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As filed with the Securities and Exchange Commission on December 4, 2000.
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
THE TORO COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE 41-0580470
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
J. LAWRENCE MCINTYRE
VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
THE TORO COMPANY THE TORO COMPANY
8111 LYNDALE AVENUE SOUTH 8111 LYNDALE AVENUE SOUTH
BLOOMINGTON, MINNESOTA 55420-1196 BLOOMINGTON, MINNESOTA 55420-1196
(952) 888-8801 (952) 888-8801
(Address, including zip code, and telephone number, (Name, address, including zip code, and telephone
including area code, of registrant's principal number, including area code, of agent for service)
executive offices)
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Approximate date of commencement of proposed sale
to the public: From time to time after the effective
date of this Registration Statement.
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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
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TITLE OF EACH PROPOSED MAXIMUM PROPOSED MAXIMUM
CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED (1) PER SHARE (2) PRICE (2) REGISTRATION FEE
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Common stock, par value $1.00 per
share (3)......................... 27,757 shares $33.50 $929,859.50 (3) $245.50 (4)
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(1) In addition, pursuant to rule 416(c) under the Securities Act of 1933, as
amended (the "Securities Act"), this Registration Statement also covers an
indeterminate number of shares as may be issued in respect of stock splits,
stock dividends and similar transactions.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c) under the Securities Act on the
basis of the average of the high and low sales prices of the Registrant's
common stock on November 30, 2000, as reported on the New York Stock
Exchange Composite Tape.
(3) Each share of common stock includes one Preferred Share Purchase Right (a
"Right") pursuant to a Rights Agreement dated May 20, 1998, between Toro
and Wells Fargo Bank Minnesota, National Association (f.k.a. Norwest Bank
Minnesota, National Association). The value attributable to such Rights, if
any, is reflected in the market value of the common stock.
(4) Restricted fee to be applied to account number 737758.
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 Commission, acting pursuant to said Section 8(a),
may determine.
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THE INFORMATION CONTAINED IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED.
THE SELLING STOCKHOLDER NAMED BELOW MAY NOT SELL THESE SECURITIES UNTIL THE
REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS
EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS
NOT SOLICITING ANY OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR
SALE IS NOT PERMITTED.
Subject to Completion, dated December 4, 2000
PROSPECTUS
THE TORO COMPANY
[GRAPHIC OMITTED]
27,757 SHARES
COMMON STOCK
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This prospectus relates to 27,757 shares of our common stock that the
selling stockholder named in this prospectus may offer from time to time. The
selling stockholder received these shares in connection with our acquisition of
Oklahoma Turf & Irrigation, Inc. on October 31, 2000. The registration of these
shares does not necessarily mean that the selling stockholder will offer or sell
the shares.
The prices at which the selling stockholder may sell his shares will be
determined by the prevailing market price for our common stock or in negotiated
transactions. Our common stock is listed on the New York Stock Exchange and
trades under the symbol "TTC." On November 30, 2000, the closing price of a
share of our common stock on the New York Stock Exchange was $33.875. We will
not receive any proceeds from the selling stockholder's sale of these shares.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
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The date of this prospectus is __________, 2000.
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TABLE OF CONTENTS
Page No.
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Where You Can Find More Information .......................................3
The Toro Company...........................................................4
Use of Proceeds............................................................4
Selling Stockholder........................................................4
Plan of Distribution.......................................................5
Legal Matters..............................................................7
Experts....................................................................7
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Unless otherwise indicated or unless the context otherwise requires, in this
prospectus and the registration statement of which it is a part, all references
to "we," "us," and "our" mean The Toro Company and its subsidiaries.
You should rely only on the information contained in this prospectus and any
supplement to it. We have not authorized any other person to provide you with
different or additional information. If anyone provides you with different or
additional information, you should not rely on it. This prospectus is not an
offer to sell these securities in any jurisdiction where the offer or sale is
not permitted. You should assume that the information appearing in or
incorporated by reference in this prospectus and any supplement is accurate as
of its date only. Our business, financial condition, results of operations and
prospects may have changed since that date.
