Edgar Filing: BORGWARNER INC

e10vq

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington D.C. 20549

FORM 10-Q

QUARTERLY REPORT

(Mark One)


þ		Quarterly Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

For the quarterly period ended September 30, 2009


o		Transition Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

For the transition period from to

Commission file number: 1-12162

BORGWARNER INC.

(Exact name of registrant as specified in its charter)


Delaware		13-3404508

State or other jurisdiction of		(I.R.S. Employer
Incorporation or organization		Identification No.)

3850 Hamlin Road, Auburn Hills, Michigan		48326

(Address of principal executive offices)		(Zip Code)

Registrant’s telephone number, including area code: (248) 754-9200

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.

YES þ NO o

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).

YES þ NO o

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definition of “large accelerated filer”, “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):


Large Accelerated Filer þ	Accelerated Filer o	Non-Accelerated Filer o	Smaller Reporting Company o
	(Do not check if a smaller reporting company)

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).

YES o NO þ

On September 30, 2009, the registrant had 116,735,103 shares of Common Stock outstanding.

BORGWARNER INC.
FORM 10-Q
THREE AND NINE MONTHS ENDED SEPTEMBER 30, 2009

INDEX


	Page No.
PART I. Financial Information

Item 1. Financial Statements (Unaudited)

Condensed Consolidated Balance Sheets as of September 30, 2009 and December 31, 2008		3

Condensed Consolidated Statements of Operations for the three and nine months ended September 30, 2009 and 2008		4

Condensed Consolidated Statements of Cash Flows for the nine months ended September 30, 2009 and 2008		5

Notes to Condensed Consolidated Financial Statements		6

Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations		33

Item 3. Quantitative and Qualitative Disclosures About Market Risk		48

Item 4. Controls and Procedures		48

PART II. Other Information

Item 1. Legal Proceedings		48

Item 6. Exhibits		49

SIGNATURES		50
EX-31.1
EX-31.2
EX-32.1
EX-101 INSTANCE DOCUMENT
EX-101 SCHEMA DOCUMENT
EX-101 CALCULATION LINKBASE DOCUMENT
EX-101 LABELS LINKBASE DOCUMENT
EX-101 PRESENTATION LINKBASE DOCUMENT
EX-101 DEFINITION LINKBASE DOCUMENT

PART I. FINANCIAL INFORMATION

BORGWARNER INC. AND CONSOLIDATED SUBSIDIARIES

CONDENSED CONSOLIDATED BALANCE SHEETS (UNAUDITED)

(millions of dollars)


	September 30,			December 31,
	2009			2008
ASSETS
Cash	$	258.8		$	103.4
Receivables, net		779.6			607.1
Inventories, net		314.6			451.2
Deferred income taxes		57.9			67.5
Prepayments and other current assets		94.0			79.0

Total current assets		1,504.9			1,308.2

Property, plant and equipment, net		1,525.0			1,586.2
Investments and advances		247.2			266.5
Goodwill		1,068.6			1,052.4
Other non-current assets		445.5			430.7

Total assets	$	4,791.2		$	4,644.0


LIABILITIES AND STOCKHOLDERS’ EQUITY
Notes payable	$	76.8		$	183.8
Current portion of long-term debt		—			136.9
Accounts payable and accrued expenses		973.2			923.0
Income taxes payable		4.6			6.3

Total current liabilities		1,054.6			1,250.0

Long-term debt		770.9			459.6
Other non-current liabilities:
Retirement-related liabilities		484.4			543.8
Other		310.6			353.1

Total other non-current liabilities		795.0			896.9

Common stock		1.2			1.2
Capital in excess of par value		1,035.0			977.6
Retained earnings		1,155.9			1,200.5
Accumulated other comprehensive income (loss)		21.5			(85.9	)
Treasury stock		(76.4	)		(87.4	)

Total BorgWarner Inc. stockholders’ equity		2,137.2			2,006.0
Noncontrolling interest		33.5			31.5

Total stockholders’ equity		2,170.7			2,037.5

Total liabilities and stockholders’ equity	$	4,791.2		$	4,644.0

See accompanying Notes to Condensed Consolidated Financial Statements

BORGWARNER INC. AND CONSOLIDATED SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS (UNAUDITED)

(millions of dollars, except share and per share data)


	Three Months Ended						Nine Months Ended
	September 30,						September 30,
	2009			2008			2009			2008
Net sales	$	1,027.8		$	1,316.9		$	2,763.5		$	4,332.4
Cost of sales		876.0			1,114.6			2,415.9			3,567.8

Gross profit		151.8			202.3			347.6			764.6

Selling, general and administrative expenses		125.9			134.8			315.4			450.4
Restructuring expense		—			25.0			50.3			25.0
Goodwill impairment charge		—			146.8			—			146.8
Other (income) expense		(1.6	)		(0.4	)		(1.6	)		2.8

Operating income (loss)		27.5			(103.9	)		(16.5	)		139.6

Equity in affiliates’ earnings, net of tax		(6.5	)		(9.2	)		(11.5	)		(30.2	)
Interest income		(0.5	)		(2.2	)		(1.7	)		(6.4	)
Interest expense and finance charges		13.0			11.2			41.1			28.5

Earnings (loss) before income taxes and noncontrolling interest		21.5			(103.7	)		(44.4	)		147.7

Provision (benefit) for income taxes		1.5			24.3			(24.2	)		87.7

Net earnings (loss)		20.0			(128.0	)		(20.2	)		60.0
Net earnings attributable to the noncontrolling interest		2.8			2.4			5.5			14.2

Net earnings (loss) attributable to BorgWarner Inc.	$	17.2		$	(130.4	)	$	(25.7	)	$	45.8


Earnings (loss) per share — basic	$	0.15		$	(1.12	)*	$	(0.22	)*	$	0.39


Earnings (loss) per share — diluted	$	0.15		$	(1.12	)*	$	(0.22	)*	$	0.39


Weighted average shares outstanding (thousands):

Basic		116,729			115,999			116,440			116,165
Diluted		117,495			115,999	*		116,440	*		118,040

Dividends declared per share	$	—		$	0.11		$	0.12		$	0.33


*		The Company had a loss for the quarter ended September 30, 2008 and the nine months ended September 30, 2009. As a result, diluted loss per share is the same as basic, as any dilutive securities would reduce the loss per share. Therefore, diluted shares are equal to basic shares outstanding for the three months ended September 30, 2008 and the nine months ended September 30, 2009.

See accompanying Notes to Condensed Consolidated Financial Statements

BORGWARNER INC. AND CONSOLIDATED SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)

(millions of dollars)


	Nine Months Ended
	September 30,
	2009			2008
OPERATING
Net earnings (loss)	$	(20.2	)	$	60.0
Adjustments to reconcile net earnings (loss) to net cash flows from operations:
Non-cash charges (credits) to operations:
Depreciation and tooling amortization		172.9			202.3
Amortization of intangible assets and other		19.1			21.1
Restructuring expense, net of cash paid		39.4			17.8
Goodwill impairment charge		—			146.8
Stock based compensation expense		17.9			12.6
Deferred income tax benefit		(46.1	)		(25.2	)
Convertible bond premium amortization		8.3			—
Equity in affiliates’ earnings, net of dividends received and other		18.1			2.7

Net earnings adjusted for non-cash charges to operations		209.4			438.1
Changes in assets and liabilities:
Receivables		(94.3	)		(81.0	)
Inventories		145.9			(71.3	)
Prepayments and other current assets		(6.5	)		(5.3	)
Accounts payable and accrued expenses		24.5			9.6
Income taxes payable		(1.3	)		1.7
Other non-current assets and liabilities		(51.4	)		(26.7	)

Net cash provided by operating activities		226.3			265.1

INVESTING
Capital expenditures, including tooling outlays		(127.2	)		(265.6	)
Payments for business acquired, net of cash acquired		(23.0	)		(58.8	)
Net proceeds from asset disposals		20.5			4.2
Net proceeds from sale of business		—			5.5
Proceeds from sales of marketable securities		—			14.6

Net cash used in investing activities		(129.7	)		(300.1	)

FINANCING
Net increase/(decrease) in notes payable		(109.3	)		80.7
Additions to long-term debt		381.6			—
Repayments of long-term debt, including current portion		(162.7	)		(7.3	)
Payment for purchase of bond hedge		(56.4	)		—
Proceeds from warrant issuance		31.2			—
Reduction in accounts receivable securitization facility		(50.0	)		—
Payment for purchase of treasury stock		—			(48.4	)
Proceeds from interest rate swap termination		30.0			—
Proceeds from stock options exercised, including the tax benefit		5.8			16.2
Dividends paid to BorgWarner stockholders		(13.8	)		(38.3	)
Dividends paid to noncontrolling stockholders		(8.7	)		(12.9	)

Net cash provided by (used in) financing activities		47.7			(10.0	)
Effect of exchange rate changes on cash		11.1			(7.7	)

Net increase (decrease) in cash		155.4			(52.7	)
Cash at beginning of year		103.4			188.5

Cash at end of period	$	258.8		$	135.8


SUPPLEMENTAL CASH FLOW INFORMATION
Net cash paid during the period for:
Interest	$	50.5		$	33.7
Income taxes		41.1			92.1
Non-cash financing transactions:
Stock performance plans		5.1			3.8

See accompanying Notes to Condensed Consolidated Financial Statements

BORGWARNER INC. AND CONSOLIDATED SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(UNAUDITED)

(1) Basis of Presentation

The accompanying unaudited consolidated financial statements of BorgWarner Inc. and Consolidated Subsidiaries (the “Company”) have been prepared in accordance with accounting principles generally accepted in the United States of America (“GAAP”) for interim financial information and with the instructions to Form 10-Q and Rule 10-01 of Regulation S-X. Accordingly, they do not include all of the information and footnotes necessary for a comprehensive presentation of financial position, results of operations and cash flow activity required by GAAP for complete financial statements. In the opinion of management, all normal recurring adjustments necessary for a fair presentation of results have been included. Operating results for the three and nine months ended September 30, 2009 are not necessarily indicative of the results that may be expected for the year ending December 31, 2009. The balance sheet as of December 31, 2008 was derived from the audited financial statements as of that date. For further information, refer to the consolidated financial statements and footnotes thereto included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2008.

