above with respect to such Restricted Payment.
44
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Incurrence of Indebtedness and Issuance of Preferred
Stock |
Moog will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, incur any Indebtedness
(including Acquired Debt), and Moog will not permit any of its
Restricted Subsidiaries to issue any Preferred Stock;
provided, however, that Moog or any of its Restricted
Subsidiaries may incur Indebtedness, if the Fixed Charge
Coverage Ratio for Moogs most recently ended four full
fiscal quarters for which internal financial statements are
available immediately preceding the date on which such
additional Indebtedness is incurred would have been at least 2.0
to 1, determined on a pro forma basis (including a pro
forma application of the net proceeds therefrom) as if the
additional Indebtedness had been incurred at the beginning of
such four-quarter period.
So long as no Default shall have occurred and be continuing or
would be caused thereby, the first paragraph of this covenant
will not prohibit the incurrence of any of the following items
of Indebtedness (collectively, Permitted Debt):
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(1) |
the incurrence of Indebtedness under Credit Facilities in an
aggregate principal amount at any one time outstanding (with
letters of credit being deemed to have a principal amount equal
to the maximum potential liability of Moog and its Restricted
Subsidiaries thereunder) not to exceed $390 million, less
the aggregate amount of all Net Proceeds of Asset Sales applied
by Moog or any Restricted Subsidiary to permanently repay any
such Indebtedness (and, in the case of any revolving credit
Indebtedness, to effect a corresponding commitment reduction
thereunder) pursuant to the covenant described in this
prospectus under the caption Repurchase at the
Option of Holders Asset Sales; |
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(2) |
the incurrence of Existing Indebtedness; |
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(3) |
the incurrence by Moog of Indebtedness represented by the notes
to be issued on the date of the Indenture; |
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(4) |
the incurrence by Moog or any Restricted Subsidiary of
Indebtedness represented by Capital Lease Obligations, mortgage
financings or purchase money obligations, in each case, incurred
for the purpose of financing all or any part of the purchase
price or cost of construction or improvement of property, plant
or equipment used in the business of Moog or such Restricted
Subsidiary, in an aggregate principal amount, including all
Permitted Refinancing Indebtedness incurred to refund, refinance
or replace any Indebtedness incurred pursuant to this
clause (4), not to exceed the greater of
(a) $40 million at any time outstanding and
(b) 5% of the Consolidated Net Tangible Assets of Moog; |
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(5) |
the incurrence by Moog or any Restricted Subsidiary of Permitted
Refinancing Indebtedness in exchange for, or the net proceeds of
which are used to refund, refinance or replace Indebtedness
(other than intercompany Indebtedness) that was permitted by the
Indenture to be incurred under the first paragraph of this
covenant or clauses (2), (3), (4), (5), (9) or
(10) of this paragraph; |
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(6) |
the incurrence by Moog or any of its Restricted Subsidiaries of
intercompany Indebtedness owing to and held by Moog or any of
its Restricted Subsidiaries; provided, however, that: |
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(a) |
if Moog or any Guarantor is the obligor on such Indebtedness,
such Indebtedness must be unsecured and expressly subordinated
to the prior payment in full in cash of all Obligations with
respect to the notes, in the case of Moog, or the Note
Guarantee, in the case of a Guarantor; |
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(b) |
Indebtedness owed to Moog or any Guarantor may not be
subordinated in right of payment to any other indebtedness of
the obligor of such Indebtedness, unless the obligor of such
Indebtedness is Moog or a Guarantor; and |
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(c) |
(i) any subsequent issuance or transfer of Equity Interests
that results in any such Indebtedness being held by a Person
other than Moog or a Restricted Subsidiary |
45
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thereof and (ii) any sale or other transfer of any such
Indebtedness to a Person that is not either Moog or a Restricted
Subsidiary thereof, shall be deemed, in each case, to constitute
an incurrence of such Indebtedness by Moog or such Restricted
Subsidiary, as the case may be, that was not permitted by this
clause (6); |
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(7) |
the Guarantee by Moog or any of its Restricted Subsidiaries of
Indebtedness of Moog or a Restricted Subsidiary of Moog that was
permitted to be incurred by another provision of this |
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(8) |
the incurrence of Indebtedness pursuant to the Supplemental Plan
in an aggregate amount not to exceed $20 million
outstanding at any time; |
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(9) |
the incurrence of Indebtedness by any Foreign Subsidiary in an
aggregate principal amount not to exceed $50 million
outstanding at any time; or |
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(10) |
the incurrence by Moog or any Restricted Subsidiary of Moog of
additional Indebtedness in an aggregate principal amount at any
time outstanding, including all Permitted Refinancing
Indebtedness incurred to refund, refinance or replace any
Indebtedness incurred pursuant to this clause (10), not to
exceed $100 million. |
For purposes of determining compliance with this
Incurrence of Indebtedness and Issuance of Preferred
Stock covenant, in the event that any proposed
Indebtedness meets the criteria of more than one of the
categories of Permitted Debt described in clauses (1)
through (10) above, or is entitled to be incurred pursuant
to the first paragraph of this covenant, Moog will be permitted
to classify at the time of its incurrence (and later reclassify)
such item of Indebtedness in any manner that complies with this
covenant.
Notwithstanding any other provision of this Incurrence of
Indebtedness and Issuance of Preferred Stock covenant, the
maximum amount of Indebtedness that may be incurred pursuant to
this Incurrence of Indebtedness and Issuance of Preferred
Stock covenant will not be deemed to be exceeded with
respect to any outstanding Indebtedness due solely to the result
of fluctuations in the exchange rates of currencies.
Limitation on Senior Subordinated Debt
Moog will not incur any Indebtedness that is subordinate or
junior in right of payment to any Senior Debt of Moog unless it
is pari passu or subordinate in right of payment to the
notes. No Guarantor will incur any Indebtedness that is
subordinate or junior in right of payment to the Senior Debt of
such Guarantor unless it is pari passu or subordinate in
right of payment to such Guarantors Note Guarantee. For
purposes of the foregoing, no Indebtedness will be deemed to be
subordinated in right of payment to any other Indebtedness of
Moog or any Guarantor, as applicable, solely by virtue of being
unsecured or by virtue of the fact that the holders of any
secured Indebtedness have entered into intercreditor agreements
giving one or more of such holders priority over the other
holders in the collateral held by them.
Liens
Moog will not, and will not permit any of its Restricted
Subsidiaries to, create, incur, assume or otherwise cause or
suffer to exist or become effective any Lien of any kind
securing Indebtedness (other than Permitted Liens) upon any of
their property or assets, now owned or hereafter acquired,
unless all payments due under the Indenture and the notes are
secured on an equal and ratable basis with the obligations so
secured (or, in the case of subordinated Indebtedness, prior or
senior thereto, with the same relative priority as the notes
shall have with respect to such subordinated Indebtedness) until
such time as such obligations are no longer secured by a Lien.
46
Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries
Moog will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or permit to
exist or become effective any consensual encumbrance or
restriction on the ability of any Restricted Subsidiary to:
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(1) |
pay dividends or make any other distributions on its Capital
Stock (or with respect to any other interest or participation
in, or measured by, its profits) to Moog or any of its
Restricted Subsidiaries or pay any liabilities owed to Moog or
any of its Restricted Subsidiaries; |
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(2) |
make loans or advances to Moog or any of its Restricted
Subsidiaries; or |
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(3) |
transfer any of its properties or assets to Moog or any of its
Restricted Subsidiaries. |
However, the preceding restrictions will not apply to
encumbrances or restrictions:
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(1) |
existing under, by reason of or with respect to the Credit
Agreement, Existing Indebtedness or any other agreements in
effect on the Issue Date and any amendments, modifications,
restatements, renewals, extensions, supplements, refundings,
replacements or refinancings thereof, provided that the
encumbrances and restrictions in any such amendments,
modifications, restatements, renewals, extensions, supplements,
refundings, replacements or refinancings are no more
restrictive, taken as a whole, than those contained in the
Credit Agreement, Existing Indebtedness or such other agreements
as in effect on the Issue Date; |
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(2) |
set forth in the Indenture or the notes; |
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(3) |
existing under, by reason of or with respect to applicable law,
rule, regulation or order; |
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(4) |
with respect to any Person or the property or assets of a Person
acquired by Moog or any of its Restricted Subsidiaries existing
at the time of such acquisition and not incurred in connection
with or in contemplation of such acquisition, which encumbrance
or restriction is not applicable to any Person or the properties
or assets of any Person, other than the Person, or the property
or assets of the Person, so acquired and any amendments,
modifications, restatements, renewals, extensions, supplements,
refundings, replacements or refinancings thereof, provided
that the encumbrances and restrictions in any such
amendments, modifications, restatements, renewals, extensions,
supplements, refundings, replacements or refinancings are no
more restrictive, taken as a whole, than those in effect on the
date of the acquisition; |
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(5) |
in the case of clause (3) of the first paragraph of this
covenant: |
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(A) |
that restrict in a customary manner the subletting, assignment
or transfer of any property or asset that is a lease, license,
conveyance or contract or similar property or asset; |
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(B) |
existing by virtue of any transfer of, agreement to transfer,
option or right with respect to, or Lien on, any property or
asset of Moog or any Restricted Subsidiary thereof not otherwise
prohibited by the Indenture; or |
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(C) |
arising or agreed to in the ordinary course of business, not
relating to any Indebtedness, and that do not, individually or
in the aggregate, detract from the value of property or assets
of Moog or any Restricted Subsidiary thereof in any manner
material to Moog or any Restricted Subsidiary thereof; |
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(6) |
existing under, by reason of or with respect to any agreement
for the sale or other disposition of all or substantially all of
the capital stock of, or property and assets of, a Restricted
Subsidiary that restrict distributions by that Restricted
Subsidiary pending such sale or other disposition; |
47
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(7) |
existing on cash or other deposits or net worth imposed by
customers or required by insurance, surety or bonding companies,
in each case, under contracts entered into in the ordinary
course of business; |
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(8) |
existing under, by reason of or with respect to customary
supermajority voting provisions and customary provisions with
respect to the disposition or distribution of assets or
property, in each case, contained in joint venture
agreements; and |
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(9) |
existing under, by reason of or with respect to Indebtedness
incurred by Foreign Subsidiaries, provided that the
aggregate amount outstanding at any time thereunder shall not
exceed $20.0 million. |
Merger, Consolidation or Sale of Assets
Moog will not, directly or indirectly (x) consolidate or
merge with or into another Person (whether or not Moog is the
surviving corporation) or (y) sell, assign, transfer,
convey or otherwise dispose of all or substantially all of the
properties and assets of Moog and its Restricted Subsidiaries
taken as a whole, in one or more related transactions, to
another Person or Persons, unless:
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(1) |
either (a) Moog is the surviving corporation; or
(b) the Person formed by or surviving any such
consolidation or merger (if other than Moog) or to which such
sale, assignment, transfer, conveyance or other disposition
shall have been made (i) is a corporation organized or
existing under the laws of the United States, any state thereof
or the District of Columbia and (ii) assumes all
obligations of Moog under the notes, the Indenture and the
Registration Rights Agreement pursuant to a supplementary
indenture reasonably satisfactory to the Trustee; |
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(2) |
immediately after giving effect to such transaction no Default
or Event of Default exists; and |
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(3) |
immediately after giving effect to such transaction on a pro
forma basis, Moog or the Person formed by or surviving any such
consolidation or merger (if other than Moog), or to which such
sale, assignment, transfer, conveyance or other disposition
shall have been made, will, on the date of such transaction
after giving pro forma effect thereto and any related financing
transactions as if the same had occurred at the beginning of the
applicable four-quarter period, be permitted to incur at least
$1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in the first paragraph of the
covenant described in this prospectus under the caption
Incurrence of Indebtedness and Issuance of
Preferred Stock. |
In addition, neither Moog nor any Restricted Subsidiary thereof
may, directly or indirectly, lease all or substantially all of
its properties or assets, in one or more related transactions,
to any other Person. Clause (3) above of this Merger,
Consolidation or Sale of Assets covenant will not apply to
(a) any merger, consolidation or sale, assignment,
transfer, conveyance or other disposition of assets between or
among Moog or any of its Restricted Subsidiaries or (b) any
merger with any Affiliate of Moog if (in the case of this
clause (b)) in the good faith determination of the Board of
Directors, whose determination shall be evidenced by a Board
Resolution, the principal purpose of such transaction is to
change the state of incorporation of Moog and such transaction
shall not have as one of its purposes the evasion of the
foregoing restrictions.
Transactions with Affiliates
Moog will not, and will not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer
or otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into, make,
amend, renew or extend any transaction, contract, agreement,
understanding,
48
loan, advance or Guarantee with, or for the benefit of, any
Affiliate (each, an Affiliate Transaction), unless:
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(1) |
such Affiliate Transaction is on terms that are no less
favorable to Moog or the relevant Restricted Subsidiary than
those that would have been obtained in a comparable
arms-length transaction by Moog or such Restricted
Subsidiary with a Person that is not an Affiliate of
Moog; and |
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(2) |
Moog delivers to the Trustee: |
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(a) |
with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in
excess of $5.0 million, a resolution of the Board of
Directors set forth in an Officers Certificate certifying
that such Affiliate Transaction or series of related Affiliate
Transactions complies with this covenant and that such Affiliate
Transaction or series of related Affiliate Transactions has been
approved by a majority of the disinterested members of the Board
of Directors; and |
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(b) |
with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in
excess of $15.0 million, an opinion as to the fairness to
Moog or such Restricted Subsidiary of such Affiliate Transaction
or series of related Affiliate Transactions from a financial
point of view issued by an independent accounting, appraisal or
investment banking firm of national standing. |
The following items shall not be deemed to be Affiliate
Transactions and, therefore, will not be subject to the
provisions of the prior paragraph:
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(1) |
transactions between or among Moog and/or its Restricted
Subsidiaries; |
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(2) |
payment of reasonable and customary fees to, and reasonable and
customary indemnification and similar payments on behalf of
directors and executive officers of Moog; |
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(3) |
Restricted Payments that are permitted by the provisions of the
Indenture described in this prospectus under the caption
Restricted Payments; |
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(4) |
any sale of Equity Interests (other than Disqualified Stock) of
Moog; and |
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(5) |
Affiliate Transactions with any Person solely in its capacity as
a holder of debt or capital stock of Moog or of any Restricted
Subsidiary of Moog where such Person is treated no more
favorably than any other holder of debt or capital stock of Moog
or such Restricted Subsidiary, provided that such Person
holds no more than 10% of the outstanding debt or capital stock
of Moog or such Restricted Subsidiary. |
Designation of Restricted and Unrestricted
Subsidiaries
The Board of Directors may designate any Restricted Subsidiary
of Moog to be an Unrestricted Subsidiary; provided that:
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(1) |
any Guarantee by Moog or any Restricted Subsidiary thereof of
any Indebtedness of the Subsidiary being so designated will be
deemed to be an incurrence of Indebtedness by Moog or such
Restricted Subsidiary (or both, if applicable) at the time of
such designation, and such incurrence of Indebtedness would be
permitted under the covenant described in this prospectus under
the caption Certain Covenants
Incurrence of Indebtedness and Issuance of Preferred Stock; |
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(2) |
the aggregate fair market value of all outstanding Investments
owned by Moog and its Restricted Subsidiaries in the Subsidiary
being so designated (including any Guarantee by Moog or any
Restricted Subsidiary of any Indebtedness of such Subsidiary)
will be deemed to be a Restricted Investment made as of the time
of such designation and that such |
49
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Investment would be permitted under the covenant described in
this prospectus under the caption Certain
Covenants Restricted Payments; |
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(3) |
such Subsidiary does not own any Equity Interests of, or hold
any Liens on any property of, Moog or any Restricted Subsidiary
thereof, |
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(4) |
the Subsidiary being so designated: |
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(a) |
is not party to any agreement, contract, arrangement or
understanding with Moog or any Restricted Subsidiary of Moog
unless the terms of any such agreement, contract, arrangement or
understanding are no less favorable to Moog or such Restricted
Subsidiary than those that might be obtained at the time from
Persons who are not Affiliates of Moog; |
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(b) |
is a Person with respect to which neither Moog nor any of its
Restricted Subsidiaries has any direct or indirect obligation
(i) to subscribe for additional Equity Interests or
(ii) to maintain or preserve such Persons financial
condition or to cause such Person to achieve any specified
levels of operating results; |
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(c) |
has not Guaranteed or otherwise directly or indirectly provided
credit support for any Indebtedness of Moog or any of its
Restricted Subsidiaries, except to the extent such Guarantee or
credit support would be released upon such designation; and |
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(d) |
has at least one director on its Board of Directors that is not
a director or officer of Moog or any of its Restricted
Subsidiaries and has at least one executive officer that is not
a director or officer of Moog or any of its Restricted
Subsidiaries; and |
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(5) |
no Default or Event of Default would be in existence following
such designation. |
Any designation of a Restricted Subsidiary of Moog as an
Unrestricted Subsidiary shall be evidenced to the Trustee by
filing with the Trustee a certified copy of the resolution of
the Board of Directors giving effect to such designation and an
Officers Certificate certifying that such designation
complied with the preceding conditions and was permitted by the
Indenture. If, at any time, any Unrestricted Subsidiary would
fail to meet any of the preceding requirements described in
clause (4) above it shall thereafter cease to be an
Unrestricted Subsidiary for purposes of the Indenture and any
Indebtedness, Investments or Liens on the property of such
Subsidiary shall be deemed to be incurred or made by a
Restricted Subsidiary of Moog as of such date and, if such
Indebtedness, Investments or Liens are not permitted to be
incurred or made as of such date under the Indenture, Moog will
be in default under the Indenture.