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document we file at the
SEC's Public Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549
and at the regional offices of the SEC at 7 World Trade Center, New York, New
York 10048 and 50 West Madison Street, 14th Floor, Chicago, Illinois 60611.
Please call the SEC at 1-800-SEC-0330 for further information on the operation
of the Public Reference Room. Our SEC filings are also available to the public
at the SEC's website at http://www.sec.gov. Toro common stock is listed on the
New York Stock Exchange, and materials filed by Toro may be inspected at the
offices of the New York Stock Exchange, 20 Broad Street, New York, New York
10005.
Our website is located at http://www.toro.com. We do not intend our web
site, or the information contained on that site or connected to that site, to be
part of this prospectus.
This prospectus is part of a registration statement that we filed with the
SEC. The registration statement contains more information than this prospectus
regarding The Toro Company and its common stock, including certain exhibits. You
can obtain a copy of the registration statement from the SEC at the address
listed above or from its website.
The SEC allows us to "incorporate by reference" into this prospectus the
information contained in the documents we file with them, which means that we
can disclose important information to you by referring you to those documents.
The information incorporated by reference is considered to be part of this
prospectus, and later information that we file with the SEC will update and
supersede this information.
We incorporate by reference the documents listed below as well as any
future filings which we make with the SEC under Section 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")
until this offering of securities has been completed (our SEC file number is
1-8649):
(a) Our Annual Report on Form 10-K for the fiscal year ended October 31,
1999;
(b) Our Proxy Statement on Schedule 14A for our 2000 Annual Meeting of
Stockholders;
(c) Our Quarterly Reports on Form 10-Q for the quarterly periods ended
January 28, 2000; April 28, 2000; and July 28, 2000; and
(d) The description of our common stock and Preferred Share Purchase
Rights contained in our registration statements filed with the SEC pursuant to
Section 12 of the Exchange Act, including any subsequent amendments or reports
filed for the purpose of updating such description.
You may obtain a copy of these filings at no cost by writing or
telephoning us at the following address:
The Toro Company
Attention: Jeanne Ryan
8111 Lyndale Avenue South
Bloomington, MN 55420
(952) 888-8801
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THE TORO COMPANY
Toro is a leading manufacturer of consumer lawn mowers, snowthrowers,
trimmers, commercial mowing and turf maintenance equipment, landscape creation
equipment, and underground automatic irrigation systems. These products are sold
under the Toro(R) and other brand names to the consumer and professional
markets, which includes entities that manage or construct golf courses, parks
and other large turf areas. The consumer product line includes walk-behind
mowers; riding mowers and lawn and garden tractors; electrical home improvement
products, such as electric trimmers and leaf blowers; irrigation equipment; and
snow removal products. The professional product line includes commercial
products for professional turf and golf course maintenance, such as precision
cutting mowers and turf aeration equipment, and irrigation products such as
sprinkler heads and control devices for underground irrigation systems.
Toro sells most of its products through domestic and foreign distributors
and mass merchandisers. Toro finances a significant portion of its receivables
through Toro Credit Company, its wholly-owned finance subsidiary. Toro was
incorporated in Minnesota in 1935 as a successor to a business founded in 1914.
It was reincorporated in Delaware in 1983.
Our executive offices are located at 8111 Lyndale Avenue South,
Bloomington, Minnesota 55420-1196; our telephone number is (952) 888-8801; and
our website is located at http://www.toro.com. We do not intend our web site, or
the information contained on that site or connected to that site, to be part of
this prospectus. For further information concerning Toro, see the documents
incorporated by reference into the registration statement of which this
prospectus is a part.
USE OF PROCEEDS
The selling stockholder named below is offering all of the shares of
common stock covered by this prospectus. We will not receive any proceeds from
the sales of these shares.
SELLING STOCKHOLDER
The selling stockholder is Stephen C. McCarthy. Mr. McCarthy acquired the
27,757 shares offered by this prospectus in connection with the merger of
Oklahoma Turf & Irrigation, Inc., which prior to the merger was a distributor of
Toro products, with and into Professional Turf Products, Inc., a wholly-owned
subsidiary of Toro. We consummated the merger under the terms and conditions of
an Option Agreement and Plan of Merger, dated August 14, 2000, among Toro,
Professional Turf Products, Oklahoma Turf & Irrigation, and the selling
stockholder. The merger was effective on October 31, 2000. The selling
stockholder was the sole stockholder of Oklahoma Turf, and Toro issued the
27,757 shares to him in exchange for all of his stock in that company. We
granted registration rights to the selling stockholder in the Option Agreement
and Plan of Merger.
