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As filed with the Securities and Exchange Commission on October 4, 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)
DEFERRED COMPENSATION PLAN FOR NONEMPLOYEE DIRECTORS
(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
CALCULATION OF REGISTRATION FEE
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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, 37,500 shares(b) $32.50(c) $1,218,750(c) $322(d)
par value $1.00 per
share (a)
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(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 based on director
elections 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 September 29, 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
31, 2000 (File No. 1-8649).
3. Its Quarterly Report on Form 10-Q for the quarter ended April 28,
2000 (File No. 1-8649).
4. Its Quarterly Report on Form 10-Q for the quarter ended July 28,
2000 (File No. 1-8649).
5. 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 a document will automatically update and
supersede any information previously incorporated by reference into this
Registration Statement.
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ITEM 4. DESCRIPTION OF SECURITIES.
The Common Stock is registered under Section 12(b) of the Securities
Exchange Act of 1934.
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.
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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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits are listed in the exhibit index.
ITEM 9. UNDERTAKINGS.
1. 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.
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(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.
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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 Bloomington, State of Minnesota on the 27th day
of September, 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.
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SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Kendrick B. Melrose Chairman, Chief Executive September 27, 2000
---------------------------- Officer, President and Director
Kendrick B. Melrose (Principal Executive Officer)
/s/ Stephen P. Wolfe Vice President Finance September 27, 2000
----------------------------- and Chief Financial Officer
Stephen P. Wolfe (Principal Financial Officer)
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<S> <C> <C>
/s/ Randy B. James Vice President and Controller September 27, 2000
------------------------------- (Principal Accounting Officer)
Randy B. James
/s/ Ronald O. Baukol Director September 27, 2000
------------------------------
Ronald O. Baukol
/s/ Robert C. Buhrmaster Director September 27, 2000
-----------------------------
Robert C. Buhrmaster
/s/ Winslow H. Buxton Director September 27, 2000
-----------------------------
Winslow H. Buxton
/s/ Janet K. Cooper Director September 27, 2000
--------------------------------
Janet K. Cooper
Director
--------------------------------
Katherine J. Harless
/s/ Robert H. Nassau Director September 27, 2000
------------------------------
Robert H. Nassau
/s/ Dale R. Olseth Director September 27, 2000
---------------------------------
Dale R. Olseth
/s/ Christopher A. Twomey Director September 27, 2000
----------------------------
Christopher A. Twomey
/s/ Gregg W. Steinhafel Director September 27, 2000
----------------------------------
Gregg W. Steinhafel
/s/ Edwin H. Wingate Director September 27, 2000
----------------------------------
Edwin H. Wingate
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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 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 pages).
