AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 12, 2003
REGISTRATION STATEMENT NO. 333-[-]
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549-1004
FORM S-3
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 (I.R.S. Employer Identification
Incorporation or Organization) Number)
THE TIMKEN COMPANY
1835 DUEBER AVENUE, S.W.
CANTON, OHIO 44706-2798
(330) 438-3000
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
SCOTT A. SCHERFF
CORPORATE SECRETARY AND ASSISTANT GENERAL COUNSEL
THE TIMKEN COMPANY
1835 DUEBER AVENUE, S.W.
CANTON, OHIO 44706-2798
(330) 438-3000
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent For Service)
COPIES TO:
CHRISTOPHER M. KELLY MARIPAT ALPUCHE
JONES DAY SIMPSON THACHER & BARTLETT LLP
901 LAKESIDE AVENUE 425 LEXINGTON AVENUE
CLEVELAND, OHIO 44114 NEW YORK, NEW YORK 10017
(216) 586-3939 (212) 455-2000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
PROPOSED
PROPOSED MAXIMUM
MAXIMUM AGGREGATE AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER SECURITY(1) PRICE(1) FEE
-----------------------------------------------------------------------------------
Common stock, 9,395,973 $17.90 $168,187,917 $0(2)
without par value shares
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act, based on the average of
the high and low prices for our shares of common stock on the New York
Stock Exchange on September 10, 2003 of $17.90 per share.
(2) Pursuant to Rule 457(p), the amount of the registration fee payable
hereunder ($13,607) has been fully offset by $36,875 of filing fees paid by
the registrant in respect of $125 million of unsold securities under its
Registration Statement on Form S-3 (File No. 333-45891) first filed
February 9, 1998.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
The information in this prospectus is not complete and may be changed. We have
filed a registration statement relating to these securities with the Securities
and Exchange Commission. The selling stockholders may not sell these securities
until the registration statement is effective. This prospectus is not an offer
to sell these securities, and the selling stockholders are not soliciting offers
to buy these securities, in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED SEPTEMBER 12, 2003
PROSPECTUS
9,395,973 SHARES
[Logo]
THE TIMKEN COMPANY
COMMON STOCK
--------------------------
Ingersoll-Rand Company or its permitted transferees, which we collectively
refer to as selling stockholders, may offer from time to time all of the shares
of common stock. We will not receive any proceeds from the sale of these shares
by the selling stockholders.
The selling stockholders may sell the shares of common stock in transactions
on the New York Stock Exchange, in negotiated transactions or otherwise, at
market prices prevailing at the time of the sale or at negotiated or fixed
prices. The selling stockholders may sell some or all of their shares of common
stock directly to purchasers, in transactions involving underwriters,
broker-dealers or agents, or in any other ways described in this prospectus
under "Plan of Distribution." If required, we will provide the names of any
other selling stockholders and any underwriters, broker-dealers or agents
involved in the sale of these shares and the specific terms of each sale of
shares, including any agent's discounts and commissions, in a supplement to this
prospectus. The aggregate proceeds to the selling stockholders from the sale of
these shares of common stock will be the selling price of the shares sold, less
the aggregate agents' commissions and underwriters' discounts, if any, and other
expenses of issuance and distribution not borne by us. You should read this
prospectus and any accompanying prospectus supplement carefully before you
invest in our common stock.
Our common stock is listed on the New York Stock Exchange under the symbol
"TKR." You should obtain current information as to the market price of our
common stock before you invest.
INVESTING IN OUR COMMON STOCK INVOLVES RISKS. SEE "RISK FACTORS" ON PAGE 4 OF
THIS PROSPECTUS AND "RISK FACTORS" IN ANY ACCOMPANYING PROSPECTUS SUPPLEMENT.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
--------------------------
The date of this prospectus is , 2003.
TABLE OF CONTENTS
Page
----
About This Prospectus................................................. 2
Where You Can Find More Information................................... 3
Risk Factors.......................................................... 4
Note Regarding Forward-Looking Statements............................. 4
The Timken Company.................................................... 6
Use of Proceeds....................................................... 8
Dividend Policy....................................................... 9
Description of Our Capital Stock...................................... 10
Registration Rights................................................... 13
Selling Stockholders.................................................. 14
Plan of Distribution.................................................. 15
Legal Matters......................................................... 19
Experts............................................................... 19
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement on Form S-3 that we filed
with the SEC using a "shelf" registration process. Under this shelf process, the
selling stockholders named in this prospectus or any prospectus supplement may,
from time to time, sell up to 9,395,973 shares of our common stock directly to
purchasers, in one or more public offerings or in any of the other ways
described under the heading "Plan of Distribution."
This prospectus provides you with a general description of the common stock
which the selling stockholders may sell. Each time a selling stockholder offers
to sell any of our common stock, to the extent required, we will provide a
prospectus supplement that will contain specific information about the terms of
that offering, including a description of additional risks relating to the
offering, if those terms are not described in this prospectus. A prospectus
supplement may also add, update or change information contained in this
prospectus. If there is any inconsistency between the information in this
prospectus and any accompanying prospectus supplement, you should rely on the
information in the prospectus supplement. You should read both this prospectus
and any prospectus supplement together with the additional information described
under the heading "Where You Can Find More Information" before investing in the
offered common stock.
WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH ANY INFORMATION OTHER THAN
THE INFORMATION CONTAINED, INCORPORATED OR DEEMED INCORPORATED IN THIS
PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT. THIS DOCUMENT MAY ONLY BE USED WHERE IT
IS LEGAL TO SELL OUR COMMON STOCK.
As used in this prospectus or any accompanying prospectus supplement, except
as otherwise specified, all references to "Timken," "we," "us," "our" and
similar references are to The Timken Company, an Ohio corporation, and its
consolidated subsidiaries.
