As filed with the Securities and Exchange Commission on February 2, 1998
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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BORG-WARNER AUTOMOTIVE, INC.
(Exact name of registrant as specified in the charter)
Delaware 13-3404508
(State of Incorporation) (IRS Employer Identification No.)
200 South Michigan Avenue
Chicago, Illinois 60604
(Address of principal executive offices)
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BORG-WARNER AUTOMOTIVE, INC.
EXECUTIVE STOCK PERFORMANCE PLAN
(Full title of the plan)
LAURENE H. HORISZNY, ESQ.
Borg-Warner Automotive, Inc.
200 South Michigan Avenue
Chicago, Illinois 60604
(312) 322-8500
(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------
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 400,000 shares $54.15625 $21,662,500 $6,390.44
($.01 par value)
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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 January 28, 1998 on the consolidated reporting system.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by the Company with the Securities and
Exchange Commission (the "Commission") are incorporated in this Registration
Statement by reference:
(1) The Company's Annual Report on Form 10-K for its year ended
December 31, 1996.
(2) The Company's Quarterly Report on Form 10-Q for the quarters
ended March 31, 1997, June 30, 1997 and September 30, 1997.
(3) The description of the Company's Common Stock contained in the
Registration Statement on Form 8A filed under the Exchange Act and all
amendments and reports filed for the purpose of updating such information.
(4) All documents subsequently filed by the Company pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, 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 a part
of this Registration Statement 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 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 issued under
the Borg-Warner Automotive, Inc. Executive Stock Performance Plan has been
passed upon for the Company by Laurene H. Horiszny, Vice President, General
Counsel and Secretary of the Company. Ms. Horiszny owns or has the right to
acquire within the next 60 days an aggregate of 20,907 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
("DGCL") provides that a corporation has the power to indemnify its officers and
directors against the expenses, including attorney's 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 Restated
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 Restated 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
(4.1) Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit No. 3.1 of the
Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1993).
(4.2) By-laws of the Company (incorporated by reference to Exhibit
No. 3.2 of the Company's Quarterly Report on Form 10-Q for
the quarter ended September 30, 1993).
(4.3) The Company's Executive Stock Performance Plan (incorporated
by reference to Exhibit No. 10.23 of the Company's Annual
Report on Form 10-K for the year ended December 31, 1995).
(5) Opinion of Laurene H. Horiszny, Vice President, General
Counsel and Secretary of the Company.
(23.1) Consent of Deloitte & Touche LLP.
(23.2) Consent of Laurene H. Horiszny (included as part of Exhibit
No. 5).
(24) 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 1993;
(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, represents a fundamental change in the information set forth 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 percent
change in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(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 paragraph (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8 and the
information required to be included in a post-effective amendment by those
paragraphs 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.
(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) 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.
(c) 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.
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 Chicago, Illinois on February 2, 1998.
BORG-WARNER AUTOMOTIVE, INC.
By: /S/ JOHN F. FIEDLER
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JOHN F. FIEDLER
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in their
capacities on February 2, 1998.
SIGNATURE TITLE
/S/ JOHN F. FIEDLER Chairman of the Board and Chief Executive Officer
- ----------------------
JOHN F. FIEDLER
/S/ ROBIN J. ADAMS Vice President and Treasurer
- ---------------------- (Principal Financial Officer)
ROBIN J. ADAMS
/S/ WILLIAM C. CLINE Vice President and Controller
- ---------------------- (Principal Accounting Officer)
WILLIAM C. CLINE
* Director
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ANDREW F. BRIMMER
* Director
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WILLIAM E. BUTLER
* Director
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JERE A. DRUMMOND
* Director
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PAUL E. GLASKE
* Director
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IVAN W. GORR
* Director
- ------------------------
JAMES J. KERLEY
* Director
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ALEXIS P. MICHAS
* Director
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JOHN RAU
/S/ JOHN F. FIEDLER As Attorney-in-Fact for Directors marked with
- ------------------------ an asterisk.
JOHN F. FIEDLER
<PAGE>
Exhibit Index
(4.1) Restated Certificate of Incorporation of the Company (incorporated by
reference to Exhibit No. 3.1 of the Company's Quarterly Report on Form
10-Q for the quarter ended September 30, 1993).
(4.2) By-laws of the Company (incorporated by reference to Exhibit No. 3.2
of the Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1993).
(4.3) The Company's Executive Stock Performance Plan (incorporated by
reference to Exhibit No. 10.23 of the Company's Annual Report on Form
10-K for the year ended December 31, 1995).
(5) Opinion of Laurene H. Horiszny, Vice President, General Counsel and
Secretary of the Company.
(23.1) Consent of Deloitte & Touche LLP.
(23.2) Consent of Laurene H. Horiszny (included as part of Exhibit No. 5).
(24) Power of Attorney.
February 2, 1998
Borg-Warner Automotive, Inc.