The Board of Directors of Moog may at any time designate any
Unrestricted Subsidiary to be a Restricted Subsidiary;
provided that:
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(1) |
such designation will be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of Moog of any
outstanding Indebtedness of such Unrestricted Subsidiary and
such designation shall only be permitted if such Indebtedness is
permitted under the covenant described in this prospectus under
the caption Certain Covenants
Incurrence of Indebtedness and Issuance of Preferred Stock; |
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(2) |
all outstanding Investments owned by such Unrestricted
Subsidiary will be deemed to be made as of the time of such
designation and such Investments shall only be permitted if such
Investments would be permitted under the covenant described in
this prospectus under the caption Certain
Covenants Restricted Payments; |
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(3) |
all Liens upon property or assets of such Unrestricted
Subsidiary existing at the time of such designation would be
permitted as discussed in this prospectus under the caption
Certain Covenants
Liens; and |
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(4) |
no Default or Event of Default would be in existence following
such designation. |
50
Guarantees
Moog will not permit any of its Restricted Subsidiaries,
directly or indirectly, to Guarantee or pledge any assets to
secure the payment of any Indebtedness of Moog or any Guarantor
(other than Senior Debt permitted to be incurred under the
Indenture) unless such Restricted Subsidiary simultaneously
executes and delivers a supplemental indenture providing for the
Guarantee (a Note Guarantee) of the payment of the
notes by such Restricted Subsidiary, which Note Guarantee shall
be senior to or pari passu with such Subsidiarys
Guarantee of such other Indebtedness with the same relative
priority as the notes or Note Guarantee shall have with respect
to such other Indebtedness.
A Guarantor may not sell or otherwise dispose of all or
substantially all of its assets to, or consolidate with or merge
with or into (whether or not such Guarantor is the surviving
Person), another Person, other than Moog or another Guarantor,
unless:
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(1) |
immediately after giving effect to that transaction, no Default
or Event of Default exists; and |
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(2) |
either: |
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(a) |
the Person acquiring the property in any such sale or
disposition or the Person formed by or surviving any such
consolidation or merger (if other than the Guarantor) is a
corporation organized or existing under the laws of the United
States, any state thereof or the District of Columbia and
assumes all the obligations of that Guarantor under the
Indenture or its Note Guarantee and the Registration Rights
Agreement pursuant to a supplemental indenture satisfactory to
the Trustee; or |
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(b) |
such sale or other disposition or consolidation or merger
complies with the covenant described in this prospectus under
the caption Repurchase at the Option of
Holders Asset Sales. |
The Note Guarantee of a Guarantor will be released:
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(1) |
in connection with any sale or other disposition of all of the
Capital Stock of a Guarantor to a Person that is not (either
before or after giving effect to such transaction) an Affiliate
of Moog, if the sale of all such Capital Stock of that Guarantor
complies with the covenant described in this prospectus under
the caption Repurchase at the Option of
Holders Asset Sales; |
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(2) |
if Moog properly designates such Guarantor as an Unrestricted
Subsidiary under the Indenture; or |
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(3) |
upon the release or discharge of the Guarantee which resulted in
the creation of such Note Guarantee pursuant to this covenant,
except a discharge or release by or as a result of payment under
such Guarantee. |
Business Activities
Moog will not, and will not permit any Restricted Subsidiary of
Moog to, engage in any business other than Permitted Businesses,
except to such extent as would not be material to Moog and its
Restricted Subsidiaries taken as a whole.
Payments for Consent
Moog will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, pay or cause to be paid
any consideration to or for the benefit of any Holder of notes
for or as an inducement to any consent, waiver or amendment of
any of the terms or provisions of the Indenture or the notes
unless such consideration is offered to be paid and is paid to
all Holders of the notes that consent, waive or agree to amend
in the time frame set forth in the solicitation documents
relating to such consent, waiver or agreement.
51
Reports
Whether or not required by the Commission, Moog will file a copy
of all of the information and reports referred to in
clauses (1) and (2) below with the Commission for
public availability within the time periods specified in the
Commissions rules and regulations (unless the Commission
will not accept such filing) and furnish such information to the
Trustee and, upon request, furnish such information to the
Holders of the notes and prospective investors:
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(1) |
all quarterly and annual financial information that would be
required to be contained in a filing with the Commission on
Forms 10-Q and 10-K if Moog were required to file such
Forms, including a Managements Discussion and
Analysis of Financial Condition and Results of Operations
and, with respect to the annual information only, a report on
the annual financial statements by Moogs certified
independent accountants; and |
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(2) |
all current reports that would be required to be filed with the
Commission on Form 8-K. |
If Moog has designated any of its Subsidiaries as Unrestricted
Subsidiaries, then the quarterly and annual financial
information required by this covenant shall include a reasonably
detailed presentation, either on the face of the financial
statements or in the footnotes thereto, and in
Managements Discussion and Analysis of Financial
Condition and Results of Operations, of the financial
condition and results of operations of Moog and its Restricted
Subsidiaries separate from the financial condition and results
of operations of the Unrestricted Subsidiaries of Moog.
Events of Default and Remedies
Each of the following is an Event of Default:
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(1) |
default in payment when due (whether at maturity, upon
acceleration, redemption or otherwise) of the principal of, or
premium, if any, on the notes whether or not prohibited by the
subordination provisions of the Indenture; |
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(2) |
default for 30 days in the payment when due of interest on,
or Additional Interest with respect to, the notes whether or not
prohibited by the subordination provisions of the Indenture; |
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(3) |
failure by Moog or any of its Restricted Subsidiaries to comply
with the provisions described in this prospectus under the
captions Repurchase at the Option of
Holders Change of Control,
Repurchase at the Option of
Holders Asset Sales or
Certain Covenants Merger,
Consolidation or Sale of Assets; |
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(4) |
failure by Moog or any of its Restricted Subsidiaries for
30 days after written notice by the Trustee or Holders
representing 25% or more of the aggregate principal amount of
notes outstanding to comply with any of the other agreements in
the Indenture; |
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(5) |
default under any mortgage, indenture or other instrument under
which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by Moog or any of
its Restricted Subsidiaries (or the payment of which is
Guaranteed by Moog or any of its Restricted Subsidiaries)
whether such Indebtedness or Guarantee now exists, or is created
after the Issue Date, if that default: |
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(a) |
is caused by a failure to make any payment when due at the final
maturity of such Indebtedness (a Payment
Default); or |
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(b) |
results in the acceleration of such Indebtedness prior to its
express maturity, |
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and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other
such Indebtedness under which there has been a Payment Default
or the maturity of which has been so accelerated, aggregates
$15 million or more; |
52
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(6) |
failure by Moog or any of its Restricted Subsidiaries to pay
final judgments aggregating in excess of $15 million, which
judgments are not paid, discharged or stayed for a period of
60 days after such judgment becomes final and non
appealable; and |
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(7) |
certain events of bankruptcy or insolvency with respect to Moog,
any Guarantor or any Significant Subsidiary of Moog (or any
Restricted Subsidiaries of Moog that together would constitute a
Significant Subsidiary). |
In the case of an Event of Default arising from certain events
of bankruptcy or insolvency, with respect to Moog or any
Significant Subsidiary of Moog (or any Restricted Subsidiaries
of Moog that together would constitute a Significant
Subsidiary), all outstanding notes will become due and payable
immediately without further action or notice. If any other Event
of Default occurs and is continuing, the Trustee or the Holders
of at least 25% in principal amount of the then outstanding
notes may declare all the notes to be due and payable
immediately by notice in writing to Moog specifying the Event of
Default; provided, however, that so long as any
Indebtedness permitted to be incurred pursuant to the Credit
Agreement is outstanding, that acceleration will not be
effective until the earlier of (1) an acceleration of
Indebtedness under the Credit Agreement; or (2) five
Business Days after receipt by Moog and the agent under the
Credit Agreement of written notice of the acceleration of the
notes.
Holders of notes may not enforce the Indenture or the notes
except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in principal amount of the
then outstanding notes may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold notice to the
Holders of the notes of any Default, except a Default in payment
of principal or premium, if any, or interest or Additional
Interest on the notes, if the Trustee considers it to be in the
best interest of the Holders of the notes to do so.
In the event of a declaration of acceleration of the notes
because an Event of Default specified in
paragraph (5) above has occurred and is continuing,
the declaration of acceleration of the notes shall be
automatically annulled if the Event of Default or payment
default triggering such Event of Default pursuant to such
paragraph (5) shall be remedied or cured by Moog or a
Restricted Subsidiary of Moog or waived by the holders of the
relevant Indebtedness within 20 days after the declaration
of acceleration with respect thereto and if (1) all Events
of Default (other than nonpayment of accelerated principal,
premium or interest or Additional Interest, if any) have been
cured or waived, (2) Moog has paid the Trustee its
reasonable compensation and reimbursed the Trustee for its
reasonable expenses, disbursements and advances and (3) the
rescission would not conflict with any judgment or decree.
The Holders of a majority in principal amount of the outstanding
notes shall have the right to waive any existing Default or
compliance with any provision of the Indenture or the notes
(except a Default or Event of Default relating to the payment of
principal, interest, Additional Interest or premium on such
notes) and to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, subject
to certain limitations specified in the Indenture. However, the
Trustee may refuse to follow any direction that conflicts with
law or the Indenture, that may involve the Trustee in personal
liability, or that the Trustee determines in good faith may be
unduly prejudicial to the rights of Holders of notes not joining
in the giving of such direction and may take any other action it
deems proper that is not inconsistent with any such direction
received from Holders of notes.
No Holder of a note will have any right to institute any
proceeding with respect to the Indenture or for any remedy under
the Indenture, unless:
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(1) |
the Holder gives to the Trustee written notice of a continuing
Event of Default; |
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(2) |
the Holders of at least 25% in aggregate principal amount of the
outstanding notes make a written request and offer indemnity to
the Trustee to institute proceeding as a trustee; |
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(3) |
the Trustee fails to institute proceedings within 60 days
of the request; and |
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(4) |
the Holders of a majority in aggregate principal amount of the
outstanding notes do not give the Trustee a direction
inconsistent with their request during the 60-day period. |
53
However, these limitations do not apply to a suit instituted by
any Holder for payment on notes on or after the due dates
expressed in the notes.
In the case of any Event of Default occurring by reason of any
willful action or inaction taken or not taken by or on behalf of
Moog with the intention of avoiding payment of the premium that
Moog would have had to pay if Moog then had elected to redeem
the notes pursuant to the optional redemption provisions of the
Indenture, an equivalent premium shall also become and be
immediately due and payable to the extent permitted by law upon
the acceleration of the notes.
Moog is required to deliver to the Trustee annually within
90 days after the end of each fiscal year a statement
regarding compliance with the Indenture. Upon becoming aware of
any Default or Event of Default, Moog is required to deliver to
the Trustee a statement specifying such Default or Event of
Default.
No Personal Liability of Directors, Officers, Employees and
Stockholders
No director, officer, employee, incorporator or stockholder of
Moog, as such, shall have any liability for any obligations of
Moog or any Guarantors under the notes, the Indenture or the
Note Guarantees or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder of
notes by accepting a note waives and releases all such
liability. The waiver and release are part of the consideration
for issuance of the notes. The waiver may not be effective to
waive liabilities under the federal securities laws.
Amendment, Supplement and Waiver
Except as provided in the next two succeeding paragraphs, the
Indenture, the notes or any Note Guarantees may be amended or
supplemented with the consent of the Holders of at least a
majority in principal amount of the notes then outstanding
(including, without limitation, consents obtained in connection
with a purchase of, or tender offer or exchange offer for,
notes), and any existing Default or Event of Default or
compliance with any provision of the Indenture, the notes or the
Note Guarantees may be waived with the consent of the Holders of
a majority in principal amount of the then outstanding notes
(including Additional Notes, if any) (including, without
limitation, consents obtained in connection with a purchase of,
or tender offer or exchange offer for, notes).
Without the consent of each Holder affected, an amendment or
waiver may not (with respect to any notes held by a
non-consenting Holder):
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(1) |
reduce the principal amount of notes whose Holders must consent
to an amendment, supplement, or waiver to the Indenture or the
note; |
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(2) |
reduce the rate of or change the time for payment of interest on
the notes; |
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(3) |
reduce the principal of or premium on the notes or change the
stated maturity of the notes; |
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(4) |
make any note payable in money other than that stated in the
note; |
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(5) |
change the amount or time of any payment required or reduce the
premium payable upon any redemption, or change the time before
which no redemption may be made; |
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(6) |
waive a Default or Event of Default on the payment of the
principal of, or interest or premium or Additional Interest, if
any, on the notes (except a rescission of acceleration of such
notes by the Holders of at least a majority in aggregate
principal amount of the notes and a waiver of payment default
that resulted from such acceleration); |
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(7) |
release any Guarantor from any of its obligations under its Note
Guarantee or the Indenture, except in accordance with the terms
of the Indenture; |
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(8) |
waive a redemption payment or change any of the provisions with
respect to redemption; |
54
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(9) |
make any change in the provisions of the Indenture relating to
waivers of past Defaults or the rights of Holders of notes to
receive payments of principal of, or interest or premium or
Additional Interest, if any, on, the notes; |
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(10) |
impair the right to institute suit for the enforcement of any
payment on or with respect to the notes or any Note Guarantees; |
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(11) |
amend, change or modify the obligation of Moog to make and
consummate an Asset Sale Offer with respect to any Asset Sale in
accordance with the provisions described in this prospectus
under the caption Repurchase at the Option of
Holders Asset Sales after the obligation to
make such Asset Sale Offer has arisen, or the obligation of Moog
to make and consummate a Change of Control Offer in the event of
a Change of Control in accordance with the provisions described
in this prospectus under the caption Repurchase at the
Option of Holders Change of Control after such
Change of Control has occurred, including, in each case,
amending, changing or modifying any definition relating thereto; |
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(12) |
except as otherwise permitted under the covenants described in
this prospectus under the captions Certain
Covenants Guarantees and
Certain Covenants Merger,
Consolidation and Sale of Assets, consent to the
assignment or transfer by Moog or any Guarantor of any of their
rights or obligations under the Indenture; |
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(13) |
amend or modify any of the provisions of the Indenture or the
related definitions affecting the subordination or ranking of
the notes or any Note Guarantee in any manner adverse to the
holders of the notes or any Note Guarantee; or |
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(14) |
make any change in the preceding amendment and waiver provisions. |
Notwithstanding the preceding paragraph, without the consent of
any Holders of notes, Moog, any Guarantor and the Trustee may
amend or supplement the Indenture or the notes to:
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(1) |
provide for an assumption of all of Moogs or any
Guarantors obligations under the Indenture, the notes or
any Note Guarantee by the surviving entity following a merger or
consolidation or sale of substantially all of the assets of Moog
or such Guarantor permitted under the Indenture; |
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(2) |
provide for uncertificated notes in addition to certificated
notes; |
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(3) |
comply with any requirements of the Commission under the Trust
Indenture Act; |
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(4) |
provide for the issuance of Additional Notes in accordance with
the Indenture; |
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(5) |
comply with the provision of the covenant described in this
prospectus under the caption Certain
Covenants Guarantees; |
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(6) |
cure any ambiguity, defect or inconsistency, or make any other
change that would provide additional rights or benefits to, or
does not materially adversely affect the rights of, any Holder
of the notes; and |
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(7) |
appoint a successor trustee under the Indenture with respect to
the notes. |
Legal Defeasance and Covenant Defeasance
The Indenture permits Moog, at any time, to elect:
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(1) |
to defease and be discharged from any and all of its obligations
with respect to any notes except for the following obligations
(which discharge is referred to as legal defeasance): |
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(a) |
the rights of Holders of outstanding notes to receive payment of
principal of, interest premium or Additional Interest, if any,
on such notes when such payments are due from the trust
described below; |
55
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(b) |
to register the transfer or exchange of the notes. |
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(c) |
to replace temporary or mutilated, destroyed, lost or stolen
notes; |
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(d) |
the rights, powers, trusts, duties and immunities of the Trustee
and Moogs and any Guarantors obligations in
connection therewith; |
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(e) |
to maintain an office or agency in respect of the notes and to
hold monies for payment in trust; or |
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(f) |
in respect of the legal defeasance provisions set forth in the
Indenture; or |
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(2) |
to be released from its obligations with respect to the notes
under certain covenants contained in the Indenture (which
release is referred to as covenant defeasance) and
thereafter any omission to comply with those covenants will not
constitute a Default or Event of Default with respect to the
notes. In the event covenant defeasance occurs, certain events
(not including non-payment, bankruptcy, receivership,
rehabilitation and insolvency events) described under
Events of Default will no longer constitute Events
of Default with respect to the notes. |
In order to exercise either defeasance option, Moog must
irrevocably deposit with the Trustee, in trust for this purpose,
cash or U.S. Government Obligations, or a combination
thereof, which in the opinion of a nationally recognized firm of
independent public accountants, provides a sufficient amount to
pay the principal of, premium, if any, and interest and
Additional Interest, if any, on the notes, on the scheduled due
dates or on a selected date of redemption in accordance with the
terms of the Indenture and Moog must specify whether such notes
are being defeased to maturity or a particular redemption date.
In addition, defeasance may be effected only if, among other
things:
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(1) |
in the case of either legal or covenant defeasance, Moog
delivers to the Trustee an opinion of counsel, as specified in
the Indenture, stating that the creation of the defeasance does
not violate the Investment Company Act of 1940; |
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(2) |
in the case of legal defeasance, Moog delivers to the Trustee an
opinion of counsel stating that Moog has received from, or there
has been published by, the Internal Revenue Service a ruling to
the effect that, or there has been a change in any applicable
federal income tax law with the effect that, and the opinion
shall confirm that, the Holders of outstanding notes will not
recognize income, gain or loss for United States federal income
tax purposes as a result of the legal defeasance and will be
subject to United States federal income tax on the same amounts,
in the same manner and at the same times as would have been the
case if such legal defeasance had not occurred; |
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(3) |
in the case of covenant defeasance, Moog delivers to the Trustee
an opinion of counsel to the effect that the Holders of the
outstanding notes will not recognize income, gain or loss for
United States federal income tax purposes as a result of the
covenant defeasance and will be subject to United States federal
income tax on the same amounts, in the same manner and at the
same times as would have been the case if a covenant defeasance
had not occurred; and |
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(4) |
certain other conditions in the Indenture are satisfied. |
If Moog fails to comply with its remaining obligations under the
Indenture and applicable supplemental Indenture after a covenant
defeasance of the Indenture and applicable supplemental
Indenture, and the notes are declared due and payable because of
the occurrence of any undefeased Event of Default, the amount of
money and/or U.S. Government Obligations on deposit with
the Trustee could be insufficient to pay amounts due under the
notes at the time of acceleration. Moog will, however, remain
liable in respect of these payments.
