TKR Timken Co

As filed with the Securities and Exchange Commission on May 11, 2015.

Registration No. 333-            

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

The Timken Company

(Exact Name of Registrant as Specified in Its Charter)

 

 

 

Ohio		34-0577130
(State or Other Jurisdiction of Incorporation or Organization)		(I.R.S. Employer Identification No.)

4500 Mt. Pleasant St. N.W.

North Canton, Ohio 44720-5450

(Address of Principal Executive Offices Including Zip Code)

The Timken Company 2011 Long-Term Incentive Plan,

as amended and restated as of February 13, 2015

(Full Title of the Plan)

Hansal N. Patel

Senior Corporate Attorney – Securities and Finance

4500 Mt. Pleasant St. N.W.

North Canton, Ohio 44720-5450

(234) 262-3000

(Name, Address and Telephone Number of Agent For Service)

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, 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.

 

Large accelerated filer		x		Accelerated filer		¨
Non-accelerated filer		¨  (Do not check if a smaller reporting company)		Smaller reporting company		¨

 

 

CALCULATION OF REGISTRATION FEE

 

Title of Securities to be Registered		Amount to be Registered		Proposed Maximum Offering Price Per Share		Proposed Maximum Aggregate Offering Price		Amount of Registration Fee
Common Shares, without par value		6,000,000 (1)(2)		$39.555(3)		$237,330,000 (3)		$27,577.75

(1)	Represents common shares, without par value (“Common Shares”), of The Timken Company (the “Registrant”) issuable pursuant to The Timken Company 2011 Long-Term Incentive Plan, as amended and restated as of February 13, 2015 (the “Plan”), being registered hereon.

(2)	Pursuant to Rule 416 of the Securities Act of 1933 (the “Securities Act”), this Registration Statement also covers such additional Common Shares as may become issuable pursuant to the anti-dilution provisions of the Plan.

(3)

Estimated solely for calculating the amount of the registration fee, pursuant to paragraphs (c) and (h) of Rule 457 of the General Rules and Regulations under the Securities Act, on the basis of the average of the high and low sale prices of the Common Shares on the New York Stock Exchange on May 6, 2015, within five business days prior to filing.

 

 

 

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The Registrant hereby files this Registration Statement on Form S-8 to register an additional 6,000,000 Common Shares under the Plan for which a previously filed registration statement on Form S-8 relating to the Plan is effective. Pursuant to General Instruction E to Form S-8, this Registration Statement incorporates by reference the contents of the Registration Statement on Form S-8 (Registration No. 333-174093) filed by the Registrant on May 10, 2011, including all attachments and exhibits thereto, except to the extent supplemented, amended or superseded by the information set forth herein or therein.

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

The information required by Part I is included in documents sent or given to participants in the Plan pursuant to Rule 428(b)(1) under the Securities Act.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 5.

Interests of Named Experts and Counsel.

The legality of the Common Shares being offered under this Registration Statement has been passed upon for the Registrant by Mr. Hansal N. Patel. Mr. Patel is the Senior Corporate Attorney – Securities and Finance of the Registrant. As of May 1, 2015, Mr. Patel beneficially owned 217 Common Shares.

 

Item 6.

Indemnification of Directors and Officers.

The Registrant’s regulations provide that it will indemnify, to the fullest extent permitted by law, any person who was or is 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 or officer of the Registrant, or is or was serving at the Registrant’s request as a director, trustee or officer of another corporation, domestic or foreign, non-profit or for-profit, partnership, joint venture, trust or other enterprise. The Registrant will not be required to indemnify any person with respect to any action, suit or proceeding that was initiated by that person unless the action, suit or proceeding was initiated to enforce any rights to indemnification under the Registrant’s regulations and the person is formally adjudged to be entitled to indemnity. The indemnification obligation provided in the Registrant’s regulations is not exclusive of any other rights to which those seeking indemnification may be entitled under any law, the Registrant’s articles of incorporation or any agreement, vote of shareholders or of disinterested directors or otherwise, both as to action in official capacities and as to action in another capacity while he or she is the Registrant’s director or officer and shall continue as to a person who has ceased to be a director, trustee or officer and shall inure to the benefit of the heirs, executors and administrators of that person.