We have reclassified certain 2008 amounts to conform to the presentation of our 2009 Condensed Consolidated Statement of Operations. The financial statements should be read in conjunction with the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2008. The Company’s presentation of the Condensed Consolidated Balance Sheets, Condensed Consolidated Statements of Operations, Reporting Segments Note and Comprehensive Income (Loss) Note have been adjusted to conform with the requirements of Topic 810, Noncontrolling Interest in Consolidated Financial Statements. See Note 19 to the Condensed Consolidated Financial Statements for more information regarding the Company’s first quarter 2009 adoption of Topic 810.

Management makes estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities as of the date of the financial statements and accompanying notes, as well as the amounts of revenues and expenses reported during the periods covered by those financial statements and accompanying notes. Actual results could differ from these estimates.

(2) Research and Development

The following table presents the Company’s gross and net expenditures on research and development (“R&D”) activities:


	Three Months Ended						Nine Months Ended
	September 30,						September 30,
(millions)	2009			2008			2009			2008
Gross R&D expenditures	$	51.9		$	78.0		$	151.2		$	216.7
Customer reimbursements		(10.5	)		(27.3	)		(41.5	)		(50.7	)

Net R&D expenditures	$	41.4		$	50.7		$	109.7		$	166.0

The Company’s net R&D expenditures are included in the selling, general and administrative expenses of the Condensed Consolidated Statements of Operations. Customer reimbursements are netted against gross R&D expenditures upon billing of services performed. The Company has contracts with several customers at the Company’s various R&D locations. No such contract exceeded $6 million in any of the periods presented.

(3) Income Taxes

The Company’s provision for income taxes is normally based on an estimated tax rate for the year applied to the year-to-date federal, state and foreign income. However, due to unprecedented depressed global economic conditions there is significant uncertainty regarding industry production volumes for the remainder of the year. This precludes us from making a reliable estimate of the annual effective tax rate for the year. Accordingly, we have made our 2009 income tax provision pursuant to Financial Accounting Standards Board (“FASB”) Topic 740, Accounting for Income Taxes in Interim Periods, which provides that tax (or benefit) in each foreign jurisdiction that is not subject to a valuation allowance be separately computed as ordinary income/(loss) occurs within the jurisdiction for the quarter. The actual global effective tax rate for the nine months is calculated to be a benefit of 54.5%, which resulted in a 7.0% tax rate for the third quarter. This represents an income tax benefit of ($24.2) million on the loss of ($44.4) million for the first nine months of 2009. It results in a $1.5 million expense on earnings before income taxes and noncontrolling interest of $21.5 million for the third quarter of 2009.

As of September 30, 2009, the balance of gross unrecognized tax benefits was reduced to $35.5 million as a result of settled tax audits, closed open years in federal and foreign jurisdictions, and claims filed against state taxing authorities. Included in the balance at September 30, 2009 was $29.7 million of tax positions that are permanent in nature and, if recognized, would reduce the global effective tax rate.

During the first quarter of 2008, the Company made a $6.6 million cash payment to the Internal Revenue Service (“IRS”) to resolve agreed upon issues of the ongoing IRS examination of the Company’s 2002-2004 tax years. Also, there was a reduction in the first quarter of 2008 of $6.7 million related to the Company’s unrecognized tax benefits balance due to settlement of the agreed upon issues primarily related to the Extraterritorial Income Exclusion for the 2002-2004 tax years.

In the third quarter of 2009 the Company settled disputed issues with IRS appeals related to the 2002-2004 years, settled the 2005-2006 IRS audit, filed claims against state taxing authorities, and closed open years for foreign jurisdictions that resulted in required cash payments of $21.1 million. Possible changes related to other examinations cannot be reasonably estimated within the next 12 months.

The Company recognizes interest and penalties related to unrecognized tax benefits in income tax expense. The Company had accrued approximately $11.4 million for the payment of interest and penalties at December 31, 2008. The Company had approximately $10.7 million for the payment of interest and penalties accrued at September 30, 2009.

The Company or one of its subsidiaries files income tax returns in the U.S. federal jurisdiction, and various states and foreign jurisdictions. The Company is no longer subject to income tax examinations by tax authorities in its major tax jurisdictions as follows:


		Years No Longer
Tax Jurisdiction		Subject to Audit
U.S. Federal		2006 and prior
Brazil		2003 and prior
France		2006 and prior
Germany		2003 and prior
Hungary		2007 and prior
Italy		2003 and prior
Japan		2006 and prior
South Korea		2004 and prior
United Kingdom		2006 and prior

In certain tax jurisdictions the Company may have more than one taxpayer. The table above reflects the status of the major taxpayer in each major tax jurisdiction. In Germany the open tax years for the Company’s BERU subsidiary are from 2002 and forward.

(4) Sales of Receivables

On April 24, 2009 the Company’s $50 million receivables securitization facility matured and was not renewed. The impact of this maturity was an increase in receivables of $50 million and a decrease in cash of $50 million in the second quarter of 2009. This is reflected as a Financing activity in the Condensed Consolidated Statements of Cash Flows.

During the nine-month periods ended September 30, 2009 and 2008, total cash proceeds from sales of accounts receivable were $200 million and $450 million, respectively. The Company paid servicing fees related to these receivables for the three months ended September 30, 2008 of $0.4 million. The Company paid servicing fees related to these receivables for the nine months ended September 30, 2009 and 2008 of $0.4 million and $1.4 million, respectively. These amounts are recorded in interest expense and finance charges in the Condensed Consolidated Statements of Operations.

(5) Inventories

Inventories are valued at the lower of cost or market. The cost of U.S. inventories is determined by the last-in, first-out (“LIFO”) method, while the operations outside the U.S. use the first-in, first-out (“FIFO”) or average-cost methods. Inventories consisted of the following:


	September 30,			December 31,
(millions)	2009			2008
Raw material and supplies	$	189.5		$	260.7
Work in progress		71.8			95.7
Finished goods		69.6			111.4

FIFO inventories		330.9			467.8
LIFO reserve		(16.3	)		(16.6	)

Inventories, net	$	314.6		$	451.2

(6) Property, Plant & Equipment


	September 30,			December 31,
(millions)	2009			2008
Land and buildings	$	638.9		$	619.8
Machinery and equipment		1,880.1			1,756.1
Capital leases		2.4			1.1
Construction in progress		131.3			160.0

Total property, plant & equipment		2,652.7			2,537.0
Less accumulated depreciation		(1,212.7	)		(1,047.4	)

		1,440.0			1,489.6
Tooling, net of amortization		85.0			96.6

Property, plant and equipment — net	$	1,525.0		$	1,586.2

Interest costs capitalized during the nine months ended September 30, 2009 and September 30, 2008 were $8.8 million and $10.2 million, respectively.

As of September 30, 2009 and December 31, 2008, accounts payable of $27.1 million and $43.2 million, respectively, were related to property, plant and equipment purchases.

As of September 30, 2009 and December 31, 2008, specific assets of $3.7 million and $7.4 million, respectively, were pledged as collateral under certain of the Company’s long-term debt agreements.

As a result of the impairment charges recorded in the third and fourth quarters of 2008, depreciation expense for the three and nine months ended September 30, 2009 was reduced by approximately $2 million and $8 million, respectively.

During the first quarter of 2009, based on current market conditions and asset utilization rates, the Company elected to extend the useful lives of certain machinery and equipment. As a result of this change in estimate, depreciation expense for the three and nine months ended September 30, 2009 was reduced by approximately $5 million and $14 million, respectively.

(7) Product Warranty

The Company provides warranties on some of its products. The warranty terms are typically from one to three years. Provisions for estimated expenses related to product warranty are made at the time products are sold. These estimates are established using historical information about the nature, frequency, and average cost of warranty claims. Management actively studies trends of warranty claims and takes action to improve product quality and minimize warranty claims. While management believes that the warranty accrual is appropriate, actual claims incurred could differ from the original estimates, requiring adjustments to the accrual. The accrual is recorded in both long-term and short-term liabilities on the balance sheet. The following table summarizes the activity in the warranty accrual accounts:


	Nine months ended
	September 30,
(millions)	2009			2008
Beginning balance	$	82.1		$	70.1
Provision		31.9			35.2
Payments		(51.8	)		(32.2	)
Currency translation		2.6			(2.7	)

Ending balance	$	64.8		$	70.4

The product warranty liability is classified in the consolidated balance sheet as follows:


	September 30,		December 31,
(millions)	2009		2008
Accounts payable and accrued expenses	$	39.8	$	51.4
Other non-current liabilities		25.0		30.7

Total product warranty liability	$	64.8	$	82.1

(8) Notes Payable and Long-Term Debt

Following is a summary of notes payable and long-term debt, including the current portion. The weighted average interest rate on all borrowings outstanding as of September 30, 2009 and December 31, 2008 was 7.0% and 5.0%, respectively.