56
Governing Law
The Indenture and the notes will be governed by and construed in
accordance with the laws of the State of New York.
Registration Rights; Additional Interest
In connection with our issuance of the old notes, Moog entered
into the Registration Rights Agreement with the initial
purchaser. The filing of the exchange offer registration
statement, of which this prospectus is a part, is intended to
satisfy Moogs obligation under the Registration Rights
Agreement. The following description is a summary of the
material provisions of the Registration Rights Agreement. It
does not restate that agreement in its entirety. We urge you to
read the Registration Rights Agreement in its entirety because
it, and not this description, defines the registration rights of
the holders of the old notes. See the information provided in
this prospectus under the caption Where to Obtain
Additional Information.
Moog and the initial purchaser entered into a registration
rights agreement dated September 12, 2005. Pursuant to the
Registration Rights Agreement, Moog agreed to file with the
Commission the exchange offer registration statement on the
appropriate form under the Securities Act with respect to the
new notes. Upon the effectiveness of the exchange offer
registration statement, Moog will offer to the holders of old
notes pursuant to the exchange offer who are able to make
certain representations the opportunity to exchange their old
notes for new notes.
If:
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(1) |
Moog is not permitted to consummate the exchange offer because
the exchange offer is not permitted by applicable law or
Commission policy; |
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(2) |
for any reason, the exchange offer is not consummated within the
required time period; or |
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(3) |
any holder of old notes notifies Moog that: |
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(a) |
it is prohibited by law or Commission policy from participating
in the exchange offer; or |
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(b) |
it may not resell the new notes acquired by it in the exchange
offer to the public without delivering a prospectus and the
prospectus contained in the exchange offer registration
statement is not appropriate or available for such
resales; or |
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(c) |
it is a broker-dealer and owns notes acquired directly from Moog
or an affiliate of Moog, |
Moog will file with the Commission a shelf registration
statement to cover resales of the new notes by the holders
thereof who satisfy certain conditions relating to the provision
of information in connection with the shelf registration
statement.
Moog will use its reasonable best efforts to cause the
applicable registration statement to be declared effective as
promptly as possible by the Commission.
The Registration Rights Agreement provides:
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(1) |
unless the exchange offer would not be permitted by applicable
law or Commission policy, Moog will file an exchange offer
registration statement with the Commission on or prior to
90 days after the closing of this offering; |
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(2) |
unless the exchange offer would not be permitted by applicable
law or Commission policy, Moog will use its reasonable best
efforts to have the exchange offer registration statement
declared effective by the Commission on or prior to
180 days after the closing of this offering; |
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(3) |
unless the exchange offer would not be permitted by applicable
law or Commission policy, Moog will: |
57
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(a) |
commence the exchange offer; and |
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(b) |
issue new notes in exchange for all old notes tendered prior
thereto in the exchange offer; and |
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(4) |
if obligated to file the shelf registration statement, Moog will
file the shelf registration statement with the Commission on or
prior to 90 days after such filing obligation arises and
use its reasonable best efforts to cause the shelf registration
to be declared effective by the Commission on or prior to
180 days after such obligation arises. |
If:
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(1) |
Moog fails to file any of the registration statements required
by the registration rights agreement on or before the date
specified for such filing; or |
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(2) |
any of such registration statements is not declared effective by
the Commission on or prior to the date specified for such
effectiveness (the Effectiveness Target
Date); or |
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(3) |
Moog fails to consummate the exchange offer within 30 Business
Days of the Effectiveness Target Date with respect to the
exchange offer registration statement; or |
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(4) |
the shelf registration statement or the exchange offer
registration statement is declared effective but thereafter
ceases to be effective or usable in connection with resales or
exchanges of notes during the periods specified in the
registration rights agreement (each such event referred to in
clauses (1) through (4) above, a Registration
Default), |
then Moog will pay Additional Interest to each holder of old
notes, with respect to the first 90-day period immediately
following the occurrence of the first Registration Default in an
amount equal to one quarter of one percent (0.25%) per annum on
the principal amount of notes held by such holder.
The amount of the Additional Interest will increase by an
additional one quarter of one percent (0.25%) per annum on the
principal amount of old notes with respect to each subsequent
90-day period until all Registration Defaults have been cured,
up to a maximum amount of Additional Interest for all
Registration Defaults of 1.0% per annum.
All accrued Additional Interest will be paid by Moog on each
interest payment date to the holder of the Global Note by wire
transfer of immediately available funds or by federal funds
check and to Holders of Certificated Notes by wire transfer to
the accounts specified by them or by mailing checks to their
registered addresses if no such accounts have been specified.
Following the cure of all Registration Defaults, the accrual of
Additional Interest will cease.
Holders of old notes will be required to make certain
representations to Moog (as described in the Registration Rights
Agreement) in order to participate in this exchange offer and
will be required to deliver certain information to be used in
connection with the shelf registration statement and to provide
comments on the shelf registration statement within the time
periods set forth in the Registration Rights Agreement in order
to have their old notes included in the shelf registration
statement and benefit from the provisions regarding Additional
Interest set forth above. By acquiring old notes, a holder will
be deemed to have agreed to indemnify Moog against certain
losses arising out of information furnished by such holder in
writing for inclusion in any shelf registration statement.
Holders of old notes will also be required to suspend their use
of the prospectus included in the shelf registration statement
under certain circumstances upon receipt of written notice to
that effect from Moog.
Information Concerning the Trustee
Moog and its subsidiaries may maintain deposit accounts and
conduct other banking transactions with the Trustee in the
ordinary course of business. In addition, JPMorgan Chase Bank,
N.A. is a lender under the Credit Agreement.
58
Book-Entry, Delivery and Form
The new notes will be issued in registered, global form in
minimum denominations of $1,000 and integral multiples of $1,000
in excess thereof. The new notes will be issued at the closing
of this exchange offer only pursuant to valid tenders of old
notes. The new notes initially will be represented by one or
more notes in registered, global form without interest coupons
(collectively, the Global Notes). The Global Notes
will be deposited upon issuance with the Trustee as custodian
for The Depository Trust Company (DTC), in New York,
New York, and registered in the name of DTC or its nominee, in
each case for credit to an account of a direct or indirect
participant in DTC as described below.
Except as set forth below, the Global Notes may be transferred,
in whole and not in part, only to another nominee of DTC or to a
successor of DTC or its nominee. Beneficial interests in the
Global Notes may not be exchanged for notes in certificated form
except in the limited circumstances described below. See
Exchange of Global Notes for Certificated
Notes. Except in the limited circumstances described
below, owners of beneficial interests in the Global Notes will
not be entitled to receive physical delivery of the notes in
certificated forms. Transfers of beneficial interests in the
Global Notes will be subject to the applicable rules and
procedures of DTC and its direct or indirect participants
(including, if applicable, those of Euroclear and Clearstream),
which may change from time to time.
Depository Procedures
The following description of the operations and procedures of
DTC, Euroclear and Clearstream are provided solely as a matter
of convenience. These operations and procedures are solely
within the control of the respective settlement systems and are
subject to changes by them. Moog takes no responsibility for
these operations and procedures and urges investors to contact
the system or their participants directly to discuss these
matters.
DTC has advised Moog that DTC is a limited-purpose trust company
created to hold securities for its participating organizations
(collectively, the Participants) and to facilitate
the clearance and settlement of transactions in those securities
between Participants through electronic book-entry changes in
accounts of its Participants. The Participants include
securities brokers and dealers (including the Initial
Purchaser), banks, trust companies, clearing corporations and
certain other organizations. Access to DTCs system is also
available to other entities such as banks, brokers, dealers and
trust companies that clear through or maintain a custodial
relationship with a Participant, either directly or indirectly
(collectively, the Indirect Participants). Persons
who are not Participants may beneficially own securities held by
or on behalf of DTC only through the Participants or the
Indirect Participants. The ownership interests in, and transfers
of ownership interests in, each security held by or on behalf of
DTC are recorded on the records of the Participants and Indirect
Participants.
DTC has also advised Moog that, pursuant to procedures
established by it:
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(1) upon deposit of the Global Notes, DTC will credit the
accounts of Participants designated by the Initial Purchaser
with portions of the principal amount of the Global
Notes; and |
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(2) ownership of these interests in the Global Notes will
be shown on, and the transfer of ownership thereof will be
effected only through, records maintained by DTC (with respect
to the Participants) or by the Participants and the Indirect
Participants (with respect to other owners of beneficial
interest in the Global Notes). |
Investors in the Global Notes who are Participants in DTCs
system may hold their interests therein directly through DTC.
All interests in a Global Note may be subject to the procedures
and requirements of DTC. Those interests held through Euroclear
or Clearstream may also be subject to the procedures and
requirements of such systems. The laws of some states require
that certain Persons take physical delivery in definitive form
of securities that they own. Consequently, the ability to
transfer beneficial interest in a Global Note to such Persons
will be limited to that extent. Because DTC can act only on
behalf of Participants, which in turn act on behalf of Indirect
Participants, the ability of a Person having beneficial
interests in a Global Note to pledge such interests to Persons
that do not participate in the DTC system,
59
or otherwise take actions in respect of such interests, may be
affected by the lack of a physical certificate evidencing such
interests.
Except as described below, owners of interests in the Global
Notes will not have notes registered in their names, will not
receive physical delivery of notes in certificated form and will
not be considered the registered owners or Holders
thereof under the Indenture for any purpose.
Payments in respect of the principal of, interest and premium,
if any, on a Global Note registered in the name of DTC or its
nominee will be payable to DTC in its capacity as the registered
Holder under the Indenture. Under the terms of the Indenture,
Moog and the Trustee will treat the Persons in whose names the
notes, including the Global Notes, are registered as the owners
thereof for the purpose of receiving payments and for all other
purposes. Consequently, neither Moog, the Trustee nor any agent
of Moog or the Trustee has or will have any responsibility or
liability for:
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(1) any aspect of DTCs records or any
Participants or Indirect Participants records
relating to or payments made on account of beneficial ownership
interest in the Global Notes or for maintaining, supervising or
reviewing any of DTCs records or any Participants or
Indirect Participants records relating to the beneficial
ownership interests in the Global Notes; or |
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(2) any other matter relating to the actions and practices
of DTC or any of its Participants or Indirect Participants. |
DTC has advised Moog that its current practice, upon receipt of
any payment in respect of securities such as the notes
(including principal and interest), is to credit the accounts of
the relevant Participants with the payment on the payment date
unless DTC has reason to believe it will not receive payment on
such payment date. Each relevant Participant is credited with an
amount proportionate to its beneficial ownership of an interest
in the principal amount of the relevant security as shown on the
records of DTC. Payments by the Participants and the Indirect
Participants to the beneficial owners of notes will be governed
by standing instructions and customary practices and will be the
responsibility of the Participants or the Indirect Participants
and will not be the responsibility of DTC, the Trustee or Moog.
Neither Moog nor the Trustee will be liable for any delay by DTC
or any of its Participants in identifying the beneficial owners
of the notes, and Moog and the Trustee may conclusively rely on
and will be protected in relying on instructions from DTC or its
nominee for all purposes.
Transfers between Participants in DTC will be effected in
accordance with DTCs procedures, and will be settled in
same-day funds.
DTC has advised Moog that it will take any action permitted to
be taken by a Holder of notes only at the direction of one or
more Participants to whose account DTC has credited the
interests in the Global Notes and only in respect of such
portion of the aggregate principal amount of the notes as to
which such Participant or Participants has or have given such
direction. However, if there is an Event of Default under the
notes, DTC reserves the right to exchange the Global Notes for
legended notes in certificated form, and to distribute such
notes to its Participants.
Although DTC, Euroclear and Clearstream have agreed to the
foregoing procedures to facilitate transfers of interests in the
Global Notes among participants in DTC, Euroclear and
Clearstream, they are under no obligation to perform or to
continue to perform such procedures, and may discontinue such
procedures at any time. Neither Moog nor the Trustee nor any of
their respective agents will have any responsibility for the
performance by DTC, Euroclear or Clearstream or their respective
participants or indirect participants of their respective
obligations under the rules and procedures governing their
operations.
60
Exchange of Global Notes for Certificated Notes
A Global Note is exchangeable for definitive notes in registered
certificated form (Certificated Notes) if:
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(1) DTC (a) notifies Moog that it is unwilling or
unable to continue as depositary for the Global Notes or
(b) has ceased to be a clearing agency registered under the
Exchange Act, and in each case Moog fails to appoint a successor
depositary within 90 days of becoming aware of such
condition; |
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(2) Moog, at its option, notifies the Trustee in writing
that it elects to cause the issuance of Certificated Notes (DTC
has advised Moog that, in such event, under its current
practices, DTC would notify its participants of Moogs
request, but will only withdraw beneficial interests from a
Global Note at the request of each DTC participant); or |
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(3) there will have occurred and be continuing a Default or
Event of Default with respect to the notes. |
In addition, beneficial interests in a Global Note may be
exchanged for Certificated Notes upon prior written notice given
to the Trustee by or on behalf of DTC in accordance with the
Indenture. In all cases, Certificated Notes delivered in
exchange for any Global Note or beneficial interests in Global
Notes will be registered in the names, and issued in any
approved denominations, requested by or on behalf of the
depositary (in accordance with its customary procedures) and
will bear an applicable restrictive legend; unless that legend
is not required by applicable law.
Exchange of Certificated Notes for Global Notes
Certificated Notes may not be exchanged for beneficial interests
in any Global Note unless the transferor first delivers to the
Trustee a written certificate (in the form provided in the
Indenture) to the effect that such transfer will comply with the
appropriate transfer restrictions applicable to such notes.
Same Day Settlement and Payment
Moog will make payments in respect of the notes represented by
the Global Notes (including principal, premium, if any, and
interest) by wire transfer of immediately available funds to the
accounts specified by the Global Note Holder. Moog will
make all payments of principal, interest and premium, if any,
with respect to Certificated Notes by wire transfer of
immediately available funds to the accounts specified by the
Holders thereof or, if no such account is specified, by mailing
a check to each such Holders registered address. The notes
represented by the Global Notes are expected to be eligible to
trade in the PORTAL market and to trade in DTCs Same-Day
Funds Settlement System, and any permitted secondary market
trading activity in such notes will, therefore, be required by
DTC to be settled in immediately available funds. Moog expects
that secondary trading in any Certificated Notes will also be
settled in immediately available funds.
Because of time zone differences, the securities account of a
Euroclear or Clearstream participant purchasing an interest in a
Global Note from a Participant in DTC will be credited, and any
such crediting will be reported to the relevant Euroclear or
Clearstream participant, during the securities settlement
processing day (which must be a business day for Euroclear and
Clearstream) immediately following the settlement date of DTC.
DTC has advised Moog that cash received in Euroclear or
Clearstream as a result of sales of interests in a Global Note
by or through a Euroclear or Clearstream participant to a
Participant in DTC will be received with value on the settlement
date of DTC but will be available in the relevant Euroclear or
Clearstream cash account only as of the business day for
Euroclear or Clearstream following DTCs settlement date.
61
Certain Definitions
Set forth below are certain defined terms used in the Indenture.
Reference is made to the Indenture for a full disclosure of all
such terms, as well as any other capitalized terms used herein
for which no definition is provided.
Acquired Debt means, with respect to any
specified Person:
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(1) Indebtedness of any other Person existing at the time
such other Person is merged with or into, or becomes a
Subsidiary of, such specified Person, whether or not such
Indebtedness is incurred in connection with, or in contemplation
of, such other Person merging with or into, or becoming a
Subsidiary of, such specified Person; and |
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(2) Indebtedness secured by a Lien encumbering any asset
acquired by such specified Person. |
Additional Interest means all additional
interest owing on the notes pursuant to the Registration Rights
Agreement.
Affiliate of any specified Person means
(1) any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with
such specified Person or (2) any executive officer or
director of such specified Person. For purposes of this
definition, control, as used with respect to any
Person, shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting
securities, by agreement or otherwise; provided that
beneficial ownership of 10% or more of the Voting Stock of a
Person shall be deemed to be control. For purposes of this
definition, the terms controlling, controlled
by and under common control with shall have
correlative meanings.
Applicable Premium means, with respect to a
note at any date of redemption, the greater of (i) 1.0% of
the principal amount of such note and (ii) any excess of
(A) the present value (discounted semi-annually) at such
date of redemption of (1) the redemption price of such note
at January 15, 2010 (such redemption price being described
in this prospectus under the caption Optional
Redemption) plus (2) all remaining required
interest payments due on such note through January 15, 2010
(excluding accrued but unpaid interest to the date of
redemption), computed using a discount rate equal to the
Treasury Rate plus 50 basis points, over (B) the
principal amount of such note.
