<PAGE>
As filed with the Securities and Exchange Commission on January 23, 1998
Registration No.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------
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)
-----------------
THE TORO COMPANY
ANNUAL MANAGEMENT INCENTIVE PLAN II
(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)
Copy to:
Helen P. Starr
Attorney at Law
Suite 240
5505 Connecticut Avenue, N.W.
Washington, D.C. 20015
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------
Title of Amount to Proposed Proposed Amount of
securities to be registered maximum maximum registration fee
be registered offering aggregate
price per offering
share price
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 100,000 shares (b) $ 40.03 (c) $ 4,003,000 (c) $ 1,181 (d)
par value $1.00 per
share (a)
- -----------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------
</TABLE>
(a) Each share of Common Stock has attached thereto one Preferred Share
Purchase Right. Value attributable to such Rights, if any, is reflected in
the market price of the Common Stock.
(b) An indeterminate number of shares will be issued from time to time to
participants in the Plan.
(c) Estimated solely to calculate the registration fee, pursuant to Rule 457(c)
on the basis of the average of the high and low prices on the New York
Stock Exchange on January 20, 1998 as reported in THE WALL STREET JOURNAL.
(d) Restricted fee to be applied to account number 737758.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference in this Registration
Statement:
1. Registrant's Annual Report on Form 10-K for the fiscal year ended
October 31, 1996 (File No. 1-8649).
2. Its Quarterly Report on Form 10-Q for the quarter ended January 31,
1997 (File No. 1-8649).
3. Its Quarterly Report on Form 10-Q for the quarter ended May 2, 1997
(File No. 1-8649).
4. Its Quarterly Report on Form 10-Q for the quarter ended August 1, 1997
(File No. 1-8649).
5. Its Current Report on Form 8-K for December 2, 1996, as amended by
Amendment No. 1 on Form 8-K/A filed February 18, 1997 and Amendment
No. 2 on Form 8-K/A filed June 6, 1997 (File No. 1-8649).
6. Its Current Report on Form 8-K for June 24, 1997.
7. The Annual Report on Form 11-K of The Toro Company Investment and
Savings Plan for the plan year ended December 31, 1996.
8. The descriptions of its Common Stock and Preferred Share Purchase
Rights contained in its Registration Statements filed with the
Commission pursuant to Section 12 of the Securities Exchange Act of
1934 (the "Exchange Act"), including any amendment or report filed for
the purpose of updating such descriptions (File No. 1-8649).
All documents subsequently filed by Registrant pursuant to Sections 13(a),
13(c), 14 and 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 this Registration Statement and to be
part hereof from the date of 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.
<PAGE>
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMES EXPERTS AND COUNSEL.
Not applicable.
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 a 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 the 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 the Registrant or its stockholders for monetary
damages for breach of fiduciary duty as a director under certain circumstances.
Section 2 of Article XI of the 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 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 against certain liabilities under certain circumstances.
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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).
4(g) Amendment to Rights Agreement dated as of August 14, 1990, between
the Registrant and Norwest Bank Minnesota National Association
(incorporated by reference to Exhibit 1 to Registrant's Report on
Form 8-K dated August 14, 1990, Commission File No. 1-8649).
4(h) Indenture dated as of January 31, 1997 between Registrant and First
National Trust Association, as Trustee (incorporated by reference
Exhibit 4(a)to Registrant's Current Report on Form 8-K for June 24,
1997, Commission File No. 1-8649).
<PAGE>
5 Opinion regarding legality
23 Consent of KPMG Peat Marwick LLP
24 Power of attorney (included in signature page)
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:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933 (unless the information required to be
included in a post-effective amendment is contained in periodic
reports filed 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);
(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 (unless the
information required to be included in a post-effective amendment
is contained in periodic reports filed by the Registrant pursuant
to section 13 or section 15(d) of the Securities and Exchange Act
of 1934 that are incorporated by reference in the registration
statement); notwithstanding the foregoing, any increase or
decrease in the 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.
<PAGE>
(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 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 of 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.
<PAGE>
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 Bloomington, State of Minnesota on the 21st day
of January 1998.
THE TORO COMPANY
(Registrant)
By: /S/ J. LAWRENCE McINTYRE
------------------------------------------
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, Stephen P. Wolfe
and J. Lawrence McIntyre, or any one 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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/S/ KENDRICK B. MELROSE Chairman, Chief Executive January 21, 1998
- ---------------------------- Officer, President and Director
Kendrick B. Melrose (Principal Executive Officer)
/S/ STEPHEN P. WOLFE Vice President Finance January 21, 1998
- ---------------------------- and Chief Financial Officer
Stephen P. Wolfe (Principal Financial Officer)
/S/ RANDY B. JAMES Vice President and Controller January 21, 1998
- ---------------------------- (Principal Accounting Officer)
Randy B. James
<PAGE>
/S/ RONALD O. BAUKOL Director January 21, 1998
- ----------------------------
Ronald O. Baukol
/S/ ROBERT C. BUHRMASTER Director January 21, 1998
- ----------------------------
Robert C. Buhrmaster
/S/ WINSLOW H. BUXTON Director January 21, 1998
- ----------------------------
Winslow H. Buxton
/S/ JANET K. COOPER Director January 21, 1998
- ----------------------------
Janet K. Cooper
/S/ ALEX A. MEYER Director January 21, 1998
- ----------------------------
Alex A. Meyer
/S/ ROBERT H. NASSAU Director January 21, 1998
- ----------------------------
Robert H. Nassau
/S/ DALE R. OLSETH Director January 21, 1998
- ----------------------------
Dale R. Olseth
/S/ CHRISTOPHER A. TWOMEY Director January 21, 1998
- ----------------------------
Christopher A. Twomey
/S/ EDWIN H. WINGATE Director January 21, 1998
- ----------------------------
Edwin H. Wingate
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, The Toro Company
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 21st day of
January, 1998.