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WHERE YOU CAN FIND MORE INFORMATION
We are also subject to the reporting requirements of the Exchange Act and, in
accordance with these requirements, we file annual, quarterly and current
reports, proxy statements and other information with the SEC. Reports, proxy
statements and other information filed by us can be inspected at the public
reference facilities maintained by the SEC at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference room. Copies of these materials can also be
obtained from the public reference room at the address mentioned above at
prescribed rates. The SEC also maintains a website that contains reports, proxy
and information statements and other information regarding companies like us
that file electronically with the SEC. The address of the SEC's website is
http://www.sec.gov.
Our common stock is listed on the New York Stock Exchange. Reports, proxy
statements and other information concerning our business may also be inspected
at the offices of the New York Stock Exchange at 20 Broad Street, New York, New
York 10005. This information may also be obtained from us as described below.
We have filed a registration statement with the SEC under the Securities Act
that registers the shares of common stock offered by this prospectus. The
registration statement, including the attached exhibits, contains additional
relevant information about us. The rules and regulations of the SEC allow us to
omit some information included in the registration statement from this
prospectus.
The SEC allows us to "incorporate by reference" the information we file with
it into this prospectus, which means that we can disclose important information
to you by referring you to those documents, and those documents will be
considered part of this prospectus. Information that we file later with the SEC
will automatically update and supersede the previously filed information. We
incorporate by reference in this prospectus the documents listed below and any
future filings that we make with the SEC under Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act (SEC File No. 1-1169) (1) after the date of the filing of
this registration statement and prior to its effectiveness and (2) until this
offering has been completed.
- Our Annual Report on Form 10-K for the fiscal year ended December 31,
2002.
- Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2003,
and June 30, 2003.
- Our Current Reports on Form 8-K filed with the SEC on January 22, 2003,
February 7, 2003, February 18, 2003, April 30, 2003, July 3, 2003, and
September 12, 2003 (three separate filings).
- The description of our common stock contained in a registration statement
filed under the Exchange Act and any amendments and reports filed for
purposes of updating that description.
We will provide you at no charge, upon request, with a copy of these filings,
or any or all of the documents incorporated into this prospectus by reference,
other than exhibits to those documents unless the exhibits are specifically
incorporated by reference into those documents or specifically referred to in
this prospectus. Requests should be directed to:
The Timken Company
1835 Dueber Avenue, S.W.
Canton, Ohio 44706-2798
Attention: Corporate Secretary
(330) 438-3000
3
RISK FACTORS
We incorporate by reference in this prospectus the information under the
caption "Risk Factors" in the prospectus supplement with respect to our common
stock filed with the SEC on February 13, 2003 pursuant to Rule 424(b) of the
Securities Act and accompanying the prospectus contained in our Registration
Statement on Form S-3 (Reg. No. 333-100731). Additional risks relating to our
business, the industries in which we operate or our common stock may be
described from time to time in a prospectus supplement or in our filings with
the SEC. All of these risk factors are difficult to predict, are subject to
material uncertainties that may affect actual results and may be beyond our
control.
NOTE REGARDING FORWARD-LOOKING STATEMENTS
All statements set forth or incorporated by reference in this prospectus or
an accompanying prospectus supplement (including our forecasts, beliefs and
expectations) that are not historical in nature are "forward-looking" statements
within the meaning of the Private Securities Litigation Reform Act of 1995. We
caution readers that actual results may differ materially from those expressed
or implied in forward-looking statements made by us due to a variety of
important factors, such as:
- Risks associated with the acquisition of the Engineered Solutions business
of Ingersoll-Rand Company Limited, which we refer to as Ingersoll-Rand,
including certain of its joint venture interests, operating assets and
subsidiaries, including The Torrington Company, which business we refer to
as Torrington. These risks include the uncertainties in both timing and
amount of actual benefits, if any, that may be realized as a result of the
integration of Torrington with our operations and the timing and amount of
the resources required to achieve those benefits, risks associated with
diversion of management's attention from routine operations during the
integration process and risks associated with the higher level of debt
associated with the Torrington acquisition.
- Changes in world economic conditions, including additional adverse effects
from terrorism or hostilities. This includes, but is not limited to,
political risks associated with the potential instability of governments
and legal systems in countries in which we or our customers conduct
business and significant changes in currency valuations.
- The effects of changes in customer demand on sales, product mix and prices
in the industries in which we operate. This includes the effects of
customer strikes, the impact of changes in industrial business cycles and
whether conditions of fair trade continue in the U.S. market.
- Competitive factors, including changes in market penetration, increasing
price competition by existing or new foreign and domestic competitors and
the introduction of new products by existing and new competitors and new
technology that may impact the way our products are sold or distributed.
- Changes in operating costs. This includes the effect of changes in our
manufacturing processes, changes in costs associated with varying levels
of operations, changes resulting from inventory management and cost
reduction initiatives and different levels of customer demands, the
effects of unplanned work stoppages, changes in the cost of labor and
benefits, and the cost and availability of raw materials and energy.
- The success of our operating plans, including our ability to achieve the
benefits from our global restructuring, manufacturing transformation, and
administrative cost reduction initiatives as well as our ongoing
continuous improvement and rationalization programs, our ability to
integrate acquired companies and assets into our operations, the ability
of acquired companies to achieve satisfactory operating results and our
ability to maintain appropriate relations with unions that represent our
associates in certain locations in order to avoid disruptions of our
business.
- Unanticipated litigation, claims or assessments. This includes, but is not
limited to, claims or problems related to intellectual property, product
liability or warranty and environmental issues.
4
- Changes in worldwide financial markets, including interest rates, to the
extent they affect our ability to raise capital or increase our cost of
funds, have an impact on the overall performance of our pension fund
investments and/or cause changes in the economy which affect customer
demand.
See the information referenced under "Risk Factors" above for more
information about some of these factors. Except as required by the federal
securities laws, we undertake no obligation to publicly update or revise any
forward-looking statement, whether as a result of new information, future events
or otherwise.