The Registrant’s regulations also permit the Registrant to purchase and maintain insurance on behalf of any persons that the Registrant is required to indemnify under the regulations against any liability asserted against and incurred by that person, in their status or capacity as a party the Registrant must indemnify, whether or not the Registrant would have the power to indemnify such person against such liability. The Registrant may also, to the fullest extent permitted by law, enter into an indemnification agreement with any persons that the Registrant is required to indemnify under the regulations.

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The Registrant has entered into contracts with some of its directors and officers to indemnify them against many of the types of claims that may be made against them. The Registrant 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 regulations.

Section 1701.13 of the Ohio Revised Code, or Section 1701.13, generally permits indemnification of any director, officer or employee with respect to any proceeding against any such person provided that: (a) such person acted in good faith, (b) such person reasonably believed that the conduct was in or not opposed to the best interests of the corporation, and (c) in the case of criminal proceedings, such person had no reasonable cause to believe that the conduct was unlawful. Indemnification may be made against expenses (including attorneys’ fees), judgments, fines and settlements actually and reasonably incurred by such person in connection with the proceeding; provided, however, that if the proceeding is one by or in the right of the corporation, indemnification may be made only against actual and reasonable expenses (including attorneys’ fees) and may not be made with respect to any proceeding in which the director, officer or employee has been adjudged to be liable to the corporation, except to the extent that the court in which the proceeding was brought shall determine, upon application, that such person is, in view of all the circumstances, entitled to indemnity for such expenses as the court shall deem proper. To the extent that a director, officer or employee is successful on the merits or otherwise in defense of the proceeding, indemnification is required. The termination of any proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent does not, of itself, create a presumption that the director, officer or employee did not meet the standard of conduct required for indemnification to be permitted.

Section 1701.13 further provides that indemnification thereunder may not be made by the corporation unless authorized after a determination has been made that such indemnification is proper, with that determination to be made (a) by the Board of Directors by a majority vote of a quorum consisting of directors not parties to the proceedings; (b) if such a quorum is not obtainable, or, even if obtainable, but a quorum of disinterested directors so directs, by independent legal counsel in a written opinion; (c) by the shareholders; or (d) by the court in which the proceeding was brought. However, a director (but not an officer, employee or agent) is 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 such director’s act or failure to act was done with deliberate intent to cause injury to the corporation or with reckless disregard for the corporation’s best interests.

Finally, Section 1701.13 provides that indemnification or advancement of expense provided by that Section is not exclusive of any other rights to which those seeking indemnification may be entitled under the articles of incorporation or regulations or any agreement, vote of shareholders or disinterested directors or otherwise.

 

Item 8.

Exhibits.

 

Exhibit Number		Description
4.1		Amended Articles of Incorporation of the Registrant (effective May 31, 2013) (incorporated herein by reference to Exhibit 3.1 to the Registrant’s Quarterly Report on Form 10-Q (Commission No. 001-01169) filed with the Commission on July 31, 2013)

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4.2		Amended Regulations of the Registrant (adopted on February 14, 2014) (incorporated herein by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K (Commission No. 001-01169) filed with the Commission on February 14, 2014)
4.3		The Timken Company 2011 Long-Term Incentive Plan, as amended and restated as of February 13, 2015 (incorporated herein by reference to Appendix B to the Registrant’s Definitive Proxy Statement on Schedule 14A (Commission No. 001-01169) filed with the Commission on March 27, 2015)
5.1		Opinion of Counsel
23.1		Consent of Independent Registered Public Accounting Firm
23.2		Consent of Counsel (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;

(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 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 a prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 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 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 Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement.

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(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.

(b) 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.

(c) 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 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 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, 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 North Canton, state of Ohio, on this 11^th day of May, 2015.

 

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.

