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As filed with the Securities and Exchange Commission on May 24, 1995
Registration No. 33-
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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THE TORO COMPANY
(Exact name of registrant as specified in its charter)
Delaware 41-0580470
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
8111 Lyndale Avenue South
Bloomington, Minnesota 55420
(Address of principal executive offices) (Zip Code)
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THE TORO COMPANY
INVESTMENT AND SAVINGS PLAN
(Full title of the plan)
J. Lawrence McIntyre, Esquire
Vice President, Secretary and General Counsel
The Toro Company
8111 Lyndale Avenue South
Bloomington, Minnesota 55420
Telephone number : (612) 888-8801
(Name, address and telephone number of agent for service)
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Copy to:
Helen P. Starr, Esquire
Doherty, Rumble & Butler
Professional Association
1625 M Street, N.W.
Washington, D.C. 20036
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<CAPTION>
CALCULATION OF REGISTRATION FEE
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Title of securities Amount to Proposed maxi- Proposed maxi- Amount of
to be registered be registered mum offering mum aggregate registration fee
price per share price per share
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<S> <C> <C> <C> <C>
Common Stock, par 500,000 shares(b) $29.625 (c) $14,812,500 (c) $5,108 (d)
value $1.00 per share (a)
Interests in the Plan (e)
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<FN>
(a) Each share of Common Stock has attached thereto one Preferred Share
Purchase Right. Value attributable to such Rights, if any, will be
reflected in the market price of the Common Stock.
(b) An indeterminate number of shares may be purchased from time to time by
individuals who participate in the Plan. The maximum number of shares that
will be issued under this Registration Statement is 500,000.
(c) Estimated solely to calculate the registration fee, pursuant to Rule 457(c)
and Rule 457(h), on the basis of the average of the high and low prices in
the consolidated reporting system on May 15, 1995 as reported in THE WALL
STREET JOURNAL.
(d) Restricted fee to be applied to account number 737758.
(e) Pursuant to Rule 416(c) under the Securities Act of 1993, this registration
statement also covers an indeterminate amount of interests to be offered or
sold pursuant to the employee benefit plan described herein.
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PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
(File No. 1-8649) pursuant to the Securities Exchange Act of 1934 (the "Exchange
Act") are incorporated herein by reference:
1. Registrant's Annual Report on Form 10-K for the fiscal year ended
July 31, 1994.
2. Registrant's Quarterly Report on Form 10-Q for the quarter ended
October 28, 1994.
` 3. Registrant's Quarterly Report on Form 10-Q for the quarter ended
February 3, 1995.
4. The descriptions of Registrant's Common Stock and Preferred Share
Purchase Rights contained in Registrant's registration statements filed under
Section 12 of the Exchange Act, including any amendment or report filed for the
purpose of updating such descriptions.
All reports and other documents subsequently filed by Registrant and The
Toro Company Investment and Savings Plan (the "Plan") pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates all securities offered have been sold or which deregisters all
securities remaining unsold, shall be deemed to be incorporated by reference in
this Registration Statement and to be a part hereof from the date of the filing
of such documents. Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
replaced 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 replaces
such statement. Any such statement so modified or replaced shall not be deemed,
except as so modified or replaced, to constitute a part of this Registration
Statement.
Item 4. DESCRIPTION OF SECURITIES.
Inapplicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Inapplicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
empowers a corporation incorporated under the statute to indemnify its
directors, officers, employees and agents and its former directors, officers,
employees and agents and those who serve in such capacities with another
enterprise at the corporation's request against expenses (including attorneys'
fees), as well as judgments, fines and settlements, actually and reasonably
incurred by them in connection with any action, suit or proceeding in which they
or any of them were or are made parties or are threatened to be made parties by
reason of their serving or having served in such capacity. The power to
indemnify exists only where such officer, director, employee or agent has acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation and, in the case of criminal action, where
such person had no reasonable cause to believe his conduct was unlawful. Unless
a court determines to the contrary, a corporation has no power of
indemnification in an action or suit by or in the right of the corporation,
where such person has been adjudged liable to the corporation. Indemnification
against expenses is mandatory to the extent a claim, issue or matter has been
successfully defended. Indemnification and advancement of expenses are not
deemed exclusive of any other rights to which those indemnified may be entitled
under any bylaw, agreement, vote of stockholders or otherwise. A Delaware
corporation also has the power to purchase and maintain insurance on behalf of
any person it has the power to indemnify, whether or not indemnity against
liability would be allowed under the statute.
Section 1 of Article XI of Registrant's Certificate of the Incorporation
provides, in accordance with Section 102(b)(7) of the Delaware General
Corporation Law, for the elimination or limitation of the personal liability of
a director to Registrant or its stockholders for monetary damages for breach of
fiduciary duty as a director under certain circumstances.
Section 2 of Article XI of Registrant's Certificate of Incorporation
mandates indemnification of a director or officer of Registrant or a person
serving at the request of the Registrant as a director, officer, employee or
agent of another entity to the fullest extent authorized by the Delaware General
Corporation Law against expenses, liability and loss and authorizes the Board to
express such rights in written contracts.
The Registrant also maintains liability insurance policies which provide
for indemnification of directors, officers, employees and agents of the
Registrant against certain liabilities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Inapplicable.
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ITEM 8. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION
4 Instruments defining the rights of security holders, including
indentures:
4(a) Specimen form of Common Stock certificate (incorporated by reference
to Exhibit 4(c) to Registrant's Registration Statement on Form S-8,
Registration No. 2-94417).