The selling stockholder has served The Toro Company as a consultant since
October 31, 2000, and has been an employee of Professional Turf Products since
that same date. Prior to October 31, 2000, the selling stockholder had frequent
business contact with Toro in his capacity as the president of Oklahoma Turf &
Irrigation, Inc. and as a director of that company. None of our directors or
executive officers is selling shares in this offering.
As of December 4, 2000, the selling stockholder beneficially owned 27,757
shares of our common stock, which is less than one percent of our outstanding
common stock. Because the selling stockholder may offer all or some of the
shares which he holds pursuant to the offering contemplated by this prospectus,
and because there currently are no agreements, arrangements or understandings
with respect
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to the sale of any of his shares, we are unable to estimate the amount of shares
that will be held by the selling stockholder after the completion of this
offering. Our registration of the shares does not necessarily mean that the
selling stockholder will sell any or all of his shares, and the selling
stockholder is not making any representation that any shares covered by the
prospectus will be offered for sale. The selling stockholder reserves the right
to accept or reject, in whole or in part, any proposed sale of shares.
This prospectus also covers any additional shares of common stock that
become issuable in connection with the shares being registered by reason of any
stock dividend, stock split, recapitalization or other similar transaction
effected without the receipt of consideration which results in an increase in
the number of our outstanding shares of common stock. In addition, this
prospectus covers the preferred stock purchase rights that currently trade with
our common stock and entitle the holder to purchase additional shares of common
stock under certain circumstances.
PLAN OF DISTRIBUTION
The shares may be sold or distributed from time to time by the selling
stockholder named in this prospectus, by his donees, pledgees or transferees, or
by his other successors in interest. The selling stockholder may sell his shares
at market prices prevailing at the time of sale, at prices related to such
prevailing market prices at the time of sale, at negotiated prices, or at fixed
prices, which may be changed. The selling stockholder reserves the right to
accept or reject, in whole or in part, any proposed purchase of shares, whether
the purchase is to be made directly or through agents. We are not aware that the
selling stockholder has entered into any arrangements with any underwriters or
broker-dealers regarding the sale of his shares of common stock.
The selling stockholder may offer his shares at various times in one or
more of the following transactions:
o in ordinary brokers' transactions and transactions in which a broker
solicits purchasers;
o in transactions involving cross or block trades or otherwise on any
national securities exchange, such as the New York Stock Exchange,
on which the common stock may be listed;
o in transactions in which brokers, dealers or underwriters purchase
the shares as principal and resell the shares for their own accounts
pursuant to this prospectus;
o in transactions "at the market" to or through market makers in the
common stock;
o in other ways not involving market makers or established trading
markets, including direct sales of the shares to purchasers or sales
of the shares effected through agents;
o through transactions in options, swaps or other derivatives which
may or may not be listed on an exchange;
o in privately negotiated transactions;
o in transactions to cover short sales; or
o in a combination of any of the foregoing transactions.
In addition, the selling stockholder may sell his shares in accordance
with Rule 144 under the Securities Act rather than under this prospectus.
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From time to time, the selling stockholder may pledge or grant a security
interest in some or all of the shares owned by him. If the selling stockholder
defaults in performance of the secured obligations, the pledgees or secured
parties may offer and sell the shares from time to time. The selling stockholder
also may transfer and donate shares in other circumstances. The number of shares
beneficially owned by the selling stockholder will decrease as and when the
selling stockholder takes these actions. The plan of distribution for the shares
offered and sold under this prospectus will otherwise remain unchanged, except
that the transferees, donees or other successors in interest will be considered
a selling stockholder for purposes of this prospectus.