	September 30, 2009				December 31, 2008
(millions)	Current		Long-Term		Current		Long-Term

Bank borrowings and other	$	34.9	$	1.6	$	130.7	$	1.0
Term loans due through 2015 (at an average rate of 3.9% in 2009 and 4.9% in 2008)		41.9		8.7		53.1		12.9
6.50% Senior Notes due 2/17/09, net of unamortized discount (a)		—		—		136.7		—
3.50% Convertible Notes due 4/15/12, net of unamortized discount		—		325.9		—		—
5.75% Senior Notes due 11/01/16, net of unamortized discount (a)		—		149.3		—		149.2
8.00% Senior Notes due 10/01/19, net of unamortized discount (a)		—		133.9		—		133.9
7.125% Senior Notes due 02/15/29, net of unamortized discount		—		119.2		—		119.2

Carrying amount of notes payable and long-term debt		76.8		738.6		320.5		416.2
Impact of derivatives on debt (a)		—		32.3		0.2		43.4

Total notes payable and long-term debt	$	76.8	$	770.9	$	320.7	$	459.6


(a)		In 2006, the Company entered into several interest rate swaps that had the effect of converting $325.0 million of fixed rate notes to variable rates. The weighted average effective interest rate of these borrowings, including the effects of outstanding swaps as noted in Note 10 was 5.3% as of December 31, 2008. In the first quarter of 2009, $100 million in interest rate swaps related to the Company’s 2009 fixed rate debt matured and the Company terminated $150 million in interest rate swap agreements related to the Company’s 2016 fixed rate debt and $75 million of interest rate swap agreements related to the Company’s 2019 fixed rate debt. As a result of the first quarter 2009 swap terminations, a $34.5 million gain remained in debt to be amortized over the remaining lives of the respective 2016 and 2019 debt. As of September 30, 2009, the unamortized portion was $32.3 million.

The Company’s multi-currency revolving credit facility provided for borrowings up to $600 million through July 22, 2009. On April 30, 2009, the Company extended its revolving credit facility for eighteen months, maturing January 22, 2011. The facility was reduced to $250 million beginning July 23, 2009. The facility is now secured by unperfected pledges of the Company’s equity interests in its subsidiaries and certain assets.

No secured party is entitled to perfect its lien on any of the collateral until the long term unsecured senior, non-credit enhanced debt rating of the Company is less than or equal to BB+ by Standard & Poor’s and less than or equal to Ba1 by Moody’s. The Company’s credit rating as of September 30, 2009 was BBB by Standard & Poor’s and Ba1 by Moody’s. The three key covenants of the credit agreement are a net worth test, a debt compared to EBITDA (“Earnings Before Interest, Taxes, Depreciation and Amortization”) test, and an interest coverage test. The Company was in compliance with all covenants at September 30, 2009 and expects to remain compliant in future periods. At September 30, 2009 and December 31, 2008 there were no outstanding borrowings under the facility.

The Company had outstanding letters of credit at September 30, 2009 and December 31, 2008 of $15.2 million and $21.4 million, respectively. The letters of credit typically act as a guarantee of payment to certain third parties in accordance with specified terms and conditions.

The Company’s 6.50% Senior Notes of $136.7 million matured on February 17, 2009. On April 9, 2009, the Company issued $373.8 million in convertible senior notes due April 15, 2012. Under Topic 470, Accounting for Convertible Debt Instruments That May be Settled in Cash Upon Conversion (Including Partial Cash Settlement), the Company must account for the convertible senior notes by bifurcating the instrument between their liability and equity components. The value of the debt component is based on the fair value of issuing a similar nonconvertible debt security. The equity component of the convertible debt security is calculated by deducting the value of the liability from the proceeds received at issuance. Therefore, the Company’s September 30, 2009 Condensed Consolidated Balance Sheet includes an increase in debt of $325.9 million and an increase in capital in excess of par of $36.5 million. Additionally, Topic 470 requires us to accrete the discounted carrying value of the convertible notes to their face value over the term of the notes. The Company’s interest expense associated with this bond accretion is based on the effective interest rate of the convertible senior notes of 9.365%. The total interest expense related to the convertible notes in the Company’s Consolidated Statement of Operations for the three and nine months ended September 30, 2009 was $7.1 million and $14.5 million, respectively. The non-cash portion of interest expense for the convertible notes for the three and nine months ended September 30, 2009 was $4.2 million and $8.4 million, respectively. For the full year of 2009, interest expense related to the convertible notes will be approximately $22.2 million, of which approximately $12.7 million will be non-cash. The notes will pay interest semi-annually of $6.5 million, which is at a coupon rate of 3.50% per year, beginning in October of this year.

Holders of the notes may convert their notes at their option at any time prior to the close of business on the second scheduled trading day immediately preceding the maturity date of the notes, in multiples of $1,000 principal amount. The initial conversion rate for the notes is 30.4706 shares of the Company’s common stock per $1,000 principal amount of notes (representing an initial conversion price of approximately $32.82 per share of common stock). The conversion price represents a conversion premium of 27.50% over the last reported sale price of the Company’s common stock on the New York Stock Exchange on April 6, 2009, of $25.74 per share. As of September 30, 2009, the Company’s stock price was below the conversion price of $32.82. There was no dilutive impact to weighted average shares outstanding for the three and nine months ended September 30, 2009 due to the convertible senior notes. In conjunction with the note offering, the Company entered into a bond hedge overlay at a net pre-tax cost of $25.2 million, effectively raising the conversion premium to 50.0%, or approximately $38.61 per share. Upon conversion, the Company will pay or deliver cash, shares of our common stock or a combination thereof at our election. The convertible senior notes were issued under the Company’s $750 million universal shelf registration filed with the Securities and Exchange Commission, leaving approximately $376 million available as of September 30, 2009.

As of September 30, 2009 and December 31, 2008, the estimated fair values of the Company’s senior unsecured notes totaled $790.4 million and $532.3 million, respectively. The estimated fair values were $62.1 million higher at September 30, 2009 and $6.7 million lower at December 31, 2008 than their respective carrying values. Fair market values are developed by the use of estimates obtained from brokers

and other appropriate valuation techniques based on information available as of quarter-end and year-end. The fair value estimates do not necessarily reflect the values the Company could realize in the current markets.

(9) Fair Value Measurements

On January 1, 2009, the Company fully adopted as required, Topic 820 — “Fair Value Measurements” which expands the disclosure of fair value measurements and its impact on the Company’s financial statements.

Topic 820 emphasizes that fair value is a market-based measurement, not an entity specific measurement. Therefore, a fair value measurement should be determined based on assumptions that market participants would use in pricing an asset or liability. As a basis for considering market participant assumptions in fair value measurements, Topic 820 establishes a fair value hierarchy, which prioritizes the inputs used in measuring fair values as follows:


Level 1:		Observable inputs such as quoted prices in active markets;


Level 2:		Inputs, other than quoted prices in active markets, that are observable either directly or indirectly; and


Level 3:		Unobservable inputs in which there is little or no market data, which require the reporting entity to develop its own assumptions.

Assets and liabilities measured at fair value are based on one or more of the following three valuation techniques noted in Topic 820:

Market approach: Prices and other relevant information generated by market transactions involving identical or comparable assets or liabilities.

Cost approach: Amount that would be required to replace the service capacity of an asset (replacement cost).

Income approach: Techniques to convert future amounts to a single present amount based upon market expectations (including present value techniques, option-pricing and excess earnings models).

The following table classifies the assets and liabilities measured at fair value during the period ended September 30, 2009:


			Basis of Fair Value Measurements
			Quoted
			Prices in		Significant
			Active		Other		Significant
	Balance at		Markets for		Observable		Unobservable
	September 30,		Identical Items		Inputs		Inputs		Valuation
(millions)	2009		(Level 1)		(Level 2)		(Level 3)		Technique
Assets:
Commodity contracts	$	8.4	$	—	$	8.4	$	—	A
Foreign exchange contracts		4.3		—		4.3		—	A


	$	12.7	$	—	$	12.7	$	—


Liabilities:
Commodity contracts	$	0.9	$	—	$	0.9	$	—	A
Foreign exchange contracts		29.9		—		29.9		—	A
Net investment hedge contracts		59.5		—		59.5		—	A


	$	90.3	$	—	$	90.3	$	—

(10) Financial Instruments

On January 1, 2009, the Company adopted as required, Topic 815, “Disclosures about Derivative Instruments and Hedging Activities” which expands the disclosure of financial instruments.

The Company’s financial instruments include cash, marketable securities, trade receivables, trade payables, and notes payable. Due to the short-term nature of these instruments, their book value approximates their fair value. The Company’s financial instruments also include long-term debt, interest rate and currency swaps, commodity forward contracts, and foreign currency forward contracts. All derivative contracts are placed with counterparties that have an S&P, or equivalent, investment grade credit rating at the time of the contracts’ placement. At September 30, 2009 the Company had no derivative contracts that contained credit risk related contingent features.

