s8emp.htm
As
filed with the Securities and Exchange Commission on May 1, 2008
Registration
No. 333-_______________
UNITED
STATES SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
___________________________
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
|
BorgWarner
Inc.
(Exact name
of registrant as specified in its
charter)
|
|
Delaware
(State or
other jurisdiction of
incorporation
or organization)
|
13-3404508
(I.R.S.
employer
identification
number)
|
___________________________
3850
Hamlin Road
Auburn
Hills, MI 48326
(248)
754-9200
(Address, including
zip code, and telephone number,
including area
code, of registrant’s principal executive offices)
BORGWARNER
EMPLOYEES RETIREMENT SAVINGS PLAN
(Full title of the
Plan)
John
J. Gasparovic, Esq.
Vice
President, General Counsel, and Secretary
BorgWarner
Inc.
3850
Hamlin Road
Auburn
Hills, MI 48326
(248)
754-9200
(Name, address,
including zip code, and telephone
number, including
area code, of agent for service)
___________________________
Indicate by check
mark if the registrant is a large accelerated filer, an accelerated file, a
non-accelerated filer, or a smaller reporting company. See the
definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company in Rule 12b-2 of the Exchange Act.
|
Large
accelerated filer X
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Accelerated
filer
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Non-accelerated
filer
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Smaller
reporting company
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(do not check if a
smaller reporting company)
CALCULATION
OF REGISTRATION FEE
|
Title of each
class of
securities to be
registered(1)
|
Amount to
be
Registered(1)
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Proposed
maximum
offering price per share(2)
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Proposed
maximum
aggregate offering price(2)
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Amount
of
registration fee
|
|
Common
Stock,
$0.01 par
value per share
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1,800,000
shares
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$49.09
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$88,362,000.00
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$3472.62
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|
|
|
|
|
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(1) The
number of shares registered may be adjusted to prevent dilution from stock
splits, stock dividends and similar transactions. Pursuant to Rule
416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this
registration statement shall cover such additional shares. In
addition, pursuant to Rule 416 under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests in the
employee benefit plan described herein that are separate securities and are
required to be registered under the Securities Act.
(2) Estimated
pursuant to Rule 457(h) under the Securities Act solely for the purpose of
calculating the registration fee. The proposed maximum offering price
is based upon the average high and low sales prices of the Common Stock as
reported on the New York Stock Exchange on April 29, 2008 ($49.09).
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
On February 22, 1994, BorgWarner Inc, a
Delaware corporation (the “Company”), filed with the Securities and Exchange
Commission (the “SEC”) Registration Statements on Form S-8 (File Nos. 33-75566
and 33-75564) in order to register (i) an indeterminate amount of interests in
the Company’s BorgWarner Employees Retirement Savings Plan (the “Plan”) and (ii)
shares of the Company’s common stock, par value $0.01 per share (the “Common
Stock”), which shares may consist of shares already issued or newly issued
shares, issuable in connection with the Plan.
This Registration
Statement is being filed pursuant to General Instruction E of Form S-8
under the Securities Act of 1933, as amended (the “Securities Act”) for purposes
of registering an additional 1,800,000 shares of the Company’s Common Stock
(which shares may consist of shares already issued or newly issued shares) under
the Plan.
Pursuant to General
Instruction E to Form S-8, the contents of registration statement nos. 33-75566
and 33-75564 are incorporated herein by this reference.
Item
3. Incorporation of Documents by Reference.
The following
documents filed by BorgWarner Inc. (Commission File No. 1-12162) (the
“registrant”) pursuant to the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), are incorporated in this Registration Statement by
reference:
(a) the
registrant’s Annual Report on Form 10-K for the year ended December 31,
2007;
(b) the
registrant’s proxy statement on Schedule 14A, relating to its annual meeting of
stockholders held on April 30, 2008, filed on March 20, 2008;
(c) the
description of the registrant’s common stock contained in its registration
statement on From S-3/A (registration no. 333-84931) filed on September 21,
1999, including any amendment or report filed for the purposes of updating such
description.
All documents
subsequently filed by the registrant pursuant to Sections 13(a), 14, and
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 part hereof from the date of
filing such documents.
Any statement
contained in the documents incorporated, or deemed to be incorporated, by
reference herein or therein shall be deemed to be modified or superseded for
purposes of this registration statement and the prospectus to the extent that a
statement contained herein or therein or in any other subsequently filed
document which also is, or is deemed to be, incorporated by reference herein or
therein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this registration statement and the
prospectus.
The registrant
shall furnish without charge to each person to whom the prospectus is delivered,
on the written or oral request of such person, a copy of any or all of the
documents incorporated by reference, other than exhibits to such documents
(unless such exhibits are specifically incorporated by reference to the
information that is incorporated). Requests should be directed to
BorgWarner Inc., 3850 Hamlin Road, Auburn Hills, Michigan 48326,
Attention: Corporate Secretary; telephone: (248)
754-9200.
Item
8. Exhibits.
The following
exhibits are furnished with this Registration Statement:
Exhibit
No. Description
|
|
5.1
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Opinion and
consent of John J. Gasparovic, Vice President, General Counsel and
Secretary of the registrant.*
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10.1
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BorgWarner
Employees Retirement Savings Plan*
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23.1
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Consent of
Deloitte & Touche LLP*
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|
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23.2
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Consent of
John J. Gasparovic, Vice President, General Counsel and Secretary of the
registrant (included in exhibit
5.1)*
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|
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24.1
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Powers of
attorney (contained in the signature pages
hereto).*
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_____________________________
*
Filed herewith.