Asset Sale means:
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(1) the sale, lease, conveyance or other disposition of any
property or assets; provided that the sale, conveyance or
other disposition of all or substantially all of the assets of
Moog and its Restricted Subsidiaries taken as a whole will be
governed by the provisions of the Indenture described in this
prospectus under the caption Repurchase at the
Option of Holders Change of Control and/or the
provisions described in this prospectus under the caption
Certain Covenants -Merger, Consolidation or
Sale of Assets and not by the provisions described in this
prospectus under the caption Repurchase at the
Option of Holders Asset Sales; and |
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(2) the issuance of Equity Interests by any of Moogs
Restricted Subsidiaries or the sale by Moog or any Restricted
Subsidiary of Equity Interests in any of its Subsidiaries (other
than directors qualifying shares and shares issued to
foreign nationals to the extent required by applicable law). |
Notwithstanding the preceding, the following items shall be
deemed not to be Asset Sales:
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(1) any single transaction or series of related
transactions that involves assets having a fair market value of
less than $3.0 million; |
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(2) a transfer of assets between or among Moog and its
Restricted Subsidiaries; |
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(3) an issuance of Equity Interests by a Restricted
Subsidiary of Moog to Moog or to another Restricted Subsidiary
of Moog; |
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(4) the sale or lease of equipment, inventory, accounts
receivable or other assets in the ordinary course of business; |
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(5) the sale or other disposition of Cash Equivalents; |
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(6) dispositions of receivables in connection with the
compromise, settlement or collection thereof in the ordinary
course of business or in bankruptcy or similar proceedings and
exclusive of factoring or similar arrangements; |
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(7) a Restricted Payment that is permitted by the covenant
described in this prospectus under the caption
Certain Covenants Restricted
Payments; and |
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(8) any sale or disposition of any property or equipment
that has become damaged, worn out, obsolete or otherwise
unsuitable for use in connection with the business of Moog or
its Restricted Subsidiaries. |
Beneficial Owner has the meaning assigned to
such term in Rule 13d-3 and Rule 13d-5 under the
Exchange Act, except that in calculating the beneficial
ownership of any particular person (as that term is
used in Section 13(d)(3) of the Exchange Act), such
person shall be deemed to have beneficial ownership
of all securities that such person has the right to
acquire by conversion or exercise of other securities, whether
such right is concurrently exercisable or is exercisable only
upon the occurrence of a subsequent condition. The terms
Beneficially Owns and Beneficially Owned
shall have a corresponding meaning.
Board of Directors means:
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(1) with respect to a corporation, the board of directors
of the corporation; |
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(2) with respect to a partnership, the Board of Directors
of the general partner of the partnership; and |
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(3) with respect to any other Person, the board or
committee of such Person serving a similar function. |
Business Day means any day other than a Legal
Holiday.
Capital Lease Obligation means, at the time
any determination thereof is to be made, the amount of the
liability in respect of a capital lease that would at that time
be required to be capitalized on a balance sheet in accordance
with GAAP.
Capital Stock means:
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(1) in the case of a corporation, corporate stock; |
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(2) in the case of an association or business entity, any
and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock; |
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(3) in the case of a partnership or limited liability
company, partnership or membership interests (whether general or
limited); and |
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(4) any other interest or participation that confers on a
Person the right to receive a share of the profits and losses
of, or distributions of assets of, the issuing Person. |
Cash Equivalents means:
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(1) United States dollars or the currency of Taiwan or any
country recognized by the United States; |
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(2) securities issued or directly and fully guaranteed or
insured by the United States government or any agency or
instrumentality thereof (provided that the full faith and
credit of the United States is pledged in support thereof)
maturing, unless such securities are deposited to defease any
Indebtedness, not more than one year from the date of
acquisition; |
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(3) certificates of deposit and eurodollar time deposits
with maturities of one year or less from the date of
acquisition, bankers acceptances with maturities not
exceeding one year and overnight bank deposits, demand deposits
or savings deposits, in each case, with any commercial bank
organized under the laws of the United States, any state
thereof, Taiwan or any country recognized by the United States
and having capital and surplus in excess of $100.0 million
(or the foreign currency equivalent thereof) and whose
outstanding debt is rated A (or such similar rating)
by at least one nationally recognized statistical rating
organization (as defined in Rule 436 under the Securities
Act); |
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(4) repurchase obligations with a term of not more than
30 days for underlying securities of the types described in
clauses (2) and (3) above entered into with any
financial institution meeting the qualifications specified in
clause (3) above; |
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(5) commercial paper having the highest rating obtainable
from Moodys or S&P and issued by a corporation (other
than an Affiliate of Moog) organized and in existence under the
laws of the United States, any state thereof, Taiwan or any
country recognized by the United States; |
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(6) securities issued and fully guaranteed by any state,
commonwealth or territory of the United States of America, or by
any political subdivision or taxing authority thereof, rated at
least A by Moodys or S&P and having
maturities of not more than one year from the date of
acquisition; and |
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(7) money market funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds described in
clauses (1) through (6) of this definition. |
Change of Control means the occurrence of any
of the following:
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(1) the direct or indirect sale, transfer, conveyance or
other disposition (other than by way of merger or
consolidation), in one or a series of related transactions, of
all or substantially all of the properties or assets of Moog and
its Restricted Subsidiaries, taken as a whole, to any
person (as that term is used in
Section 13(d)(3) of the Exchange Act); |
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(2) the adoption of a plan relating to the liquidation or
dissolution of Moog; |
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(3) any person or group (as such
terms are used in Sections 13(d) and 14(d) of the Exchange Act)
becomes the ultimate Beneficial Owner, directly or indirectly,
of 50% or more of the voting power of the Voting Stock of Moog; |
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(4) the first day on which a majority of the members of the
Board of Directors of Moog are not Continuing Directors; or |
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(5) Moog consolidates with, or merges with or into, any
Person, or any Person consolidates with, or merges with or into
Moog, in any such event pursuant to a transaction in which any
of the outstanding Voting Stock of Moog or such other Person is
converted into or exchanged for cash, securities or other
property, other than any such transaction where (A) the
Voting Stock of Moog outstanding immediately prior to such
transaction is converted into or exchanged for Voting Stock
(other than Disqualified Stock) of the surviving or transferee
Person constituting a majority of the outstanding shares of such
Voting Stock of such surviving or transferee Person (immediately
after giving effect to such issuance) and (B) immediately
after such transaction, no person or
group (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act) becomes, directly or indirectly,
the ultimate Beneficial Owner of 30% or more of the voting power
of the Voting Stock of the surviving or transferee Person. |
Commission means the United States Securities
and Exchange Commission.
Consolidated Cash Flow means, with respect to
any specified Person for any period, the Consolidated Net Income
of such Person for such period plus:
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(1) provision for taxes based on income or profits of such
Person and its Restricted Subsidiaries for such period, to the
extent that such provision for taxes was deducted in computing
such Consolidated Net Income; plus |
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(2) Fixed Charges of such Person and its Restricted
Subsidiaries for such period, to the extent that any such Fixed
Charges were deducted in computing such Consolidated Net Income;
plus |
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(3) depreciation, amortization (including amortization of
goodwill and other intangibles but excluding amortization of
prepaid cash expenses that were paid in a prior period) and
other non-cash expenses (excluding any such non-cash expense to
the extent that it represents an accrual of or reserve for cash
expenses in any future period or amortization of a prepaid cash
expense that was paid in a prior period) of such Person and its
Restricted Subsidiaries for such period to the extent that such
depreciation, amortization and other non-cash expenses were
deducted in computing such Consolidated Net Income; minus |
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(4) non-cash items increasing such Consolidated Net Income
for such period, other than the accrual of revenue consistent
with past practice; |
in each case, on a consolidated basis and determined in
accordance with GAAP.
Notwithstanding the preceding, the provision for taxes based on
the income or profits of, the Fixed Charges of and the
depreciation and amortization and other non-cash expenses of, a
Restricted Subsidiary of Moog shall be added to Consolidated Net
Income to compute Consolidated Cash Flow of Moog (A) in the
same proportion that the Net Income of such Restricted
Subsidiary was added to compute such Consolidated Net Income of
Moog and (B) only to the extent that a corresponding amount
would be permitted at the date of determination to be dividended
or distributed to Moog by such Restricted Subsidiary without
prior governmental approval (that has not been obtained), and
without direct or indirect restriction pursuant to the terms of
its charter and all agreements, instruments, judgments, decrees,
orders, statutes, rules and governmental regulations applicable
to that Subsidiary or its stockholders.
Consolidated Net Income means, with respect
to any specified Person for any period, the aggregate of the Net
Income of such Person and its Subsidiaries for such period, on a
consolidated basis, determined in accordance with GAAP;
provided that:
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(1) the Net Income (but not loss) of any Person that is not
a Restricted Subsidiary or that is accounted for by the equity
method of accounting shall be included only to the extent of the
amount of dividends or distributions paid in cash to the
specified Person or a Restricted Subsidiary thereof; |
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(2) the Net Income of any Restricted Subsidiary shall be
excluded to the extent that the declaration or payment of
dividends or similar distributions by that Restricted Subsidiary
of that Net Income is not at the date of determination permitted
without any prior governmental approval (that has not been
obtained) or, directly or indirectly, by operation of the terms
of its charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to
that Restricted Subsidiary or its equity holders; |
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(3) the Net Income of any Person acquired during the
specified period for any period prior to the date of such
acquisition shall be excluded; |
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(4) the cumulative effect of a change in accounting
principles shall be excluded; and |
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(5) notwithstanding clause (1) above, the Net Income
(but not loss) of any Unrestricted Subsidiary shall be excluded,
whether or not distributed to the specified Person or one of its
Subsidiaries. |
Consolidated Net Tangible Assets of any
Person means, as of any date, the amount which, in accordance
with GAAP, would be set forth under the caption Total
Assets (or any like caption) on a consolidated balance
sheet of such Person and its Restricted Subsidiaries, as of the
end of the most recently ended fiscal quarter for which internal
financial statements are available, less (1) all intangible
assets, including, without limitation, goodwill, organization
costs, patents, trademarks, copyrights, franchises, and research
and development costs, and (2) current liabilities.
65
Continuing Directors means, as of any date of
determination, any member of the Board of Directors of Moog who:
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(1) was a member of such Board of Directors on the Issue
Date; or |
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(2) was nominated for election or elected to such Board of
Directors with the approval of a majority of the Continuing
Directors who were members of such Board of Directors at the
time of such nomination or election. |
Credit Agreement means that certain Amended
and Restated Credit Agreement, dated as of March 3, 2003,
by and among Moog, HSBC Bank USA, National Association, as
agent, and certain lenders named therein providing for term loan
borrowings in the original principal amount of $75 million
and up to $315 million of revolving credit borrowings,
including any related notes, Guarantees, collateral documents,
instruments and agreements executed in connection therewith, and
in each case as amended, modified, renewed, refunded, replaced
or refinanced from time to time, regardless of whether such
amendment, modification, renewal, refunding, replacement or
refinancing is with any of the same financial institutions or
otherwise and regardless of whether any one or more of Moog and
its Subsidiaries are or become borrowers thereunder.
Credit Facilities means one or more debt
facilities (including, without limitation, the Credit Agreement)
or commercial paper facilities, in each case with banks or other
institutional lenders providing for revolving credit loans, term
loans, receivables financing (including through the sale of
receivables to such lenders or to special purpose entities
formed to borrow from such lenders against such receivables) or
letters of credit, in each case, as amended, restated, modified,
renewed, refunded, replaced or refinanced in whole or in part
from time to time.
Default means any event that is, or with the
passage of time or the giving of notice or both would be, an
Event of Default.
Designated Non-cash Consideration means the
fair market value of non-cash consideration received by Moog or
any of its Restricted Subsidiaries in connection with an Asset
Sale that is so designated as Designated Non-cash Consideration
pursuant to an Officers Certificate setting forth the
basis of such valuation, less the amount of cash or Cash
Equivalents received in connection with a subsequent sale or
collection of such Designated Non-cash Consideration.
Disqualified Stock means any Capital Stock
that, by its terms (or by the terms of any security into which
it is convertible, or for which it is exchangeable, in each case
at the option of the holder thereof), or upon the happening of
any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the
option of the holder thereof, in whole or in part, on or prior
to the date that is one year after the date on which the notes
mature. Notwithstanding the preceding sentence, any Capital
Stock that would constitute Disqualified Stock solely because
the holders thereof have the right to require Moog to repurchase
such Capital Stock upon the occurrence of a change of control or
an asset sale shall not constitute Disqualified Stock if the
terms of such Capital Stock provide that Moog may not repurchase
or redeem any such Capital Stock pursuant to such provisions
unless such repurchase or redemption complies with the covenant
described in this prospectus under the caption
Certain Covenants Restricted
Payments. The term Disqualified Stock shall
also include any options, warrants or other rights that are
convertible into Disqualified Stock or that are redeemable at
the option of the holder, or required to be redeemed, prior to
the date that is one year after the date on which the notes
mature.
Domestic Subsidiary means any Restricted
Subsidiary of Moog other than a Restricted Subsidiary that is
(1) a controlled foreign corporation under
Section 957 of the Internal Revenue Code (a) whose
primary operating assets are located outside the United States
and (b) that is not subject to tax under
Section 882(a) of the Internal Revenue Code because of a
trade or business within the United States or (2) a
Subsidiary of an entity described in the preceding
clause (1).
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Equity Interests means Capital Stock and all
warrants, options or other rights to acquire Capital Stock (but
excluding any debt security that is convertible into, or
exchangeable for, Capital Stock).
Equity Offering means (i) an offer and
sale of Capital Stock (other than Disqualified Stock) of Moog
pursuant to a registration statement that has been declared
effective by the Commission pursuant to the Securities Act
(other than a registration statement on Form S-8 or
otherwise relating to equity securities issuable under any
employee benefit plan) or (ii) any private placement of
Capital Stock (other than Disqualified Stock) of Moog to any
Person other than a Restricted Subsidiary of Moog.
Existing Indebtedness means the aggregate
principal amount of Indebtedness of Moog and its Restricted
Subsidiaries in existence on the Issue Date after giving effect
to the application of the proceeds of the notes, until such
amounts are repaid.
fair market value means the price that would
be paid in an arms-length transaction between an informed
and willing seller under no compulsion to sell and an informed
and willing buyer under no compulsion to buy, as determined
(except as otherwise specified in the Indenture) in good faith
by (i) senior management of Moog if the aggregate amount of
the transaction with respect to which fair market value of the
transaction is being determined does not exceed
$20.0 million and (ii) the Board of Directors, whose
determination shall be conclusive if evidenced by a Board
Resolution, if the aggregate amount of the transaction with
respect to which fair market value is being determined exceeds
$20.0 million.
Fixed Charges means, with respect to any
specified Person for any period, the sum, without duplication,
of:
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(1) the consolidated interest expense of such Person and
its Restricted Subsidiaries for such period, whether paid or
accrued, including, without limitation, amortization of debt
issuance costs and original issue discount, non-cash interest
payments, the interest component of any deferred payment
obligations, the interest component of all payments associated
with Capital Lease Obligations, commissions, discounts and other
fees and charges incurred in respect of letter of credit or
bankers acceptance financings, and net of the effect of
all payments made or received pursuant to Hedging Obligations;
plus |
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(2) the consolidated interest of such Person and its
Restricted Subsidiaries that was capitalized during such period;
plus |
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(3) any interest expense on Indebtedness of another Person
that is Guaranteed by such Person or one of its Restricted
Subsidiaries or secured by a Lien on assets of such Person or
one of its Restricted Subsidiaries, whether or not such
Guarantee or Lien is called upon; plus |
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(4) the product of (a) all dividends, whether paid or
accrued and whether or not in cash, on any series of
Disqualified Stock or Preferred Stock of such Person or any of
its Restricted Subsidiaries, other than dividends on Equity
Interests payable solely in Equity Interests (other than
Disqualified Stock) of Moog or to Moog or a Restricted
Subsidiary of Moog, times (b) a fraction, the numerator of
which is one and the denominator of which is one minus the then
current combined federal, state and local statutory tax rate of
such Person, expressed as a decimal, in each case, on a
consolidated basis and in accordance with GAAP. |
Fixed Charge Coverage Ratio means with
respect to any specified Person for any period, the ratio of the
Consolidated Cash Flow of such Person for such period to the
Fixed Charges of such Person for such period. In the event that
the specified Person or any of its Subsidiaries incurs, assumes,
Guarantees, repays, repurchases or redeems any Indebtedness or
issues, repurchases or redeems Preferred Stock subsequent to the
commencement of the period for which the Fixed Charge Coverage
Ratio is being calculated and on or prior to the date on which
the event for which the calculation of the Fixed Charge Coverage
Ratio is made (the Calculation Date), then the Fixed
Charge Coverage Ratio shall be calculated giving pro forma
effect to such incurrence, assumption, Guarantee, repayment,
repurchase or redemption of Indebtedness, or such issuance,
repurchase or redemption of Preferred Stock, and the use of
67
the proceeds therefrom as if the same had occurred at the
beginning of the applicable four-quarter reference period.
In addition, for purposes of calculating the Fixed Charge
Coverage Ratio:
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(1) acquisitions and dispositions of business entities or
property and assets constituting a division or line of business
of any Person that have been made by the specified Person or any
of its Restricted Subsidiaries, including through mergers or
consolidations and including any related financing transactions,
subsequent to the commencement of the period for which the Fixed
Charge Coverage Ratio is being calculated and on or prior to the
Calculation Date shall be given pro forma effect as if they had
occurred on the first day of such period and Consolidated Cash
Flow for such period shall be calculated on a pro forma basis in
accordance with Regulation S-X under the Securities Act,
but without giving effect to clause (3) of the proviso set
forth in the definition of Consolidated Net Income; |
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(2) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP shall be
excluded; |
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(3) the Fixed Charges attributable to discontinued
operations, as determined in accordance with GAAP, shall be
excluded, but only to the extent that the obligations giving
rise to such Fixed Charges will not be obligations of the
specified Person or any of its Subsidiaries following the
Calculation Date; and |
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(4) consolidated interest expense attributable to interest
on any Indebtedness (whether existing or being incurred)
computed on a pro forma basis and bearing a floating interest
rate shall be computed as if the rate in effect on the
Calculation Date (taking into account any interest rate option,
swap, cap or similar agreement applicable to such Indebtedness
if such agreement has a remaining term in excess of
12 months or, if shorter, at least equal to the remaining
term of such Indebtedness) had been the applicable rate for the
entire period. |
Foreign Subsidiary means any Subsidiary of
Moog that is not a Domestic Subsidiary.