The Company selectively uses cross-currency swaps to hedge the foreign currency exposure associated with our net investment in certain foreign operations (net investment hedges). Fair values of cross currency swaps are based on observable inputs, such as interest rate, yield curves, credit risks, currency exchange rates and other external valuation methodology (Level 2 inputs under Topic 820).

The Company uses certain commodity derivative instruments to protect against commodity price changes related to forecasted raw material and supplies purchases. The primary purpose of our commodity price hedging activities is to manage the volatility associated with these forecasted purchases. The Company primarily utilizes forward and option contracts, which are designated as cash flow hedges. The fair values for certain commodity derivative instruments are based on Level 2 evidence (for example, future prices reported on commodity exchanges) under Topic 820. To the extent that derivative instruments are deemed to be effective as defined by Topic 815, gains and losses arising from these contracts are deferred in other comprehensive income or loss. Such gains and losses will be reclassified into income as the underlying operating transactions are realized. Gains and losses not qualifying for deferral treatment have been credited/charged to income as they are recognized.

The Company uses foreign exchange forward and option contracts to protect against exchange rate movements for forecasted cash flows for purchases, operating expenses or sales transactions designated in currencies other than the functional currency of the operating unit. Most contracts mature in less than one year, however, certain long-term commitments are covered by forward currency arrangements to protect against currency risk through 2011. Foreign currency contracts require the Company, at a future date, to either buy or sell foreign currency in exchange for the operating units’ local currency. To the extent that derivative instruments are deemed to be effective as defined by Topic 815, gains and losses arising from these contracts are deferred in other comprehensive income or loss. Such gains and losses will be reclassified into income as the underlying operating transactions are realized. Gains and losses not qualifying for deferral treatment have been credited/charged to income as they are recognized. The fair values of foreign exchange forward and option contracts are based on Level 2 inputs under Topic 820, such as quoted exchange rates by various exchanges.

In 2006, the Company entered into a series of interest rate swap agreements to effectively convert a portion of its senior notes from fixed to variable interest rates and were designated as fair value hedges for the senior notes. In the first quarter of 2009, $100 million of interest rate swap agreements relating to the 2009 fixed-rate debt matured. Also, in the first quarter of 2009, the Company terminated $150 million of interest rate swap agreements relating to the 2016 fixed rate debt and $75 million of interest rate swap agreements relating to the 2019 fixed rate debt. The early termination of the 2016 and 2019 interest rate swap agreements resulted in a gain of $34.5 million that will be amortized as a reduction of interest expense over the remaining life of the respective 2016 and 2019 debt. The Company recognized $5.7 million in interest expense in the first quarter of 2009 as a result of the early termination. This early termination also resulted in the Company receiving net cash proceeds of $30.0 million, which is recognized in the Financing section of the Consolidated Statements of Cash Flows. As of September 30, 2009, there were no outstanding interest rate swap agreements.

Effectiveness for cash flow, fair value and net investment hedges is assessed at the inception of the hedging relationship and quarterly, thereafter. Ineffectiveness is measured quarterly and results are recognized in earnings.

Cross-Currency Swaps

Notional

(millions)

in USD

in Local Currency

Duration

Floating $ to Floating €

75.0

€58.5

Nov - 16

Floating $ to Floating ¥

150.0

17,581.5

Oct - 19

At September 30, 2009 the following commodity derivative contracts were outstanding:

Commodity Hedges

Volume

Units of

Commodity

Hedged

Measure

Duration

Nickel

1,032

Metric Tons

Dec - 10

Copper

1,097

Metric Tons

Dec - 10

Aluminum

417

Metric Tons

Dec - 10

Platinum

255

Troy Oz.

Dec - 09

Natural Gas

260,507

MMBtu

Dec - 10

At September 30, 2009 the following foreign exchange derivative contracts were outstanding:


(millions)	Currency Hedges
Functional		Traded	Notional in
Currency		Currency	Traded Currency		Duration
Brazilian Real		US Dollar		2.3	Dec - 09
British Pound		Euro		105.9	Dec - 11
Euro		Hungarian Forint		3,637.5	Dec - 10
Euro		British Pound		1.1	Dec - 09
Euro		US Dollar		8.0	Dec - 09
Euro		Japanese Yen		739.6	Dec - 09
Indian Rupee		US Dollar		8.9	Dec - 11
Korean Won		Euro		53.6	Dec - 10
Korean Won		Japanese Yen		72.2	Dec - 09
Mexican Peso		US Dollar		1.7	Dec - 09
US Dollar		Indian Rupee		442.1	Dec - 11
US Dollar		Euro		84.0	Oct - 09
US Dollar		Japanese Yen		10.8	Dec - 09

At September 30, 2009 the following amounts were recorded in the Company’s balance sheet as being payable to or receivable from counterparties.

(millions)

Derivatives Designated as

Hedging Instruments under

Assets

Liabilities

Topic 820

Location

2009

Location

2009

Foreign Exchange Contracts

Prepayments and Other Current Assets

4.0

Accounts Payable and Accrued Expenses

21.7

Other Non-Current Assets

0.3

Other Non-Current Liabilities

8.2

Commodity Contracts

Prepayments and Other Current Assets

6.7

Accounts Payable and Accrued Expenses

0.9

Other Non-Current Assets

1.7

Other Non-Current Liabilities

—

Net Investment Hedges

Prepayments and Other Current Assets

—

Accounts Payable and Accrued Expenses

—

Other Non-Current Assets

—

Other Non-Current Liabilities

59.5

Netted in the $(59.5) million carrying value of the Net Investment Hedges is a $5.8 million favorable adjustment for non-performance risk in accordance with Topic 820.

The table below shows deferred losses at the end of the period reported in other comprehensive income (loss) (OCI) and amounts expected to be reclassified to income or loss within the next twelve months. The loss expected to be reclassified to income or loss in one year or less assumes no change in the current relationship of the hedged item and September 30, 2009 market rates.


	Gain/(Loss)			Gain/(Loss) Expected to
(millions)	in OCI at			be Reclassified to Income
Contract Type	September 30, 2009			in One Year or Less
Foreign Exchange		$(21.2	)		$(13.3	)
Commodity		6.4			5.1
Net Investment Hedges		(56.1	)		—

Total		$(70.9	)		$ (8.2	)

The following tables represent gains (losses) related to hedge transactions for the three and nine months ended September 30, 2009.

Cash Flow hedges held during the period resulted in the following gains and losses recorded in income. The effective portion of gains or losses exactly offset losses or gains in the underlying transaction that they were designated to hedge, and are recorded on the same line in the income statement. Ineffectiveness resulting from imperfect matches between changes in value of hedge contracts and changes in value of the underlying transaction are immediately recognized in earnings.

Derivatives Designated as Cash Flow Hedging Instruments under Topic 820


		Gain/(Loss) Reclassified							Gain/(Loss)
		from OCI to Income							Recognized in Income
		(Effective Portion)							(Ineffective Portion)
(millions)		Three Months Ended			Nine Months Ended				Three Months Ended			Nine Months Ended
Contract Type	Location	September 30, 2009			September 30, 2009			Location	September 30, 2009			September 30, 2009
Foreign Exchange	Sales		$(3.2	)		$(11.3	)	SG&A Expense		$(3.4	)		$(4.7	)
Foreign Exchange	Cost of Goods Sold		1.0			4.3		SG&A Expense		(0.1	)		0.7
Foreign Exchange	SG&A Expense		0.2			(0.7	)	SG&A Expense		—			—
Commodity	Cost of Goods Sold		(0.1	)		(7.2	)	Cost of Goods Sold		1.8			0.5

Net investment hedges are derivative contracts entered into to hedge against changes in exchange rates that affect the overall value of net investments in foreign entities. Gains and losses on net investment hedges are recorded in other comprehensive income or loss and are used to offset equivalent losses or gains in the value of net investments that are recorded in translation gains and losses which is also a component of other comprehensive income or loss.

Derivatives Designated as Net Investment Hedges under Topic 820

Gain/(Loss) Reclassified

Gain/(Loss) Recognized

from OCI to Income

in Income

(Effective Portion)

(Ineffective Portion)

(millions)

Three Months Ended

Nine Months Ended

Three Months Ended

Nine Months Ended

Contract Type

Location

September 30, 2009

Location

September 30, 2009

Cross-Currency Swap

(None)

—

Interest Expense

$0.7

$1.6

The Company may also enter into derivative contracts that are not designated as hedging instruments as defined by Topic 815. Undesignated derivative instruments substantially pertain to foreign exchange contracts that are used to offset the impact of foreign currency denominated assets and liabilities. The Company does not apply hedge accounting because the gain (loss) on the derivative contract is generally offset by the Topic 830, “Foreign Currency Translation,” remeasurement gain (loss) of the foreign currency asset or liability in the same reporting period.

Derivatives Not Designated as Hedging Instruments under Topic 820


		(Loss) Recorded in
		Income on Derivative
(millions)		Three Months Ended		Nine Months Ended
Contract Type	Location	September 30, 2009		September 30, 2009
Foreign Exchange	SG&A Expense		$(1.0)		$(2.8)

At September 30, 2009 derivative instruments that are designated as fair value hedging instruments as defined by Topic 815 were immaterial.

(11) Retirement Benefit Plans

The Company has a number of defined benefit pension plans and other post employment benefit plans covering eligible salaried and hourly employees and their dependents. The other post employment benefit plans, which provide medical and life insurance benefits, are unfunded plans. The estimated contributions to the Company’s defined benefit pension plans for 2009 range from $15 to $35 million, of which $10.3 million has been contributed through the first nine months of the year.

