As filed with the Securities and Exchange Commission on April 26, 2000
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
---------------------------
BORGWARNER INC.
(formerly known as 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)
----------------------------------
BORG-WARNER AUTOMOTIVE, INC.
1993 STOCK INCENTIVE PLAN
(Full title of the plan)
LAURENE H. HORISZNY, ESQ.
BorgWarner 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 1,200,000 shares $40.875 $49,050,000 $12,949.20
($.01 par value)(2)
- --------------------------------------------------------------------------------
(1) Computed pursuant to Rule 457 (c) and Rule 457 (h) 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 April 25, 2000 on the consolidated reporting system.
(2) Pursuant to Rule 416 (c) under the Securities Act of 1933, this registration
statement also covers an indeterminate amount of interests to be offered or sold
pursuant to the employee benefit plan described herein.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
BorgWarner Inc. (the "Registrant" or "Company") and the Borg-Warner
Automotive, Inc. 1993 Stock Incentive Plan as Amended (the "Stock Incentive Plan
") hereby incorporate by reference herein the following documents, as filed with
the Securities and Exchange Commission (the "Commission"):
(i) The Registrant's latest Annual Report on Form 10K for the fiscal year
ended December 31, 1998 filed pursuant to Section 13 of the Securities Exchange
Act of 1934, (the "Exchange Act"), (ii) all other reports filed pursuant to
Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year
ending December 31, 1998, and (iii) the description of the Company's common
stock, par value $.01 per share, as set forth on Form 8-A dated July 29, 1993.
All documents subsequently filed by the Company or the Stock Incentive Plan
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 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 purchased under the
Stock Incentive 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 23,158 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 reasonable entitled to indemnity.
As permitted by Section 102 of the DGCL, the Company's 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 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.
(5.1) 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 (5.1)).
(24.1) Power of Attorney.
The Registrant hereby undertakes to submit the Stock Incentive Plan and any
amendments thereto to the Internal Revenue Service ("IRS") and will make all
changes required by the IRS in order to qualify the Stock Incentive Plan
pursuant to Section 401 of the Internal Revenue Code.
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 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, represents
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 (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 Exchange Act 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 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
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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 provisions described in Item 6 of this
Registration Statement, or otherwise, the registrant has been advised that in
the opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 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, suite 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 this 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 Securities Act of 1933 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 April 26, 2000.
BORGWARNER INC.
By: /s/ John F. Fiedler
--------------------------------------------
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 April 26, 2000.
SIGNATURE TITLE
/s/ John F. Fiedler Chairman of the Board & Chief Executive Officer
- -----------------------
JOHN F. FIEDLER
/s/ Lawrence B. Skatoff Executive Vice President & Chief Financial Officer
- ------------------------ (Principal Financial Officer)
LAWRENCE B. SKATOFF
/s/ William C. Cline Vice President and Controller
- ------------------------ (Principal Accounting Officer)
WILLIAM C. CLINE
* Director
- -------------------------
JOHN RAU
* Director
- ------------------------
ALEXIS P. MICHAS
* Director
- ------------------------
PAUL E. GLASKE
* Director
- ------------------------
WILLIAM E. BUTLER
* Director
- ------------------------
IVAN W. GORR
* Director
- ------------------------
ANDREW F. BRIMMER
* Director
- ------------------------
JERE A. DRUMMOND
* Director
- ------------------------
PHYLLIS O. BONANNO
/s/ John F. Fiedler As attorney-in-fact for directors marked by an
- ----------------------- asterisk.
JOHN F. FIEDLER
<PAGE>
EXHIBIT INDEX
(5.1) 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 (5.1)).
(24.1) Power of Attorney.
April 26, 2000
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, DC 20549
Gentlemen:
I have acted as counsel to BorgWarner Inc. (the "Company") in connection with
its Registration Statement on Form S-8 (the "Registration Statement"), covering
an additional 1,200,000 shares of the Company's common stock, par value $.01 per
share ("Common Stock"), to be issued under the Borg-Warner Automotive, Inc. 1993
Stock Incentive Plan, as amended (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
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
BorgWarner Inc. (formerly Borg-Warner Automotive, Inc.) on Form S-8 relating to
the Borg-Warner Automotive, Inc. 1993 Stock Incentive Plan of our report dated
January 30, 1999 (February 22, 1999 as to the third paragraph of Note 14),
incorporated by reference in the Annual Report on Form 10-K of Borg-Warner
Automotive, Inc. for the year ended December 31, 1998.
/s/ Deloitte & Touche LLP
- --------------------------
DELOITTE & TOUCHE LLP
Chicago, Illinois
February 8, 2000
April 26, 2000
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, DC 20549
Gentlemen:
I have acted as counsel to BorgWarner Inc. (the "Company") in connection with
its Registration Statement on Form S-8 (the "Registration Statement"), covering
an additional 1,200,000 shares of the Company's common stock, par value $.01 per
share ("Common Stock"), to be issued under the Borg-Warner Automotive, Inc. 1993
Stock Incentive Plan, as amended (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 BorgWarner 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 amendment of the Borg-
Warner Automotive, Inc. 1993 Stock Incentive 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
- ---day of February, 2000.
/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
/s/ Phyllis O. Bonanno
- -------------------------
PHYLLIS O. BONANNO