 

		Date:		May 11, 2015				*
								Richard G. Kyle
								President, Chief Executive Officer and Director
								(Principal Executive Officer)
		Date:		May 11, 2015				*
								Philip D. Fracassa
								Executive Vice President, Chief Financial Officer (Principal Financial Officer)
		Date:		May 11, 2015				*
								J. Ted Mihaila
								Senior Vice President and Controller
								(Principal Accounting Officer)
		Date:		May 11, 2015				*
								Maria A. Crowe
								Director
		Date:		May 11, 2015				*
								John A. Luke, Jr.
								Director

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		Date:		May 11, 2015				*
								Christopher L. Mapes
								Director
		Date:		May 11, 2015				*
								Ajita G. Rajendra
								Director
		Date:		May 11, 2015				*
								Joseph W. Ralston
								Director
		Date:		May 11, 2015				*
								John P. Reilly
								Director
		Date:		May 11, 2015				*
								Frank C. Sullivan
								Director
		Date:		May 11, 2015				*
								John M. Timken, Jr.
								Director
		Date:		May 11, 2015				*
								Ward J. Timken, Jr.
								Director
		Date:		May 11, 2015				*
								Jacqueline F. Woods
								Director

 

*	This Registration Statement has been signed on behalf of the above officers and directors by William R. Burkhart, as attorney-in-fact pursuant to a power of attorney filed as Exhibit 24.1 to this Registration Statement.

 

DATED:		May 11, 2015		By:		/s/ William R. Burkhart
						William R. Burkhart, Attorney-in-Fact

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EXHIBIT INDEX

 

Exhibit Number		Description
4.1		Amended Articles of Incorporation of the Registrant (effective May 31, 2013) (incorporated herein by reference to Exhibit 3.1 to the Registrant’s Quarterly Report on Form 10-Q (Commission No. 001-01169) filed with the Commission on July 31, 2013)
4.2		Amended Regulations of the Registrant (adopted on February 14, 2014) (incorporated herein by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K (Commission No. 001-01169) filed with the Commission on February 14, 2014)
4.3		The Timken Company 2011 Long-Term Incentive Plan, as amended and restated as of February 13, 2015 (incorporated herein by reference to Appendix B to the Registrant’s Definitive Proxy Statement on Schedule 14A (Commission No. 001-01169) filed with the Commission on March 27, 2015)
5.1		Opinion of Counsel
23.1		Consent of Independent Registered Public Accounting Firm
23.2		Consent of Counsel (included in Exhibit 5.1)
24.1		Power of Attorney

EXHIBIT 5.1

May 11, 2015

The Timken Company

4500 Mt. Pleasant St. N.W.

North Canton, Ohio 44720-5450

 

Re:

Registration Statement on Form S-8 Filed by The Timken Company

Ladies and Gentlemen:

I am the Senior Corporate Attorney – Securities and Finance of The Timken Company, an Ohio corporation (the “Company”), and have acted as counsel for the Company in connection with The Timken Company 2011 Long-Term Incentive Plan, as amended and restated as of February 13, 2015 (the “Plan”). In connection with the opinion expressed herein, I have examined such documents, records and matters of law as I have deemed relevant or necessary for purposes of this opinion. Based on the foregoing, and subject to the further limitations, qualifications and assumptions set forth herein, I am of the opinion that the 6,000,000 common shares, without par value, of the Company (the “Shares”) that may be issued or delivered and sold pursuant to the Plan and the authorized forms of stock option, restricted share or other applicable award agreements thereunder (the “Award Agreements”) will be, when issued or delivered and sold in accordance with the Plan and Award Agreements, validly issued, fully paid and nonassessable.

The opinion expressed herein is limited to the laws of the State of Ohio, as currently in effect, and I express no opinion as to the effect of the laws of any other jurisdiction. For purposes of this opinion, I have assumed the authenticity of all documents reviewed by me as originals and the conformity to the originals of all copies of documents reviewed by me. I have also assumed the legal capacity of all natural persons, the genuineness of the signatures of persons signing all documents reviewed by me, and the authority of such persons signing on behalf of the parties thereto. In addition, I have assumed that the resolutions authorizing the Company to issue or deliver and sell the Shares pursuant to the Plan and the Award Agreements will be in full force and effect at all times at which the Shares are issued or delivered and sold by the Company, and that the Company will take no action inconsistent with such resolutions. In rendering the opinion above, I have assumed that each award under the Plan will be approved by the Board of Directors of the Company or an authorized committee of the Board of Directors.

I hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement on Form S-8 filed by the Company to effect the registration of the Shares under the Securities Act of 1933 (the “Act”). In giving such consent, I do not thereby admit that I am included in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.

 

EXHIBIT 23.1

Consent of Independent Registered Public Accounting Firm

We consent to the incorporation by reference in the Registration Statement on Form S-8 pertaining to The Timken Company 2011 Long-Term Incentive Plan, as amended and restated as of February 13, 2015, for the registration of 6,000,000 common shares of The Timken Company of our reports dated March 2, 2015, with respect to the consolidated financial statements and schedule of The Timken Company and the effectiveness of internal control over financial reporting of The Timken Company included in its Annual Report (Form 10-K) for the year ended December 31, 2014, filed with the Securities and Exchange Commission.

/s/ Ernst & Young LLP

Cleveland, Ohio

May 11, 2015

EXHIBIT 24.1

THE TIMKEN COMPANY

REGISTRATION STATEMENT ON FORM S-8

POWER OF ATTORNEY

KNOW ALL BY THESE PRESENTS, that each of the undersigned directors and officers of The Timken Company, an Ohio corporation (the “Registrant”), does hereby constitute and appoint each of Richard G. Kyle, William R. Burkhart, Philip D. Fracassa and J. Ted Mihaila, or any of them, each acting alone, as the true and lawful attorney-in-fact or attorneys-in-fact for each of the undersigned, with full power of substitution and resubstitution, and in the name, place and stead of each of the undersigned, to execute and file (i) a Registration Statement on Form S-8 (the “Form S-8 Registration Statement”) with respect to the registration under the Securities Act of 1933, as amended, of the Registrant’s common stock, without par value, issuable in connection with The Timken Company 2011 Long-Term Incentive Plan, as amended and restated, (ii) any and all amendments, including post-effective amendments, supplements and exhibits to the Form S-8 Registration Statement and (iii) any and all applications or other documents to be filed with the Securities and Exchange Commission or any state securities commission or other regulatory authority or exchange with respect to the securities covered by the Form S-8 Registration Statement, with full power and authority to do and perform any and all acts and things whatsoever necessary, appropriate or desirable to be done in the premises, or in the name, place and stead of the said director and/or officer, hereby ratifying and approving the acts of said attorneys and any of them and any such substitute.

This Power of Attorney may be executed in multiple counterparts, each of which shall be deemed an original with respect to the person executing it.

IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of the 7th day of May 2015.

 

Signature				Title
/s/    Richard G. Kyle				President and Chief Executive Officer (Principal Executive Officer) and Director
Richard G. Kyle
/s/    Philip D. Fracassa				Executive Vice President and Chief Financial Officer (Principal Financial Officer)
Philip D. Fracassa
/s/    J. Ted Mihaila				Senior Vice President and Controller (Principal Accounting Officer)
J. Ted Mihaila
/s/    Maria A. Crowe				Director
Maria A. Crowe
/s/    John A. Luke, Jr.				Director
John A. Luke, Jr.
/s/    Christopher L. Mapes				Director
Christopher L. Mapes
/s/    Ajita G. Rajendra				Director
Ajita G. Rajendra

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/s/    Joseph W. Ralston				Director
Joseph W. Ralston
/s/    John P. Reilly				Director
John P. Reilly
/s/    Frank C. Sullivan				Director
Frank C. Sullivan
/s/    John M. Timken, Jr.				Director
John M. Timken, Jr.
/s/    Ward J. Timken, Jr.				Director
Ward J. Timken, Jr.
/s/    Jacqueline F. Woods				Director
Jacqueline F. Woods