On February 26, 2009, the Company’s subsidiary, BorgWarner Diversified Transmission Products Inc. (“DTP”), entered into a Plant Shutdown Agreement with the United Auto Workers (“UAW”) for its Muncie, Indiana automotive component plant (the “Muncie Plant”). Management subsequently wound-down production activity at the plant, with operations effectively ceased as of March 31, 2009. As a result of the closure of the Muncie Plant, the Company recorded a curtailment gain of $41.9 million in the first quarter of 2009.

The Plant Shutdown Agreement with the UAW for the Muncie Plant also included a settlement of a portion of the UAW retiree health care obligation, resulting in the remeasurement of the retiree medical plan. The financial impact of this settlement resulted in expense recognition of $14.0 million, a $47.2 million reduction to retirement-related liabilities, a $27.2 million increase in accumulated other comprehensive income and a $34.0 million increase in accounts payable and accrued expenses in the first quarter of 2009. The $34.0 million in accounts payable and accrued expenses will be paid in monthly installments, which began in May 2009 and will conclude in April 2010. With the plant closing announcement, the Company has entered into discussions with the Pension Benefit Guaranty Corporation regarding potential funding of the Muncie Plant’s defined benefit pension plan.

The combined pre-tax impact of these actions was a net gain of $27.9 million, comprised of a $41.9 million curtailment gain and $14.0 million settlement loss on the Company’s Condensed Consolidated Statements of Operations as of March 31, 2009.

The weighted average discount rate used to determine the benefit obligation of the Company’s retiree medical plan as of March 31, 2009 was 8.00%. This represents a 100 basis point increase from the 7.00% weighted average discount rate used at year-end 2008.

In June 2009, the Company announced its plan to freeze its defined benefit plan at its Bradford plant in the United Kingdom in consultation with affected employees and their representatives. The effect of this change is expected to be that participants in the Bradford defined benefit plan will cease to accrue defined benefits after October 31, 2009. Future pension benefits will be earned within an existing defined contribution plan going forward. The financial impact of this change was a $3.7 million reduction to retirement-related liabilities, a $3.5 increase in accumulated other comprehensive income and $0.2 million in income recognition in the second quarter of 2009.

The weighted average discount rate used to determine the benefit obligation of the Company’s Bradford defined benefit plan as of June 30, 2009 was 6.50%. This represents a 25 basis point increase from the 6.25% weighted average discount rate used at year-end 2008.

The components of net periodic benefit cost recorded in the Company’s Condensed Consolidated Statements of Operations are as follows:


													Other post
	Pension benefits												employment
(millions)	2009						2008						benefits
Three months ended September 30,	US			Non-US			US			Non-US			2009			2008

Components of net periodic benefit cost:
Service cost	$	—		$	2.5		$	0.5		$	2.3		$	0.2		$	0.5
Interest cost		5.1			4.5			5.3			4.8			4.8			5.7
Expected return on plan assets		(4.1	)		(2.5	)		(7.1	)		(3.4	)		—			—
Settlement/Curtailment		—			—			7.5			—			—			(8.7	)
Amortization of unrecognized prior service benefit		(0.1	)		—			—			—			(1.2	)		(6.3	)
Amortization of unrecognized loss		1.8			0.2			0.6			0.1			1.5			2.5

Net periodic benefit cost (benefit)	$	2.7		$	4.7		$	6.8		$	3.8		$	5.3		$	(6.3	)


													Other post
	Pension benefits												employment
(millions)	2009						2008						benefits
Nine months ended September 30,	US			Non-US			US			Non-US			2009			2008

Components of net periodic benefit cost:
Service cost	$	0.3		$	7.5		$	1.5		$	7.1		$	0.6		$	1.8
Interest cost		15.6			12.6			15.5			14.4			15.1			17.3
Expected return on plan assets		(12.2	)		(7.1	)		(21.3	)		(10.3	)		—			—
Settlement/Curtailment		—			—			7.5			—			(61.9	)*		(8.7	)
Amortization of unrecognized prior service benefit		(0.3	)		—			—			—			(10.5	)		(17.0	)
Amortization of unrecognized loss		5.5			0.7			1.6			0.1			5.8			7.9

Net periodic benefit cost (benefit)	$	8.9		$	13.7		$	4.8		$	11.3		$	(50.9	)	$	1.3


*		Note: In the nine months ended September 30, 2009 table above, the settlement/curtailment of $61.9 million was offset by the $34.0 million cost to settle, resulting in a net pre-tax gain of $27.9 million.

(12) Stock-Based Compensation

Under the Company’s 1993 Stock Incentive Plan (“1993 Plan”), the Company granted options to purchase shares of the Company’s common stock at the fair market value on the date of grant. The options vest over periods up to three years and have a term of ten years from date of grant. As of December 31, 2003, there were no options available for future grants under the 1993 Plan. The 1993 Plan expired at the end of 2003 and was replaced by the Company’s 2004 Stock Incentive Plan, which was amended at the Company’s 2009 Annual Stockholders Meeting, among other things, to increase the number of shares available for issuance under the Plan. Under the BorgWarner Inc. Amended and Restated 2004 Stock Incentive Plan (“2004 Stock Incentive Plan”), the number of shares authorized for grant was 12,500,000, of which approximately 2,800,000 shares are available for future issuance. As of September 30, 2009, there were a total of 5,336,632 outstanding options under the 1993 and 2004 Stock Incentive Plans.

Stock option compensation expense reduced income before income taxes and net earnings for the three and nine months ended September 30, 2009 and 2008 by:


	Three Months Ended				Nine Months Ended
	September 30,				September 30,
(millions), except per share data	2009		2008		2009		2008
Earnings before income taxes and noncontrolling interest	$	1.4	$	2.6	$	5.5	$	9.7
Net earnings	$	1.0	$	1.9	$	4.2	$	7.2
Per share — basic	$	0.01	$	0.02	$	0.04	$	0.06
Per share — diluted	$	0.01	$	0.02	$	0.04	$	0.06

Total unrecognized compensation cost related to nonvested stock options at September 30, 2009 was approximately $1.8 million. This cost is expected to be recognized over the next 0.3 years. On a weighted average basis, this cost is expected to be recognized over 0.2 years.

A summary of the plans’ shares under option as of and for the nine months ended September 30, 2009 is as follows:


						Weighted
	Shares			Weighted		Average		Aggregate
	Under			Average		Remaining		Intrinsic
	Option			Exercise		Contractual		Value
	(thousands)			Price		Life (in years)		(in millions)
Outstanding at December 31, 2008		5,798		$	27.86
Exercised		(10	)		13.25
Forfeited		(195	)		29.63

Outstanding at March 31, 2009		5,593		$	27.82		6.5	$	4.9

Exercised		(119	)		21.37
Forfeited		(48	)		31.04
Other		36			25.72

Outstanding at June 30, 2009		5,462		$	27.92		6.2	$	35.3

Exercised		(126	)		24.38
Forfeited		(19	)		33.49
Other		20			28.85

Outstanding at September 30, 2009		5,337		$	27.99		6.0	$	19.3



Options exercisable at September 30, 2009		4,624		$	26.91		5.8	$	19.3

At its November 2007 meeting, our Compensation Committee decided that restricted common stock would be awarded in place of stock options for long-term incentive award grants to employees. These restricted shares for employees vest fifty percent after two years and the remainder after three years from the date of grant. The Company also grants restricted common stock to its non-employee directors. For non-employee directors restricted shares vest ratably on the anniversary of the date of the grant over a period of three years. The market value of the Company’s restricted common stock at the date of grant determines the value of the restricted common stock. In February 2009, 1,000,643 restricted shares were granted to employees under the 2004 Stock Incentive Plan. The value of the awards is recorded as unearned compensation within capital in excess of par value in stockholders’ equity, and is amortized as compensation expense over the restriction periods.

Restricted stock compensation expense reduced income before income taxes and net earnings for the three and nine months ended September 30, 2009 and 2008 by:


	Three Months Ended				Nine Months Ended
	September 30,				September 30,
(millions), except per share data	2009		2008		2009		2008
Earnings before income taxes and noncontrolling interest	$	4.1	$	2.6	$	11.8	$	7.2
Net earnings	$	3.1	$	2.0	$	9.1	$	5.4
Per share — basic	$	0.03	$	0.02	$	0.08	$	0.05
Per share — diluted	$	0.03	$	0.02	$	0.08	$	0.05

A summary of the status of the Company’s nonvested restricted stock as of and for the nine months ended September 30, 2009 is as follows:


	Shares
	Subject to			Weighted
	Restriction			Average
	(thousands)			Price
Nonvested at December 31, 2008		661.5		$	45.29
Granted		1,000.6			20.30
Forfeited		(23.9	)		37.73

Nonvested at March 31, 2009		1,638.2		$	30.14


Granted		43.3		$	27.78
Lapsed		(8.7	)		58.00
Forfeited		(35.7	)		30.59

Nonvested at June 30, 2009		1,637.1		$	29.92


Lapsed		(10.7	)	$	52.32
Forfeited		(46.4	)		26.54

Nonvested at September 30, 2009		1,580.0		$	29.87

Stock based compensation expense affected both operating activities ($17.9 million and $12.6 million) and financing activities ($5.8 million and $16.2 million) of the Condensed Consolidated Statements of Cash Flows for the nine months ended September 30, 2009 and 2008, respectively.