The selling stockholder may use brokers, dealers, underwriters or agents
to sell his shares. The persons acting as agents may receive compensation in the
form of commissions, discounts or concessions. This compensation may be paid by
the selling stockholder or the purchasers of the shares for whom such persons
may act as agent, or to whom they may sell as a principal, or both. The selling
stockholder and any agents or broker-dealers that participate with the selling
stockholder in the offer and sale of the shares may be deemed to be
"underwriters" within the meaning of the Securities Act. Any commissions they
receive and any profit they realize on the resale of the shares by them may be
deemed to be underwriting discounts and commissions under the Securities Act.
Neither we nor the selling stockholder can presently estimate the amount of such
compensation. Because the selling stockholder may be deemed to be an
"underwriter" within the meaning of the Securities Act, the selling stockholder
will be subject to the prospectus delivery requirements of the Securities Act,
which may include delivery through the facilities of the New York Stock Exchange
pursuant to Rule 153 under the Securities Act.
The selling stockholder and any other person participating in a
distribution of the securities covered by this prospectus will be subject to
applicable provisions of the Exchange Act and the rules and regulations under
the Exchange Act, including Regulation M, which may limit the timing of
purchases and sales of any of the securities by the selling stockholder and any
other such person. Furthermore, under Regulation M, any person engaged in the
distribution of the securities may not simultaneously engage in market-making
activities with respect to the particular securities being distributed for
certain periods prior to the commencement of or during such distribution. All of
the above may affect the marketability of the securities and the availability of
any person or entity to engage in market-making activities with respect to the
securities.
Under the terms of the Option Agreement and Plan of Merger concerning our
acquisition of Oklahoma Turf & Irrigation, Inc., we are required to bear the
expenses relating to the registration of this offering. The selling stockholder
will bear any underwriting discounts or commissions, brokerage fees, stock
transfer taxes and fees of his legal counsel. We have agreed to indemnify the
selling stockholder against certain liabilities. The selling stockholder may
agree to indemnify any agent, dealer or broker-dealer that participates in
transactions involving the shares of common stock against certain liabilities,
including liabilities arising under the Securities Act.
If we are notified by the selling stockholder that any material
arrangement has been entered into with a broker-dealer for the sale of shares
through a block trade, special offering, exchange distribution or secondary
distribution or a purchase by a broker or dealer, we will file a supplement to
this prospectus, if required, pursuant to Rule 424(b) under the Securities Act.
In addition, if we are notified by the selling stockholder that a donee or
pledgee intends to sell more than 500 shares, we will file a supplement to this
prospectus.
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LEGAL MATTERS
The validity of the shares of common stock offered by this prospectus has
been passed upon for us by Oppenheimer Wolff & Donnelly LLP, Minneapolis,
Minnesota.
EXPERTS
Our consolidated financial statements and related financial statement
schedule, which are included or incorporated by reference in our Annual Report
on Form 10-K for the year ended October 31, 1999, and incorporated by reference
in this prospectus and the related registration statement, have been audited by
KPMG LLP, independent certified public accountants, for the periods indicated in
such firm's reports thereon. The consolidated financial statements and financial
statement schedule audited by KPMG LLP have been incorporated herein by
reference in reliance on such firm's reports given upon their authority as
experts in accounting and auditing.
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THE TORO COMPANY
[GRAPHIC OMITTED]
27,757 SHARES
COMMON STOCK
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PROSPECTUS
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_______________, 2000
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14 / Other Expenses of Issuance and Distribution
The aggregate estimated expenses (except the SEC registration fee, which is an
actual expense) to be paid by us in connection with this offering are as
follows. The selling stockholder will bear no portion of these expenses.
SEC registration fee..........................................$245.50
Legal fees and expenses.......................................$5,000*
Accounting fees and expenses..................................$2,000*
Miscellaneous.................................................$1,000*
Total................................................$8,245.50*
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*Estimated.
Item 15 / Indemnification of Directors and Officers
Subsection (a) of Section 145 of the General Corporation Law of the State
of Delaware empowers a corporation to indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation), by
reason of the fact that such person is or was a director, officer, employee or
agent of the corporation or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, and with respect to any criminal action or
proceeding, had no reasonable cause to believe such person's conduct was
unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
person who was or is a party or threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that such person acted in
any of the capacities set forth above, against expenses actually and reasonably
incurred by such person in connection with the defense or settlement of such
action or suit if such person acted under similar standards, except that no
indemnification may be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation unless and
only to the extent that the Court of Chancery or the court in which such action
or suit was brought shall determine that, despite the adjudication of liability,
such person is fairly and reasonably entitled to indemnity for such expenses
which the court shall deem proper.
