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Delaware
(State
or Other Jurisdiction of Incorporation or Organization)
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13-3404508
(I.R.S.
Employer Identification No.)
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Title
of Each Class of Securities To Be Registered
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Amount
To Be Registered
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Proposed
Maximum Aggregate Price Per Share(2)
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Proposed
Maximum Aggregate Offering Price(2)
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Amount
of Registration Fee(2)
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Voting
Common Stock
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500,000(1) | $ | 32.62 | $ | 16,310,000 | $ | 1,162.91 | |||||||||
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ABOUT
THIS DOCUMENT
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4
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WHERE
YOU CAN FIND MORE INFORMATION
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4
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INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
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5
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FORWARD-LOOKING
STATEMENTS
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5
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RISK
FACTORS
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6
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ABOUT
BORGWARNER INC.
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6
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USE
OF PROCEEDS
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7
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DESCRIPTION
OF OUR DIVIDEND REINVESTMENT AND STOCK
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PURCHASE
PLAN
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7
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PLAN
OF DISTRIBUTION
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20
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LEGAL
MATTERS
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20
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EXPERTS
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20
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·
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our
Annual Report on Form 10-K for the year ended December 31,
2009;
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our
Proxy Statement on Schedule 14A relating to our annual meeting of
shareholders held on April 29,
2009;
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our
Current Reports on Form 8-K filed February 11, 2010, (excluding portions
furnished under Item 2.02);
and
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the
description of our voting common stock, par value $0.01 per share,
contained in our registration statement on Form S-3 (registration no.
333-149539) filed on March 4, 2008, including any amendment or report
filed for the purposes of updating such
description.
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You
can start investing with a relatively small amount of money, or with a
single larger investment - whichever you
prefer.
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You
may send a check to the Plan Administrator or arrange for funds to be
deducted from your savings or checking
account.
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Dividends
and optional cash purchases can be fully invested in additional shares of
our common stock because the Plan permits fractional shares to be credited
to your account. Dividends on fractional shares may also be reinvested in
additional shares.
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If
you are already a stockholder, you can consolidate all your holdings of
our common stock into a single account. You can deposit your stock
certificates into your Plan account or, if you hold shares with a broker,
you can transfer those shares into your own name and deposit them into
your Plan account.
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The
Plan offers you flexibility when you decide to sell your shares. You may
request the sale of some or all of your shares through the Plan
Administrator at any time. Or, if you prefer to have complete control over
the timing and price at which you sell, you may withdraw your shares from
the Plan, at no cost to you, and sell them through a broker of your
choice.
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Because
the prices at which shares are purchased are determined as of specified
dates or as of dates otherwise beyond your control, you may lose some
advantages otherwise available to you in being able to select the timing
of your investments. For example, because the price charged to you for
shares purchased on the open market is the average price paid by the Plan
Administrator to obtain shares for all participants who acquire shares
through the Plan on the same day, you may pay a higher price for shares
purchased under the Plan than for shares purchased on the investment date
outside of the Plan.
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We
will not pay interest on funds we hold pending
investment.
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Sales
of shares for participants are irrevocable and will be made at market
prices at the time of sale. You will not be able to control the timing of
such sales or to place "limit orders" specifying the prices at which you
are willing to sell your
shares.
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The
Plan Administrator will promptly process your instructions, but you should
leave ample time for preparation and receipt of your stock certificate if
you decide to go that route.
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Shares
held in the Plan by the Plan Administrator are not covered by the customer
protection provisions of the Securities Investor Protection Act of 1970
relating to customers of failed securities broker-dealer firms and are not
insured by the Federal Deposit Insurance Corporation or any other
governmental agency.
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Partial
dividend reinvestment: If you select this option, a portion of your cash
dividends will be paid to you in cash, and the remaining portion of your
dividends will be automatically reinvested to purchase additional shares
of BorgWarner common stock. If you choose partial reinvestment, you must
specify on the enrollment form the number of whole shares on which you
wish to continue to receive cash dividends by check or to have directly
deposited into your designated checking or savings account, as further
described below. The remaining dividends will be automatically
reinvested.
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No
dividend reinvestment: If you select this option, all of your dividends
will be paid to you in cash. You may choose to have your cash dividends
directly deposited into your designated checking or savings account or
sent to you by check.
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Initial
Investment Fee
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No
charge.
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Optional
Cash Investments
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No
charge.
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Reinvestment
of Dividends
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No
charge.