GAAP means generally accepted accounting
principles set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of
Certified Public Accountants, the opinions and pronouncements of
the Public Company Accounting Oversight Board and in the
statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity
as have been approved by a significant segment of the accounting
profession, which are in effect on the Issue Date.
Guarantee means, as to any Person, a
guarantee other than by endorsement of negotiable instruments
for collection in the ordinary course of business, direct or
indirect, in any manner including, without limitation, by way of
a pledge of assets or through letters of credit or reimbursement
agreements in respect thereof, of all or any part of any
Indebtedness of another Person.
Guarantor means any Subsidiary that executes
a Note Guarantee in accordance with the provisions of the
Indenture and its successors and assigns until released from its
obligations under its Note Guarantee and the Indenture in
accordance with the terms of the Indenture.
Hedging Obligations means, with respect to
any specified Person, the obligations of such Person under:
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(1) interest rate swap agreements, interest rate cap
agreements, interest rate collar agreements and other agreements
or arrangements designed for the purpose of fixing, hedging or
swapping interest rate risk; |
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(2) commodity swap agreements, commodity option agreements,
forward contracts and other agreements or arrangements designed
for the purpose of fixing, hedging or swapping commodity price
risk; and |
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(3) foreign exchange contracts, currency swap agreements
and other agreements or arrangements designed for the purpose of
fixing, hedging or swapping foreign currency exchange rate risk. |
incur means, with respect to any
Indebtedness, to incur, create, issue, assume, Guarantee or
otherwise become directly or indirectly liable for or with
respect to, or become responsible for, the payment of,
contingently or otherwise, such Indebtedness; provided
that (1) any Indebtedness of a Person existing at the
time such Person becomes a Restricted Subsidiary of Moog will be
deemed to be incurred by such Restricted Subsidiary at the time
it becomes a Restricted Subsidiary of Moog and (2) neither
the accrual of interest nor the accretion of original issue
discount nor the payment of interest in the form of additional
Indebtedness with the same terms and the payment of dividends on
Disqualified Stock in the form of additional shares of the same
class of Disqualified Stock (to the extent provided for when the
Indebtedness or Disqualified Stock on which such interest or
dividend is paid was originally issued) shall be considered an
incurrence of Indebtedness; provided that in each case
the amount thereof is for all other purposes included in the
Fixed Charges and Indebtedness of Moog or its Restricted
Subsidiary as accrued.
Indebtedness means, with respect to any
specified Person, any indebtedness of such Person, whether or
not contingent:
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(1) in respect of borrowed money; |
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(2) evidenced by bonds, notes, debentures or similar
instruments; |
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(3) evidenced by letters of credit (or reimbursement
agreements in respect thereof), but excluding obligations with
respect to letters of credit (including trade letters of credit)
securing obligations (other than obligations described in
clause (1) or (2) above or clause (5), (6) or
(8) below) entered into in the ordinary course of business
of such Person to the extent such letters of credit are not
drawn upon or, if drawn upon, to the extent such drawing is
reimbursed no later than the third Business Day following
receipt by such Person of a demand for reimbursement; |
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(4) in respect of bankers acceptances; |
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(5) in respect of Capital Lease Obligations; |
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(6) in respect of the balance deferred and unpaid of the
purchase price of any property, except any such balance that
constitutes an accrued expense or trade payable; |
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(7) representing Hedging Obligations, other than Hedging
Obligations that are incurred for the purpose of fixing, hedging
or swapping interest rate, commodity price or foreign currency
exchange rate risk (or to reverse or amend any such agreements
previously made for such purposes), and not for speculative
purposes, and that do not increase the Indebtedness of the
obligor outstanding at any time other than as a result of
fluctuations in interest rates, commodity prices or foreign
currency exchange rates or by reason of fees, indemnities and
compensation payable thereunder; |
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(8) representing Disqualified Stock valued at the greater
of its voluntary or involuntary maximum fixed repurchase price
plus accrued dividends; or |
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(9) with respect to Moog, all obligations pursuant to the
Supplemental Plan. |
In addition, the term Indebtedness includes
(x) all Indebtedness of others secured by a Lien on any
asset of the specified Person (whether or not such Indebtedness
is assumed by the specified Person), provided that the
amount of such Indebtedness shall be the lesser of (A) the
fair market value of such asset at such date of determination
and (B) the amount of such Indebtedness, and (y) to
the extent not otherwise included, the Guarantee by the
specified Person of any Indebtedness of any other Person. For
purposes hereof, the maximum fixed repurchase price
of any Disqualified Stock which does not have a fixed repurchase
price shall be calculated in accordance with the terms of such
Disqualified Stock as if such Disqualified Stock were
repurchased on any date on which Indebtedness shall be required
to be determined pursuant to the Indenture, and, if such price
is based upon, or measured by, the fair market value of such
Disqualified Stock, such fair market value shall be determined
in good faith by the Board of Directors of the issuer of such
Disqualified Stock.
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The amount of any Indebtedness outstanding as of any date shall
be the outstanding balance at such date of all unconditional
obligations as described above and, with respect to contingent
obligations, the maximum liability upon the occurrence of the
contingency giving rise to the obligation, and shall be:
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(1) the accreted value thereof, in the case of any
Indebtedness issued with original issue discount; and |
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(2) the principal amount thereof, together with any
interest thereon that is more than 30 days past due, in the
case of any other Indebtedness; |
provided that Indebtedness shall not include:
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(i) any liability for federal, state, local or other taxes; |
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(ii) obligations in respect of performance, surety or
appeal bonds or performance or completion guarantees provided in
the ordinary course of business; |
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(iii) any liability arising from the honoring by a bank or
other financial institution of a check, draft or similar
instrument drawn against insufficient funds in the ordinary
course of business, provided, however, that such
liability is extinguished within five Business Days of its
incurrence; or |
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(iv) Guarantees or letters of credit, surety bonds or
performance bonds securing any obligations of Moog or any of its
Restricted Subsidiaries pursuant to agreements providing for
adjustment of purchase price or similar obligations, in any
case, incurred in connection with the disposition of any
business, assets or Restricted Subsidiary (other than Guarantees
of Indebtedness incurred by any Person acquiring all or any
portion of such business, assets or Restricted Subsidiary for
the purpose of financing such acquisition), so long as the
principal amount does not exceed the gross proceeds actually
received by Moog or any Restricted Subsidiary in connection with
such disposition. |
Investments means, with respect to any
Person, all direct or indirect investments by such Person in
other Persons (including Affiliates) in the forms of loans or
other extensions of credit (including Guarantees, but excluding
advances to customers or suppliers in the ordinary course of
business that are, in conformity with GAAP, recorded as accounts
receivable, prepaid expenses or deposits on the balance sheet of
Moog or its Restricted Subsidiaries and endorsements for
collection or deposit arising in the ordinary course of
business), advances (excluding commission, payroll, travel and
similar advances to officers and employees made consistent with
past practices), capital contributions (by means of any transfer
of cash or other property to others or any payment for property
or services for the account or use of others), purchases or
other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are
or would be classified as investments on a balance sheet
prepared in accordance with GAAP.
If Moog or any Restricted Subsidiary of Moog sells or otherwise
disposes of any Equity Interests of any Restricted Subsidiary of
Moog such that, after giving effect to any such sale or
disposition, such Person is no longer a Restricted Subsidiary of
Moog, Moog will be deemed to have made an Investment on the date
of any such sale or disposition equal to the fair market value
of the Investment in such Subsidiary not sold or disposed of in
an amount determined as provided in the final paragraph of the
covenant described in this prospectus under the caption
Certain Covenants Restricted
Payments. The acquisition by Moog or any Restricted
Subsidiary of Moog of a Person that holds an Investment in a
third Person shall be deemed to be an Investment by Moog or such
Restricted Subsidiary in such third Person in an amount equal to
the fair market value of the Investment held by the acquired
Person in such third Person in an amount determined as provided
in the final paragraph of the covenant described in this
prospectus under the caption Certain
Covenants Restricted Payments.
Issue Date means the date of original
issuance of the Existing Notes under the Indenture.
Legal Holiday means a Saturday, a Sunday or a
day on which banking institutions in The City of New York or at
a place of payment are authorized by law, regulation or
executive order to remain closed.
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Lien means, with respect to any asset, any
mortgage, lien, pledge, charge, security interest or encumbrance
of any kind in respect of such asset, whether or not filed,
recorded or otherwise perfected under applicable law, including
any conditional sale or other title retention agreement, any
lease in the nature thereof, any option or other agreement to
sell or give a security interest in and any filing of or
agreement to give any financing statement under the Uniform
Commercial Code (or equivalent statutes) of any jurisdiction.
Moodys means Moodys Investors
Service, Inc. and its successors.
Net Income means, with respect to any
specified Person, the net income (loss) of such Person,
determined in accordance with GAAP and before any reduction in
respect of Preferred Stock dividends, excluding, however:
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(1) any gain (but not loss), together with any related
provision for taxes on such gain (but not loss), realized in
connection with: (a) any sale of assets outside the
ordinary course of business of such Person; or (b) the
disposition of any securities by such Person or any of its
Restricted Subsidiaries or the extinguishment of any
Indebtedness of such Person or any of its Restricted
Subsidiaries; and |
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(2) any extraordinary gain (but not loss), together with
any related provision for taxes on such extraordinary gain (but
not loss). |
Net Proceeds means the aggregate cash
proceeds, including payments in respect of deferred payment
obligations (to the extent corresponding to the principal, but
not the interest component, thereof) received by Moog or any of
its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale
or other disposition of any non-cash consideration received in
any Asset Sale), net of (1) the direct costs relating to
such Asset Sale, including, without limitation, legal,
accounting, investment banking and brokerage fees, and sales
commissions, and any relocation expenses incurred as a result
thereof, (2) taxes paid or payable as a result thereof, in
each case, after taking into account any available tax credits
or deductions and any tax sharing arrangements, (3) amounts
required to be applied to the repayment of Indebtedness or other
liabilities, secured by a Lien on the asset or assets that were
the subject of such Asset Sale, or is required to be paid as a
result of such sale, (4) any reserve for adjustment in
respect of the sale price of such asset or assets established in
accordance with GAAP and (5) appropriate amounts to be
provided by Moog or its Restricted Subsidiaries as a reserve
against liabilities associated with such Asset Sale, including,
without limitation, pension and other post-employment benefit
liabilities, liabilities related to environmental matters and
liabilities under any indemnification obligations associated
with such Asset Sale, all as determined in accordance with GAAP.
Obligations means any principal, interest,
penalties, fees, indemnifications, reimbursements, damages and
other liabilities payable under the documentation governing any
Indebtedness.
Officer means, with respect to any Person,
the Chairman of the Board, the Chief Executive Officer, the
President, the Chief Operating Officer, the Chief Financial
Officer, the Treasurer, any Assistant Treasurer, the Controller,
the Secretary or any Vice-President of such Person.
Officers Certificate means a
certificate signed on behalf of Moog by at least two Officers of
Moog, one of whom must be the principal executive officer, the
principal financial officer, the treasurer or the principal
accounting officer of Moog, that meets the requirements of the
Indenture.
Opinion of Counsel means an opinion from
legal counsel who is reasonably acceptable to the Trustee (who
may be counsel to or an employee of Moog) that meets the
requirements of the Indenture.
Permitted Business means any business
conducted or proposed to be conducted (as described in the
Offering Memorandum) by Moog and its Restricted Subsidiaries on
the Issue Date and other businesses reasonably related or
ancillary thereto.
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Permitted Investments means:
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(1) any Investment in Moog or in a Restricted Subsidiary of
Moog; |
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(2) any Investment in Cash Equivalents; |
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(3) any Investment by Moog or any Restricted Subsidiary of
Moog in a Person if as a result of such Investment: |
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(a) such Person becomes a Restricted Subsidiary of
Moog; or |
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(b) such Person is merged, consolidated or amalgamated with
or into, or transfers or conveys substantially all of its assets
to, or is liquidated into, Moog or a Restricted Subsidiary of
Moog; |
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(4) any Investment made as a result of the receipt of
non-cash consideration from an Asset Sale that was made pursuant
to and in compliance with the covenant described above under the
caption Repurchase at the Option of
Holders Asset Sales; |
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(5) Investments to the extent acquired in exchange for the
issuance of Equity Interests (other than Disqualified Stock) of
Moog; |
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(6) Hedging Obligations that are incurred for the purpose
of fixing, hedging or swapping interest rate, commodity price or
foreign currency exchange rate risk (or to reverse or amend any
such agreements previously made for such purposes), and not for
speculative purposes, and that do not increase the Indebtedness
of the obligor outstanding at any time other than as a result of
fluctuations in interest rates, commodity prices or foreign
currency exchange rates or by reason of fees, indemnities and
compensation payable thereunder; |
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(7) loans or advances to Moogs officers or employees
or those of any Restricted Subsidiary of Moog that do not in the
aggregate exceed $7 million at any time outstanding; |
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(8) stock, obligations or securities received in
satisfaction of judgments or as a result of the compromise or
resolution of a dispute or in a workout of a claim; |
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(9) Investments in the Supplemental Plan; and |
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(10) other Investments in any Person (other than a Person
that controls Moog) having an aggregate fair market value
(measured on the date each such Investment was made and without
giving effect to subsequent changes in value), when taken
together with all other Investments made pursuant to this
clause (10) since the Issue Date, not to exceed the
greater of $50 million and 50% of the Consolidated Cash
Flow of Moog for Moogs most recently ended four full
fiscal quarters for which internal financial statements are
available immediately preceding the date such Investment is made. |
Permitted Liens means:
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(1) Liens on the assets of Moog or any Guarantor securing
Senior Debt that was permitted by the terms of the Indenture to
be incurred and Liens on the assets of any other Restricted
Subsidiary securing Indebtedness incurred by such Restricted
Subsidiary; |
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(2) Liens in favor of Moog or any Restricted Subsidiary; |
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(3) Liens on property of a Person existing at the time such
Person is merged with or into or consolidated with Moog or any
Restricted Subsidiary of Moog, provided that such Liens were in
existence prior to the contemplation of such merger or
consolidation and do not extend to any assets other than those
of the Person merged into or consolidated with Moog or the
Restricted Subsidiary; |
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(4) Liens on property existing at the time of acquisition
thereof by Moog or any Restricted Subsidiary of Moog,
provided that such Liens were in existence prior to the
contemplation of such |
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acquisition and do not extend to any property other than the
property so acquired by Moog or the Restricted Subsidiary; |
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(5) Liens existing on the Issue Date; |
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(6) Liens incurred in the ordinary course of business of
Moog or any Restricted Subsidiary of Moog with respect to
obligations that do not exceed $10.0 million at any one
time outstanding; |
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(7) Liens to secure Indebtedness (including Capital Lease
Obligations) permitted by clause (4) of the second
paragraph of the covenant described in this prospectus under the
caption Certain Covenants
Incurrence of Indebtedness and Issuance of Preferred Stock
provided that any such Lien (i) covers only the
assets acquired, constructed or improved with such Indebtedness
and (ii) is created within 180 days of such
acquisition, construction or improvement; and |
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(8) Liens securing Permitted Refinancing Indebtedness;
provided that any such Lien covers only the assets that
secure the Indebtedness being refinanced. |
Permitted Refinancing Indebtedness means any
Indebtedness of Moog or any of its Restricted Subsidiaries
issued in exchange for, or the net proceeds of which are used to
extend, refinance, renew, replace, defease or refund other
Indebtedness of Moog or any of its Restricted Subsidiaries;
provided that:
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(1) the principal amount (or accreted value, if applicable)
of such Permitted Refinancing Indebtedness does not exceed the
principal amount (or accreted value, if applicable) of the
Indebtedness so extended, refinanced, renewed, replaced,
defeased or refunded (plus all accrued and unpaid interest
thereon and the amount of any reasonably determined premium
necessary to accomplish such refinancing and such reasonable
expenses incurred in connection therewith); |
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(2) such Permitted Refinancing Indebtedness has a final
maturity date later than the final maturity date of, and has a
Weighted Average Life to Maturity equal to or greater than the
Weighted Average Life to Maturity of, the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded; |
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(3) if the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded is subordinated in right
of payment to the notes or any Note Guarantees, such Permitted
Refinancing Indebtedness has a final maturity date later than
the final maturity date of, and is subordinated in right of
payment to, the notes or such Note Guarantees on terms at least
as favorable to the Holders of notes as those contained in the
documentation governing the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; |
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(4) if the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded is pari passu in
right of payment with the notes or any Note Guarantees, such
Permitted Refinancing Indebtedness is pari passu with, or
subordinated in right of payment to, the notes or such Note
Guarantees; and |
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(5) such Permitted Refinancing Indebtedness is incurred
either by Moog or by the Restricted Subsidiary that is an
obligor on the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded. |
Person means any individual, corporation,
partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, limited liability company or
government or other entity.
Preferred Stock means, with respect to any
Person, any Capital Stock of such Person that has preferential
rights to any other Capital Stock of such Person with respect to
dividends or redemptions upon liquidation.
Registration Rights Agreement means any
registration rights agreement between Moog and the other parties
thereto relating to the registration of the new notes under the
Securities Act.
Replacement Assets means (1) non-current
tangible assets that will be used or useful in a Permitted
Business or (2) substantially all the assets of a Permitted
Business or a majority of the Voting
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Stock of any Person engaged in a Permitted Business that will
become on the date of acquisition thereof a Restricted
Subsidiary.
Restricted Investment means an Investment
other than a Permitted Investment.
Restricted Subsidiary of a Person means any
Subsidiary of such Person that is not an Unrestricted Subsidiary.
S&P means Standard & Poors
Rating Services and its successors.