THE TORO COMPANY
(Registrant)
By: /S/ J. LAWRENCE McINTYRE
---------------------------------
J. Lawrence McIntyre, Vice President,
Secretary and General Counsel
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/S/ KENDRICK B. MELROSE Chairman, Chief Executive January 21, 1998
- ---------------------------- Officer, President and Director
Kendrick B. Melrose (Principal Executive Officer)
/S/ STEPHEN P. WOLFE Vice President Finance January 21, 1998
- ---------------------------- and Chief Financial Officer
Stephen P. Wolfe (Principal Financial Officer)
/S/ RANDY B. JAMES Vice President and Controller January 21, 1998
- ---------------------------- (Principal Accounting Officer)
Randy B. James
/S/ RONALD O. BAUKOL Director January 21, 1998
- ----------------------------
Ronald O. Baukol
/S/ ROBERT C. BUHRMASTER Director January 21, 1998
- ----------------------------
Robert C. Buhrmaster
/S/ WINSLOW H. BUXTON Director January 21, 1998
- ----------------------------
Winslow H. Buxton
/S/ JANET K. COOPER Director January 21, 1998
- ----------------------------
Janet K. Cooper
<PAGE>
/S/ ALEX A. MEYER Director January 21, 1998
- ----------------------------
Alex A. Meyer
/S/ ROBERT H. NASSAU Director January 21, 1998
- ----------------------------
Robert H. Nassau
/S/ DALE R. OLSETH Director January 21, 1998
- ----------------------------
Dale R. Olseth
/S/ CHRISTOPHER A. TWOMEY Director January 21, 1998
- ----------------------------
Christopher A. Twomey
/S/ EDWIN H. WINGATE Director January 21, 1998
- ----------------------------
Edwin H. Wingate
</TABLE>
<PAGE>
EXHIBIT LIST
EXHIBIT CONSECUTIVELY
NUMBER DESCRIPTION NUMBERED PAGE
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)
4(g) Amendment to Rights Agreement dated as of August 14, 1990, between the
Registrant and Norwest Bank Minnesota National Association (incorporated
by reference to Exhibit 1 to Registrant's Report on Form 8-K dated August
14, 1990, Commission File No. 1-8649)
4(h) Indenture dated as of January 31, 1997 between Registrant and First
National Trust Association, as Trustee (incorporated by reference Exhibit
4(a)to Registrant's Current Report on Form 8-K for June 24, 1997,
Commission File No. 1-8649)
5 Opinion regarding legality
23 Consent of KPMG Peat Marwick LLP
24 Power of attorney (included in signature page)
<PAGE>
EXHIBIT 5
January 21, 1998
The Toro Company
8111 Lyndale Avenue South
Bloomington, Minnesota 55420-1196
Re: Registration Statement on Form S-8
Gentlemen:
In connection with the Registration Statement on Form S-8 filed by The Toro
Company (the "Company") with the Securities and Exchange Commission relating to
an aggregate of up to 100,000 shares of Common Stock, $1.00 par value per share
(the "Common Stock"), and up to 100,000 related Preferred Share Purchase Rights
(the "Rights") of the Company, please be advised that as counsel to the Company,
upon examination of such corporate documents and records as I have deemed
necessary or advisable for the purpose of rendering this opinion, it is my
opinion that:
1. The shares of Common Stock being offered by the Company, when issued and
paid for as contemplated by such Registration Statement, will be legally
issued, fully paid and non-assessable; and
2. The Rights, if and when issued as contemplated by the Rights Agreement
dated June 14, 1988 (the "Rights Agreement"), as amended, will have been
legally issued and entitled to the benefits of the Rights Agreement
pursuant to which they will be issued.
I hereby consent to the use of this opinion as an exhibit to the
above-captioned Registration Statement, and to the references to my name under
the heading "Legal Matters" in the Prospectus comprising a part of the
Registration Statement.
Sincerely,
/S/ J. LAWRENCE McINTYRE
- ------------------------
J. Lawrence McIntyre
Vice President, Secretary and
General Counsel
<PAGE>
EXHIBIT 23
INDEPENDENT AUDITORS' CONSENT
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
Bloomington, Minnesota
January 21, 1998
