As
filed with the Securities And Exchange Commission on May 16, 2006
Registration
Statement No. 333---------------------
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 charter)
DELAWARE
13-3404508
(State or other jurisdiction
of
(I.R.S. Employer
incorporation or
organization)
Identification No.)
3850 Hamlin Road
Auburn Hills, Michigan 48326
(Address of Principal Executive Offices)
________________________________
BORGWARNER INC. AMENDED AND RESTATED 2004 STOCK INCENTIVE PLAN
(Full title of the plan)
LAURENE H. HORISZNY, ESQ.
BORGWARNER
INC.
3850
HAMLIN ROAD
AUBURN
HILLS, MICHIGAN 48326
(248)
754-9200
(Name,
address and telephone number of agent for service)
_____________________________
CALCULATION
OF REGISTRATION FEE
_________________________________________________________________________
PROPOSED
PROPOSED
MAXIMUM MAXIMUM
TITLE
OF SECURITIES AMOUNT TO BE
OFFERING
PRICE AGGREGATE
REGISTRATION
TO
BE REGISTERED
REGISTERED PER
SHARE
(1) OFFERING PRICE FEE
___________________________________________________________________________________
$0.01
per share
("Common
Stock")(2) 2,300,000
shares
$64.41
$148,143,000.00 $15,851.30
______________________________________________________________________________________
(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 May 11, 2006 on the consolidated reporting system.
(2)
In
addition, 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
This
Registration
Statement relates to the registration of additional securities under the
BorgWarner Inc. Amended and Restated 2004 Stock Incentive Plan (the
“Plan”). In accordance with General Instruction E to Form S-8, the
contents of the previous Registration Statement on Form S-8, Commission
File No.
333-117707 filed on July 28, 2004 with the Securities and Exchange Commission
(the “Commission”) are incorporated herein by reference.
ITEM
3. INCORPORATION BY REFERENCE
The following documents filed by the Registrant are hereby incorporated
by
reference:
(i) the Registrant's latest Annual Report on Form 10-K for the fiscal year
ended December 31, 2005, as filed with the Commission on February 17,
2006;
(ii) the Registrant’s Current Reports on Form 8-K filed with the Commission on
February 1, 2006, February 8, 2006, February 9, 2006, and April 27, 2006;
(iii) the Registrant’s Quarterly Report on Form 10-Q for the quarterly period
ended March 31, 2006, filed with the Commission on April 27, 2006; and
(iv) the description of the Company's Common Stock, par value $0.01 per
share,
set forth in the Registrant's Registration Statement on Form 8-A, as filed
with
the Commission on July 29, 1993, as that description may be updated
from time to time.
All
documents
subsequently filed by the Company or the Plan pursuant to Sections 13(a),
13(c), 14 or 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 the Registration Statement and
to be
part thereof from the date of the filing of
such
documents.
Any
statement
contained in a document incorporated by, 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 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 48,210 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 (the "DGCL") provides
that
a corporation has the power to indemnify its officers and directors against
the
expenses, including attorneys' 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 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.
The
exhibits listed
below are filed herewith and made a part hereof.
EXHIBIT
NUMBER
DESCRIPTION
OF DOCUMENT
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5.1
Opinion of Laurene H. Horiszny, Vice President, General Counsel
and Secretary of the Company.
23.1
Consent
of
Independent Registered Public Accounting Firm.
23.2
Consent
of
Laurene H. Horiszny (included in Exhibit 5.1).
24.1
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 1933 (the "Securities Act");
(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 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% change in the
maximum
aggregate offering price set forth in the "Calculation of Registration
Fee"
table in the effective 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) of this section do not
apply
if the registration statement is on Form S-3 or Form S-8 or Form F-3, and
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
Commission by the Registrant pursuant to section 13 or section 15(d) of
the
Securities Exchange Act of 1934 (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, 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, 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.
(c)
Insofar as indemnification for liabilities arising under the
Securities Act 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 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 Securities
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 May 16,
2006.
BORGWARNER
INC.
By:
/s/ Timothy M.
Manganello
Timothy
M.
Manganello
Chairman and Chief Executive Officer
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 date indicated.
Name
Title
Date
/s/
Timothy M.
Manganello Chairman
and
May 16, 2006
TIMOTHY
M.
MANGANELLO Chief Executive
Officer
/s/ Robin
J.
Adams
Executive Vice President, May 16,
2006
ROBIN J.
ADAMS Chief
Financial Officer &
Chief
Administrative Officer
(Principal
Financial Officer)
/s/
Jeffrey L.
Obermayer Vice
President and Controller May 16, 2006
JEFFREY
L.
OBERMAYER (Principal
Accounting Officer)
*
PHYLLIS
O.
BONNANO Director May
16, 2006
*
DAVID T.
BROWN Director May
16, 2006
*
JERE
A.
DRUMMOND
Director May
16, 2006
*
PAUL
E.
GLASKE
Director
May 16, 2006
*
ALEXIS
P.
MICHAS
Director May
16, 2006
*
ERNEST J.
NOVAK,
JR.
Director
May 16, 2006
*
RICHARD
O.
SCHAUM
Director May
16, 2006
*
THOMAS
T.
STALLKAMP
Director May
16, 2006
/s/TIMOTHY
M. MANGANELLO *As
attorney-in-fact May
16, 2006
by an
asterisk.
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5.1 Opinion
of Laurene H. Horiszny, Vice President, General Counsel
and Secretary of the
Company.
23.1
Consent of Independent Registered Public Accounting Firm.
23.2
Consent of Laurene
H. Horiszny (included in Exhibit 5.1).
24.1
Power of
Attorney.