AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 28, 2004
REGISTRATION STATEMENT NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BORGWARNER INC.
(Exact name of Registrant as specified in charter)
DELAWARE 13-3404508
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
200 SOUTH MICHIGAN AVENUE
CHICAGO, ILLINOIS 60604
(Address of Principal Executive Offices)
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BORGWARNER INC. 2004 STOCK INCENTIVE PLAN
(Full title of the plan)
LAURENE H. HORISZNY, ESQ.
BORGWARNER INC.
200 SOUTH MICHIGAN AVENUE
CHICAGO, ILLINOIS 60604
(312) 322-8500
(Name, address and telephone number of agent for service)
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CALCULATION OF REGISTRATION FEE
==========================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE (1) OFFERING PRICE REGISTRATION FEE
===========================================================================================================
Common Stock, par value $0.01
per share ("Common Stock") (2) 1,350,000 Shares $43.46 $58,671,000 $7,433.62
===========================================================================================================
(1) Computed pursuant to Rule 457(c) solely for the purpose of calculating the
registration fee and not as a representation as to any actual proposed price.
This amount is based on the average of the high and low prices of such Common
Stock on July 26, 2004 on the consolidated reporting system.
(2) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
BorgWarner Inc. (the "Registrant" or "Company") and the BorgWarner Inc.
2004 Stock Incentive Plan (the "Stock Incentive Plan") hereby incorporate by
reference herein the following documents, as filed with the Securities and
Exchange Commission (the "Commission"):
(i) the Registrant's latest Annual Report on Form 10-K for the fiscal
year ended December 31, 2003, as filed with the Commission on March 12, 2004;
(ii) all other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 since the end of the fiscal year ending December
31, 2003; and
(iii) the description of the Company's Common Stock, par value $0.01
per share, set forth in the Registrant's Registration Statement on Form 8-A, as
filed with the Commission on July 29, 1993, as that description may be updated
from time to time.
All documents subsequently filed by the Company or the Stock Incentive
Plan pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934, prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in the
Registration Statement and to be part thereof from the date of the filing of
such documents.
Any statement contained in a document incorporated by, or deemed to be
incorporated by reference herein, shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the shares of common stock that may be purchased under
the Stock Incentive Plan has been passed upon for the Company by Laurene H.
Horiszny, Vice President, General Counsel and Secretary of the Company. Ms.
Horiszny owns or has the right to acquire within the next 60 days an aggregate
of 43,975 shares of the Company's common stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
(the "DGCL") provides that a corporation has the power to indemnify its officers
and directors against the expenses, including attorneys' fees, judgments, fines
or settlement amounts actually and reasonably incurred by them in connection
with the defense of any action by reason of being or having been directors or
officers, if such person shall have acted in good faith and in a manner
reasonably believed to be in or not opposed to the best interests of the
corporation, except that if such action shall be in the right of the
corporation, no such indemnification shall be provided as to any claim, issue or
matter as to which such person shall have been judged to have been liable
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to the corporation unless and to the extent that the Court of Chancery of the
State of Delaware, or another court in which the suit was brought, shall
determine upon application that, in view of all of the circumstances of the
case, such person is fairly and reasonably entitled to indemnity.
As permitted by Section 102 of the DGCL, the Company's Certificate of
Incorporation provides that no director shall be liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a director
other than (i) for breaches of the director's duty of loyalty to the Company and
its stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) for the unlawful
payment of dividends or unlawful stock purchases or redemptions under Section
174 of the DGCL and (iv) for any transaction from which the director derived an
improper personal benefit.
The Company's Certificate of Incorporation provides for indemnification
of its directors and officers to the fullest extent permitted by the DGCL, and
allows the Company to advance or reimburse litigation expenses upon submission
by the director, officer or employee of an undertaking to repay such advances or
reimbursements if it is ultimately determined that indemnification is not
available to such director or officer.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits listed below are filed herewith and made a part hereof.
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
-------- ------------------------------------------------------------------
5.1 Opinion of Laurene H. Horiszny, Vice President, General Counsel
and Secretary of the Company.
23.1 Consent of Independent Registered Public Accounting Firm.
23.2 Consent of Laurene H. Horiszny (included in Exhibit 5.1).
24.1 Power of Attorney.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information in the
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high 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
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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;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do
not apply if the registration statement is on Form S-3 or Form S-8 or Form F-3,
and the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the 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
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
THE REGISTRANT. 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-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Chicago, State of Illinois, on July 28, 2004.
BORGWARNER INC.
By: /s/TIMOTHY M. MANGANELLO
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Timothy M. Manganello
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
NAME TITLE DATE
---- ------ ----
/s/TIMOTHY M. MANGANELLO
---------------------------------------- Chairman of the Board and Chief July 28, 2004
TIMOTHY M. MANGANELLO Executive Officer
Executive Vice President, Chief
/s/ROBIN J. ADAMS Financial Officer & Chief
---------------------------------------- Administration Officer July 28, 2004
ROBIN J. ADAMS (Principal Financial Officer)
/s/WILLIAM C. CLINE
---------------------------------------- Vice President and Controller July 28, 2004
WILLIAM C. CLINE (Principal Accounting Officer)
NAME TITLE DATE
---- ------ ----
*
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JOHN RAU Director July 28, 2004
*
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ALEXIS P. MICHAS Director July 28, 2004
*
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PAUL E. GLASKE Director July 28, 2004
*
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WILLIAM E. BUTLER Director July 28, 2004
*
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ERNEST J. NOVAK, JR. Director July 28, 2004
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*
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ANDREW F. BRIMMER Director July 28, 2004
*
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JERE A. DRUMMOND Director July 28, 2004
*
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PHYLLIS O. BONNANO Director July 28, 2004
/s/TIMOTHY M. MANGANELLO
---------------------------------------- As attorney-in-fact for directors
TIMOTHY M. MANGANELLO marked by an asterisk. July 28, 2004
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
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5.1 Opinion of Laurene H. Horiszny, Vice President, General Counsel
and Secretary of the Company.
23.1 Consent of Independent Registered Public Accounting Firm.
23.2 Consent of Laurene H. Horiszny (included in Exhibit 5.1).
24.1 Power of Attorney.
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