Significant Subsidiary means any Subsidiary
that would constitute a significant subsidiary
within the meaning of Article 1 of Regulation S-X of
the Securities Act.
Stated Maturity means, with respect to any
installment of interest or principal on any series of
Indebtedness, the date on which such payment of interest or
principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any
contingent obligations to repay, redeem or repurchase any such
interest or principal prior to the date originally scheduled for
the payment thereof.
Subsidiary means, with respect to any
specified Person:
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(1) any corporation, association or other business entity
of which more than 50% of the total voting power of shares of
Capital Stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or
trustees thereof is at the time owned or controlled, directly or
indirectly, by such Person or one or more of the other
Subsidiaries of that Person (or a combination thereof); and |
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(2) any partnership (a) the sole general partner or
the managing general partner of which is such Person or a
Subsidiary of such Person or (b) the only general partners
of which are such Person or one or more Subsidiaries of such
Person (or any combination thereof). |
Supplemental Plan means, collectively, the
Moog Inc. Supplemental Retirement Plan and the Moog Inc.
Supplemental Retirement Plan Trust, in each case, as in effect
on the Issue Date or as may be amended from time to time with
the approval of a majority of the disinterested members of the
Board of Directors.
Treasury Rate means the yield to maturity at
the time of computation of United States Treasury securities
with a constant maturity (as compiled and published in the most
recent Federal Reserve Statistical Release H.15 (519) which
has become publicly available at least two Business Days prior
to the date fixed for prepayment (or, if such Statistical
Release is no longer published, any publicly available source
for similar market data)) most nearly equal to the then
remaining term of the notes to January 15, 2010;
provided, however, that if the then remaining term of the
notes to January 15, 2010 is not equal to the constant
maturity of a United States Treasury security for which a weekly
average yield is given, the Treasury Rate shall be obtained by
linear interpolation (calculated to the nearest one-twelfth of a
year) from the weekly average yields of United States Treasury
securities for which such yields are given, except that, if the
then remaining term of the notes to January 15, 2010 is
less than one year, the weekly average yield on actually traded
United States Treasury securities adjusted to a constant
maturity of one year shall be used.
Unrestricted Subsidiary means any Subsidiary
of Moog that is designated by the Board of Directors of Moog, as
an Unrestricted Subsidiary pursuant to a Board Resolution in
compliance with the covenant described in this prospectus under
the caption Certain Covenants
Designation of Restricted and Unrestricted Subsidiaries,
and any Subsidiary of such Subsidiary.
U.S. Government Obligations means
securities which are direct obligations of or non-callable
obligations guaranteed by the United States of America for the
payment of which obligations or guarantee the full faith and
credit of the United States of America is pledged.
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Voting Stock of any Person as of any date
means the Capital Stock of such Person that is at the time
entitled to vote in the election of the Board of Directors of
such Person.
Weighted Average Life to Maturity means, when
applied to any Indebtedness at any date, the number of years
obtained by dividing:
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(1) the sum of the products obtained by multiplying
(a) the amount of each then remaining installment, sinking
fund, serial maturity or other required payments of principal,
including payment at final maturity, in respect thereof, by
(b) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making
of such payment; by |
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(2) the then outstanding principal amount of such
Indebtedness. |
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CERTAIN U.S. FEDERAL INCOME TAX CONSIDERATIONS
The following discussion summarizes certain U.S. federal
income tax considerations that may be relevant to the exchange
of the old notes for the new notes and the ownership and
disposition by an initial beneficial owner of the new notes.
This discussion is based upon the provisions of the Internal
Revenue Code of 1986, as amended (the Code),
applicable Treasury Regulations promulgated thereunder, judicial
authority and administrative interpretations, as of the date
hereof, all of which are subject to change, possibly with
retroactive effect, or are subject to different interpretations.
We cannot assure you that the Internal Revenue Service
(IRS) will not challenge one or more of the tax
consequences described herein, and we have not obtained, nor do
we intend to obtain, a ruling from the IRS or an opinion of
counsel with respect to the U.S. federal income tax
consequences of acquiring, holding or disposing of the notes.
In this discussion, we do not purport to address all tax
considerations that may be important to a particular holder in
light of the holders circumstances, or to certain
categories of investors that may be subject to special rules,
such as financial institutions, insurance companies, regulated
investment companies, tax-exempt organizations, dealers in
securities or currencies, persons whose functional currency is
not the U.S. dollar, partnerships or other pass-through
entities for U.S. federal income tax purposes,
U.S. expatriates, or persons who hold the notes as part of
a hedge, conversion transaction, straddle or other risk
reduction transaction. This discussion is limited to initial
holders who purchased the old notes for cash at the original
offering price and who hold the new notes as capital assets
(generally for investment purposes). If a partnership holds old
notes or new notes, the tax treatment of a partner generally
will depend upon the status of the partner and the activities of
the partnership. This summary does not consider any tax
consequences arising under United States federal gift and estate
tax law (except to the limited extent set forth in this
prospectus under the caption Consequences to
Non-U.S. Holders) or under the laws of any foreign,
state, local or other jurisdiction.
Any tax statement herein regarding any U.S. federal tax
consequences is not intended or written to be used, and cannot
be used, by any taxpayer for purpose of avoiding any penalties.
Any such statement herein was written in connection with the
marketing or promotion of the transaction to which the statement
relates. Investors considering whether to exchange old notes for
new notes should consult their own independent tax advisors
regarding the application of the U.S. federal tax laws to
their particular situations and the applicability and effect of
state, local or foreign tax laws and tax treaties.
Consequences to U.S. Holders
You are a U.S. Holder for purposes of this
discussion if you are a beneficial owner of a note and you are
for U.S. federal income tax purposes:
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an individual who is a U.S. citizen or U.S. resident
alien; |
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a corporation, or other entity taxable as a corporation for
U.S. federal income tax purposes, that was created or
organized in or under the laws of the United States, any state
thereof or the District of Columbia; |
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an estate whose income is subject to U.S. federal income
taxation regardless of its source; or |
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a trust (i) if a court within the United States is able to
exercise primary supervision over the administration of the
trust and one or more U.S. Persons have the authority to
control all substantial decisions of the trust, or
(ii) that has a valid election in effect under applicable
U.S. Treasury Regulations to be treated as a
U.S. Person. |
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Interest on the New Notes |
You will generally be required to recognize as ordinary income
any interest paid or accrued on the new notes, in accordance
with your regular method of accounting for U.S. federal
income tax purposes.
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Disposition of the New Notes |
You will generally recognize capital gain or loss on the sale,
redemption, exchange, retirement or other taxable disposition of
the new note. This gain or loss will equal the difference
between your adjusted tax basis in the new note and the proceeds
you receive for the new note, excluding any proceeds
attributable to accrued interest which will be recognized as
ordinary interest income to the extent you have not previously
included the accrued interest in gross income. The proceeds you
receive will include the amount of any cash and the fair market
value of any other property received for the new note. Your
adjusted tax basis in the new note will generally equal the
amount you paid for the old note reduced by any principal
payments received. Under current United States federal income
tax law, net long-term capital gains of non-corporate
U.S. Holders (including individuals) are eligible for
taxation at preferential rates. The deductibility of capital
losses may be subject to limitation.
The exchange of an old note for a new note pursuant to the
exchange offer should not constitute a material modification of
the terms of an old note and, therefore, should not constitute a
taxable event for U.S. federal income tax purposes.
Accordingly, the exchange should have no U.S. federal
income tax consequences to a U.S. Holder, so that the
U.S. Holders holding period and adjusted tax basis
for a new note would not be affected, and the U.S. Holder
would continue to take into account income in respect of a new
note in the same manner as before the exchange.
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Information Reporting and Backup Withholding |
Information reporting will apply to payments of interest on, or
the proceeds of the sale or other disposition of, new notes held
by you, and backup withholding (currently at a rate of 28%) may
apply unless you provide your taxpayer identification number,
certified under penalties of perjury, as well as certain other
information or otherwise establish an exemption from backup
withholding. Certain holders (including, among others,
corporations and certain tax-exempt organizations) are generally
not subject to backup withholding. Backup withholding is not an
additional tax. Any amount withheld under the backup withholding
rules is allowable as a credit against your U.S. federal
income tax liability, if any, and a refund may be obtained if
the amounts withheld exceed your actual U.S. federal income
tax liability and you provide the required information or
appropriate claim form to the IRS.
Consequences to Non-U.S. Holders
You are a Non-U.S. Holder for purposes of this
discussion if you are a beneficial owner of notes that is
neither a U.S. Holder nor a partnership or other pass
through entity for U.S. federal income tax purposes.
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Interest on the New Notes |
Payments of interest on the notes generally will be exempt from
U.S. federal income tax and withholding tax under the
portfolio interest exemption if you properly certify
as to your foreign status as described below, and:
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you do not own, actually or constructively, 10% or more of the
combined voting power of all classes of stock entitled to
vote; and |
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you are not a controlled foreign corporation that is
related to us. |
The exchange of an old note for a new note pursuant to the
exchange offer should have no U.S. federal income tax
consequences to a Non-U.S. Holder. Accordingly, the
Non-U.S. Holder should continue to take into account income
in respect of a new note in the same manner as before the
exchange.
The portfolio interest exemption and several of the special
rules for Non-U.S. Holders described below generally apply
only if you appropriately certify as to your foreign status. You
can generally meet
77
this certification requirement by providing a properly executed
IRS Form W-8BEN or appropriate substitute form to us or our
paying agent certifying under penalty of perjury that you are
not a U.S. person. If you hold the new notes through a
financial institution or other agent acting on your behalf, you
may be required to provide appropriate certifications to the
agent. Your agent will then generally be required to provide
appropriate certifications to us or our paying agent, either
directly or through other intermediaries. Special rules apply to
foreign partnerships, estates and trusts, and in certain
circumstances certifications as to foreign status of partners,
trust owners or beneficiaries may have to be provided to us or
our Paying Agent. In addition, special rules apply to qualified
intermediaries that enter into withholding agreements with the
IRS.
If you cannot satisfy the requirements described above, payments
of interest made to you will be subject to the 30%
U.S. federal withholding tax, unless you provide us with a
properly executed IRS Form W-8BEN (or successor form)
claiming an exemption from (or a reduction of) withholding under
the benefit of a tax treaty, or the payments of interest are
effectively connected with your conduct of a trade or business
in the United States and you meet the certification requirements
described below. See the discussion in this prospectus under the
caption Income or Gain Effectively Connected
with a U.S. Trade or Business.
You generally will not be subject to U.S. federal income
tax (and generally no tax will be withheld) on any gain realized
on the sale, redemption, exchange, retirement or other taxable
disposition of a new note unless:
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the gain is effectively connected with the conduct by you of a
U.S. trade or business (and in the case of an applicable
tax treaty, attributable to your permanent establishment in the
United States); or |
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you are an individual who has been present in the United States
for 183 days or more in the taxable year of disposition and
certain other requirements are met. |
The exchange of an old note for a new note pursuant to the
exchange offer should have no U.S. federal income tax
consequences to a Non-U.S. Holder. Accordingly, the
Non-U.S. Holder should continue to take into account income
in respect of a new note in the same manner as before the
exchange.
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Income or Gain Effectively Connected with a
U.S. Trade or Business |
If any interest on the notes or gain from the sale, exchange or
other taxable disposition of the notes is effectively connected
with a U.S. trade or business conducted by you (and in the
case of an applicable treaty, attributable to your permanent
establishment in the United States), then the income or gain
will be subject to U.S. federal income tax at regular
graduated income tax rates, but will not be subject to
withholding tax if certain certification requirements are
satisfied. You can generally meet the certification requirements
by providing a properly executed IRS Form W-8ECI or
appropriate substitute form to us, or our paying agent. If you
are a corporation, the portion of your earnings and profits that
is effectively connected with your U.S. trade or business
(and, in the case of an applicable tax treaty, attributable to
your permanent establishment in the United States) also may be
subject to an additional branch profits tax at a 30%
rate, although an applicable tax treaty may provide for a lower
rate.
If you are an individual and qualify for the portfolio interest
exemption under the rules described above, the new notes held or
treated as held by you will not be included in your estate for
U.S. federal estate tax purposes, unless the income on the
new notes is, at the time of your death, effectively connected
with your conduct of a trade or business in the United States.
78
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Information Reporting and Backup Withholding |
Payments to Non-U.S. Holders of interest on a new note, and
amounts withheld from such payments, if any, generally will be
required to be reported to the IRS and to you.
Backup withholding tax generally will not apply to payments of
interest and principal on a note to a Non-U.S. Holder if
certification such as an IRS Form W-8BEN described in this
prospectus under the caption Consequences to
Non-U.S. Holders Interest on the New
Notes is duly provided by the holder or the holder
otherwise establishes an exemption, provided that we do not have
actual knowledge or reason to know that the holder is a United
States person.
Payment of the proceeds of a sale of a new note effected by the
U.S. office of a U.S. or foreign broker will be
subject to information reporting requirements and backup
withholding unless you properly certify under penalties of
perjury as to your foreign status and certain other conditions
are met or you otherwise establish an exemption. Information
reporting requirements and backup withholding generally will not
apply to any payment of the proceeds of the sale of a note
effected outside the United States by a foreign office of a
broker. However, unless such a broker has documentary evidence
in its records that you are a Non-U.S. Holder and certain
other conditions are met, or you otherwise establish an
exemption, information reporting will apply to a payment of the
proceeds of the sale of a note effected outside the United
States by such a broker if it:
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is a United States Person; |
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derives 50% or more of its gross income for certain periods from
the conduct of a trade or business in the United States; |
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is a controlled foreign corporation for U.S. federal income
tax purposes; or |
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is a foreign partnership that, at any time during its taxable
year, has more than 50% of its income or capital interests owned
by U.S. persons or is engaged in the conduct of a
U.S. trade or business. |
Backup withholding is not an additional tax. Any amount withheld
under the backup withholding rules may be credited against your
U.S. federal income tax liability and any excess may be
refundable if the proper information is provided to the IRS.
The preceding discussion of certain U.S. federal income
tax considerations is for general information only and is not
intended as tax advice to any particular investor. Each
prospective investor should consult its own independent tax
advisor regarding its particular situation and the federal,
state, local and foreign tax consequences of receiving, holding
and disposing of the new notes, including the consequences of
any proposed change in applicable laws.
79
PLAN OF DISTRIBUTION
Based upon existing interpretations of the Securities Act by the
staff of the Commission set forth in no action letters issued to
unrelated third parties, and subject to the immediately
following sentence, we believe that the new notes that will be
issued pursuant to the exchange offer may be offered for resale,
resold or otherwise transferred by the holders thereof without
further compliance with the registration and prospectus delivery
provisions of the Securities Act. However, any purchaser of
notes who (1) is an affiliate (within the
meaning of Rule 405 under the Securities Act) of the
issuers, (2) has an arrangement or understanding to
participate in the distribution (within the meaning of the
Securities Act) of the new notes, (3) is a broker-dealer
(within the meaning of the Securities Act) that acquired old
notes directly from an issuer and is participating or intends to
participate in the distribution (as so defined) of the new
notes, or (4) is a broker-dealer (within the meaning of the
Securities Act) that will receive new notes in exchange for old
notes acquired for its own account as a result of market-making
or other trading activities and is participating or intends to
participate in the distribution (as so defined) of the new
notes: (x) will not be able to rely on the interpretations
by the staff of the Commission set forth in the above mentioned
no action letters; (y) will not be able to tender its
original notes in the exchange offer; and (z) must comply
with the registration and prospectus delivery requirements of
the Securities Act in connection with any sale or transfer of
the notes unless such sale or transfer is made pursuant to an
exemption from such requirements.
Each broker-dealer that receives new notes, in exchange for old
notes where those old notes were acquired by the broker-dealer
for its own account as a result of market-making activities or
other trading activities, in an exchange offer may be deemed to
be an underwriter within the meaning of the
Securities Act and must acknowledge that it will deliver a
prospectus in connection with any resale of those new notes. The
letter of transmittal that accompanies this prospectus states
that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an
underwriter within the meaning of the Securities Act. A
broker-dealer may use this prospectus, as it may be amended or
supplemented from time to time, in connection with resales of
new notes received in exchange for old notes where those old
notes were acquired by the broker-dealer for its own account as
a result of market-making activities or other trading
activities. We have agreed, if requested by such a
broker-dealer, to use commercially reasonable efforts to keep
the registration statement of which this prospectus is a part
continuously effective for a period not to exceed 180 business
days after the date on which the applicable exchange offer is
consummated, or such longer period if extended under certain
circumstances, or such earlier date as all such requesting
broker-dealers have notified us in writing that all such
requesting broker-dealers have resold all new notes acquired in
the applicable exchange offer. We will provide copies of the
prospectus, as amended or supplemented from time to time, to any
broker-dealer promptly upon request at any time during such
180-day (or shorter or longer as provided in the preceding
sentence) period in order to facilitate such resales.
We will not receive any proceeds from any sale of new notes by
broker-dealers. New notes received by broker-dealers for their
own account in the exchange offers may be sold from time to time
in one or more transactions. These sales may be made in the
over-the-counter market, in negotiated transactions, through the
writing of options on the new notes or a combination of these
methods of resale, and may be at market prices prevailing at the
time of resale, at prices related to the prevailing market
prices or negotiated prices. Any resale of this kind may be made
directly to purchasers or to or through brokers or dealers who
may receive compensation in the form of commissions or
concessions from any of these broker-dealers and/or the
purchasers of any of these new notes. Any broker-dealer that
resells the new notes may be deemed to be an underwriter within
the meaning of the Securities Act. If this is the case, any
profit of any of these resales of new notes any commissions or
concessions received by any of these persons may be deemed to be
underwriting compensation under the Securities Act. The letter
of transmittal states that by acknowledging that it will deliver
and by delivering a prospectus, a broker-dealer will not be
deemed to admit that it is an underwriter within the meaning of
the Securities Act.