5
THE TIMKEN COMPANY
We are a leading global manufacturer of highly engineered bearings, alloy and
specialty steel and related components. We are the world's largest manufacturer
of tapered roller bearings and alloy seamless mechanical steel tubing and the
largest North American based bearings manufacturer. As of June 30, 2003, we had
facilities in 29 countries on six continents and employed approximately 28,000
people.
We had net sales of $2.6 billion, $2.4 billion and $2.6 billion for the years
ended December 31, 2000, 2001 and 2002. We reported income (loss) before
cumulative effect of change in accounting principle of $45.9 million, ($41.7)
million and $51.5 million for the years ended December 31, 2000, 2001 and 2002.
We manufacture two basic product lines: anti-friction bearings and steel
products, and we report our business in three segments: automotive group,
industrial group and steel. Automotive group, industrial group and steel
represented 30%, 38% and 32%, respectively, of our net sales to external
customers for the year ended December 31, 2002.
In the bearing industry, we are best known for our principal product, the
tapered roller bearing, which was originally patented in 1898 by our founder,
Henry Timken. Our tapered roller bearings are used in a wide variety of products
and applications, including passenger cars, trucks, aircraft wheels, locomotives
and railroad cars and equipment for agriculture, construction, mining, pulp and
paper processing, power generation, metal processing and metal mills. We also
produce high-quality spherical and cylindrical roller bearings for large gear
drives, rolling mills and other process industry and infrastructure development
applications. In addition, our aerospace and super precision facilities produce
high-performance ball and cylindrical bearings for ultra high-speed and
high-accuracy applications. These types of bearings are used in aircraft and
helicopter engines, gear boxes, transmissions, flight and fuel controls, missile
guidance systems, dental handpieces, robotic equipment and semiconductor
manufacturing equipment. A small part of our business involves providing bearing
reconditioning services for industrial and railroad customers, both
internationally and domestically.
Our steel products include steels of intermediate alloy, low alloy and carbon
grades. We also make vacuum processed specialty steels. Our steel products are
available in a wide range of solid and tubular sections with a variety of
lengths and finishes. We sell our steel products, including semifinished and
finished precision steel components, to other anti-friction bearing companies
and to companies in the automotive, tooling, aerospace, forging, and oil and gas
drilling industries, and to steel service centers. For the year ended December
31, 2002, approximately 15% of our steel production was consumed in our bearings
operations.
On February 18, 2003, we completed our acquisition of Torrington. Torrington
is a leading worldwide producer of needle roller, heavy-duty roller and ball
bearings and motion control components and assemblies. The consideration we paid
for the Torrington acquisition was $700 million in cash, subject to adjustment,
and the 9,395,973 shares of common stock offered hereby. We financed the $700
million cash component of the Torrington acquisition through a public offering
of 12.65 million shares of our common stock, an offering of $250 million of our
5.75% Notes due 2010, a five-year revolving credit facility and a $125 million
securitized accounts receivable facility.
Torrington has been a leader in the bearing industry for over 100 years and
is a leading manufacturer of needle roller bearings. It produces a wide range of
bearings sold under a number of brand names, including Torrington needle roller
bearings, Torrington heavy-duty roller bearings, Nadella precision needle roller
bearings and linear motion solutions and Fafnir ball bearings and housed units.
Torrington also produces a variety of precision motion control components and
assemblies, such as steering shaft assemblies and steering column shafts.
Torrington sells its products directly or through authorized distributors to
automotive and industrial manufacturers, as well as to aftermarket users
throughout the world.
Torrington had net sales of $1.2 billion for the year ended December 31, 2002
and, as of December 31, 2002, employed approximately 10,000 people and operated
27 plants throughout the world. We are in the process of integrating
Torrington's two business divisions, automotive engineered solutions and
industrial engineered solutions, into our automotive group and industrial group
segments.
The Torrington automotive business manufactures a variety of products,
including roller and needle bearings and other components used in an
automobile's transmission, chassis, steering column and engine. Many of these
6
products, such as column locks and rotary tilt products for steering columns,
are highly engineered with precision technology, and are specially designed
through collaborative efforts between Torrington and its customers. These
products are primarily sold to original equipment manufacturers, or OEMs,
including large automobile manufacturers, and their principal suppliers.
The Torrington industrial business produces a broad range of products,
including roller bearings, needle bearings, wider inner ring ball bearings and
housed units, radial ball bearings, super precision ball bearings, airframe
control bearings, precision machined bearings and precision components and
assemblies. These products are sold to OEMs, as well as through a global
aftermarket network.
Timken was founded in 1899 by Henry Timken and his two sons in St. Louis,
Missouri, as The Timken Roller Bearing Axle Company, after Henry received two
patents for his invention of the tapered roller bearing. The company moved to
Canton, Ohio and was incorporated in 1904 under the laws of the State of Ohio as
The Timken Roller Bearing Company.
Our principal executive offices are located at 1835 Dueber Avenue, S.W.,
Canton, Ohio 44706-2798. Our telephone number is (330) 438-3000.
7
USE OF PROCEEDS
The selling stockholders named under "Selling Stockholders" in this
prospectus or any prospectus supplement will receive all of the net proceeds
from the sale of our shares of common stock offered by this prospectus. We will
not receive any proceeds from sales of those shares.
8
DIVIDEND POLICY
We pay dividends on our common stock generally in March, June, September and
December of each year. We have paid dividends on our common stock every quarter
since our initial public offering in 1922. During each quarter in 2000 and the
first, second and third quarters of 2001, we paid a quarterly cash dividend on
our common stock of $0.18 per share. During the fourth quarter of 2001, each
quarter in 2002 and the first, second and third quarters of 2003, we paid a cash
dividend of $0.13 per share. We cannot assure you that, or in what amount, we
will continue to pay dividends in any future quarters.
Our board of directors considers the payment of dividends based upon the
earnings and financial condition of the company, as well as other relevant
considerations.
9
DESCRIPTION OF OUR CAPITAL STOCK
As of the date of this prospectus, our authorized capital stock consists of
200,000,000 shares of common stock, without par value, 10,000,000 shares of
Class I Serial Preferred Stock, without par value, and 10,000,000 shares of
Class II Serial Preferred Stock, without par value. At August 31, 2003,
85,566,821 shares of common stock and no shares of preferred stock were issued
and outstanding.
