<PAGE>
As filed with the Securities and Exchange Commission on May 3, 2000
Registration No. 333-
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 issuer 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)
TORO AUSTRALIA PTY LIMITED
GENERAL EMPLOYEE STOCK 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 : (952) 888-8801
(Name, address and telephone number of agent for service)
Copy to:
Helen P. Starr, Esquire
Perkins Coie LLP
607 Fourteenth Street, N.W.
Washington, D.C. 20005
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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, 25,000 shares(b) $30.625(c) $765,625(c) $203(d)
Par value $1.00 per
Share(a)
- -----------------------------------------------------------------------------------------------------
</TABLE>
(a) Each share of Common Stock includes one Preferred Share Purchase Right
pursuant to the Rights Agreement dated May 20, 1998. 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 pursuant to 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
reported in the consolidated reporting system on April 27, 2000, as
reported on the New York Stock Exchange Composite Tape.
(d) Restricted fee to be applied to account number 737758.
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PART I
All information required by Part I to be contained in the prospectus is
omitted from this Registration Statement in accordance with Rule 428 under the
Securities Act of 1933, as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
INCORPORATION BY REFERENCE
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The rules of the Securities and Exchange Commission allow the
Registrant to "incorporate by reference" information into this Registration
Statement. This means that the Registrant may disclose important information to
you by referring you to another document.
The following documents have been filed by the Registrant with the SEC
and are incorporated by reference in this Registration Statement:
1. Registrant's Annual Report on Form 10-K for the fiscal year
ended October 31, 1999 (File No. 1-8649).
2. Its Quarterly Report on Form 10-Q for the quarter ended
January 28, 2000 (File No. 1-8649).
3. 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 of this Registration Statement from the date of filing of those
documents. The information contained in such a document will automatically
update and supersede any information previously incorporated by reference into
this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
The Common Stock is registered under Section 12(b) of the Securities
Exchange Act of 1934.
<PAGE>
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The opinion of counsel as to the legality of the securities being
registered, which is Exhibit 5 to this Registration Statement, is rendered by J.
Lawrence McIntyre, Vice President, Secretary and General Counsel to Registrant.
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 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.
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.
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.
The exhibits are listed in the exhibit index.
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;
(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;
(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) and (1)(ii) do not apply if 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
Securities and Exchange Commission by the Registrant pursuant to section 13
or section 15(d) of the Securities Exchange Act that are incorporated by
reference in this 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 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
<PAGE>
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.
<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 3rd day of May, 2000.
THE TORO COMPANY
(Registrant)
By: /s/ J. LAWRENCE MCINTYRE
-------------------------------------
J. Lawrence McIntyre, Vice President,
Secretary and General Counsel
POWER OF ATTORNEY
KNOW ALL PERSONS 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 May 3, 2000
- ------------------------ Officer, President and Director
Kendrick B. Melrose (Principal Executive Officer)
/s/ STEPHEN P. WOLFE Vice President Finance May 3, 2000
- ------------------------ and Chief Financial Officer
Stephen P. Wolfe (Principal Financial Officer)
<PAGE>
/s/ RANDY B. JAMES Vice President and Controller May 3, 2000
- ------------------------ (Principal Accounting Officer)
Randy B. James
/s/ RONALD O. BAUKOL Director May 3, 2000
- ------------------------
Ronald O. Baukol
/s/ ROBERT C. BUHRMASTER Director May 3, 2000
- ------------------------
Robert C. Buhrmaster
/s/ WINSLOW H. BUXTON Director May 3, 2000
- ------------------------
Winslow H. Buxton
/s/ JANET K. COOPER Director May 3, 2000
- ------------------------
Janet K. Cooper
/s/ KATHERINE J. HARLESS Director May 3, 2000
- ------------------------
Katherine J. Harless
/s/ ROBERT H. NASSAU Director May 3, 2000
- ------------------------
Robert H. Nassau
/s/ DALE R. OLSETH Director May 3, 2000
- ------------------------
Dale R. Olseth
/s/ CHRISTOPHER A. TWOMEY Director May 3, 2000
- ------------------------
Christopher A. Twomey
/s/ GREGG W. STEINHAFEL Director May 3, 2000
- ------------------------
Gregg W. Steinhafel
/s/ EDWIN H. WINGATE Director May 3, 2000
- ------------------------
Edwin H. Wingate
</TABLE>
<PAGE>
EXHIBIT LIST
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
<S> <C>
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 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 Designation to Certificate of Incorporation
dated May 28, 1998 (incorporated by reference to Exhibit
(c)(1) to Registrant's Current Report on Form 8-K dated May
27, 1998, Commission File No. 1-8649)
4(e) Bylaws of Registrant, as amended (incorporated by reference to
Exhibit 3(ii) and 4(d) to Registrant's Form 10-Q for the
quarter ended April 30, 1999)
4(f) Rights Agreement dated as of May 20, 1998, 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
(c)(1) to Registrant's Current Report on Form 8-K dated May
27, 1998, Commission File No. 1-8649).
4(g) Indenture dated as of January 31, 1997 between Registrant and
First National Trust Association, as Trustee, relating to
Registrant's 7.125% Notes due June 15, 2007 and its 7.80%
Debentures due June 15, 2027 (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 of counsel regarding legality.
23(a) Consent of KPMG LLP.
23(b) Consent of counsel (contained in Exhibit 5).
24 Powers of Attorney (contained in signature page)
</TABLE>
<PAGE>
EXHIBIT 5
May 2, 2000
The Toro Company
8111 Lyndale Avenue South
Minneapolis, Minnesota 55420
Re: Registration Statement on Form S-8
Gentlemen:
I am Vice President, Secretary and General Counsel of The Toro
Company (the "Company"). In connection with the Registration Statement on
Form S-8 filed by the Company with the Securities and Exchange Commission
relating to an aggregate of up to 25,000 shares of Common Stock, $1.00 par
value per share (the "Common Stock"), and up to 25,000 related Preferred
Share Purchase Rights (the "Rights") of the Company, to be issued in
connection with the Toro Australia Pty Limited General Employee Stock Plan,
please be advised that as counsel to the Company, upon examination of such
corporate documents and records as I have deemed necessary or appropriate 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 in
accordance with proper corporate authorizations, will be legally issued,
fully paid and non-assessable; and
2. Assuming that the Rights Agreement dated as of May 20, 1998 (the "Rights
Agreement") has been duly authorized, executed and delivered by the Rights
Agent, the Rights, if and when issued as contemplated by the Rights
Agreement, as it may be amended from time to time, will have been legally
issued and entitled to the benefits of the Rights Agreement pursuant to
which they will be issued.
The foregoing opinion is limited to the Federal laws of the United
States and the General Corporation Law of the State of Delaware, and I am
expressing no opinion as to the effect of the laws of any other jurisdiction.
I hereby consent to the filing of this opinion as an exhibit to the
above-captioned Registration Statement, and to the reference to my name under
the heading "Interests of Named Experts and Counsel" contained in the
Registration Statement. In giving such consent, I do not hereby admit that I
am in the category of persons whose consent is required under Section 7 of
the Act.
Very truly yours,
J. Lawrence McIntyre
Vice President, Secretary
and General Counsel
<PAGE>
EXHIBIT 23(a)
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
The Toro Company
We consent to the use of our reports dated December 13, 1999 incorporated by
reference in this Form S-8.
KPMG LLP
Minneapolis, Minnesota
May 2, 2000