In calculating earnings or loss per share, earnings or loss are the same for the basic and diluted calculations. Due to the effects of stock options issued and issuable and restricted shares issued under the 1993 Plan and 2004 Stock Incentive Plan, shares increased for diluted earnings per share for the three months ended September 30, 2009 by 766,000. There was no dilutive impact to weighted average shares outstanding for the three months ended September 30, 2008 due to the Company’s net loss in the third quarter. Shares increased for diluted earnings per share by 1,875,000 for the nine months ended September 30, 2008, due to the effects of stock options and restricted shares issued and issuable under the 1993 Plan and 2004 Stock Incentive Plan. There was no dilutive impact to weighted average shares outstanding for the nine months ended September 30, 2009 due to the Company’s net loss.

(13) Comprehensive Income (Loss)

The amounts presented as changes in accumulated other comprehensive income or loss, net of related taxes, are added to net earnings (loss) resulting in comprehensive income or loss. The following table summarizes the components of comprehensive income or loss on an after-tax basis for the three and nine month periods ended September 30, 2009 and 2008.


	Three months ended						Nine months ended
	September 30,						September 30,
(millions)	2009			2008			2009			2008
Foreign currency translation adjustments, net	$	61.1		$	(198.9	)	$	68.9		$	(90.0	)
Market value change in hedge instruments, net		(10.7	)		15.7			37.3			(5.6	)
Defined benefit post employment plans, net		—			6.1			6.0			6.1
Bond hedge on 3.50% convertible notes, net		—			—			(36.7	)		—
Warrant on 3.50% convertible notes, net		—			—			31.2			—
Unrealized gain (loss) on available-for-sale securities, net		—			(0.5	)		0.2			(0.5	)

Change in accumulated other comprehensive income (loss)		50.4			(177.6	)		106.9			(90.0	)
Net earnings (loss) attributable to BorgWarner Inc.		17.2			(130.4	)		(25.7	)		45.8

Comprehensive income (loss)		67.6			(308.0	)		81.2			(44.2	)
Comprehensive income attributable to the noncontrolling interest		2.5			1.3			0.5			3.5

Comprehensive income (loss) attributable to BorgWarner Inc.	$	70.1		$	(306.7	)	$	81.7		$	(40.7	)

(14) Contingencies

In the normal course of business the Company and its subsidiaries are parties to various commercial and legal claims, actions and complaints, including matters involving warranty claims, intellectual property claims, general liability and various other risks. It is not possible to predict with certainty whether or not the Company and its subsidiaries will ultimately be successful in any of these commercial and legal matters or, if not, what the impact might be. The Company’s environmental and product liability contingencies are discussed separately below. The Company’s management does not expect that the results in any of these commercial and legal claims, actions and complaints will have a material adverse effect on the Company’s results of operations, financial position or cash flows.

Litigation

In January 2006, DTP, a subsidiary of the Company, filed a declaratory judgment action in United States District Court, Southern District of Indiana (Indianapolis Division) against the United Automobile, Aerospace, and Agricultural Implements Workers of America (“UAW”) Local No. 287 and Gerald Poor, individually and as the representative of a defendant class. DTP sought the Court’s affirmation that DTP did not violate the Labor-Management Relations Act or the Employee Retirement Income Security Act by unilaterally amending certain medical plans effective April 1, 2006 and October 1, 2006, prior to the expiration of the then-current collective bargaining agreements. On September 10, 2008, the Court found that DTP’s reservation of the right to make such amendments reducing the level of benefits provided to retirees was limited by its collectively bargained health insurance agreement with the UAW, which did not expire until April 24, 2009. Thus, the amendments were untimely. In 2008 the Company recorded a charge of $4.0 million as a result of the Court’s decision.

plans after April 24, 2009. Certain retirees, on behalf of themselves and others, filed a mirror-image action in the United States District Court, Eastern District of Michigan (Southern Division) on March 11, 2009, for which a class has been certified. Both actions are pending.

Environmental

The Company and certain of its current and former direct and indirect corporate predecessors, subsidiaries and divisions have been identified by the United States Environmental Protection Agency and certain state environmental agencies and private parties as potentially responsible parties (“PRPs”) at various hazardous waste disposal sites under the Comprehensive Environmental Response, Compensation and Liability Act (“Superfund”) and equivalent state laws and, as such, may presently be liable for the cost of clean-up and other remedial activities at 35 such sites. Responsibility for clean-up and other remedial activities at a Superfund site is typically shared among PRPs based on an allocation formula.

The Company believes that none of these matters, individually or in the aggregate, will have a material adverse effect on its results of operations, financial position, or cash flows. Generally, this is because either the estimates of the maximum potential liability at a site are not large or the liability will be shared with other PRPs, although no assurance can be given with respect to the ultimate outcome of any such matter.

Based on information available to the Company (which in most cases includes: an estimate of allocation of liability among PRPs; the probability that other PRPs, many of whom are large, solvent public companies, will fully pay the cost apportioned to them; currently available information from PRPs and/or federal or state environmental agencies concerning the scope of contamination and estimated remediation and consulting costs; remediation alternatives; and estimated legal fees), the Company has established an accrual for indicated environmental liabilities with a balance at September 30, 2009 of $12 million. The Company has accrued amounts that do not exceed $4.4 million related to any individual site and we do not believe that the costs related to any of these sites will have a material adverse effect on the Company’s results of operations, cash flows or financial condition. The Company expects to pay out substantially all of the amounts accrued for environmental liability over the next three to five years.

In connection with the sale of Kuhlman Electric Corporation, the Company agreed to indemnify the buyer and Kuhlman Electric for certain environmental liabilities, then unknown to the Company, relating to certain operations of Kuhlman Electric that pre-date the Company’s 1999 acquisition of Kuhlman Electric. During 2000, Kuhlman Electric notified the Company that it discovered potential environmental contamination at its Crystal Springs, Mississippi plant while undertaking an expansion of the plant. The Company is continuing to work with the Mississippi Department of Environmental Quality and Kuhlman Electric to investigate and remediate to the extent necessary, historical contamination at the plant and surrounding area. Kuhlman Electric and others, including the Company, were sued in numerous related lawsuits, in which multiple claimants alleged personal injury and property damage. In 2005, the Company and other defendants entered into settlements that resolved approximately 99% of the then known personal injury and property damage claims relating to the alleged environmental contamination.

Four additional lawsuits were filed against Kuhlman Electric and others, including the Company, in 2007 and 2008 on behalf of approximately 340 plaintiffs, alleging personal injury relating to the alleged environmental contamination. Given the early stage of the litigation, the Company cannot make any predictions as to the outcome, but its current intent is to vigorously defend against the suits.

Conditional Asset Retirement Obligations

Certain government regulations require the removal and disposal of asbestos from an existing facility at the time the facility undergoes major renovations or is demolished. The liability exists because the facility will not last forever, but it is conditional on future renovations (even if there are no immediate plans to remove the materials, which pose no health or safety hazard in their current condition). Similarly, government regulations require the removal or closure of underground storage tanks and above ground storage tanks when their use ceases, the disposal of polychlorinated biphenyl transformers and capacitors when their use ceases, and the disposal of used furnace bricks and liners, and lead-based paint in conjunction with facility renovations or demolition. The Company currently has 32 manufacturing locations that have been identified as containing these items. The fair value to remove and dispose of this material has been estimated and recorded at $1.7 million as of September 30, 2009 and $1.4 million as of December 31, 2008.

Product Liability

Like many other industrial companies who have historically operated in the U.S., the Company (or parties the Company is obligated to indemnify) continues to be named as one of many defendants in asbestos-related personal injury actions. We believe that the Company’s involvement is limited because, in general, these claims relate to a few types of automotive friction products that were manufactured many years ago and contained encapsulated asbestos. The nature of the fibers, the encapsulation and the manner of use lead the Company to believe that these products are highly unlikely to cause harm. As of September 30, 2009 and December 31, 2008 the Company had approximately 23,000 and 27,000 pending asbestos-related product liability claims, respectively. Of the 23,000 outstanding claims at September 30, 2009, approximately 12,000 were pending in just three jurisdictions, where significant tort and judicial reform activities are underway.

The Company’s policy is to aggressively defend against these lawsuits and the Company has been successful in obtaining dismissal of many claims without any payment. The Company expects that the vast majority of the pending asbestos-related product liability claims where it is a defendant (or has an obligation to indemnify a defendant) will result in no payment being made by the Company or its insurers. In the first nine months of 2009, of the approximately 4,800 claims resolved, only 180 (3.8%) resulted in any payment being made to a claimant by or on behalf of the Company. In 2008, of the approximately 17,500 claims resolved, only 210 (1.2%) resulted in any payment being made to a claimant by or on behalf of the Company.

Prior to June 2004, the settlement and defense costs associated with all claims were covered by the Company’s primary layer insurance coverage, and these carriers administered, defended, settled and paid all claims under a funding arrangement. In June 2004, primary layer insurance carriers notified the Company of the alleged exhaustion of their policy limits. This led the Company to access the next available layer of insurance coverage. Since June 2004, secondary layer insurers have paid asbestos-related litigation defense and settlement expenses pursuant to a funding arrangement. To date, the Company has paid $74.7 million in defense and indemnity in advance of insurers’ reimbursement and has received $18.5 million in cash from insurers. The outstanding balance of $56.2 million is expected to be fully recovered. Timing of the recovery is dependent on final resolution of the declaratory judgment action referred to below. At December 31, 2008, insurers owed $35.9 million in association with these claims.