COMMON STOCK
Subject to the restrictions described below, the holders of our common stock
are entitled to receive dividends from funds legally available when, as and if
declared by our board of directors and, upon our liquidation, dissolution or
winding up, are entitled to receive pro rata our net assets after satisfaction
in full of the prior rights of our creditors and holders of any preferred stock.
Except as otherwise provided by law or stated below, the holders of our
common stock are entitled to one vote for each share held on all matters as to
which stockholders are entitled to vote, voting jointly as a single class with
the holders of Class II Serial Preferred Stock.
Effective July 24, 1986, Ohio corporate law was amended to permit the
articles of incorporation of an Ohio corporation to be amended by its
stockholders to eliminate cumulative voting in the election of directors. On
April 21, 1987, our stockholders adopted such an amendment. As a result, no
holder of any of our shares of common stock has any right to cumulate voting
power in any election of directors.
The holders of our common stock do not have any preferential, subscriptive or
preemptive rights to subscribe to or purchase any new or additional issue of
shares of any class of capital stock or of securities convertible into our
capital stock. Our common stock is not subject to redemption and does not have
any conversion rights. All of our issued and outstanding common stock is fully
paid and non-assessable.
PREFERRED STOCK
Our preferred stock is divided into two classes, Class I Serial Preferred
Stock and Class II Serial Preferred Stock. Holders of Class I Serial Preferred
have preference rights superior to both the holders of Class II Serial Preferred
and the holders of our common stock. Holders of Class II Serial Preferred have
preference rights superior to the holders of our common stock. The following
description of our preferred stock applies to both classes, unless otherwise
specified.
Our preferred stock may be issued from time to time in one or more series
with such distinctive serial designations as are fixed by our board of directors
and with such rights, preferences and limitations as are fixed by our board of
directors or required by law. Satisfaction of dividend preferences of any
outstanding preferred stock would reduce the amount of funds available for the
payment of dividends on our common stock. In the event of our voluntary or
involuntary liquidation, dissolution or winding up, holders of preferred stock
would be entitled to receive a preferential payment before any payment is made
to holders of shares of common stock. Additionally, with respect to any dividend
or dissolution preferences, holders of Class I Serial Preferred Stock will
receive preferential payment over holders of Class II Serial Preferred Stock.
Subject to the exceptions listed below, the holders of Class I Serial
Preferred Stock are not entitled, as such, to notice of meetings of stockholders
or to vote upon any matter presented to the stockholders. However, the
affirmative vote of the holders of at least two-thirds of the outstanding shares
of Class I Serial Preferred Stock, voting separately as a class, and in certain
cases by series, is required to effect or validate any amendment to our amended
articles of incorporation that:
- changes issued shares of Class I Serial Preferred Stock of all series then
outstanding into a lesser number of shares of the same class and series or
into the same or a different number of shares of any other class or
series;
10
- changes the express terms of the Class I Serial Preferred Stock in any
manner substantially prejudicial to the holders of all series thereof then
outstanding;
- authorizes shares of any class, or any securities convertible into shares
of any class, or authorizes the conversion of any security into shares of
any class, ranking prior to the Class I Serial Preferred Stock; or
- changes the express terms of issued shares of any class ranking prior to
the Class I Serial Preferred Stock in any manner substantially prejudicial
to the holders of all series of Class I Serial Preferred Stock then
outstanding.
In addition, if the payment of six quarterly dividends, whether or not
consecutive, is in default, holders of Class I Serial Preferred Stock, voting
separately as a class, are entitled to elect two additional members to our board
of directors. When all dividends in default on any Class I Serial Preferred
Stock have been paid, the holders' power to elect the two additional directors
at subsequent elections of directors becomes null and void unless and until a
new default occurs. The holders of Class I Serial Preferred Stock do not have
cumulative voting rights or any preferential, subscriptive or preemptive rights
to subscribe to or purchase any new or additional issue of shares of any class
of capital stock or securities convertible into our capital stock.
If the shares of any series of either class of preferred stock are
convertible into shares of any other class or series of our capital stock, our
stated capital, if any, will be modified accordingly to reflect such conversion.
ANTI-TAKEOVER PROVISIONS IN AMENDED REGULATIONS
Pursuant to our amended regulations, our board of directors is divided, with
respect to the terms for which the directors severally hold office, into three
classes as nearly equal in number as one-third of the total number of directors
constituting the whole board of directors permits, with the three-year term of
office of one class of directors expiring each year. Without the affirmative
vote of not less than two-thirds of our total voting power, the total number of
directors may not be changed to less than nine or greater than 18. In addition,
our amended regulations provide that:
- directors may be removed, as permitted by statute, by the directors then
in office or, upon the recommendation of two-thirds of the directors then
in office, by the affirmative vote of the holders of not less than
two-thirds of our voting power entitled to elect directors in place of
those being removed; and
- our board of directors may fix the number of directors within a range of
nine to 18 directors, to the extent consistent with applicable law.
The provisions of our Amended Regulations may be amended at a meeting of the
stockholders by:
- the affirmative vote of the stockholders of record entitling them to
exercise a majority of the voting power on the proposal, if such proposal
has been recommended by a two-thirds vote of the directors then in office
as being in the best interests of The Timken Company and its stockholders,
or
- the affirmative vote, at a meeting, of the stockholders of record entitled
to exercise two-thirds of the voting power on such proposal, or
- the affirmative vote or approval of, and in a writing or writings signed
by, all the stockholders who would be entitled to notice of a meeting of
the stockholders held for that purpose.
Although these provisions are intended to encourage potential acquiring
persons to negotiate with our board of directors and to provide for continuity
and stability of management, these provisions may have an anti-takeover effect.
By making it more time consuming for a substantial stockholder to gain control
of the board of directors, these provisions may render more difficult, and may
discourage, a proxy contest or the assumption of control of our company or the
removal of the incumbent board of directors.