4(b) Certificate of Incorporation of the Registrant (incorporated by
reference to Exhibit 4.2 to Registrant's Registration Statement on
Form S-3, Registration No. 33-16125).
4(c) Certificate of Amendment to Certificate of Incorporation dated
December 9, 1986 (incorporated by reference to Exhibit 3 to
Registrant's Quarterly Report on Form 10-Q for the quarter ended
January 30, 1987, Commission File No. 1-8649).
4(d) Certificate of Amendment to Certificate of Incorporation dated
December 8, 1987 (incorporated by reference to Exhibit 3 to
Registrant's Quarterly Report on Form 10-Q for the quarter ended
January 29, 1988, Commission File No. 1-8649).
4(e) Bylaws of the Registrant (incorporated by reference to Exhibit 3.3 to
Registrant's Annual Report on Form 10-K for the year ended July 31,
1991, Commission File No. 1-8649).
4(f) Rights Agreement dated as of June 14, 1988, between the Registrant and
Norwest Bank Minnesota National Association, relating to rights to
purchase Series B Junior Participating Voting Preferred Stock
(incorporated by reference to Exhibit 1 to Registrant's Registration
Statement on Form 8-A dated June 17, 1988, Commission File No. 1-8649,
as amended from time to time).
5 UNDERTAKING IN LIEU OF ERISA AND IRS OPINION: Registrant undertakes
that it will submit or has submitted the Plan and any amendment
thereto to the Internal Revenue Service ("IRS") in a timely manner and
has made or will make all changes required by the IRS in order to
qualify the Plan.
23 Consent of KPMG Peat Marwick LLP.
24 Powers of Attorney (included in signature pages).
II-3
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ITEM 9. UNDERTAKINGS.
(a) Rule 415 offering.
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 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.
(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.
(b) Filings incorporating subsequent Securities Exchange Act of 1934
documents by reference.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Exchange Act of 1933, each filing
of the Registrant's annual report pursuant to section 13(a) or section 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.
(h) 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 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.
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SIGNATURES
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 Bloomington, State of Minnesota on the 24th day of
May, 1995.
THE TORO COMPANY
(Registrant)
By: J. LAWRENCE MCINTYRE
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J. Lawrence McIntyre, Vice President,
Secretary and General Counsel
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Kendrick B. Melrose and J. Lawrence
McIntyre, or either of them, each with power to act without the other, his true
and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign any and/or all subsequent amendments to this Registration
Statement, and to file the same, or cause to be filed the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission granting unto said attorney-in-fact and agent
full power to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby approving and confirming all
that said attorney-in-fact and agent or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
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 dates indicated.
SIGNATURE TITLE DATE
KENDRICK B. MELROSE Chairman, Chief Executive May 24, 1995
------------------- Officer and Director
Kendrick B. Melrose (Principal Executive Officer)
II-5
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DAVID H. MORRIS President and Chief Operating May 24, 1995
------------------- Officer
David H. Morris
GERALD T. KNIGHT Vice President Finance May 24, 1995
------------------- and Chief Financial Officer
Gerald T. Knight (Principal Financial Officer)
RANDY B. JAMES Vice President and Controller May 24, 1995
------------------- (Principal Accounting Officer)
Randy B. James
JANET K. COOPER Director May 24, 1995
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Janet K. Cooper
WILLIAM W. GEORGE Director May 24, 1995
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William W. George
ALEX A. MEYER Director May 24, 1995
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Alex A. Meyer
ROBERT H. NASSAU Director May 24, 1995
-------------------
Robert H. Nassau
DALE R. OLSETH Director May 24, 1995
-------------------
Dale R. Olseth
EDWIN H. WINGATE Director May 24, 1995
-------------------
Edwin H. Wingate
II-6
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EXHIBIT LIST
EXHIBIT
NUMBER DESCRIPTION
4 Instruments defining the rights of security holders, including
indentures:
4(a) Specimen form of Common Stock certificate (incorporated by reference
to Exhibit 4(c) to Registrant's Registration Statement on Form S-8,
Registration No. 2-94417).
4(b) Certificate of Incorporation of the Registrant (incorporated by
reference to Exhibit 4.2 to Registrant's Registration Statement on
Form S-3, Registration No. 33-16125).
4(c) Certificate of Amendment to Certificate of Incorporation dated
December 9, 1986 (incorporated by reference to Exhibit 3 to
Registrant's Quarterly Report on Form 10-Q for the quarter ended
January 30, 1987, Commission File No. 1-8649).
4(d) Certificate of Amendment to Certificate of Incorporation dated
December 8, 1987 (incorporated by reference to Exhibit 3 to
Registrant's Quarterly Report on Form 10-Q for the quarter ended
January 29, 1988, Commission File No. 1-8649).
4(e) Bylaws of the Registrant (incorporated by reference to Exhibit 3.3 to
Registrant's Annual Report on Form 10-K for the year ended July 31,
1991, Commission File No. 1-8649).
4(f) Rights Agreement dated as of June 14, 1988, between the Registrant and
Norwest Bank Minnesota National Association, relating to rights to
purchase Series B Junior Participating Voting Preferred Stock
(incorporated by reference to Exhibit 1 to Registrant's Registration
Statement on Form 8-A dated June 17, 1988, Commission File No. 1-8649,
as amended from time to time).
23 Consent of KPMG Peat Marwick LLP. . . . . . . . .
24 Powers of Attorney (included in signature pages).
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EXHIBIT 23(a)
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
The Toro Company:
We consent to the use of our reports incorporated herein by reference.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Minneapolis, Minnesota
May 23, 1995
