As filed with the Securities and Exchange Commission on March 11, 2003.
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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THE TIMKEN COMPANY
(Exact name of registrant as specified in its charter)
Ohio 34-0577130
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1835 Dueber Avenue, S.W., Canton, Ohio 44706-2798
(Address of Principal Executive Offices Including Zip Code)
THE TIMKEN COMPANY SAVINGS AND STOCK INVESTMENT PLAN FOR TORRINGTON
NON-BARGAINING ASSOCIATES
(Full Title of the Plan)
Scott A. Scherff
Corporate Secretary and Assistant General Counsel
The Timken Company
1835 Dueber Avenue, S.W.
Canton, Ohio 44706-2798
(Name and Address of Agent for Service)
(330) 438-3000
(Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed
Securities Amount Maximum Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered(1) Registered Per Share Offering Price Fee
----------------- ---------------- --------------- -------------- -------------
Common Shares,
without par value 2,000,000 shares $15.64(2) $31,280,000(2) $2,530.55
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to
be offered pursuant to The Timken Company Savings and Stock Investment
Plan for Torrington Non-Bargaining Associates.
(2) Pursuant to Rule 457(h) under the Securities Act of 1933, this estimate is
made solely for the purpose of calculating the amount of the registration
fee and is based on the average of the high and low prices of the Common
Shares of the Registrant on the New York Stock Exchange on March 6, 2003.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8
will be sent or given to participating employees as specified by Rule 428(b)(1)
of the Securities Act of 1933. These documents and the documents incorporated by
reference into this registration statement pursuant to Item 3 of Part II of this
registration statement, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by The Timken Company (the
"Company") with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act") (File No.
001-01169) are incorporated herein by reference:
(1) Annual Report of the Company on Form 10-K for the year ended
December 31, 2001;
(2) Quarterly Reports of the Company on Form 10-Q for the quarters ended
March 31, 2002, June 30, 2002 and September 30, 2002;
(3) Current Reports of the Company on Form 8-K dated January 22, 2002,
February 19, 2002, February 22, 2002, March 20, 2002, April 8, 2002,
April 15, 2002, April 16, 2002, May 20, 2002, June 17, 2002, July
17, 2002, July 19, 2002, August 7, 2002, August 15, 2002, September
23, 2002, October 16, 2002, October 17, 2002, October 18, 2002,
November 19, 2002, December 24, 2002, January 22, 2003, January 29,
2003, February 7, 2003 and February 18, 2003; and
(4) The description of the Company's common stock, without par value,
contained in the Company's Registration Statements filed pursuant to
Section 12 of the Exchange Act and any amendments and reports filed
for the purpose of updating that description.
All documents that shall be filed by the Company or The Timken Company
Savings and Stock Investment Plan for Torrington Non-Bargaining Associates (the
"Plan") pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
subsequent to the filing of this registration statement and prior to the filing
of a post-effective amendment indicating that all securities offered under the
Plan have been sold or deregistering all securities then remaining unsold
thereunder shall be deemed to be incorporated herein by reference and shall be
deemed to be a part hereof from the date of filing thereof.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the Company's common shares, without par value (the
"Common Shares"), offered hereby will be passed upon for the Company by Scott A.
Scherff who is Corporate Secretary and Assistant General Counsel of the Company.
As of March 11, 2003, Mr. Scherff, together with his spouse, owns 23,853 Common
Shares and has been granted options to purchase 40,030 Common Shares.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Ohio law, Ohio corporations are authorized to indemnify directors,
officers, employees and agents
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within prescribed limits and must indemnify them under certain circumstances.
Ohio law does not provide statutory authorization for a corporation to indemnify
directors, officers, employees and agents for settlements, fines or judgments in
the context of derivative suits. However, it provides that directors (but not
officers, employees and agents) are entitled to mandatory advancement of
expenses, including attorneys' fees, incurred in defending any action, including
derivative actions, brought against the director, provided that the director
agrees to cooperate with the corporation concerning the matter and to repay the
amount advanced if it is proved by clear and convincing evidence that his act or
failure to act was done with deliberate intent to cause injury to the
corporation or with reckless disregard of the corporation's best interests.
Ohio law does not authorize payment of judgments to a director, officer,
employee or agent after a finding of negligence or misconduct in a derivative
suit absent a court order. Indemnification is permitted, however, to the extent
such person succeeds on the merits. In all other cases, if a director, officer,
employee or agent acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, indemnification
is discretionary except as otherwise provided by a corporation's articles, code
of regulations or by contract except with respect to the advancement of expenses
of directors.
Under Ohio law, a director is not liable for monetary damages unless it is
proved by clear and convincing evidence that his action or failure to act was
undertaken with deliberate intent to cause injury to the corporation or with
reckless disregard for the best interests of the corporation. There is, however,
no comparable provision limiting the liability of officers, employees or agents
of a corporation. The statutory right to indemnification is not exclusive in
Ohio, and Ohio corporations may, among other things, procure insurance for such
persons.