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Sale
of Shares
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Transaction
Fee
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$15.00
per transaction plus
$0.12
per share sold
(includes
trading fees and commissions)
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Deposit
of Certificates
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No
Charge
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Certificate
Withdrawal
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No
Charge
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Book-to-Book
Transfers
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No
Charge
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Return
of Investment Check or EFT
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$35.00
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Upon
receipt of your funds, the Plan Administrator will invest initial and
additional cash purchases as promptly as practicable, normally within five
(5) business days.
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Shares
will be posted to your account in whole and fractional shares, computed to
four decimal places. A confirmation of your transaction will be sent by
e-mail or via a paper statement to the Internet or postal address you give
us when you enroll in the Plan.
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In
the unlikely event that, due to unusual market conditions, the Plan
Administrator is unable to invest the funds within thirty-five (35)
calendar clays, the Plan Administrator will return the funds to you by
check. No interest will be paid on funds held by the Plan Administrator
pending investment.
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For
automatic monthly purchases, the amounts you have authorized will be
withdrawn from your bank account on the 15th
day of each month; or on the next succeeding business day if the 15th
falls on a weekend or holiday. The funds will be credited to your Plan
account and normally invested within five (5) business days after receipt
by the Plan Administrator.
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The
Plan Administrator will use your cash to purchase as many full and
fractional shares as possible.
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18.
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How
will I be credited with the dividends paid on the shares I have enrolled
in the Plan and/or that are being held in my Plan
account?
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19.
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What
if I decide that I would like to receive in cash some of the dividends
paid on the shares enrolled or held in the Plan, rather than having them
reinvested?
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21.
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Will
certificates be issued to me for shares of common stock purchased through
the Plan?
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22.
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How
can I arrange for any stock certificate(s) to be held in safekeeping by
the Plan Administrator?
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25.
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What
happens if I decide to sell or transfer all of the certificated shares
enrolled in the Plan but not the shares that are held in my Plan
account?
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26.
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If
BorgWarner issues additional shares of common stock in connection with a
stock dividend or a stock split, how will I receive the additional
shares?
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28.
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What
are the responsibilities of BorgWarner and of the Plan Administrator under
the Plan?
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Internet. You can
enroll, obtain information, change the number of shares on which your
dividends are to be paid in cash, and perform certain transactions on your
account online via Investor Service Direct (ISD). New investors will need
to establish a Personal Identification Number (PIN) when setting up their
account. Existing stockholders will need to use the Investor
Identification Number (IID) which can be found in a bolded box on your
check stub, statement, or advice to establish your PIN. In order to access
your account through ISD, you will be required to complete an account
activation process. This one-time authentication process will be used to
validate your identity in addition to your IID and self-assigned
PIN.
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To
access Investor ServiceDirect please visit the BNY Mellon Shareowner
Services website at:
www.bnymellon.com/shareowner/isd.
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Written Inquiries. You
may make an e-mail inquiry by following the instructions on the Investor
ServiceDirect website. Please address all other correspondence concerning
the Plan to the Plan Administrator at the following
address:
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Telephone Inquiries. The
Plan Administrator may be reached directly by
dialing:
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Registration
fee
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$ | 1,162.91 | ||
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Legal
fees and expenses (including Blue Sky fees)
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$ | 10,000.00 | ||
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Accounting
fees and expenses
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$ | 12,000.00 | ||
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Printing
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$ | 5,000.00 | ||
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Miscellaneous
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$ | 1,837.09 | ||
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Total
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$ | 30,000.00 | ||
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Exhibit
Number
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Exhibit
Description
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3.1/4.1
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Restated
Certificate of Incorporation of registrant (incorporated by reference to
Exhibit 3.1 to the registrant’s Quarterly Report on Form 10-Q for the
quarter ended September 30, 1993).
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3.2/4.2
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Amended
and Restated By-Laws of registrant(incorporated by reference to Exhibit
3.2/4.2 of the initial filing of this registration
statement).*
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3.3/4.3
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Certificate
of Designations, Preferences and Rights of Series A Junior Participating
Preferred Stock (incorporated by reference to Exhibit 3.3 of the
registrant’s Annual Report on Form 10-K for the year ended December 31,
1999).
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3.4/4.4
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Certificate
of Ownership and Merger Merging BorgWarner Inc. into Borg-Warner
Automotive, Inc. (incorporated by reference to Exhibit 99.1 of the
registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31,
2000).