Section 145 further provides that, to the extent a director or officer of a
corporation has been successful in the defense of any action, suit or proceeding
referred to in subsections (a) and (b) or in the defense of any claim, issue or
matter therein, such person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred in connection therewith; that
indemnification provided for by Section 145 shall not be deemed exclusive of any
other rights to which the indemnified party may be entitled; and that the scope
of such mandatory indemnification extends to directors, officers, employees or
agents of a constituent corporation absorbed in a consolidation or merger and
persons serving in that capacity at the request of the constituent corporation
for another. Section 145 also empowers the corporation to purchase and maintain
insurance on behalf of a director or officer of the
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corporation against any liability asserted against or incurred by such person in
any such capacity or arising out of such person's status as such, whether or not
the corporation would have the power to indemnify such person against such
liabilities under Section 145, including liabilities under the Securities Act.
Section 2 of Article XI of Toro's Certificate of Incorporation mandates
indemnification of a director or officer of Toro or a person serving at the
request of Toro as a director, officer, employee or agent of another entity to
the fullest extent authorized by the Delaware General Corporation Law against
expenses, liability and loss and authorizes the Board to express such rights in
written contracts.
Section 1 of Article XI of Toro's Certificate of Incorporation provides, in
accordance with Section 102(b)(7) of the Delaware General Corporation Law, for
the elimination of the personal liability of a director to Toro or its
stockholders for monetary damages for breach of fiduciary duty as a director
under certain circumstances.
Toro also maintains liability insurance policies which provide for
indemnification of a director or officer of Toro or a person serving at the
request of Toro as a director, officer, employee or agent of another entity
against certain liabilities under certain circumstances.
Item 16 / Exhibits and Financial Statement Schedules
EXHIBIT DESCRIPTION OF EXHIBIT
4.1 Specimen form of common stock certificate (incorporated by reference
to Exhibit 4(c) to Registrant's Registration Statement on Form S-8,
Registration No. 2-94417).
4.2 Certificate of Incorporation of Registrant (incorporated by reference
to Exhibit 4.2 to Registrant's Registration Statement on Form S-3,
registration number 33-16125).
4.3 Certificate of Amendment to Certificate of Incorporation dated
December 9, 1986 (incorporated by reference to Exhibit 3 to
Registrant's Quarterly Report on Form 10-Q for the quarter ended
January 30, 1987, Commission File No. 1-8649).
4.4 Certificate of Designation to Certificate of Incorporation dated
May 28, 1998 (incorporated by reference to Exhibit (c)(1) to
Registrant's Current Report on Form 8-K dated May 27, 1998, Commission
File No. 1-8649).
4.5 Bylaws of Registrant, as amended (incorporated by reference to Exhibit
3(ii) and 4(d) to Registrant's Form 10-Q for the quarter ended April
30, 1999).
4.6 Rights Agreement, dated May 20, 1998, between the Registrant and Wells
Fargo Bank Minnesota, National Association (f.k.a. Norwest Bank
Minnesota, National Association), as Rights Agent, relating to rights
to purchase Series B Junior Participating Voting Preferred Stock
(incorporated by reference to Exhibit (c)(1) to Registrant's Current
Report on Form 8-K dated May 27, 1998, Commission File No. 1-8649).
4.7 Indenture dated as of January 31, 1997, between Registrant and First
National Trust Association, as Trustee, relating to Registrant's
7.125% Notes due June 15, 2007, and its 7.80% Debentures due June 15,
2027 (incorporated by reference to Exhibit 4(a) to Registrant's
Current Report on Form 8-K dated June 24, 1997, Commission File No.
1-8649).
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5.1 Opinion and Consent of Oppenheimer Wolff & Donnelly LLP regarding
legality of securities being registered (filed herewith
electronically).