Article IV of the Company's Amended Regulations provides that it shall
indemnify its directors, officers and employees and may indemnify its agents, to
the fullest extent permitted by law under various conditions and subject to
various qualifications, and reads as follows:
SECTION 1.Indemnification
The Corporation shall indemnify, to the fullest extent then permitted by
law, 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, by reason of the fact that he 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, trustee, officer,
employee or agent of another corporation, domestic or foreign, non-profit or for
profit, partnership, joint venture, trust or other enterprise, provided,
however, that the Corporation shall indemnify any such agent (as opposed to any
Director, officer or employee) of the Corporation to an extent greater than that
required by law only if and to the extent that the Directors may, in their
discretion, so determine, and provided, further, that the Corporation shall not
be required hereby to indemnify any person with respect to any action, suit or
proceeding that was initiated by such person unless such action, suit or
proceeding was initiated by such person to enforce any rights to indemnification
arising hereunder and such person shall have been formally adjudged to be
entitled to indemnity by reason hereof. The indemnification provided hereby
shall not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any law, the Articles of Incorporation or
any agreement, vote of shareholders of disinterested Directors or otherwise,
both as to action in official capacities and as to action in another capacity
while he is a Director, officer, employee or agent of the Corporation, and shall
continue as to a person who has ceased to be a Director, trustee, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
SECTION 2.Insurance
The Corporation may, to the full extent then permitted by law, purchase
and maintain insurance on behalf of any persons described in Section 1 of this
Article IV against any liability asserted against and incurred by any such
person in any such capacity, or arising out of his status as such, whether or
not the Corporation would have the power to indemnify such person against such
liability.
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SECTION 3.Indemnification Agreements
The Corporation may, to the fullest extent then permitted by law, enter
into indemnification agreements with any person described in Section 1 of this
Article IV.
The Company has entered into contracts with some of its directors and
officers that indemnify them against many of the types of claims that may be
made against them. The Company also maintains insurance coverage for the benefit
of directors and officers with respect to many types of claims that may be made
against them, some of which may be in addition to those described in the
Company's Amended Regulations.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following Exhibits are being filed as part of this Registration
Statement:
4(a) Amended Articles of Incorporation of the Registrant (filed as
Exhibit 4(a) to the Registrant's Registration Statement No.
333-02553 on Form S-8 and incorporated herein by reference)
4(b) Amended Code of Regulations of the Registrant (filed as
Exhibit 3.1 to the Registrant's Annual Report on Form 10-K for
the fiscal year ended December 31, 1992, and incorporated
herein by reference)
4(c) The Timken Company Savings and Stock Investment Plan for
Torrington Non-Bargaining Associates
5 Opinion of Counsel
23(a) Consent of Independent Auditors
23(b) Consent of Counsel (included in Exhibit 5)
24 Power of Attorney
Undertaking Regarding Status of Favorable Determination Letter Covering
the Plan.
We will submit the Plan and any amendment thereto to the Internal Revenue
Service (the "IRS") in a timely manner and will make all changes required by the
IRS in order to qualify the Plan.
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;
(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. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered
(if the total
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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;
(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 registration statement is on Form S-3 or Form S-8, 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 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 in
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 Commission such indemnification is against public
policy as expressed in the 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 of 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.
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SIGNATURES
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 this registration statement 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 Canton, State of Ohio, on
this 11th day of March 2003.
THE TIMKEN COMPANY
By: /s/ Scott Scherff
-----------------------------------------
Scott Scherff
Corporate Secretary and Assistant
General Counsel
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The Registrant. 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 dates indicated.
Signature Title Date
--------- ----- ----
*
------------------------------ President, Chief Executive Officer and Director March 11, 2003
James W. Griffith (Principal Executive Officer)
*
------------------------------ Executive Vice President -- Finance and Administration March 11, 2003
Glenn A. Eisenberg (Principal Financial Officer)
*
------------------------------ Senior Vice President -- Finance and Controller March 11, 2003
Sallie B. Bailey (Principal Accounting Officer)
*
------------------------------ Director and Chairman March 11, 2003
W. R. Timken, Jr.
*
------------------------------ Director March 11, 2003
Stanley C. Gault
*
------------------------------ Director March 11, 2003
John A. Luke, Jr.
*
------------------------------ Director March 11, 2003
Robert W. Mahoney
*
------------------------------ Director March 11, 2003
Jay A. Precourt
*
------------------------------ Director March 11, 2003
Ward J. Timken, Jr.
*
------------------------------ Director March 11, 2003
John M. Timken, Jr.
*
------------------------------ Director March 11, 2003
Ward J. Timken
*
------------------------------ Director March 11, 2003
Joseph F. Toot, Jr.
*
------------------------------ Director March 11, 2003
Martin D. Walker
*
------------------------------ Director March 11, 2003
Jacqueline F. Woods
* This registration statement has been signed on behalf of the above-named
directors and officers of the Registrant by Scott A. Scherff, Corporate
Secretary and Assistant General Counsel of the registrant, as attorney-
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in-fact pursuant to a power of attorney filed with the Securities and
Exchange Commission as Exhibit 24 to this registration statement.
DATED: March 11, 2003 By: /s/ Scott A. Scherff
-----------------------------------------
Scott A. Scherff, Attorney-in-Fact
The Plan. Pursuant to the requirements of the Securities Act of 1933, the
Plan has duly caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Canton, State of
Ohio, on this 11th day of March 2003.
THE TIMKEN COMPANY SAVINGS AND
STOCK INVESTMENT PLAN FOR
TORRINGTON NON-BARGAINING
ASSOCIATES
By: /s/ Scott A. Scherff
-----------------------------------------
Scott A. Scherff
Corporate Secretary and
Assistant General Counsel
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EXHIBIT INDEX
The following Exhibits are being filed as part of this Registration
Statement:
4(a) Amended Articles of Incorporation of the Registrant (filed as
Exhibit 4(a) to the Registrant's Registration Statement No.
333-02553 on Form S-8 and incorporated herein by reference)
4(b) Amended Code of Regulations of the Registrant (filed as
Exhibit 3.1 to the Registrant's Annual Report on Form 10-K for
the fiscal year ended December 31, 1992, and incorporated
herein by reference)
4(c) The Timken Company Savings and Stock Investment Plan for
Torrington Non-Bargaining Associates
5 Opinion of Counsel
23(a) Consent of Independent Auditors
23(b) Consent of Counsel (included in Exhibit 5)
24 Power of Attorney
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