As filed with the Securities and Exchange Commission on August 13, 2004
Registration Statement No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BORGWARNER INC.
(Exact name of Registrant as specified in charter)
Delawar 13-3404508
(State or other jurisdiction of (I.R.S. Employer
incorporation or organizationIdentification No.)
200 South Michigan Avenue
Chicago, Illinois 60604
(Address of Principal Executive Offices)
BORGWARNER EMPLOYEES RETIREMENT SAVINGS 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)
CALCULATION OF REGISTRATION FEE
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Titles of Amount Proposed maximum Proposed maxi-
securities to be offering price mum aggregate Amount of
to be registered registered per share (1) offering price registration fee
--------------------------------------------------------------------------------
Common Stock 125,000 shares $45.74 $5,717,500 $726.12
($.01 par value)(2)
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(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 August 11, 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.
(3) In addition to the Common Stock being registered on this Registration
Statement, the Registrant is transferring shares of Common Stock previously
registered under Registration Statements on Form S-8 for five employee benefit
plans that have been merged with and into the BorgWarner Employees Retirement
Savings Plan. The number of shares of Common Stock transferred from each plan
to the BorgWarner Employees Retirement Savings Plan by the Registrant are as
follows: (i) 120,605 shares remaining under the Borg-Warner Automotive Cooling
Systems Corporation Retirement Savings Plan; (ii) 1,437 shares remaining under
the Borg-Warner Automotive Powertrain Systems Corporation, Seneca Retirement
Savings Plan; (iii) 49,914 shares remaining under the Borg-Warner Automotive
Air/Fluid Systems Corporation Retirement Savings Plan; (iv) 13,990 shares
remaining under the Borg-Warner Automotive Turbo Systems Corporation Retirement
Savings Plan; and (v) 25,812 shares remaining under the Borg-Warner Automotive
Medallion Retirement Savings Plan.
EXPLANATORY NOTE
Effective December 1, 2003, BorgWarner Inc. (the "Registrant") reorganized
five defined contribution employee benefit plans by merging them with and into
the BorgWarner Employees Retirement Savings Plan. The Registrant had previously
filed registration statements on Form S-8 to register shares of the Common Stock
for issuance pursuant to the five pre-existing employee benefit plans as
follows:
.. Borg-Warner Automotive Cooling Systems Corporation Retirement Savings Plan
(Registration Nos. 333-95207; 333-35720);
.. Borg-Warner Automotive Powertrain Systems Corporation, Seneca Retirement
Savings Plan (Registration No. 333-17179);
.. Borg-Warner Automotive Air/Fluid Systems Corporation Retirement Savings
Plan (Registration Nos. 333-67133, 333-35736, 333-85289, 333-12939);
.. Borg-Warner Automotive Turbo Systems Corporation Retirement Savings Plan
(Registration Nos. 33-92862, 33-92426, 333-35732, 333-85301; and
.. Borg-Warner Automotive Medallion Retirement Savings Plan
(Registration No. 333-85299).
As a result of the merger, the above-referenced employee benefit plans are
no longer in existence, and post-effective amendments shall be filed for each of
the registration statements as of the date hereof to transfer the remaining
registered and unissued shares for each plan to the BorgWarner Employees
Retirement Savings Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
BorgWarner Inc. (the "Registrant" or "Company") and the BorgWarner
Employees Retirement Savings Plan (the "Retirement Savings 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) the Retirement Savings Plan's latest Annual Report on Form 11-K for the
fiscal year ended December 31, 2003, as filed with the Commission on June 28,
2004;
(iii) 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
(iv) 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 Retirement Savings 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
BorgWarner Employees Retirement Savings Plan has been passed upon for the
Company by Laurene H. Horiszny, Vice President, General Counsel & 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
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.
187: 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 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.
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 August 13, 2004.
BORGWARNER INC.
By: /s/TIMOTHY M. MANGANELLO
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 August 13, 2004
TIMOTHY M. MANGANELLO Chief Executive Officer
/s/ROBIN J. ADAMS Executive Vice President, August 13, 2004
ROBIN J. ADAMS Chief Financial Officer &
Chief Administration Officer
(Principal Financial Officer)
/s/WILLIAM C. CLINE Vice President and Controller August 13, 2004
WILLIAM C. CLINE (Principal Accounting Officer)
*
JOHN RAU Director August 13, 2004
*
ALEXIS P. MICHAS Director August 13, 2004
*
PAUL E. GLASKE Director August 13, 2004
*
WILLIAM E. BUTLER Director August 13, 2004
*
ERNEST J. NOVAK, JR. Director August 13, 2004
*
ANDREW F. BRIMMER Director August 13, 2004
*
JERE A. DRUMMOND Director August 13, 2004
*
PHYLLIS O. BONNANO Director August 13, 2004
/s/TIMOTHY M. MANGANELLO *As attorney-in-fact for August 13, 2004
TIMOTHY M. MANGANELLO directors marked by an asterisk.
THE PLAN. Pursuant to the requirements of the Securities Act of 1933, the
Retirement Savings Plan Committee as Administrator of the BorgWarner Employees
Retirement Savings Plan 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 August 13, 2004.
BORGWARNER EMPLOYEES RETIREMENT SAVINGS PLAN
By: /s/WILLIAM C. CLINE
WILLIAM C. CLINE
Member of the Retirement Savings Plan Committee as Administrator
By: /s/TIMOTHY M. MANGANELLO
TIMOTHY M. MANGANELLO
Member of the Retirement Savings Plan Committee as Administrator
By: /s/REGIS J. TRENDA
REGIS J. TRENDA
Member of the Retirement Savings Plan Committee as Administrator
By: /s/ROBIN J. ADAMS
ROBIN J. ADAMS
Member of the Retirement Savings Plan Committee as Administrator
THE PLAN. Pursuant to the requirements of the Securities Act of 1933, the
Retirement Savings Plan Committee as Administrator of the Retirement Savings
Plan 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 August 13, 2004.
BORGWARNER EMPLOYEES RETIREMENT SAVINGS PLAN
By: /s/WILLIAM C. CLINE
WILLIAM C. CLINE
Member of the Retirement Savings Plan Committee as Administrator
By: /s/TIMOTHY M. MANGANELLO
TIMOTHY M. MANGANELLO
Member of the Retirement Savings Plan Committee as Administrator
By: /s/REGIS J. TRENDA
REGIS J. TRENDA
Member of the Retirement Savings Plan Committee as Administrator
By: /s/ROBIN J. ADAMS
ROBIN J. ADAMS
Member of the Retirement Savings Plan Committee as Administrator
EXHIBIT INDEX
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.