23.1 Consent of Oppenheimer Wolff & Donnelly LLP (included in Exhibit 5.1).
23.2 Consent of KPMG LLP (filed herewith electronically).
24.1 Power of Attorney (filed herewith electronically).
Item 17 / 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
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more
than a 20% 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
periodic reports filed by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
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(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.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act 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
Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Bloomington, State of Minnesota, on the 4th day of
December, 2000.
THE TORO COMPANY
By: /s/ J. Lawrence McIntyre
---------------------------------------------
J. Lawrence McIntyre, Vice President,
Secretary and General Counsel
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
- --------- ----- ----
/s/ Kendrick B. Melrose Chairman, Chief Executive Officer, December 4, 2000
- ------------------------ President and Director (Principal
Kendrick B. Melrose Executive Officer)
/s/ Stephen P. Wolfe Vice President Finance and Chief December 4, 2000
- ------------------------ Financial Officer (Principal
Stephen P. Wolfe Financial Officer)
/s/ Randy B. James Vice President and Controller December 4, 2000
- ------------------------ (Principal Accounting Officer)
Randy B. James
/s/ J. Lawrence McIntyre Directors December 4, 2000
- ------------------------
J. Lawrence McIntyre, as attorney-in-fact for:
Ronald O. Baukol
Robert C. Buhrmaster
Winslow H. Buxton
Janet K. Cooper
Robert H. Nassau
Dale R. Olseth
Gregg W. Steinhafel
Christopher H. Twomey
Edwin H. Wingate
15
EXHIBIT INDEX
Item No. Description Method of Filing
- -------- ----------- ----------------
4.1 Specimen form of common stock certificate Incorporated by reference to Exhibit 4(c)
to Registrant's Registration Statement on
Form S-8, Registration No. 2-94417.
4.2 Certificate of Incorporation of Registrant Incorporated by reference to Exhibit 4.2
to Registrant's Registration Statement on
Form S-3, registration number 33-16125.
4.3 Certificate of Amendment to Certificate of Incorporated by reference to Exhibit 3 to
Incorporation dated December 9, 1986 Registrant's Quarterly Report on Form 10-Q
for the quarter ended January 30, 1987,
Commission File No. 1-8649.
4.4 Certificate of Designation to Certificate of Incorporated by reference to Exhibit
Incorporation dated May 28, 1998 (c)(1) to Registrant's Current Report on
Form 8-K dated May 27, 1998, Commission
File No. 1-8649.
4.5 Bylaws of Registrant, as amended Incorporated by reference to Exhibit 3(ii)
and 4(d) to Registrant's Form 10-Q for the
quarter ended April 30, 1999.
4.6 Rights Agreement, dated May 20, 1998, between the Incorporated by reference to Exhibit
Registrant and Wells Fargo Bank Minnesota, National (c)(1) to Registrant's Current Report on
Association (f.k.a. Norwest Bank Minnesota, National Form 8-K dated May 27, 1998, Commission
Association), as Rights Agent, relating to rights to File No. 1-8649.
purchase Series B Junior Participating Voting
Preferred Stock
4.7 Indenture dated as of January 31, 1997, between Incorporated by reference to Exhibit 4(a)
Registrant and First National Trust Association, as to Registrant's Current Report on Form 8-K
Trustee, relating to Registrant's 7.125% Notes due dated June 24, 1997, Commission File No.
June 15, 2007, and its 7.80% Debentures due June 15, 1-8649.
2027
5.1 Opinion and Consent of Oppenheimer Wolff & Donnelly Filed herewith electronically.
LLP regarding legality of securities being registered
23.1 Consent of Oppenheimer Wolff & Donnelly LLP Included in Exhibit 5.1.
23.2 Consent of KPMG LLP Filed herewith electronically.
24.1 Power of Attorney Filed herewith electronically.
1
Exhibit 5.1
[Letterhead of Oppenheimer Wolff & Donnelly LLP]
December 4, 2000
The Toro Company
8111 Lyndale Avenue South
Bloomington, Minnesota 55420
Re: Registration Statement on Form S-3, filed December 4, 2000
Ladies and Gentlemen:
We have acted as counsel to The Toro Company (the "Company") in connection with
the above referenced Registration Statement on Form S-3 ("Registration
Statement"). The Registration Statement relates to the registration under the
Securities Act of 1933, as amended (the "Act"), of the resale of up to 27,757
shares of Toro's currently issued and outstanding common stock, $1.00 par value
("Shares") to be sold by the selling stockholder, as defined in the Registration
Statement. Each of such Shares includes one associated Preferred Stock Purchase
Right (a "Right").