At September 30, 2009, the Company has an estimated liability of $45.9 million for future claims resolutions, with a related asset of $45.9 million to recognize the insurance proceeds receivable by the Company for estimated losses related to claims that have yet to be resolved. Insurance carrier reimbursement of 100% is expected based on the Company’s experience, its insurance contracts and decisions received to date in the declaratory judgment action referred to below. At December 31, 2008, the comparable value of the insurance receivable and accrued liability was $34.7 million.

The amounts recorded in the Consolidated Balance Sheets related to the estimated future settlement of existing claims are as follows:


	September 30,		December 31,
(millions)	2009		2008
Assets:
Prepayments and other current assets	$	24.1	$	22.1
Other non-current assets		21.8		12.6

Total insurance receivable	$	45.9	$	34.7


Liabilities:
Accounts payable and accrued expenses	$	24.1	$	22.1
Other non-current liabilities		21.8		12.6

Total accrued liability	$	45.9	$	34.7

The Company cannot reasonably estimate possible losses, if any, in excess of those for which it has accrued, because it cannot predict how many additional claims may be brought against the Company (or parties the Company has an obligation to indemnify) in the future, the allegations in such claims, the possible outcomes, or the impact of tort reform legislation that may be enacted at the State or Federal levels.

A declaratory judgment action was filed in January 2004 in the Circuit Court of Cook County, Illinois by Continental Casualty Company and related companies (“CNA”) against the Company and certain of its other historical general liability insurers. CNA provided the Company with both primary and additional layer insurance, and, in conjunction with other insurers, is currently defending and indemnifying the Company in its pending asbestos-related product liability claims. The lawsuit seeks to determine the extent of insurance coverage available to the Company including whether the available limits exhaust on a “per occurrence” or an “aggregate” basis, and to determine how the applicable coverage responsibilities should be apportioned. On August 15, 2005, the Court issued an interim order regarding the apportionment matter. The interim order has the effect of making insurers responsible for all defense and settlement costs pro rata to time-on-the-risk, with the pro-ration method to hold the insured harmless for periods of bankrupt or unavailable coverage. Appeals of the interim order were denied. However, the issue is reserved for appellate review at the end of the action. In addition to the primary insurance available for asbestos-related claims, the Company has substantial additional layers of insurance available for potential future asbestos-related product claims. As such, the Company continues to believe that its coverage is sufficient to meet foreseeable liabilities.

Although it is impossible to predict the outcome of pending or future claims or the impact of tort reform legislation that may be enacted at the State or Federal levels, due to the encapsulated nature of the products, the Company’s experiences in aggressively defending and resolving claims in the past, and the Company’s significant insurance coverage with solvent carriers as of the date of this filing, management does not believe that asbestos-related product liability claims are likely to have a material adverse effect on the Company’s results of operations, cash flows or financial condition.

(15) Leases and Commitments

The Company has guaranteed the residual values of certain leased machinery and equipment at its facilities. The guarantees extend through the maturity of the underlying lease, which is in September 2010. As a result of the closing of the Company’s Muncie facility, the Company has accrued $3.7 million as a loss on this guarantee, which is expected to be paid at the end of October 2009. In the event the Company exercises its option not to purchase the remaining machinery and equipment, the Company has guaranteed a residual value of $6.0 million at September 30, 2010.

(16) Restructuring

In the second quarter of 2009, the Company took additional restructuring actions. The Company reduced its North American workforce by approximately 550 people, or 12%; its European workforce by approximately 150 people, or 2%; and its Asian workforce by approximately 60 people, or 3% in the second quarter. The net restructuring expense recognized in the second quarter was $9.0 million for employee termination benefits. In addition to employee termination costs, the Company recorded $36.3 million of asset impairment and $5.0 million of other charges in the second quarter of 2009 related to the North American and European restructuring. The combined 2009 restructuring expenses of $50.3 million are broken out by segment as follows: Engine $27.2 million, Drivetrain $19.7 million and Corporate $3.4 million.

Included in the second quarter of 2009 asset impairment charge is $22.3 million related to one of the Company’s European locations. During the second quarter of 2009 circumstances caused the Company to evaluate the long range outlook of the facility using an undiscounted and discounted cash flow model, both of which indicated that assets were impaired. The Company then used an estimate of cost replacement to determine the fair value of the assets at the facility. This reduction of asset value was included in the Engine segment.

On July 31, 2008, the Company announced a restructuring of its operations to align ongoing operations with a continuing, fundamental market shift in the auto industry. As a continuation of the Company’s third quarter restructuring, on December 11, 2008, the Company announced plans for additional restructuring actions. As a result of these third and fourth quarter 2008 restructuring actions, the Company has reduced its North American workforce by approximately 2,400 people, or 33%; its European workforce by approximately 1,600 people, or 18%; and its Asian workforce by approximately 400 people, or 17%. The restructuring expense recognized in 2008 for employee termination benefits is $54.6 million. In addition to employee termination costs, the Company recorded $72.9 million of asset impairment charges in 2008 related to the North American and European restructuring. The combined 2008 restructuring expenses of $127.5 million are broken out by segment as follows: Engine $85.3 million, Drivetrain $40.9 million and Corporate $1.3 million.

Estimates of restructuring expense are based on information available at the time such charges are recorded. Due to the inherent uncertainty involved in estimating restructuring expenses, actual amounts paid for such activities may differ from amounts initially recorded. Accordingly, the Company may record revisions of previous estimates by adjusting previously established accruals.

The following table displays a rollforward of the employee related and other restructuring accruals recorded within the Company’s Consolidated Balance Sheet and the related cash flow activity for the three and nine months ended September 30, 2009:


	Employee Related and Other Costs
(millions)	Drivetrain			Engine			Corporate			Total
Balance at December 31, 2008	$	21.0		$	29.3		$	0.7		$	51.0
Cash payments		(5.6	)		(7.9	)		(0.4	)		(13.9	)
Translation adjustment		(0.3	)		(1.0	)		—			(1.3	)

Balance at March 31, 2009	$	15.1		$	20.4		$	0.3		$	35.8


Provision	$	6.0		$	4.6		$	3.4		$	14.0
Cash payments		(7.0	)		(9.9	)		(1.4	)		(18.3	)
Translation adjustment		0.6			1.0			—			1.6

Balance at June 30, 2009	$	14.7		$	16.1		$	2.3		$	33.1


Cash payments		(7.5	)		(4.7	)		(0.2	)		(12.4	)
Translation adjustment		0.2			0.7			—			0.9

Balance at September 30, 2009	$	7.4		$	12.1		$	2.1		$	21.6

The Company made cash payments of $44.6 million during 2009 related to the 2008 and 2009 restructuring actions. Future cash payments for these restructuring activities are expected to be complete by the middle of 2010.

(17) Reporting Segments

The Company’s business is comprised of two reporting segments: Engine and Drivetrain. These reporting segments are strategic business groups, which are managed separately as each represents a specific grouping of related automotive components and systems.

The Company allocates resources to each segment based upon the projected after-tax return on invested capital (“ROIC”) of its business initiatives. The ROIC is comprised of projected earnings before interest, income taxes and noncontrolling interest (“EBIT”) adjusted for income taxes compared to the projected average capital investment required.

EBIT is considered a “non-GAAP financial measure.” Generally, a non-GAAP financial measure is a numerical measure of a company’s financial performance, financial position or cash flows that excludes (or includes) amounts that are included in (or excluded from) the most directly comparable measure calculated and presented in accordance with GAAP. EBIT is defined as earnings before interest, income taxes and noncontrolling interest. “Earnings” is intended to mean net earnings as presented in the Consolidated Statements of Operations under GAAP.

The Company believes that EBIT is useful to demonstrate the operational profitability of our segments by excluding interest and income taxes, which are generally accounted for across the entire Company on a consolidated basis. EBIT is also one of the measures used by the Company to determine resource allocation within the Company. Although the Company believes that EBIT enhances understanding of our business and performance, it should not be considered an alternative to, or more meaningful than, net earnings or cash flows from operations as determined in accordance with GAAP.

The following tables present net sales, segment EBIT and total assets for the Company’s reporting segments.