11
OHIO CONTROL SHARE STATUTE
Section 1701.831 of the General Corporation Law of the State of Ohio requires
the prior authorization of the stockholders of certain corporations in order for
any person to acquire, either directly or indirectly, shares of that corporation
that would entitle the acquiring person to exercise or direct the exercise of
20% or more of the voting power of that corporation in the election of directors
or to exceed specified other percentages of voting power. In the event an
acquiring person proposes to make such an acquisition, the person is required to
deliver to the corporation a statement disclosing, among other things, the
number of shares owned, directly or indirectly, by the person, the range of
voting power that may result from the proposed acquisition and the identity of
the acquiring person. Within 10 days after receipt of this statement, the
corporation must call a special meeting of stockholders to vote on the proposed
acquisition. The acquiring person may complete the proposed acquisition only if
the acquisition is approved by the affirmative vote of the holders of at least a
majority of the voting power of all shares entitled to vote in the election of
directors represented at the meeting, excluding the voting power of all
"interested shares." Interested shares include any shares held by the acquiring
person and those held by officers and directors of the corporation. Section
1701.831 does not apply to a corporation if its articles of incorporation or
code of regulations state that the statute does not apply to a corporation. Our
Amended Articles of Incorporation and Amended Regulations do not contain a
provision opting out of this statute.
Chapter 1704 of the General Corporation Law of the State of Ohio prohibits
certain corporations from engaging in a "chapter 1704 transaction" (described
below) with an "interested shareholder" for a period of three years after the
date of the transaction in which the person became an interested shareholder,
unless, among other things:
- the articles of incorporation expressly provide that the corporation is
not subject to the statute (we have not made this election); or
- the board of directors of the corporation approves the chapter 1704
transaction or the acquisition of the shares before the date the shares
were acquired.
After the three-year moratorium period, the corporation may not consummate a
chapter 1704 transaction unless, among other things, it is approved by the
affirmative vote of the holders of at least two-thirds of the voting power in
the election of directors and the holders of a majority of the voting shares,
excluding all shares beneficially owned by an interested shareholder or an
affiliate or associate of an interested shareholder, or the shareholders receive
certain minimum consideration for their shares.
A Chapter 1704 transaction includes certain mergers, sales of assets,
consolidations, combinations and majority share acquisitions involving an
interested shareholder. An interested shareholder is defined to include, with
limited exceptions, any person who, together with affiliates and associates, is
the beneficial owner of a sufficient number of shares of the corporation to
entitle the person, directly or indirectly, alone or with others, to exercise or
direct the exercise of 10% or more of the voting power in the election of
directors after taking into account all of the person's beneficially owned
shares that are not then outstanding. The application of Chapter 1704 and
Section 1701.831 may have the effect of delaying, deferring or preventing a
change of control involving our company.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for our common stock is National City Bank.
Its address is 629 Euclid Avenue, Suite 635, Cleveland, Ohio, and its telephone
number is (216) 222-9258.
LISTING
Our common stock is listed on the New York Stock Exchange under the symbol
"TKR."
12
REGISTRATION RIGHTS
We initially issued the shares of common stock offered by this prospectus to
Ingersoll-Rand Company, a subsidiary of Ingersoll-Rand, as partial consideration
for the Torrington acquisition in a private placement transaction exempt from
registration under the Securities Act. In connection with the initial issuance
of the shares, we entered into a registration rights agreement with
Ingersoll-Rand Company. This prospectus is intended to fulfill our registration
obligations under that agreement.
We have agreed, at our sole expense, to use our reasonable best efforts to
keep the registration statement of which this prospectus is a part effective
until the earliest of:
- the date on which the shares of common stock covered by this prospectus
could be sold to the public under Rule 144(k) under the Securities Act or
any successor provision;
- the date on which there cease to be outstanding any shares of common stock
covered by this prospectus; and
- the date on which all shares of common stock covered by this prospectus
have been sold pursuant to this registration statement.
We may require the selling stockholders to suspend sales of the offered
securities upon the occurrence of any event that makes any statement in this
prospectus or the related registration statement untrue in any material respect
or that requires the changing of statements in these documents in order to make
statements in these documents not misleading. We will be permitted to suspend
the use of this prospectus up to two times in any 365-day period (for up to 45
days per suspension) if:
- our board of directors determines in good faith after consultation with
counsel that such action is required by applicable law;
- the use of this prospectus may require us to disclose material information
and our board of directors has determined, in the good faith exercise of
its reasonable business judgment, that it is not in our best interest to
disclose such information; or
- subject to the proviso below, we are contemplating or engaged in an
underwritten public offering of our common stock for our own account
(other than an offering pursuant to Form S-8, S-4 or any successor or
similar form) and the underwriters in that offering have advised us that
sales by the selling stockholders will adversely affect such public
offering;
provided, that we will not be permitted to suspend the use of this prospectus
for the reason described in the last bullet point above within 365 days after
the end of the lock-up period set forth in the registration rights agreement
applicable to any registered public offering after the closing of the Torrington
acquisition.
In addition, the selling stockholders are entitled to include their shares of
common stock in any other registration statement that we may file with the SEC,
subject to the limitations set forth in the registration rights agreement. The
securities to be included in any underwritten offering will be allocated pro
rata among us and the requesting selling stockholders. We and Ingersoll-Rand
have also agreed, if so requested by the underwriters in any such offering, not
to effect any public sale or distribution of our common stock, or similar
securities, during the 15 days prior to, and up to 90 days after, any
underwritten offering under any such other registration statement.
The registration rights agreement is governed by, and construed in accordance
with, the laws of the State of New York. This summary of the registration rights
agreement is not complete and is subject to, and is qualified in its entirety by
reference to, all the provisions of the registration rights agreement. A copy of
the registration rights agreement is filed as an exhibit to the registration
statement of which this prospectus is a part.
