Registration No. 333-__________
As filed with the Securities and Exchange Commission
on May 22, 2023
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)
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| Delaware |
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13-3404508 |
| (State
or other jurisdiction of incorporation or organization) |
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(I.R.S.
Employer Identification Number) |
3850 Hamlin Road
Auburn Hills, Michigan 48326
(248) 754-9200
(Address of principal executive offices, including
zip code)
BorgWarner Inc. 2023 Stock Incentive Plan
BorgWarner Inc. 2018 Stock Incentive Plan
(Full title of the plan)
Tonit M. Calaway
Executive Vice President, Chief Administrative
Officer, General Counsel and Secretary
BorgWarner Inc.
3850 Hamlin Road
Auburn Hills, Michigan 48326
(248) 754-9200
(Name, address and telephone number, including
area code, of agent for service)
Copy to:
Patrick G. Quick
Foley & Lardner LLP
777 East Wisconsin Avenue
Milwaukee, WI 53202-5306
(414) 271-2400
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions
of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging
growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer x |
Accelerated filer ¨ |
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Non-accelerated filer ¨ |
Smaller reporting company ¨ |
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Emerging growth company ¨ |
If an emerging
growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any
new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document or documents containing the information
specified in Part I are not required to be filed with the Securities and Exchange Commission (the “Commission”) as part
of this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed with
the Commission are hereby incorporated by reference into this Registration Statement:
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(a) |
the
Company’s Annual Report on Form 10-K for the year ended December 31, 2022 filed with the Commission on February 9,
2023; |
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(b) |
the
Company’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2023 filed with the Commission on
May 4, 2023; |
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(c) |
the
information specifically incorporated by reference into the Company’s Annual Report on Form 10-K from the Company’s
Definitive
Proxy Statement on Schedule 14A, filed with the Commission on April 6, 2023; |
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(d) |
the
Company’s Current Reports on Form 8-K filed with the Commission (in all filings, excluding any portions furnished under
Item 2.02 or Item 7.01 and any exhibits included with such Items, as applicable) on February 9,
2023, February 14,
2023 and April 27,
2023; and |
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(e) |
the
description of the Company Shares, par value $0.01 per Company Share, contained in the registration statement on Form 8-A
(registration no. 001-12162) filed on July 24, 1998, including any amendment or report filed for the purposes of updating such
description. |
All reports and other documents that the Company
subsequently files with the Commission pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), prior to the filing of a post-effective amendment indicating that the Company has sold all
of the securities offered under this Registration Statement or that deregisters the distribution of all such securities then remaining
unsold, shall be deemed to be incorporated by reference into this Registration Statement from the date that the Company files such report
or document. Any statement contained in this Registration Statement or any report or document incorporated into this Registration Statement
by reference, however, shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a
statement contained in a subsequently dated report or document that is also considered part of this Registration Statement, or in any
amendment to this Registration Statement, is inconsistent with such prior 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. Subject to the foregoing, all information
appearing in this Registration Statement is so qualified in its entirety by the information appearing in the documents incorporated herein
by reference. The Company’s file number with the Commission is 001-12162.
Under no circumstances will any information that
the Company discloses under Item 2.02 or 7.01 of any Current Report on Form 8-K that the Company may from time to time furnish
to the Commission be incorporated by reference into, or otherwise become a part of, this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation
Law (“DGCL”) provides as follows:
A corporation shall have power to indemnify any
person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, or investigative (other than an action by or in the right of the corporation) by reason of the
fact that the person is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise,
against expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred
by the person in connection with such action, suit, or proceeding if the person acted in good faith and in a manner the person reasonably
believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had
no reasonable cause to believe the person’s conduct was unlawful. The termination of any action, suit, or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the
person did not act in good faith and in a manner which the person reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that the person’s conduct
was unlawful.
A corporation shall have power to indemnify any
person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action or suit by or in the
right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee,
or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other enterprise against expenses (including attorneys’ fees) actually and reasonably
incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a
manner the person reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification
shall be made in respect of any claim, issue, or matter as to which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
As permitted by Section 102 of the DGCL,
the Company’s restated certificate of incorporation provides that no director shall be personally 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; or (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. The Company’s amended and restated
bylaws also provide for indemnification of its directors and officers to the fullest extent permitted by the DGCL.
