As filed with the Securities and Exchange Commission on June 3, 2009		Registration 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 its charter)

Delaware		13-3404508
(State or other jurisdiction of incorporation or organization)		(I.R.S. employer identification no.)

3850 Hamlin Road
Auburn Hills, Michigan 48326
(248) 754-9200
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

BORGWARNER INC. RESTATED 2004 STOCK INCENTIVE PLAN
(Full title of the plan)

John J. Gasparovic, Esq.
Vice President, General Counsel and Secretary
BorgWarner Inc.
3850 Hamlin Road
Auburn Hills, Michigan 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.

Proposed maximum

Proposed maximum

Title of each class of

Amount to be

offering price per

aggregate offering

Amount of

securities to be registered(1)

Registered(1)(2)

share(2)(3)

price(2)(3)

registration fee (3)

Common Stock, $0.01 par value per share

2,500,000 shares

$31.50

$

78,750,000

$

4,394.25

 

 

form 8-K that the registrant may from time to time furnish to the Commission be incorporated by reference into, or otherwise become a part of, this registration statement.

     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documents incorporated, or deemed to be incorporated, by reference herein or therein shall be deemed to be modified or superseded for purposes of this registration statement and the prospectus to the extent that a statement contained herein or therein or in any other subsequently filed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 Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement and the prospectus.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.

In addition, effective January 1, 2009, the Company adopted Statement of Financial Accounting Standards (SFAS) 160, Noncontrolling Interests in Consolidated Financial Statements — an amendment of ARB No. 51 (SFAS 160). For consolidated subsidiaries that are less than wholly owned, the third party holdings of equity interests are referred to as noncontrolling interests. The portion of net income attributable to noncontrolling interests for such subsidiaries is presented as net income (loss) applicable to non-controlling interest on the consolidated statement of operation, and the portion of stockholders’ equity of such subsidiaries is presented as noncontrolling interest on the consolidated balance sheet.

The adoption of SFAS 160 did not have a material impact on our financial condition, results of operations or cash flows. However, it does impact the presentation and disclosure of noncontrolling (minority) interests in our consolidated financial statements. As a result of the retrospective presentation and disclosure requirements of SFAS 160, the Company was required to reflect the change in presentation and disclosure for the period ending March 31, 2009 and all periods presented in future filings.

The principal effect on the prior year balance sheets related to the adoption of SFAS 160 is summarized as follows:

Balance Sheet		2008				2007
(millions)
Total Stockholders equity, as previously reported		$	2,006.0			$	2,321.1
Increase for SFAS 160 reclass of non-controlling interest			31.5				117.9
Total Stockholders equity, as adjusted		$	2,037.5			$	2,439.0

The principal effect on the prior year statement of operations related to the adoption of SFAS 160 is summarized as follows:

Consolidated Statement of Operations		For the Fiscal Years Ended
(millions)		December 31,
		2008				2007				2006
Net earnings (loss), as previously reported		$	(35.6	)		$	288.5			$	211.6
SFAS No. 160 reclass of non-controlling interests			16.3				28.0				26.3
Net earnings (loss), as adjusted		$	(19.3	)		$	316.5			$	237.9
Less: Net earnings applicable to noncontrolling interests			16.3				28.0				26.3
Net earnings (loss) applicable to BorgWarner Inc.		$	(35.6	)		$	288.5			$	211.6

Item 8. Exhibits.

     The following exhibits are furnished with this Registration Statement:

Exhibit No.		Description
3.1		Restated Certificate of Incorporation of BorgWarner Inc. (incorporated by reference to Exhibit No. 3.1 of BorgWarner Inc.’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2008).
3.2		Amended and Restated By-laws of BorgWarner Inc. (incorporated by reference to Exhibit No. 3.1 of BorgWarner Inc.’s Current Report on Form 8-K filed November 18, 2008).
3.3		Certificate of Designation, Preferences and Rights of Series A Junior Participating Preferred Stock (incorporated by reference to Exhibit 3.3 of BorgWarner Inc.’s Annual Report on Form 10-K for the year ended December 31, 1999).
3.4		Certificate of Ownership and Merger Merging BorgWarner Inc. into Borg-Warner Automotive, Inc. (incorporated by reference to Exhibit 99.1 of BorgWarner Inc.’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2000).
5.1		Opinion and consent of John J. Gasparovic, Esq., Vice President, General Counsel and Secretary of BorgWarner Inc.*
10.1		BorgWarner Inc. Amended and Restated 2004 Stock Incentive Plan, as amended (incorporated by reference to Exhibit 10.1 of BorgWarner Inc.’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2009)
23.1		Consent of John J. Gasparovic, Esq. (included in Exhibit 5.1).
23.2		Consent of Deloitte & Touche LLP.*
24.1		Powers of attorney (contained in the signature pages to this registration statement).*

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 June 3, 2009.

     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.

Signatures		Title		Date
/s/ Timothy M. Manganello
Timothy M. Manganello		Chairman of the Board and Chief Executive Officer (Principal Executive Officer)		June 2, 2009
/s/ Robin J. Adams
Robin J. Adams		Executive Vice President, Chief Financial Officer and Chief Administrative Officer (Principal Financial Officer)		June 2, 2009
/s/ Jeffrey L. Obermayer
Jeffrey L. Obermayer		Vice President and Controller (Principal Accounting Officer)		June 2, 2009

     Directors of the registrant. KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Timothy M. Manganello, Robin J. Admas and John J. Gasparovic, and each of them individually, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and re-substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement on Form S-8 and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them individually, full power and authority to do and perform each and every act and things requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. 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.

Signatures		Title		Date
Directors:
/s/ Timothy M. Manganello   Timothy M. Manganello		Director, Chairman of the Board and Chief Executive Officer		May 22, 2009
/s/ Robin J. Adams   Robin J. Adams		Director, Executive Vice President, Chief Financial Officer and Chief Administrative Officer		May 22, 2009
/s/ Phyllis O. Bonanno   Phyllis O. Bonanno		Director		May 22, 2009
/s/ David T. Brown   David T. Brown		Director		May 22, 2009
/s/ Dennis C. Cuneo   Dennis C. Cuneo		Director		May 22, 2009
/s/ Jere A. Drummond   Jere A. Drummond		Director		May 22, 2009
/s/ Alexis P. Michas   Alexis P. Michas		Director		May 22, 2009
/s/ Ernest J. Novak, Jr.   Ernest J. Novak, Jr.		Director		May 22, 2009
/s/ Richard O. Schaum   Richard O. Schaum		Director		May 22, 2009
/s/ Thomas T. Stallkamp   Thomas T. Stallkamp		Director		May 22, 2009

EXHIBIT INDEX

Exhibit No.		Description
5.1		Opinion and consent of John J. Gasparovic, Esq., Vice President, General Counsel and Secretary of the registrant.*
23.1		Consent of John J. Gasparovic, Esq., Vice President, General Counsel and Secretary of the registrant (contained in Exhibit 5.1).
23.2		Consent of Deloitte & Touche LLP.*