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5.1
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Opinion
of Miller, Canfield, Paddock and Stone, P.L.C. (including the consent of
such Firm).**
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23.1
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Consent
of PricewaterhouseCoopers LLP.**
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23.2
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Consent
of Deloitte & Touche LLP.**
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23.3
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Consent
of Miller, Canfield, Paddock and Stone, P.L.C. (included in Exhibit
5.1).
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24.1
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Power
of Attorney (included in the signature page to the original filing of the
Registration Statement).*
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(1)
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To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration
statement:
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(i)
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To
include any prospectus required by Section 10(a)(3) of the Securities Act
of 1933;
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(ii)
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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 this 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
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(iii)
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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 this registration
statement;
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(2)
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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)
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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.
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(4)
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That,
for purposes of determining liability under the Securities Act of 1933 to
any purchaser:
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(i)
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Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be
deemed to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration statement;
and
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(ii)
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Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or
(b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x)
for the purpose of providing the information required by Section 10(a) of
the Securities Act of 1933 shall be deemed to be part of and included in
the registration statement as of the earlier of the date such form of
prospectus is first used after effectiveness or the date of the first
contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement relating
to the securities in the registration statement to which that prospectus
relates, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof. Provided, however, that no
statement made in a registration statement or prospectus that is part of
the registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or prospectus
that is part of the registration statement will, as to a purchaser with a
time of
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contract
of sale prior to such effective date, supersede or modify any statement
that was made in the registration statement or prospectus that was part of
the registration statement or made in any such document immediately prior
to such effective date.
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(5)
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That,
for the purpose of determining liability of the registrant under the
Securities Act of 1933 to any purchaser in the initial distribution of the
securities, the undersigned registrant undertakes that in a primary
offering of securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered or sold to
such purchaser by means of any of the following communications, the
undersigned registrant will be a seller to the purchaser and will be
considered to offer or sell such securities to such
purchaser:
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(i)
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Any
preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to Rule
424;
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(ii)
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Any
free writing prospectus relating to the offering prepared by or on behalf
of the undersigned registrant or used or referred to by the undersigned
registrant;
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(iii)
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The
portion of any other free writing prospectus relating to the offering
containing material information about the undersigned registrant or its
securities provided by or on behalf of the undersigned registrant;
and
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(iv)
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Any
other communication that is an offer in the offering made by the
undersigned registrant to the
purchaser.
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(b)
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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.
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(c)
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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 Commission such
indemnification is against public policy as expressed in the Securities
Act of 1933 and is, therefore,
unenforceable.
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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 of 1933 and will be governed by the final adjudication of
such issue.
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SIGNATURES
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| BorgWarner Inc. | |||
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By:
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/s/ Timothy M. Manganello | |
| Timothy M. Manganello | |||
| Chairman of the Board and | |||
| Chief Executive Officer | |||
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SIGNATURES
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Signatures
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Title
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Date
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/S/ Timothy M.
Manganello
Timothy
M. Manganello
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Chairman
of the Board, Director, Chief Executive Officer and Director (principal
executive officer)
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February
15, 2010
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/S/ Robin J.
Adams
Robin
J. Adams
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Director,
Executive Vice President, Chief Financial Officer and Chief Administrative
Officer (principal financial and accounting officer)
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February
15, 2010
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*
Phyllis
O. Bonanno
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Director
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February
15, 2010
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*
David
T. Brown
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Director
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February
15, 2010
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*
Dennis
C. Cuneo
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Director
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February
15, 2010
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*
Jere
A. Drummond
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Director
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February
15, 2010
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*
John
R. McKernan, Jr.
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Director
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February
15, 2010
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*
Alexis
P. Michas
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Director
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February
15, 2010
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*
Ernest
J. Novak, Jr.
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Director
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February
15, 2010
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*
Richard
O. Schaum
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Director
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February
15, 2010
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*
Thomas
T. Stallkamp
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Director
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February
15, 2010
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*By: John J.
Gasparovic
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John
J. Gasparovic
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As
attorney-in-fact for the person indicated
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indicated
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Exhibit
Number
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Exhibit
Description
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5.1
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Opinion
of Miller, Canfield, Paddock and Stone, P.L.C. (including the consent of
such firm).**
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23.1
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Consent
of PricewaterhouseCoopers LLP.**
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23.2
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Consent
of Deloitte & Touche LLP.**
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23.3
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Consent
of Miller, Canfield, Paddock and Stone, P.L.C. (included in Exhibit
5.1).**
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