The Company maintains directors and officers liability
insurance for the benefit of its directors and officers. In addition, underwriting agreements that may be entered into between the Company
and any underwriter may contain certain provisions regarding indemnification of our directors and officers by the underwriters.
The foregoing statements are subject to the detailed
provisions of the DGCL, the Company’s restated certificate of incorporation, and the Company’s amended and restated by-laws.
For information concerning the Company’s undertaking to submit to adjudication the issue of indemnification for violation of the
securities laws, see Item 9 hereof.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
The exhibits listed in the accompanying Exhibit Index
are filed or incorporated by reference as part of this Registration Statement.
Item 9. Undertakings.
| A. | The undersigned Company 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, as amened (the “Securities Act”);
(ii) to
reflect in the prospectus any facts or events arising after the effective date of this 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) under the Securities Act 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 this Registration Statement or
any material change to such information in this Registration Statement.
provided,
however, that the undertakings set forth in paragraphs (i) and (ii) above do not apply if the information required
to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by
the Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this 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 Company hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Company’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 this 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 Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the 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 Company of expenses incurred or paid by a director, officer
or controlling person of the Company 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 Company 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.
INDEX TO EXHIBITS
| Exhibit Number |
Description
of Exhibits |
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| 4.1 |
Restated
Certificate of Incorporation of the Company, as amended through July 22, 2022 (incorporated by reference to Exhibit 3.1
to the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2022 filed on August 3, 2022). |
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| 4.2 |
Amended
and Restated By-Laws of the Company, as amended through April 25, 2018 (incorporated by reference to Exhibit 3.2 to the
Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2018 filed July 26, 2018). |
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| 4.3 |
BorgWarner
Inc. 2023 Stock Incentive Plan (incorporated by reference to Appendix B to the Company’s Definitive Proxy Statement on Schedule
14A filed on March 17, 2023). |
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| 4.4 |
BorgWarner
Inc. 2018 Stock Incentive Plan (incorporated by reference to Appendix A to the Company’s Definitive Proxy Statement filed March 16,
2018).% |
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| 5.1* |
Opinion
of Foley & Lardner LLP. |
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| 23.1* |
Consent
of PricewaterhouseCoopers LLP. |
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| 23.2* |
Consent
of Foley & Lardner LLP (included in its opinion filed as Exhibit 5.1 hereto). |
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| 24.1* |
Powers
of Attorney. |
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| 107* |
Filing
Fee Table. |
SIGNATURES
Pursuant to the requirements of the Securities
Act, the Company 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 22, 2023.
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BORGWARNER
INC. |
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By: |
/s/ Frédéric B.
Lissalde |
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Name: |
Frédéric
B. Lissalde |
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Title: |
President
and Chief Executive Officer |
Pursuant to the requirements of the Securities
Act, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.
| Signature |
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Title |
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Date |
| /s/ Frédéric
B. Lissalde |
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President and Chief Executive Officer (Principal
Executive Officer) and Director |
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May 22, 2023 |
| Frédéric B. Lissalde |
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| /s/ Kevin A.
Nowlan |
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Executive Vice President and Chief Financial
Officer (Principal Financial Officer) |
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May 22, 2023 |
| Kevin A. Nowlan |
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| /s/ Craig D.
Aaron |
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Vice President and Controller (Principal
Accounting Officer) |
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May 22, 2023 |
| Craig D. Aaron |
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Non-Executive Chairman and Director |
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May 22, 2023 |
| Alexis P. Michas* |
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Director |
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May 22, 2023 |
| Sara A. Greenstein* |
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Director |
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May 22, 2023 |
| Michael S. Hanley* |
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Director |
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May 22, 2023 |
| Dr. Shaun E. McAlmont* |
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Director |
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May 22, 2023 |
| Deborah D. McWhinney* |
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Director |
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May 22, 2023 |
| Sailaja K. Shankar* |
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Director |
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May 22, 2023 |
| Hau Thai-Tang* |
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| /s/ Kevin A.
Nowlan |
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*as attorney-in-fact for those individuals
marked by an asterisk |
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May 22, 2023 |
| Kevin A. Nowlan |
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