We have agreed to pay all expenses incident to the exchange
offer (including certain expenses of one counsel for certain
holders of the notes subject to the registration rights
agreement), other than commissions and concessions of any
brokers or dealers. We have also agreed to indemnify the holders
of the old notes, including any participating broker-dealer,
against various liabilities, including liabilities under the
Securities Act.
80
LEGAL MATTERS
Unless otherwise indicated in this prospectus, Hodgson Russ LLP,
Buffalo, New York will provide us with an opinion regarding the
validity of the notes offered hereby. John Drenning, our
Corporate Secretary, is a partner in Hodgson Russ LLP. He and
other attorneys in that firm beneficially own an aggregate of
approximately 9,433 shares of Class A common stock.
EXPERTS
The consolidated financial statements of Moog Inc. appearing in
Moog Inc.s Annual Report (Form 10-K) for the year
ended September 24, 2005 (including the financial statement
schedule appearing therein), and Moog Inc. managements
assessment of the effectiveness of internal control over
financial reporting as of September 24, 2005 included
therein (which did not include an evaluation of the internal
control over financial reporting of the Power and Data
Technologies Group of the Kaydon Corporation and FCS Control
Systems), have been audited by Ernst & Young LLP,
independent registered public accounting firm, as set forth in
its reports thereon, which as to the report on internal control
over financial reporting contains an explanatory paragraph
describing the above referenced exclusion of the Power and Data
Technologies Group of the Kaydon Corporation and FCS Control
Systems from the scope of managements assessment and such
firms audit of internal control over financial reporting,
included therein, and incorporated herein by reference. Such
financial statements and managements assessment have been
incorporated herein by reference in reliance upon such reports
given on the authority of such firm as experts in accounting and
auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements
and other information with the SEC pursuant to the Securities
Exchange Act of 1934, or the Exchange Act. You may
read and copy any document we file at the SECs public
reference room at 100 F Street, NE, Washington, DC 20549. Please
call the SEC at 1-800-SEC-0330 for further information on the
public reference room. Our SEC filings are available to the
public over the Internet at the SECs web site at
http://www.sec.gov. Our Class A and Class B
common stock are listed and traded on the New York Stock
Exchange under the trading symbols MOG.A and
MOG.B respectively. You also may inspect and copy
our reports, proxy statements and other information filed with
the SEC at the New York Stock Exchange, 20 Broad Street,
New York, New York.
We are incorporating by reference in this prospectus
the information in documents we have filed with the SEC. This
means that we can disclose important information to you by
referring you to these documents. The information incorporated
by reference is considered to be a part of this prospectus.
We incorporate by reference in this prospectus the documents
listed below.
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Our Annual Report on Form 10-K for the year ended
September 24, 2005, which we filed with the SEC on
December 7, 2005; |
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Our definitive 2005 Proxy Statement on Schedule 14A, which
we filed with the SEC on December 9, 2005; and |
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All other documents filed by us pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this
prospectus and prior to the time the exchange offer is completed. |
Any statement contained in this prospectus or a document
incorporated or deemed to be incorporated by reference in this
prospectus will be deemed to be modified or superseded for
purposes of this prospectus to the extent that a statement
contained in this prospectus or in any other subsequently filed
document that is deemed to be incorporated by reference in this
prospectus modifies or supersedes the statement. Any statement
so modified or superseded will not be deemed, except as so
modified or superseded, to constitute a part of this prospectus.
81
You may request a copy of these documents, at no cost to you, by
writing or calling us at the following address:
Moog Inc.
Seneca St. at Jamison Rd.
Corporate Offices
East Aurora, NY 14052
Attention: Investor Relations
(716) 652-2000
Any statement made in this prospectus concerning the contents of
any contract, agreement or other document is only a summary of
the actual document. You may obtain a copy of any document
summarized in this prospectus at no cost by writing to or
calling us at the address and telephone number given above. Each
statement regarding a contract, agreement or other document is
qualified in its entirety by reference to the actual document.
82
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
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Item 20. |
Indemnification of Directors and Officers |
Sections 722 through 726 of the New York Business
Corporation Law, or BCL, grant New York corporations broad
powers to indemnify their present and former directors and
officers and those of affiliated corporations against expenses
(including attorneys fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred in
connection with threatened, pending or completed actions, suits
or proceedings to which they are parties or are threatened to be
made parties by reason of being or having been such directors or
officers, subject to specified conditions and exclusions; give a
director or officer who successfully defends an action the right
to be so indemnified; and permit a corporation to buy
directors and officers liability insurance. Such
indemnification is not exclusive of any other rights to which
those indemnified may be entitled under any by-laws, agreement,
vote of shareholders or otherwise.
Section 402(b) of the BCL permits a New York corporation to
include in its certificate of incorporation a provision
eliminating the potential monetary liability of a director to
the corporation or its stockholders for breach of fiduciary duty
as a director, provided that such provision shall not eliminate
the liability of a director (i) for any breach of the
directors 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) for improper payment of dividends, or
(iv) for any transaction from which the director receives
an improper personal benefit. Moogs Restated Certificate
of Incorporation includes the provisions permitted by
Section 402(b) of the BCL.
Moogs By-Laws provide that Moog shall indemnify such
directors and officers against expenses, judgments, fines or
amounts paid in settlement in connection with any action, suit
or proceeding, or threat thereof, to the maximum extent
permitted by applicable law.
The following exhibits are filed with this registration
statement:
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Exhibit |
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No. |
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Description |
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2 |
.1 |
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Stock Purchase Agreement between Moog Inc., Moog Torrance Inc.
and AlliedSignal Inc., incorporated by reference to
exhibit 2.1 of the Companys report on Form 8-K
dated June 15, 1994. |
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2 |
.2 |
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Asset Purchase Agreement dated as of September 22, 1996
between Moog Inc., Moog Controls Inc., International Motion
Control Inc., Enidine Holdings, L.P. and Enidine Holding Inc.,
incorporated by reference to exhibit 2.1 of the
Companys report on Form 8-K dated October 28,
1996. |
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2 |
.3 |
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Stock Purchase Agreement dated October 20, 1998 between
Raytheon Aircraft Company and Moog Inc., incorporated by
reference to exhibit 2(i) of the Companys report on
Form 8-K dated November 30, 1998. |
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2 |
.4 |
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Asset Purchase and Sale Agreement by and between Litton Systems,
Inc. and Moog Inc. dated as of August 14, 2003,
incorporated by reference to exhibit 2.1 of the
Companys report on Form 8-K dated September 4,
2003. |
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2 |
.5 |
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Stock Purchase Agreement by and among Kaydon Corporation, Kaydon
Corporation Limited and Kaydon Acquisition IX, Inc. and Moog
Inc., Moog Controls Limited and Moog Canada Corporation, dated
July 26, 2005, incorporated by reference to
exhibit 10.1 of the Companys report on Form 10-Q
for the quarter ended June 25, 2005. |
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3 |
.1 |
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Restated Certificate of Incorporation of the Company,
incorporated by reference to exhibit (3) of the
Companys Annual Report on Form 10-K for the fiscal
year ended September 30, 1989. |
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3 |
.2 |
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Restated By-laws of the Company, incorporated by reference to
appendix B of the proxy statement filed under Schedule 14A on
December 2, 2003. |
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4 |
.1 |
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Form of Indenture between Moog Inc. and JPMorgan Chase Bank,
N.A., as Trustee, dated January 10, 2005, relating to the
61/4% Senior
Subordinated Notes due 2015, incorporated by reference to
exhibit 4.1 of the Companys report on Form 8-K
dated January 5, 2005. |
II-1
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Exhibit |
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No. |
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Description |
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4 |
.2 |
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First Supplemental Indenture between Moog Inc. and Banc of
America Securities, LLC, dated as of September 12, 2005,
incorporated by reference to exhibit 4.2 of the
Companys Annual Report on Form 10-K for the fiscal
year ended September 24, 2005. |
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4 |
.3 |
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Registration Rights Agreement between Moog Inc. and Banc of
America Securities, LLC, dated as of September 12, 2005,
incorporated by reference to exhibit 4.3 of the
Companys Annual Report on Form 10-K for the fiscal
year ended September 24, 2005. |
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5 |
.1 |
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Opinion of Hodgson Russ LLP (Filed herewith). |
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9 |
.1 |
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Agreement as to Voting, effective November 30, 1983,
incorporated by reference to exhibit (i) of the
Companys report on Form 8-K dated December 9,
1983. |
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9 |
.2 |
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Agreement as to Voting, effective October 15, 1988,
incorporated by reference to exhibit (i) of the
Companys report on Form 8-K dated November 30,
1988. |
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10 |
.1 |
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Deferred Compensation Plan for Directors and Officers, amended
and restated May 16, 2002, incorporated by reference to
exhibit 10(ii) of the Companys Annual Report on
Form 10-K for the fiscal year ended September 28, 2002. |
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10 |
.2 |
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Savings and Stock Ownership Plan, incorporated by reference to
exhibit 4(b) of the Companys Annual Report on
Form 10-K for the fiscal year ended September 30, 1989. |
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10 |
.3 |
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Form of Employment Termination Benefits Agreement between Moog
Inc. and Employee-Officers, incorporated by reference to
exhibit 10(vii) of the Companys Annual Report on
Form 10-K for the fiscal year ended September 25, 1999. |
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10 |
.4 |
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Supplemental Retirement Plan, as amended and restated, effective
October 1, 1978 amended August 30, 1983,
May 19, 1987, August 30, 1988, December 12, 1996,
November 11, 1999 and November 29, 2001, incorporated
by reference to exhibit 10.1 of the Companys report
on Form 10-Q for the quarter ended December 31, 2002. |
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10 |
.5 |
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1998 Stock Option Plan, incorporated by reference to
exhibit A of the proxy statement filed under Schedule 14A
on January 5, 1998. |
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10 |
.6 |
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2003 Stock Option Plan, incorporated by reference to
exhibit A of the proxy statement filed under Schedule 14A
on January 9, 2003. |
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10 |
.7 |
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Amended and Restated Loan Agreement among Certain Lenders, HSBC
Bank USA, as agent, and Moog Inc. dated as of March 3,
2003, incorporated by reference to exhibit 10.1 of the
Companys report on Form 10-Q for the quarter ended
March 31, 2003. |
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10 |
.8 |
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Modification No. 1 to Amended and Restated Loan Agreement
among certain lenders, HSBC Bank USA, as agent, and Moog Inc.
dated as of August 6, 2003, incorporated by reference to
exhibit 10.1 of the Companys report on Form 8-K
dated September 4, 2003. |
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10 |
.9 |
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Moog Inc. Stock Employee Compensation Trust Agreement effective
December 2, 2003, incorporated by reference to
exhibit 10.1 of the Companys report on Form 10-Q
for the quarter ended December 31, 2003. |
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10 |
.10 |
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Modification No. 2 to Amended and Restated Loan Agreement
among certain lenders, HSBC Bank USA, as agent, and Moog Inc.,
dated as of March 5, 2004, incorporated by reference to
exhibit 10.1 of the Companys report on Form 10-Q
for the quarter ended March 31, 2004. |
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10 |
.11 |
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Form of Indemnification Agreement for officers, directors and
key employees, incorporated by reference to exhibit 10.1 of
the Companys report on Form 8-K dated
November 30, 2004. |
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10 |
.12 |
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Forms of Stock Option Agreements under 1998 Stock Option Plan
and 2003 Stock Option Plan, incorporated by reference to
exhibit 10.12 of the Companys Annual Report on
Form 10-K for the fiscal year ended September 25, 2004. |
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10 |
.13 |
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Modification No. 3 to Amended and Restated Loan Agreement
among certain lenders, HSBC Bank USA, National Association, as
agent, and Moog Inc., dated as of December 17, 2004,
incorporated by reference to exhibit 10.1 of the
Companys report on Form 8-K dated December 29,
2004. |
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10 |
.14 |
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Description of Management Profit Sharing Program, incorporated
by reference to exhibit 10.1 of the Companys report
on Form 10-Q for the quarter ended March 26, 2005. |
II-2
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Exhibit |
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No. |
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Description |
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10 |
.15 |
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Modification No. 4 to Amended and Restated Loan Agreement
among certain lenders, HSBC Bank USA, National Association, as
agent, and Moog Inc., dated as of April 13, 2005,
incorporated by reference to exhibit 10.2 of the
Companys report on Form 10-Q for the quarter ended
March 26, 2005. |
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10 |
.16 |
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Modification No. 5 to Amended and Restated Loan Agreement
among certain lenders, HSBC Bank USA, National Association, as
agent, and Moog Inc., dated as of July 19, 2005,
incorporated by reference to exhibit 10.2 of the
Companys report on Form 10-Q for the quarter ended
June 25, 2005. |
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12 |
.1 |
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Computation of Ratio of Earnings to Fixed Charges (Filed
herewith). |
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21 |
.1 |
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Subsidiaries of the Company |
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Moog AG, Incorporated in Switzerland, wholly-owned subsidiary
with branch operation in Ireland |
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Moog Australia Pty. Ltd., Incorporated in Australia,
wholly-owned subsidiary |
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Moog do Brasil Controles Ltda., Incorporated in Brazil,
wholly-owned subsidiary |
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(a) Moog de Argentina Srl, Incorporated in Argentina,
wholly-owned subsidiary of Moog do Brasil Controles Ltda. |
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Moog Components Group Inc., Incorporated in New York,
wholly-owned subsidiary |
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Moog Controls Corporation, Incorporated in Ohio, wholly-owned
subsidiary with branch operation in the Republic of the
Philippines |
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Moog Controls Hong Kong Ltd., Incorporated in Peoples
Republic of China, wholly-owned subsidiary |
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(a) Moog Motion Controls (Shanghai) Co., Ltd., Incorporated
in Peoples Republic of China, wholly-owned subsidiary of
Moog Controls Hong Kong Ltd. |
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Moog Controls (India) Private Ltd., Incorporated in India,
wholly-owned subsidiary |
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Moog Controls Ltd., Incorporated in the United Kingdom,
wholly-owned subsidiary |
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(a) Moog Norden A.B., Incorporated in Sweden, wholly-owned
subsidiary of Moog Controls Ltd. |
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(b) Moog OY, Incorporated in Finland, wholly-owned
subsidiary of Moog Controls Ltd. |
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(c) IDM Technologies Limited, Incorporated in the United
Kingdom, wholly-owned subsidiary of Moog Controls Ltd. |
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Moog Control System (Shanghai) Co. Ltd., Incorporated in
Peoples Republic of China, wholly-owned subsidiary |
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Moog Europe Holdings y Cia, S.C.S., Incorporated in Spain,
wholly-owned subsidiary |
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(a) Moog Holding GmbH KG, a partnership organized in
Germany, wholly-owned subsidiary of Moog Europe Holdings y Cia,
S.C.S. |
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(1) Moog GmbH,
Incorporated in Germany, wholly-owned subsidiary of Moog Holding
GmbH KG |
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(1.a) Moog Italiana S.r.l.,
Incorporated in Italy, wholly-owned subsidiary of Moog GmbH |
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(2) Moog Hydrolux Sarl,
Incorporated in Luxembourg, wholly-owned subsidiary of Moog
Holding GmbH KG |
|
|
|
|
(3) Pro Control AG,
Incorporated in Switzerland, wholly-owned subsidiary of Moog
Holding GmbH KG |
|
|
|
|
(4) FCS Control Systems
BV, Incorporated in the Netherlands, wholly-owned subsidiary of
Moog Holding GmbH KG |
|
|
|
|
(4.a) FCS Test Systems,
Incorporated in the Netherlands, wholly-owned subsidiary of FCS
Control Systems BV |
|
|
|
|
(4.b) FCS Simulator Systems BV,
Incorporated in the Netherlands, wholly-owned subsidiary of FCS
Control Systems BV |
|
|
|
|
(4.c) FCS Kelsey Limited,
Incorporated in the United Kingdom, wholly-owned subsidiary of
FCS Control Systems BV |
|
|
|
|
(b) Moog Verwaltungs GmbH, Incorporated in Germany,
wholly-owned subsidiary of Moog Europe Holdings y Cia, S.C.S. |
II-3
|
|
|
|
|
Exhibit |
|
|
No. |
|
Description |
|
|
|
|
|
|
|
(c) Moog Ireland International Financial Services Centre
Limited, Incorporated in Ireland, wholly-owned subsidiary of
Moog Europe Holdings y Cia, S.C.S. |
|
|
|
|
(d) Focal Technologies Corporation, Incorporated in Canada,
wholly-owned subsidiary of Moog Europe Holdings y Cia, S.C.S. |
|
|
|
|
Moog FSC Ltd., Incorporated in the Virgin Islands, wholly-owned
subsidiary |
|
|
|
|
Moog Holland Aircraft Services BV, Incorporated in Holland,
wholly-owned subsidiary |
|
|
|
|
Moog Industrial Controls Corporation, Incorporated in New York,
wholly-owned subsidiary |
|
|
|
|
Moog Japan Ltd., Incorporated in Japan, wholly-owned subsidiary |
|
|
|
|
Moog Korea Ltd., Incorporated in South Korea, wholly-owned
subsidiary |
|
|
|
|
Moog Properties, Inc., Incorporated in New York, wholly-owned
subsidiary |
|
|
|
|
Moog Sarl, Incorporated in France, wholly-owned subsidiary, 95%
owned by Moog Inc.; 5% owned by Moog GmbH |
|
|
|
|
Moog Singapore Pte. Ltd., Incorporated in Singapore,
wholly-owned subsidiary |
|
|
|
|
(a) Moog Motion Controls Private Limited, Incorporated in
India, wholly-owned subsidiary of Moog Singapore Pte. Ltd. |
|
|
|
|
Electro-Tec Corporation, Incorporated in Delaware, wholly-owned
subsidiary |
|
|
|
|
FCS Com, Inc., Incorporated in Michigan, wholly-owned subsidiary |
|
23 |
.1 |
|
Consent of Ernst & Young LLP. (Filed herewith) |
|
23 |
.2 |
|
Consent of Hodgson Russ LLP (Filed herewith as exhibit 5.1). |
|
24 |
.1 |
|
Power of Attorney (included on the signature page of this
registration statement). |
|
25 |
.1 |
|
Statement of Eligibility of Trustee on Form T-1 (Filed
herewith). |
|
99 |
.1 |
|
Form of Letter of Transmittal (Filed herewith). |
|
99 |
.2 |
|
Notice of Guaranteed Deliver (Filed herewith). |
|
99 |
.3 |
|
Form of Letters to Clients (Filed herewith). |
|
99 |
.4 |
|
Form of Letters to Brokers (Filed herewith). |
(i) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the registrants annual report
pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each
filing of any employee benefit plans annual report
pursuant to Section 15(d) of the Securities Act of 1934)
that is incorporated by reference in this 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.
