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 Exchange Act. 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 well as to other factors described below and the information in the documents incorporated by reference herein. 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.

 

Important factors affecting forward-looking statements in this prospectus include, but are not limited to, the following:

 

	•	fluctuations in general business cycles for commercial aircraft, military aircraft, space and defense products and industrial capital goods;
	•	our dependence on government contracts, which may not be fully funded or may be terminated;
	•	our significant indebtedness, which could limit our cash flow for operations and flexibility;
	•	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;
	•	the potential for cost overruns on fixed-price contracts and the risk that actual results may differ from estimates used, including those used in accounting for long-term contracts;

 

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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;
	•	the potential that the demand for our products may be reduced if we are unable to adapt to technological change;
	•	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;
	•	our dependence on certain major customers, such as The Boeing Company and Lockheed Martin, for a significant percentage of our sales;
	•	intense competition in our business which may require us to lower prices or offer more favorable terms of sale;
	•	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;
	•	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;
	•	our ability to successfully identify and consummate acquisitions and integrate the acquired businesses;
	•	our exposure to successor liability relating to actions by an acquired company and its management before the acquisition;
	•	the possibility that the due diligence we conduct in connection with an acquisition, and any contractual guarantees or indemnities that we receive from the sellers of acquired companies, may not be sufficient to protect us from, or compensate us for, actual liabilities whereby a material liability could adversely affect our reputation and results of operations and reduce the benefits of the acquisition;
	•	our dependence on our management team and key personnel;
	•	the possibility that future terror attacks, war or other civil disturbances could negatively impact our business;
	•	our operations in foreign countries could expose us to political risks and adverse changes in local, legal, tax and regulatory schemes;
	•	the possibility that government regulation could inhibit our ability to sell our products outside the United States;
	•	the possibility of a catastrophic loss of one or more of our manufacturing facilities;
	•	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;
	•	foreign currency fluctuations in those countries in which we do business and other risks associated with international operations; and
	•	the cost of compliance with environmental laws.

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The following table sets forth our estimates (other than the SEC registration fee) of the expenses in connection with the issuance and distribution of the securities being registered, other than underwriting discounts and commissions.

 

Item		Amount
SEC registration fee		$	1,788
Legal fees and expenses			5,000
Accounting fees and expenses			10,000
Miscellaneous fees and expenses			3,212
Total		$	20,000

 

Item 15. 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 director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for improper payment of dividends, or (iv) for any transaction from which the director receives an improper personal benefit. The Registrant’s Restated Certificate of Incorporation includes the provisions permitted by Section 402(b) of the BCL.

The Registrant’s By-Laws provide that it 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.

 

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Item 16. Exhibits

 

(a)

Exhibits.

Exhibit No.		Exhibit
3.1		Restated Certificate of Incorporation of the Registrant, as amended (incorporated by reference to Exhibit 3.1 to the Company’s Registration Statement No. 333-113698).
3.2		Amended By-Laws of the Registrant (incorporated by reference to Exhibit B to the Company’s proxy statement filed under Schedule 14A on December 2, 2003).
5.1		Opinion of Hodgson Russ LLP.
23.1		Consent of Hodgson Russ LLP (contained in Exhibit 5.1 to this registration statement).
23.2		Consent of Ernst & Young LLP
24.1		Power of Attorney (contained in Part II of this registration statement).

 

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Item 17. Undertakings

 

The undersigned Registrant hereby undertakes:

 

(1)                                  To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

 

(i)                                     To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;

 

(ii)                                  To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or any decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and

 

(iii)                               To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;

 

provided, however, that paragraphs (1)(i), (1)(ii) and (1)(iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.

 

(2)                                  That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(3)                                  To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

(4)                                  That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:

 

(i)                                     Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and

 

(ii)                                  Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(l)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which the prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.

 

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(5)                                  That, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(6)                                  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 foregoing provisions, 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 Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by a Registrant of expenses incurred or paid by a director, officer or controlling person of a 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, that 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 against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.

 

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Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in East Aurora, New York on November 3, 2006.

	MOOG INC.
	By:	/s/ Robert T. Brady
		Chairman of the Board, President
		and Chief Executive Officer

 

POWER OF ATTORNEY

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-3 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 of 1933, as amended, 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, this Registration Statement on Form S-3 has been signed below 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 (Principal Executive Officer) and Director		November 3, 2006
/s/ Robert R. Banta Robert R. Banta		Executive Vice President, Chief Financial Officer (Principal Financial Officer) and Director		November 3, 2006
/s/ Donald R. Fishback Donald R. Fishback		Controller (Principal Accounting Officer)		November 3, 2006
/s/ Richard A. Aubrecht Richard A. Aubrecht		Director		November 3, 2006

 

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/s/ Raymond W. Boushie Raymond W. Boushie		Director		November 3, 2006
James L. Gray		Director
/s/ Joe C. Green Joe C. Green		Director		November 3, 2006
Kraig H. Kayser		Director
/s/ Brian J. Lipke Brian J. Lipke		Director		November 3, 2006
/s/ Robert H. Maskrey Robert H. Maskrey		Director		November 3, 2006
Albert F. Myers		Director
/s/ John Hendrickson John Hendrickson		Director		November 3, 2006

 

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EXHIBIT INDEX

Exhibit No.		Exhibit
3.1		Restated Certificate of Incorporation of the Registrant, as amended (incorporated by reference to Exhibit 3.1 to the Company’s Registration Statement No. 333-113698).
3.2		Amended By-Laws of the Registrant (incorporated by reference to Exhibit B to the Company’s proxy statement filed under Schedule 14A on December 2, 2003).
5.1		Opinion of Hodgson Russ LLP.
23.1		Consent of Hodgson Russ LLP (contained in Exhibit 5.1 to this registration statement).
23.2		Consent of Ernst & Young LLP
24.1		Power of Attorney (contained in Part II of this registration statement).

 

 

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