200 South Michigan Ave.
Chicago, IL 60604
Gentlemen:
I have acted as counsel to Borg-Warner Automotive, Inc. (the "Company") in
connection with its Registration Statement on Form S-8 (the "Registration
Statement") of 400,000 shares of the Company's common stock, par value $.01 per
share ("Common Stock"), to be issued under the Borg-Warner Automotive, Inc.
Executive Stock Performance Plan (the "Plan"). In the course thereof, I or
attorneys acting under my supervision and control have reviewed such documents
and have made such investigation of law as I have deemed appropriate as a basis
for the opinions expressed below.
Based on the foregoing and subject to the qualifications set forth herein, I am
of the opinion that:
1. All necessary corporate action with respect to the authorization of the
shares of Common Stock under the Plan has been taken by the Company.
2. Such shares of Common Stock, when issued under the Plan, will be legally
issued, fully paid and non-assessable.
3. Under the laws of the State of Delaware and the laws of the State of
Illinois, the jurisdiction where the Company's principal executive offices are
located, no holder of shares of Common Stock issued under the Plan is or will be
subject to personal liability by reason of being such a holder.
I express no opinion as to, or the effect of applicability of, any laws other
than the laws of the State of Illinois, the General Corporation Law of Delaware
and the federal laws of the United States. This opinion is limited to the
specific issues addressed and is limited in all respects to laws and facts
existing on the date hereof.
I hereby consent to the filing of a copy of this opinion as an exhibit to the
Registration Statement and to the use of my name therein.
Yours sincerely,
/s/ LAURENE H. HORISZNY
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LAURENE H. HORISZNY
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Borg-Warner Automotive, Inc. on Form S-8 of our
report dated February 3, 1997, incorporated by reference in the
Annual Report on Form 10-K of Borg-Warner Automotive, Inc. for
the year ended December 31, 1996.
/s/DELOITTE & TOUCHE LLP
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DELOITTE & TOUCHE LLP
Chicago, Illinois
February 2, 1998
February 2, 1998
Borg-Warner Automotive, Inc.
200 South Michigan Ave.
Chicago, IL 60604
Gentlemen:
I have acted as counsel to Borg-Warner Automotive, Inc. (the "Company") in
connection with its Registration Statement on Form S-8 (the "Registration
Statement") of 400,000 shares of the Company's common stock, par value $.01 per
share ("Common Stock"), to be issued under the Borg-Warner Automotive, Inc.
Executive Stock Performance Plan (the "Plan"). In the course thereof, I or
attorneys acting under my supervision and control have reviewed such documents
and have made such investigation of law as I have deemed appropriate as a basis
for the opinions expressed below.
Based on the foregoing and subject to the qualifications set forth herein, I am
of the opinion that:
1. All necessary corporate action with respect to the authorization of the
shares of Common Stock under the Plan has been taken by the Company.
2. Such shares of Common Stock, when issued under the Plan, will be legally
issued, fully paid and non-assessable.
3. Under the laws of the State of Delaware and the laws of the State of
Illinois, the jurisdiction where the Company's principal executive offices are
located, no holder of shares of Common Stock issued under the Plan is or will be
subject to personal liability by reason of being such a holder.
I express no opinion as to, or the effect of applicability of, any laws other
than the laws of the State of Illinois, the General Corporation Law of Delaware
and the federal laws of the United States. This opinion is limited to the
specific issues addressed and is limited in all respects to laws and facts
existing on the date hereof.
I hereby consent to the filing of a copy of this opinion as an exhibit to the
Registration Statement and to the use of my name therein.
Yours sincerely,
/s/ LAURENE H. HORISZNY
- -------------------------
LAURENE H. HORISZNY
POWER OF ATTORNEY
The undersigned directors of Borg-Warner Automotive, Inc. (the
"Corporation") hereby appoint John F. Fiedler as their true and
lawful attorney-in-fact, with full power for and on their behalf
to execute, in their names and capacities as directors of the
Corporation, and to file with the Securities and Exchange
Commission on behalf of the Corporation under the Securities Act
of 1933, as amended, any and all Registration Statements
(including any and all amendments or post-effective amendments
thereto) relating to the Borg-Warner Automotive, Inc. Executive
Stock Performance Plan.
This Power of Attorney automatically ends upon the termination of
Mr. Fiedler's service with the Corporation.
In witness whereof, the undersigned have executed this Power of
Attorney on this 30th day of January, 1998.
/s/ JERE A. DRUMMOND /s/ ANDREW F. BRIMMER
- ------------------------ -------------------------
JERE A. DRUMMOND ANDREW F. BRIMMER
/s/ IVAN W. GORR /s/ WILLIAM E. BUTLER
- ------------------------ -------------------------
IVAN W. GORR WILLIAM E. BUTLER
/s/ PAUL E. GLASKE /s/ JOHN RAU
- ------------------------ -------------------------
PAUL E. GLASKE JOHN RAU
/s/ ALEXIS P. MICHAS /s/ JAMES J. KERLEY
- ------------------------ -------------------------
ALEXIS P. MICHAS JAMES J. KERLEY