(ii) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the provisions referred to in Item 15 hereof, or otherwise,
the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is
against public policy as expressed in the 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 Act and will be
governed by the final adjudication of such issue.
(iii) The undersigned registrant hereby undertakes to
respond to requests for information that is incorporated by
reference into the prospectus pursuant to Items 4,
10(b), 11, or 13 of this Form, within one business day of
receipt of such request, and to send the incorporated documents
by first class mail or other equally prompt means. This includes
information contained in documents filed subsequent to the
effective date of the registration statement through the date of
responding to the request.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in East Aurora, New York on December 9, 2005.
|
|
|
Robert T. Brady |
|
President and Chief Executive Officer |
We, the undersigned officers and directors of Moog Inc., hereby
severally constitute and appoint Robert T. Brady and Robert R.
Banta and each of them singly, our true and lawful attorney and
agent with full power and authority to sign for us and in our
names in the capacities indicated below, the registration
statement on Form S-4 of Moog Inc. and any and all
amendments or supplements, whether pre-effective or
post-effective, to said registration statement and generally to
do all such things in our names and on our behalf in our
capacities as officers and directors to enable Moog Inc. to
comply with the provisions of the Securities Act, and all
requirements of the Securities and Exchange Commission, hereby
ratifying and confirming our signature as then may be signed by
our said attorneys or any of them, to said registration
statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed by the
following persons in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature |
|
Title |
|
Date |
|
|
|
|
|
|
/s/ Robert T. Brady
Robert
T. Brady |
|
Chairman of the Board, President and Chief Executive Officer and
Director (Principal Executive Officer) |
|
December 9, 2005 |
|
/s/ Robert R. Banta
Robert
R. Banta |
|
Executive Vice President, Chief Financial Officer (Principal
Financial Officer) and Director |
|
December 9, 2005 |
|
/s/ Donald R. Fishback
Donald
R. Fishback |
|
Controller (Principal Accounting Officer) |
|
December 9, 2005 |
|
/s/ Richard A. Aubrecht
Richard
A. Aubrecht |
|
Director |
|
December 9, 2005 |
|
/s/ Raymond Boushie
Raymond
Boushie |
|
Director |
|
December 9, 2005 |
|
/s/ James L. Gray
James
L. Gray |
|
Director |
|
December 9, 2005 |
|
/s/ Joe C. Green
Joe
C. Green |
|
Director |
|
December 9, 2005 |
|
/s/ John D. Hendrick
John
D. Hendrick |
|
Director |
|
December 9, 2005 |
II-5
|
|
|
|
|
|
|
Signature |
|
Title |
|
Date |
|
|
|
|
|
|
/s/ Kraig H. Kayser
Kraig
H. Kayser |
|
Director |
|
December 9, 2005 |
|
/s/ Brian J. Lipke
Brian
J. Lipke |
|
Director |
|
December 9, 2005 |
|
/s/ Robert H. Maskrey
Robert
H. Maskrey |
|
Director |
|
December 9, 2005 |
|
/s/ Albert F. Myers
Albert
F. Myers |
|
Director |
|
December 9, 2005 |
II-6
EXHIBIT INDEX
|
|
|
|
|
Exhibit |
|
|
No. |
|
Description |
|
|
|
|
2 |
.1 |
|
Stock Purchase Agreement between Moog Inc., Moog Torrance Inc.
and AlliedSignal Inc., incorporated by reference to
exhibit 2.1 of the Companys report on Form 8-K
dated June 15, 1994. |
|
2 |
.2 |
|
Asset Purchase Agreement dated as of September 22, 1996
between Moog Inc., Moog Controls Inc., International Motion
Control Inc., Enidine Holdings, L.P. and Enidine Holding Inc.,
incorporated by reference to exhibit 2.1 of the
Companys report on Form 8-K dated October 28,
1996. |
|
2 |
.3 |
|
Stock Purchase Agreement dated October 20, 1998 between
Raytheon Aircraft Company and Moog Inc., incorporated by
reference to exhibit 2(i) of the Companys report on
Form 8-K dated November 30, 1998. |
|
2 |
.4 |
|
Asset Purchase and Sale Agreement by and between Litton Systems,
Inc. and Moog Inc. dated as of August 14, 2003,
incorporated by reference to exhibit 2.1 of the
Companys report on Form 8-K dated September 4,
2003. |
|
2 |
.5 |
|
Stock Purchase Agreement by and among Kaydon Corporation, Kaydon
Corporation Limited and Kaydon Acquisition IX, Inc. and Moog
Inc., Moog Controls Limited and Moog Canada Corporation, dated
July 26, 2005, incorporated by reference to
exhibit 10.1 of the Companys report on Form 10-Q
for the quarter ended June 25, 2005. |
|
3 |
.1 |
|
Restated Certificate of Incorporation of the Company,
incorporated by reference to exhibit (3) of the
Companys Annual Report on Form 10-K for the fiscal
year ended September 30, 1989. |
|
3 |
.2 |
|
Restated By-laws of the Company, incorporated by reference to
appendix B of the proxy statement filed under Schedule 14A on
December 2, 2003. |
|
4 |
.1 |
|
Form of Indenture between Moog Inc. and JPMorgan Chase Bank,
N.A., as Trustee, dated January 10, 2005, relating to the
61/4% Senior
Subordinated Notes due 2015, incorporated by reference to
exhibit 4.1 of the Companys report on Form 8-K
dated January 5, 2005. |
|
4 |
.2 |
|
First Supplemental Indenture between Moog Inc. and Banc of
America Securities, LLC, dated as of September 12, 2005,
incorporated by reference to exhibit 4.2 of the
Companys Annual Report on Form 10-K for the fiscal
year ended September 24, 2005. |
|
4 |
.3 |
|
Registration Rights Agreement between Moog Inc. and Banc of
America Securities, LLC, dated as of September 12, 2005,
incorporated by reference to exhibit 4.3 of the
Companys Annual Report on Form 10-K for the fiscal
year ended September 24, 2005. |
|
5 |
.1 |
|
Opinion of Hodgson Russ LLP (Filed herewith). |
|
9 |
.1 |
|
Agreement as to Voting, effective November 30, 1983,
incorporated by reference to exhibit (i) of the
Companys report on Form 8-K dated December 9,
1983. |
|
9 |
.2 |
|
Agreement as to Voting, effective October 15, 1988,
incorporated by reference to exhibit (i) of the
Companys report on Form 8-K dated November 30,
1988. |
|
10 |
.1 |
|
Deferred Compensation Plan for Directors and Officers, amended
and restated May 16, 2002, incorporated by reference to
exhibit 10(ii) of the Companys Annual Report on
Form 10-K for the fiscal year ended September 28, 2002. |
|
10 |
.2 |
|
Savings and Stock Ownership Plan, incorporated by reference to
exhibit 4(b) of the Companys Annual Report on
Form 10-K for the fiscal year ended September 30, 1989. |
|
10 |
.3 |
|
Form of Employment Termination Benefits Agreement between Moog
Inc. and Employee-Officers other than the Treasurer and
Controller, incorporated by reference to exhibit 10(vii) of
the Companys Annual Report on Form 10-K for the
fiscal year ended September 25, 1999. |
|
10 |
.4 |
|
Supplemental Retirement Plan, as amended and restated, effective
October 1, 1978 amended August 30, 1983,
May 19, 1987, August 30, 1988, December 12, 1996,
November 11, 1999 and November 29, 2001, incorporated
by reference to exhibit 10.1 of the Companys report
on Form 10-Q for the quarter ended December 31, 2002. |
|
10 |
.5 |
|
1998 Stock Option Plan, incorporated by reference to
exhibit A of the proxy statement filed under Schedule 14A
on January 5, 1998. |
|
10 |
.6 |
|
2003 Stock Option Plan, incorporated by reference to
exhibit A of the proxy statement filed under Schedule 14A
on January 9, 2003. |
|
|
|
|
|
Exhibit |
|
|
No. |
|
Description |
|
|
|
|
10 |
.7 |
|
Amended and Restated Loan Agreement among Certain Lenders, HSBC
Bank USA, as agent, and Moog Inc. dated as of March 3,
2003, incorporated by reference to exhibit 10.1 of the
Companys report on Form 10-Q for the quarter ended
March 31, 2003. |
|
10 |
.8 |
|
Modification No. 1 to Amended and Restated Loan Agreement
among certain lenders, HSBC Bank USA, as agent, and Moog Inc.
dated as of August 6, 2003, incorporated by reference to
exhibit 10.1 of the Companys report on Form 8-K
dated September 4, 2003. |
|
10 |
.9 |
|
Moog Inc. Stock Employee Compensation Trust Agreement effective
December 2, 2003, incorporated by reference to
exhibit 10.1 of the Companys report on Form 10-Q
for the quarter ended December 31, 2003. |
|
10 |
.10 |
|
Modification No. 2 to Amended and Restated Loan Agreement
among certain lenders, HSBC Bank USA, as agent, and Moog Inc.,
dated as of March 5, 2004, incorporated by reference to
exhibit 10.1 of the Companys report on Form 10-Q
for the quarter ended March 31, 2004. |
|
10 |
.11 |
|
Form of Indemnification Agreement for officers, directors and
key employees, incorporated by reference to exhibit 10.1 of
the Companys report on Form 8-K dated
November 30, 2004. |
|
10 |
.12 |
|
Forms of Stock Option Agreements under 1998 Stock Option Plan
and 2003 Stock Option Plan, incorporated by reference to
exhibit 10.12 of the Companys Annual report on
Form 10-K for the fiscal year ended September 25, 2004. |
|
10 |
.13 |
|
Modification No. 3 to Amended and Restated Loan Agreement
among certain lenders, HSBC Bank USA, National Association, as
agent, and Moog Inc., dated as of December 17, 2004,
incorporated by reference to exhibit 10.1 of the
Companys report on Form 8-K dated December 29,
2004. |
|
10 |
.14 |
|
Description of Management Profit Sharing Program, incorporated
by reference to exhibit 10.1 of the Companys report
on Form 10-Q for the quarter ended March 26, 2005. |
|
10 |
.15 |
|
Modification No. 4 to Amended and Restated Loan Agreement
among certain lenders, HSBC Bank USA, National Association, as
agent, and Moog Inc., dated as of April 13, 2005,
incorporated by reference to exhibit 10.2 of the
Companys report on Form 10-Q for the quarter ended
March 26, 2005. |
|
10 |
.16 |
|
Modification No. 5 to Amended and Restated Loan Agreement
among certain lenders, HSBC Bank USA, National Association, as
agent, and Moog Inc., dated as of July 19, 2005,
incorporated by reference to exhibit 10.2 of the
Companys report on Form 10-Q for the quarter ended
June 25, 2005. |
|
12 |
.1 |
|
Computation of Ratio of Earnings to Fixed Charges (Filed
herewith). |
|
21 |
.1 |
|
Subsidiaries of the Company: |
|
|
|
|
Moog AG, Incorporated in Switzerland, wholly-owned subsidiary
with branch operation in Ireland |
|
|
|
|
Moog Australia Pty. Ltd., Incorporated in Australia,
wholly-owned subsidiary |
|
|
|
|
Moog do Brasil Controles Ltda., Incorporated in Brazil,
wholly-owned subsidiary |
|
|
|
|
(a) Moog de Argentina Srl, Incorporated in Argentina,
wholly-owned subsidiary of Moog do Brasil Controles Ltda. |
|
|
|
|
Moog Components Group Inc., Incorporated in New York,
wholly-owned subsidiary |
|
|
|
|
Moog Controls Corporation, Incorporated in Ohio, wholly-owned
subsidiary with branch operation in the Republic of the
Philippines |
|
|
|
|
Moog Controls Hong Kong Ltd., Incorporated in Peoples
Republic of China, wholly-owned subsidiary |
|
|
|
|
(a) Moog Motion Controls (Shanghai) Co., Ltd., Incorporated
in Peoples Republic of China, wholly-owned subsidiary of
Moog Controls Hong Kong Ltd. |
|
|
|
|
Moog Controls (India) Private Ltd., Incorporated in India,
wholly-owned subsidiary |
|
|
|
|
Moog Controls Ltd., Incorporated in the United Kingdom,
wholly-owned subsidiary |
|
|
|
|
(a) Moog Norden A.B., Incorporated in Sweden, wholly-owned
subsidiary of Moog Controls Ltd. |
|
|
|
|
(b) Moog OY, Incorporated in Finland, wholly-owned
subsidiary of Moog Controls Ltd. |
|
|
|
|
(c) IDM Technologies Limited, Incorporated in the United
Kingdom, wholly-owned subsidiary of Moog Controls Ltd. |
|
|
|
|
Moog Control System (Shanghai) Co. Ltd., Incorporated in
Peoples Republic of China, wholly-owned subsidiary |
|
|
|
|
|
Exhibit |
|
|
No. |
|
Description |
|
|
|
|
|
|
|
Moog Europe Holdings y Cia, S.C.S., Incorporated in Spain,
wholly-owned subsidiary |
|
|
|
|
(a) Moog Holding GmbH KG, a partnership organized in
Germany, wholly-owned subsidiary of Moog Europe Holdings y Cia,
S.C.S. |
|
|
|
|
(1) Moog GmbH,
Incorporated in Germany, wholly-owned subsidiary of Moog Holding
GmbH KG |
|
|
|
|
(1.a) Moog Italiana S.r.l.,
Incorporated in Italy, wholly-owned subsidiary of Moog GmbH |
|
|
|
|
(2) Moog Hydrolux Sarl,
Incorporated in Luxembourg, wholly-owned subsidiary of Moog
Holding GmbH KG |
|
|
|
|
(3) Pro Control AG,
Incorporated in Switzerland, wholly-owned subsidiary of Moog
Holding GmbH KG |
|
|
|
|
(4) FCS Control Systems
BV, Incorporated in the Netherlands, wholly-owned subsidiary of
Moog Holding GmbH KG |
|
|
|
|
(4.a) FCS Test Systems,
Incorporated in the Netherlands, wholly-owned subsidiary of FCS
Control Systems BV |
|
|
|
|
(4.b) FCS Simulator Systems BV,
Incorporated in the Netherlands, wholly-owned subsidiary of FCS
Control Systems BV |
|
|
|
|
(4.c) FCS Kelsey Limited,
Incorporated in the United Kingdom, wholly-owned subsidiary of
FCS Control Systems BV |
|
|
|
|
(b) Moog Verwaltungs GmbH, Incorporated in Germany,
wholly-owned subsidiary of Moog Europe Holdings y Cia, S.C.S. |
|
|
|
|
(c) Moog Ireland International Financial Services Centre
Limited, Incorporated in Ireland, wholly-owned subsidiary of
Moog Europe Holdings y Cia, S.C.S. |
|
|
|
|
(d) Focal Technologies Corporation, Incorporated in Canada,
wholly-owned subsidiary of Moog Europe Holdings y Cia, S.C.S. |
|
|
|
|
Moog FSC Ltd., Incorporated in the Virgin Islands, wholly-owned
subsidiary |
|
|
|
|
Moog Holland Aircraft Services BV, Incorporated in Holland,
wholly-owned subsidiary |
|
|
|
|
Moog Industrial Controls Corporation, Incorporated in New York,
wholly-owned subsidiary |
|
|
|
|
Moog Japan Ltd., Incorporated in Japan, wholly-owned subsidiary |
|
|
|
|
Moog Korea Ltd., Incorporated in South Korea, wholly-owned
subsidiary |
|
|
|
|
Moog Properties, Inc., Incorporated in New York, wholly-owned
subsidiary |
|
|
|
|
Moog Sarl, Incorporated in France, wholly-owned subsidiary, 95%
owned by Moog Inc.; 5% owned by Moog GmbH |
|
|
|
|
Moog Singapore Pte. Ltd., Incorporated in Singapore,
wholly-owned subsidiary |
|
|
|
|
(a) Moog Motion Controls Private Limited, Incorporated in
India, wholly-owned subsidiary of Moog Singapore Pte. Ltd. |
|
|
|
|
Electro-Tec Corporation, Incorporated in Delaware, wholly-owned
subsidiary |
|
|
|
|
FCS Com, Inc., Incorporated in Michigan, wholly-owned subsidiary |
|
23 |
.1 |
|
Consent of Ernst & Young LLP. (Filed herewith) |
|
23 |
.2 |
|
Consent of Hodgson Russ LLP (Filed herewith as exhibit 5.1). |
|
24 |
.1 |
|
Power of Attorney (included on the signature page of this
registration statement). |
|
25 |
.1 |
|
Statement of Eligibility of Trustee on Form T-1 (Filed
herewith). |
|
99 |
.1 |
|
Form of Letter of Transmittal (Filed herewith). |
|
99 |
.2 |
|
Notice of Guaranteed Deliver (Filed herewith). |
|
99 |
.3 |
|
Form of Letters to Clients (Filed herewith). |
|
99 |
.4 |
|
Form of Letters to Brokers (Filed herewith). |