13
SELLING STOCKHOLDERS
We initially issued the shares of common stock offered by this prospectus to
Ingersoll-Rand Company in a private placement transaction exempt from
registration under the Securities Act. We are registering the shares pursuant to
registration rights granted in connection with the initial issuance of the
shares of common stock. See "Registration Rights." Ingersoll-Rand Company's
principal executive offices are located at 200 Chestnut Ridge Road, Woodcliff
Lake, New Jersey 07677.
Ingersoll-Rand Company has advised us that it beneficially owns 9,395,973
shares of our common stock. We are registering all 9,395,973 shares of common
stock on behalf of Ingersoll-Rand Company. Ingersoll-Rand Company may, in
certain circumstances, transfer the shares received in the private placement to
certain of its affiliates or in connection with the granting of a security
interest or other encumbrance in a bona fide transaction with a financial
institution. Such permitted transferees, subject to specified conditions, are
entitled to resell those shares by means of this prospectus together with an
accompanying prospectus supplement, if applicable.
No offer or sale under this prospectus may be made by a holder of our common
stock until that holder has notified us and, if required, we have filed a
supplement to this prospectus or an amendment to the registration statement of
which this prospectus is a part has become effective. We will supplement or
amend this prospectus to include additional selling stockholders upon request
and upon provision of all required information to us. We will provide to each
named selling stockholder copies of this prospectus and any applicable
prospectus supplement and will take certain other actions as are required to
permit unrestricted resales of the shares of common stock offered hereby. A
holder that sells shares by means of this prospectus will be subject to certain
of the civil liability provisions under the Securities Act in connection with
such sales and will be bound by the provisions of the registration rights
agreement that are applicable to such a holder (including certain
indemnification rights and obligations).
The selling stockholders may offer and sell any or all of their shares of
common stock at any time and from time to time. Because the selling stockholders
may offer all or only some portion or none of their shares of common stock, we
cannot estimate the amount or percentage of common stock that the selling
stockholders will hold upon termination of the offering.
Ingersoll-Rand Company has indicated that it has not held any position,
office or other material relationship with us or our predecessors or affiliates
during the past three years.
14
PLAN OF DISTRIBUTION
We are registering the common stock offered hereby on behalf of the selling
stockholders. The selling stockholders and any of their permitted transferees
may, from time to time, sell any or all of their shares of common stock:
- to or through underwriters;
- through dealers or agents; or
- to investors directly in negotiated sales or in competitively bid
transactions.
They may execute such sales at market prices prevailing at the time of sale,
prices related to market prices, fixed prices, which may be changed, varying
prices determined at the time of sale or negotiated prices.
The selling stockholders may sell their shares of common stock in one or more
of the following transactions:
- underwritten offerings to or through underwriters, broker-dealers or
agents, on a best-efforts basis or otherwise;
- ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
- block trades in which the broker-dealer will attempt to sell the common
stock as agent but may position and resell a portion of the block as
principal to facilitate the transaction;
- crosses, where the same broker acts as an agent on both sides of the
trade;
- purchases by broker-dealers or underwriters as principals and resale by
these purchasers for their own accounts;
- sales on any stock exchange, market or trading facility on which the
common stock is traded, in accordance with the rules of the applicable
exchange;
- short sales;
- an agreement with broker-dealers to sell a specified number of shares of
common stock at a stipulated price per share;
- the writing of non-traded or exchange-traded call options, put options and
other hedge transactions, and settlement of other transactions in
standardized or over-the-counter options;
- sales of debt exchangeable for the shares of common stock, in which case
this prospectus may be delivered to purchasers of such debt securities,
and, if required, may also be delivered by purchasers of such debt
securities in connection with hedging arrangements they may enter into;
- sales (for delivery immediately or under forward delivery contracts or
warrants) to one or more trusts that issue securities which represent a
beneficial interest in the assets of the trust (which may hold, among
other things, the common stock as an asset) or which are exchangeable for
the shares of common stock, in which case this prospectus may be delivered
to purchasers of such trust securities and, if required, may also be
delivered by purchasers of such trust securities in connection with
hedging arrangements they may enter into;
- sales of warrants or options to purchase the shares of common stock or
securities issued in other derivative transactions where the shares of
common stock are the underlying securities, in which case this prospectus
15
may be delivered to purchasers of such securities and, if required, may
also be delivered by purchasers of such securities in connection with
hedging arrangements they may enter into;
- privately negotiated transactions;
- a combination of any such methods of sale; or
- any other method permitted by applicable law.
In connection with any resales of the shares of common stock, the selling
stockholders must deliver a prospectus meeting the requirements of the
Securities Act. The selling stockholders may fulfill their prospectus delivery
requirements with respect to the common stock with this prospectus. At the time
a particular offering of the common stock is made, if required, a prospectus
supplement will be distributed which will set forth the names of the selling
stockholders, the aggregate amount of shares being offered, and, to the extent
required, the terms of the offering, including the name or names of any
underwriters, broker-dealers or agents, any discounts, commissions and other
terms constituting compensation from the selling holders and any discounts,
commissions or concessions allowed or reallowed or paid to broker-dealers (which
discounts or commissions as to particular underwriters, broker-dealers or agents
may be in excess of those customary in the types of transactions involved). The
selling stockholders will be responsible for any discounts or commissions that
may be earned by underwriters, broker-dealers or agents.
UNDERWRITERS
If underwriters are used in the sale, we and the selling stockholders will
execute an underwriting agreement with those underwriters relating to the shares
of common stock or other securities that the selling stockholder will offer.
Unless otherwise set forth in the prospectus supplement, the obligations of the
underwriters to purchase the shares of common stock or other securities will be
subject to conditions. The underwriters will be obligated to purchase all of the
shares of common stock or other securities if any are purchased.
AGENTS
The selling stockholders may also sell the shares of common stock or other
securities through agents designated by the selling stockholders from time to
time. The selling stockholders will name any agent involved in the offer or sale
of the shares of common stock or other securities and will list commissions
payable by the selling stockholders to these agents in the prospectus
supplement. These agents will be acting on a best efforts basis to solicit
purchases for the period of their appointment, unless the selling stockholders
state otherwise in the prospectus supplement.