In acting as counsel for the Company and arriving at the opinions expressed
below we have examined (i) the proposed Registration Statement on Form S-3, (ii)
the Rights Agreement between the Company and Wells Fargo Bank Minnesota,
National Association (f.k.a. Norwest Bank Minnesota, National Association), as
Rights Agent, dated as of May 20, 1998 ("Rights Agreement"), (iii) the Option
Agreement and Plan of Merger as described in the Registration Statement, (iv)
certain resolutions of the Company's Board of Directors relating to the Option
Agreement and Plan of Merger and to the issuance and sale and resale of the
Shares and such other documents, corporate records and instruments and such laws
and regulations as we have considered relevant for the purpose of this opinion.
In such examination, we have assumed the genuineness of all signatures, the
legal capacity of natural persons, the authenticity of all documents submitted
to us originals, the conformity to original documents of all documents submitted
to us as certified or photostatic copies and the authenticity of the originals
of such latter documents.
Based upon the foregoing, we are of the opinion that the Shares covered by the
Registration Statement have been duly authorized and validly issued and are
fully paid and non-assessable, and that one Right adheres to each Share.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to its use as part of the Registration Statement and
to the reference to us under the caption "Legal Matters" in the Registration
Statement.
Very truly yours,
/s/ Oppenheimer Wolff & Donnelly LLP
- ------------------------------------
Oppenheimer Wolff & Donnelly LLP
1
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
To the Board of Directors of The Toro Company
We consent to the use of our reports incorporated herein by reference and to the
reference to our firm under the heading "Experts" in this Form S-3.
/s/ KPMG LLP
- ------------------------------------
KPMG LLP
Minneapolis, Minnesota
December 4, 2000
1
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each of the undersigned directors of The Toro
Company ("Toro"), a Delaware corporation, hereby constitutes and appoints
Kendrick B. Melrose, Stephen P. Wolfe and J. Lawrence McIntyre, and any one of
them, as such director's true and lawful attorney-in-fact and agent, each with
full power and authority to act as such without the other, each with full powers
of substitution and resubstitution, for such director and in such director's
name, place and stead, in any and all capacities, to sign a registration
statement on Form S-3 relating to the registration under the Securities Act of
1933 of not more than thirty-four thousand (34,000) shares of Toro common stock,
par value $1.00 per share (with related rights to purchase shares of Toro Series
B Junior Participating Voting Preferred Stock), and to sign his name to any and
all amendments (including post-effective amendments) to such registration
statement, and to file the same, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission. Each of
the undersigned hereby grants unto said attorney-in-fact and agent full power
and authority to do and to perform each and every act and thing necessary to be
done in and about the premises, as fully to all intents and purposes as such
director might or could do in person, and hereby ratifies and confirms all that
said attorney-in-fact and agent or his substitute or substitutes may lawfully do
or cause to be done by virtue thereof.
IN WITNESS WHEREOF, each of the undersigned has affixed his or her
signature this 27th day of September, 2000.
/s/ Ronald O. Baukol /s/ Robert H. Nassau
- --------------------------- ---------------------------
Ronald O. Baukol Robert H. Nassau
/s/ Robert C. Buhrmaster /s/ Dale R. Olseth
- --------------------------- ---------------------------
Robert C. Buhrmaster Dale R. Olseth
/s/ Winslow H. Buxton /s/ Gregg W. Steinhafel
- --------------------------- ---------------------------
Winslow H. Buxton Gregg W. Steinhafel
/s/ Janet K. Cooper /s/ Christopher A. Twomey
- --------------------------- ---------------------------
Janet K. Cooper Christopher A. Twomey
/s/ Edwin H. Wingate
- --------------------------- ---------------------------
Katherine J. Harless Edwin H. Wingate
/s/ Kendrick B. Melrose
- ---------------------------
Kendrick B. Melrose