Item
9. Undertakings.
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 (a)(1)(i) and (a)(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 by the registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference into
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. 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 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.
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 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, 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 the City of Auburn Hills, State of Michigan,
on April 30, 2008.
BORGWARNER INC., a
Delaware corporation
By: /s/ Timothy M.
Manganello
Name: Timothy
M. Manganello
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|
Title:
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Chairman of the Board and Chief
Executive Officer
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Officers of the
registrant. Pursuant to the requirements of the Securities Act
of 1933, this Registration Statement has been signed below by the following
persons in the capacities indicated and on the dates indicated
below. By so signing, each of the undersigned, in his capacity as a
director or officer, or both, as the case may be, of the registrant, does hereby
appoint Timothy M. Manganello, Robin J. Adams and John J. Gasparovic,
and each of them severally, his true and lawful attorney to execute in his name,
place and stead, in his capacity as a director or officer, or both, as the case
may be, of the registrant, any and all amendments to this Registration Statement
(including post-effective amendments thereto) and all instruments necessary or
incidental in connection therewith, and to file the same with the Securities and
Exchange Commission. Each of said attorneys shall have full power and
authority to do and perform in the name and on behalf of each of the
undersigned, in any and all capacities, every act whatsoever requisite or
necessary to be done in the premises as fully, and for all intents and purposes,
as each of the undersigned might or could do in person, the undersigned hereby
ratifying and approving the acts of said attorneys and each of
them.
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Signatures
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Title
|
Date
|
|
Principal
Executive Officer:
/s/
Timothy M. Manganello
Timothy M.
Manganello
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Chairman of
the Board and
Chief
Executive Officer
|
April 30,
2008
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|
Principal
Financial Officer:
/s/
Robin J. Adams
Robin
J. Adams
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Executive
Vice President, Chief Financial Officer and Chief Administrative
Officer
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April 30,
2008
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|
Principal
Accounting Officer:
/s/
Jeffrey L. Obermayer
Jeffrey L. Obermayer
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Vice
President and Controller
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April 30,
2008
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Directors of the
registrant. Pursuant to the requirements of the Securities Act
of 1933, this Registration Statement has been signed below by the following
persons in the capacities indicated and on the dates indicated
below. By so signing, each of the undersigned, in his or her capacity
as a director or officer, or both, as the case may be, of the registrant, does
hereby appoint Timothy M. Manganello, Robin J. Adams and John J.
Gasparovic, and each of them severally, his or her true and lawful attorney to
execute in his or her name, place and stead, in his or her capacity as a
director or officer, or both, as the case may be, of the registrant, any and all
amendments to this Registration Statement (including post-effective amendments
thereto) and all instruments necessary or incidental in connection therewith,
and to file the same with the Securities and Exchange
Commission. Each of said attorneys shall have full power and
authority to do and perform in the name and on behalf of each of the
undersigned, in any and all capacities, every act whatsoever requisite or
necessary to be done in the premises as fully, and for all intents and purposes,
as each of the undersigned might or could do in person, the undersigned hereby
ratifying and approving the acts of said attorneys and each of
them.
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Signatures
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Title
|
Date
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Directors:
/s/
Timothy M. Manganello
Timothy M.
Manganello
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Director,
Chairman of the Board and Chief Executive Officer
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April 30,
2008
|
|
/s/
Robin J. Adams
Robin
J. Adams
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Director,
Executive Vice President, Chief Financial Officer and Chief Administrative
Officer
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April 30,
2008
|
|
*
Phyllis O.
Bonanno
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Director
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April 30,
2008
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*
David T.
Brown
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Director
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April 30,
2008
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*
Jere A.
Drummond
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Director
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April 30,
2008
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*
Alexis P.
Michas
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Director
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April 30,
2008
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*
Ernest J.
Novak, Jr.
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Director
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April 30,
2008
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*
Richard O.
Schaum
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Director
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April 30,
2008
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*
Thomas T.
Stallkamp
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Director
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April 30,
2008
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*
Timothy M.
Manganello
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*as
attorney-in-fact for those individuals marked by an
asterisk
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April 30,
2008
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The Plan. Pursuant
to the requirements of the Securities Act of 1933, the trustees (or other
persons who administer the employee benefit plan) have duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Auburn Hills, State of Michigan, on
April 30, 2008.
BORGWARNER
EMPLOYEES RETIREMENT SAVINGS PLAN
By: /s/
Angela D'Aversa
Name: Angela
D'Aversa
Title:
Committee Member
EXHIBIT
INDEX
Exhibit
No. Description
|
|
5.1
|
Opinion and
consent of John J. Gasparovic, Vice President, General Counsel and
Secretary of the registrant.*
|
|
|
10.1
|
BorgWarner
Employees Retirement Savings Plan*
|
|
|
23.1
|
Consent of
Deloitte & Touche LLP.*
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|
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23.2
|
Consent of
John J. Gasparovic, Vice President, General Counsel and Secretary of the
registrant (included in exhibit
5.1)*
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|
|
24.1
|
Powers of
attorney (contained in the signature pages
hereto).*
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_____________________________
* Filed
herewith.