DIRECT SALES
The selling stockholders may sell the shares of common stock or other
securities directly to purchasers. In this case, the selling stockholders will
not engage underwriters or agents in the offer and sale of the shares of common
stock or other securities.
HEDGING AND PLEDGING
In connection with sales of the shares or for other reasons, the selling
stockholders may enter into derivative or hedging transactions with
broker-dealers or other persons. These persons may in turn engage in sales of
the shares in the course of hedging in positions they assume, deliver this
prospectus in connection with some or all of those sales and use the shares of
common stock covered by this prospectus to close out any short position created
in connection with those sales. The selling stockholders may also sell shares of
common stock short and deliver shares covered by this prospectus to close out
short positions, provided that the short sale is made after the registration
statement of which this prospectus is a part is declared effective and a copy of
this prospectus is delivered in connection with the short sale. The selling
stockholders may also enter into options or other types of transactions that
require the selling stockholders to deliver shares of common stock to a
broker-dealer or other person, who will
16
then resell or transfer the shares under this prospectus. The selling
stockholders may also loan or pledge shares of common stock to broker-dealers
that in turn may sell such shares using this prospectus.
The selling stockholders may from time to time, as described under "Selling
Stockholders" above, pledge or grant a security interest in some or all of the
shares of common stock owned by them to support a derivative or hedging position
or other obligation, and, if they default in the performance of their secured
obligations, the pledgees or secured parties may offer and sell the shares of
common stock from time to time under this prospectus or under an amendment to
this prospectus under Rule 424(b) or other applicable provision of the
Securities Act amending the list of selling stockholders to include the pledgee,
transferee or other successor-in-interest as a selling stockholder under this
prospectus.
OTHER
To our knowledge, there are currently no plans, arrangements or
understandings between any selling stockholders and any underwriter,
broker-dealer or agent regarding the sale of the shares of common stock. The
selling stockholders are not obliged to, and may not, sell any or all of the
shares offered by them pursuant to this prospectus. In addition, we cannot
assure you that the selling stockholders will not transfer, devise or gift the
shares by other means not described in this prospectus. In addition, any
securities covered by this prospectus which qualify for sale pursuant to Rule
144 of the Securities Act may be sold under Rule 144 rather than pursuant to
this prospectus.
To comply with the securities laws of certain jurisdictions, if applicable,
the shares of common stock will be offered or sold in such jurisdictions only
through registered or licensed brokers or dealers. In addition, in certain
jurisdictions the shares of common stock may not be offered or sold unless they
have been registered or qualified for sale in such jurisdictions or any
exemption from registration or qualification is available and is complied with.
The selling stockholders and any other persons participating in the
distribution will be subject to certain provisions under the federal securities
laws, including Regulation M, which may limit the timing of purchases and sales
of the shares of common stock by the selling stockholders and any other such
person. In addition, Regulation M may restrict the ability of any person engaged
in the distribution of the shares to engage in market-making activities with
respect to the particular shares being distributed for a period of up to five
business days prior to the commencement of such distribution. This may affect
the marketability of the shares and the ability of any person or entity to
engage in market-making activities with respect to the shares.
The selling stockholders and any underwriters, broker-dealers or agents that
participate in the distribution of the shares of common stock may be deemed to
be "underwriters" within the meaning of the Securities Act, in which event any
commission received by such underwriters, broker-dealers or agents or any profit
on the resale of the shares of common stock purchased by them may be deemed to
be underwriting commissions or discounts under the Securities Act.
Our common stock is listed for trading on the New York Stock Exchange under
the symbol "TKR."
EXPENSES
We have agreed, among other things, to bear all expenses, other than
underwriting discounts and selling commissions and transfer taxes, in connection
with the registration and sale of the shares of common stock offered by this
prospectus. We will not receive any of the proceeds from this offering of common
stock by the selling stockholders.
INDEMNIFICATION
We have agreed to indemnify Ingersoll-Rand and its permitted transferees and
their respective directors, officers, employees, stockholders, general partners,
limited partners, members, advisory directors, managing directors (and
directors, officers, stockholders, general partners, limited partners, members,
advisory directors, managing directors and controlling persons thereof) and each
other person who participates as an underwriter and
17
each person, if any, who controls any of them within the meaning of the
Securities Act, and Ingersoll-Rand has agreed to indemnify us, our directors,
officers and employees and any controlling person within the meaning of the
Securities Act, against certain liabilities arising under the Securities Act.
18
LEGAL MATTERS
Except as set forth in the applicable prospectus supplement, Jones Day will
opine for us upon the validity of the common stock.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements and schedule included in our Annual Report on Form 10-K for
the year ended December 31, 2002, as set forth in their report, which is
incorporated by reference in this prospectus and elsewhere in the related
registration statement. Our financial statements and schedule are incorporated
by reference in reliance on Ernst & Young LLP's report, given on their authority
as experts in accounting and auditing.
The combined financial statements of Ingersoll-Rand Engineered Solutions
Business (an operating business unit of Ingersoll-Rand Company Limited) as of
December 31, 2002 and 2001 and for each of the three years in the period ended
December 31, 2002 incorporated in this prospectus by reference to our Current
Report on Form 8-K dated February 7, 2003 have been so incorporated by reference
in reliance on the report of PricewaterhouseCoopers LLP, independent
accountants, given on the authority of said firm as experts in auditing and
accounting.
19
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following is a list of the estimated expenses of the distribution of the
securities being registered, all of which are payable by The Timken Company (the
"registrant," "we" or "us"), other than any underwriting discounts or
commissions and transfer taxes, which are payable by the selling stockholders.
SEC registration fee................................ $ 0
Legal fees and expenses............................. 60,000
Accounting fees and expenses........................ 120,000
Transfer agent's fees and expenses.................. 250
Printing fees....................................... 5,000
Blue Sky fees and expenses.......................... 5,000
Miscellaneous....................................... 750
-------
Total........................................... $191,000
========
All of the above items, except for the Securities and Exchange Commission
("SEC") registration fee, are estimates.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Ohio law, Ohio corporations are authorized to indemnify directors,
officers, employees and agents 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 or
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 our Amended Regulations provides that we shall indemnify our
directors, officers and employees, and may indemnify our agents, to the fullest
extent permitted by law under various conditions and subject to various
qualifications, and reads as follows:
II-1
"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.
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."
We have entered into contracts with some of our directors and officers that
indemnify them against many of the types of claims that may be made against
them. We also maintain 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 our Amended Regulations.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------ -----------------------
1.1* Form of underwriting agreement relating to the common stock.
4.1 Amended Articles of Incorporation of the registrant,
incorporated by reference to Exhibit 4(a) to the registrant's
Form S-8, dated April 16, 1996 (File No. 333-02553).
4.2 Amended Regulations of the registrant, incorporated by
reference to the registrant's Form 10-K for the fiscal year
ended December 31, 1992 (File No. 1-01169).
4.3 Registration Rights Agreement, dated as of February 18, 2003,
between the registrant and Ingersoll-Rand Company, incorporated by
reference to Exhibit 4 to the Schedule 13D filed by Ingersoll-Rand
Company with respect to the registrant's shares of common stock on
February 23, 2003 (File No. 5-10450).
5.1 Opinion of Jones Day.
II-2
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------ -----------------------
23.1 Consent of Ernst & Young LLP.
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of Jones Day (contained in Exhibit 5.1).
24.1 Power of Attorney.
99.1 Schedule II -- Valuation and qualifying accounts of The
Timken Company and subsidiaries for the three years ended December
31, 2002, incorporated by reference to the registrant's Form 10-K
for the fiscal year ended December 31, 2002 (File No. 1-01169).
----------
* To be filed either by amendment or as an exhibit to a report filed under
the Securities Exchange Act of 1934 (the "Exchange Act") and incorporated
herein by reference.
(b) Financial Statement Schedules
The consolidated financial statement Schedule II -- Valuation and qualifying
accounts of The Timken Company and subsidiaries for the three years ended
December 31, 2002 is incorporated by reference in this Registration Statement.
All other schedules for which provision is made in the applicable accounting
regulations of the SEC are not required under the related instructions or are
inapplicable and therefore have been omitted.
ITEM 17. 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 (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 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 SEC pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a
20% 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 the undertakings set forth in paragraphs (1)(i) and
(1)(ii) above do not apply if 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 SEC by the registrant 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.
II-3
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.
4. 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 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.
5. 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 SEC 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 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 Securities Act and will be governed by the
final adjudication of such issue.
6. That, for purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
7. That, for the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus 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.
II-4
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 on Form S-3 and has duly caused this Registration
Statement, or amendment thereto, to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Canton, the State of Ohio, on
September 12, 2003.
THE TIMKEN COMPANY
By: /s/ William R. Burkhart
-------------------------------------
Name: William R. Burkhart
Title: Senior Vice President and
General Counsel
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement, or amendment thereto, has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
* President, Chief Executive Officer September 12, 2003
-------------------------------------- and Director (Principal Executive
James W. Griffith Officer)
* Executive Vice President - Finance September 12, 2003
-------------------------------------- and Administration
Glenn A. Eisenberg (Principal Financial Officer)
* Senior Vice President - Finance September 12, 2003
-------------------------------------- and Controller (Principal
Sallie B. Bailey Accounting Officer)
* Director and Chairman September 12, 2003
--------------------------------------
W.R. Timken Jr.
* Director September 12, 2003
--------------------------------------
Stanley C. Gault
* Director September 12, 2003
--------------------------------------
John A. Luke, Jr.
* Director September 12, 2003
--------------------------------------
Robert W. Mahoney
* Director September 12, 2003
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Jay A. Precourt
Director
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Joseph W. Ralston
* Director September 12, 2003
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W.J. Timken, Jr.
S-1
SIGNATURE TITLE DATE
--------- ----- ----
* Director September 12, 2003
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John M. Timken, Jr.
* Director September 12, 2003
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W.J. Timken
* Director September 12, 2003
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Joseph F. Toot, Jr.
* Director September 12, 2003
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Martin D. Walker
* Director September 12, 2003
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Jacqueline F. Woods
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* The undersigned, pursuant to a Power of Attorney executed by each of the
directors and officers identified above and filed with the SEC, by signing
his name hereto, does hereby sign and execute this Registration Statement,
or amendment thereto, on behalf of each of the persons noted above, in the
capacities indicated.
By: /s/ William R. Burkhart
---------------------------
Name: William R. Burkhart
Title: Attorney-in-Fact
S-2
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
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1.1* Form of underwriting agreement relating to the common
stock.
4.1 Amended Articles of Incorporation of the registrant,
incorporated by reference to Exhibit 4(a) to the
registrant's Form S-8, dated April 16, 1996 (File No.
333-02553).
4.2 Amended Regulations of the registrant, incorporated by
reference to the registrant's Form 10-K for the fiscal
year ended December 31, 1992 (File No. 1-01169).
4.3 Registration Rights Agreement, dated as of February
18, 2003, between the registrant and Ingersoll-Rand
Company, incorporated by reference to Exhibit 4 to the
Schedule 13D filed by Ingersoll-Rand Company with
respect to the registrant's shares of common stock on
February 23, 2003 (File No. 5-10450).
5.1 Opinion of Jones Day.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of Jones Day (contained in Exhibit 5.1).
24.1 Power of Attorney.
99.1 Schedule II -- Valuation and qualifying accounts of
The Timken Company and subsidiaries for the three
years ended December 31, 2002, incorporated by
reference to the registrant's Form 10-K for the fiscal
year ended December 31, 2002 (File No. 1-01169).
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* To be filed either by amendment or as an exhibit to a report filed
under the Exchange Act and incorporated herein by reference.