Net Sales by Reporting Segment


	Three months ended						Nine months ended
	September 30,						September 30,
(millions)	2009			2008			2009			2008
Engine	$	735.3		$	974.1		$	2,030.2		$	3,181.2
Drivetrain		296.8			347.2			743.8			1,171.4
Inter-segment eliminations		(4.3	)		(4.4	)		(10.5	)		(20.2	)

Net sales	$	1,027.8		$	1,316.9		$	2,763.5		$	4,332.4

Segment Earnings (Loss) Before Interest and Income Taxes


	Three months ended						Nine months ended
	September 30,						September 30,
(millions)	2009			2008			2009			2008
Engine	$	56.6		$	94.1		$	136.5		$	358.4
Drivetrain		7.5			(2.9	)		(34.0	)		37.2

Segment earnings before interest and income taxes (“Segment EBIT”)		64.1			91.2			102.5			395.6
Muncie closure retiree obligation net gain		—			—			27.9			—
Corporate, including equity in affiliates’ earnings and stock-based compensation		(30.1	)		(14.1	)		(85.1	)		(54.0	)

Consolidated earnings before interest and taxes (“EBIT”)		34.0			77.1			45.3			341.6
Restructuring expense		—			25.0			50.3			25.0
Goodwill impairment charge		—			146.8			—			146.8
Interest income		(0.5	)		(2.2	)		(1.7	)		(6.4	)
Interest expense and finance charges		13.0			11.2			41.1			28.5

Earnings (loss) before income taxes and noncontrolling interest		21.5			(103.7	)		(44.4	)		147.7
Provision (benefit) for income taxes		1.5			24.3			(24.2	)		87.7

Net earnings (loss)		20.0			(128.0	)		(20.2	)		60.0
Net earnings attributable to the noncontrolling interest		2.8			2.4			5.5			14.2

Net earnings (loss) attributable to BorgWarner Inc.	$	17.2		$	(130.4	)	$	(25.7	)	$	45.8

Total Assets


	September 30,		December 31,
(millions)	2009		2008
Engine	$	2,954.6	$	3,065.3
Drivetrain		1,136.7		1,211.8

Total		4,091.3		4,277.1
Corporate, including equity in affiliates ^(a)		699.9		366.9

Total assets	$	4,791.2	$	4,644.0


^(a)		Corporate assets, including equity in affiliates, are net of trade receivables securitized and sold to third parties, and include cash, deferred income taxes and investments & advances.

(18) NSK-Warner

The Company has a 50% interest in NSK-Warner, a joint venture based in Japan that manufactures automatic transmission components. The Company’s share of the earnings or losses reported by NSK-Warner is accounted for using the equity method of accounting. NSK-Warner has a fiscal year-end of March 31. The Company’s equity in the earnings of NSK-Warner consists of the 12 months ended November 30 so as to reflect earnings on as current a basis as is reasonably feasible. NSK-Warner is the joint venture partner with a 40% interest in the Drivetrain Group’s South Korean subsidiary, BorgWarner Transmission Systems Korea Inc.

The Company determined that as of September 30, 2009 NSK-Warner met the conditions of significance under Rule 1-02(w) of Regulation S-X. Rule 10-01(b) (1) of Regulation S-X requires the Company to disclose summarized income statement information for any unconsolidated investment that has met the significance test for any interim period.

Following are summarized financial data for NSK-Warner, translated using the periodic rates as of the three and nine months ended August 31, 2009 and 2008 (unaudited):


	Three Months Ended				Nine Months Ended
	August 31,				August 31,
(millions)	2009		2008		2009		2008
Net sales	$	117.9	$	146.3	$	325.6	$	478.1
Gross profit		19.3		25.6		54.1		108.3
Net income		10.2		13.5		18.5		53.3

(19) New Accounting Pronouncements

In September 2006, the Financial Accounting Standards Board (“FASB”) issued Topic 820, Fair Value Measurements. Topic 820 defines fair value, establishes a framework for measuring fair value in GAAP and expands disclosures about fair value measurements. On January 1, 2009, the Company fully adopted as required, Topic 820. See Note 9 to the Consolidated Financial Statements for more information regarding the implementation of Topic 820.

In December 2007, the FASB issued Topic 805, Business Combinations. Topic 805 establishes principles and requirements for recognizing identifiable assets acquired, liabilities assumed, noncontrolling interest in the acquiree, goodwill acquired in the combination or the gain from a bargain purchase, and disclosure requirements. Under this revised statement, all costs incurred to effect an acquisition will be recognized separately from the acquisition. Also, restructuring costs that are expected but the acquirer is not obligated to incur will be recognized separately from the acquisition. On January 1, 2009, the Company adopted Topic 805. In the first quarter of 2009, the Company expensed $4.8 million related to on-going acquisition related activity.

In December 2007, the FASB issued Topic 810, Noncontrolling Interests in Consolidated Financial Statements. For consolidated subsidiaries that are less than wholly owned, the third party holdings of equity interests are referred to as noncontrolling interests. The portion of net income (loss) attributable to noncontrolling interests for such subsidiaries is presented as net income (loss) applicable to noncontrolling interest on the consolidated statement of operation, and the portion of stockholders’ equity of such subsidiaries is presented as noncontrolling interest on the consolidated balance sheet. Effective January 1, 2009, the Company adopted Topic 810.

The adoption of Topic 810 did not have a material impact on the Company’s financial condition, results of operations or cash flows. However, it did impact the presentation and disclosure of noncontrolling (minority) interests in our consolidated financial statements and notes to the consolidated financial statements. As a result of the retrospective presentation and disclosure requirements of Topic 810, the Company was required to reflect the change in presentation and disclosure for the period ending March 31, 2009 and all periods presented in future filings.

The principal effect on the prior year balance sheets related to the adoption of Topic 810 is summarized as follows:

Balance Sheet


(millions)	December 31, 2008
Total stockholders’ equity, as previously reported	$	2,006.0
Increase for Topic 810 reclass of noncontrolling interest		31.5

Total stockholders’ equity, as adjusted	$	2,037.5

The principal effect on the prior year statement of operations related to the adoption of Topic 810 is summarized as follows:

Consolidated Statement of Operations


	Three Months Ended			Nine Months Ended
(millions)	September 30, 2008			September 30, 2008
Net earnings (loss), as previously reported	$	(130.4	)	$	45.8
Topic 810 reclass of noncontrolling interest		(2.4	)		(14.2	)

Net earnings (loss), as adjusted	$	(128.0	)	$	60.0
Less: Net earnings attributable to noncontrolling interest		(2.4	)		(14.2	)

Net earnings attributable to BorgWarner Inc.	$	(130.4	)	$	45.8

The principal effect on the prior year statement of cash flows related to the adoption of Topic 810 is summarized as follows:

Statement of Cash Flows


	Nine Months Ended
(millions)	September 30, 2008
Net earnings, as previously reported	$	45.8
Topic 810 reclass of noncontrolling interest		(14.2	)

Net earnings (loss), as adjusted	$	60.0

Statement of Cash Flows


	Nine Months Ended
(millions)	September 30, 2008
Equity in affiliates’ earnings, net of dividends received, minority interest and other, as previously reported	$	16.9
Less: Topic 810 reclass of noncontrolling interest		(14.2	)

Equity in affiliates’ earnings, net of dividends received and other	$	2.7

The principal effect on the prior year comprehensive income related to the adoption of Topic 810 is summarized as follows:

Comprehensive Income (Loss)


	Three Months Ended			Nine Months Ended
(millions)	September 30, 2008			September 30, 2008
Comprehensive loss, as previously reported	$	(306.7	)	$	(40.7	)
Topic 810 reclass of noncontrolling interest		1.3			3.5

Comprehensive loss, as adjusted	$	(308.0	)	$	(44.2	)
Less: Comprehensive income (loss) attributable to noncontrolling interest		1.3			3.5

Comprehensive loss attributable to BorgWarner Inc.	$	(306.7	)	$	(40.7	)

In March 2008, the FASB issued Topic 815, Disclosures about Derivative Instruments and Hedging Activities. Topic 815 requires entities to provide enhanced disclosures about how and why an entity uses derivative instruments, how derivative instruments and related hedged items are accounted for under Topic 815 and its related interpretations, and how derivative instruments and related hedged items affect an entity’s financial position, financial performance, and cash flows. On January 1, 2009, the Company adopted Topic

815. See Note 10 to the Consolidated Financial Statements for more information regarding the implementation of Topic 815.

In May 2008, the FASB issued Topic 470, Accounting for Convertible Debt Instruments That May be Settled in Cash Upon Conversion (Including Partial Cash Settlement). Under Topic 470, an entity must separately account for the liability and equity components of the convertible debt instruments that may be settled entirely or partially in cash upon conversion in a manner that reflects the issuer’s interest cost. Topic 470 is effective for fiscal years beginning after December 15, 2008, and for interim periods within those fiscal years, with retrospective application required. As a result of our adoption of Topic 470 for fiscal 2009 and the Company’s April 9, 2009 issuance of $373.8 million convertible senior notes due April 15, 2012, we recorded the equity and liability components of the notes on our June 30, 2009 Condensed Consolidated Balance Sheet. Additionally, Topic 470 requires us to accrete the discounted carrying value of the convertible notes to their face value over the term of the notes. The Company’s interest expense associated with this amortization is based on the effective interest rate of the convertible senior notes of 9.365%. The total interest expense related to the convertible notes in the Company’s Consolidated Statement of Operations for the three and nine months ended September 30, 2009 was $7.1 million and $14.5 million, respectively. The non-cash portion of interest expense for the convertible notes for the three and nine months ended September 30, 2009 was $4.2 million and $8.4 million, respectively. For the full year of 2009, interest expense will be approximately $22.2 million, of which approximately $12.7 million will be non-cash. See Note 8 to the Condensed Consolidated Financial Statements for more information regarding this issuance.

In December 2008, the FASB issued Topic 715, Employers’ Disclosures about Postretirement Benefit Plan Assets. Topic 715 requires entities to provide enhanced disclosures about how investment allocation decisions are made, the major categories of plan assets, the inputs and valuation techniques used to measure fair value of plan assets, the effect of fair value measurements using significant unobservable inputs on changes in plan assets for the period, and significant concentrations of risk within plan assets. Topic 715 is effective for the Company beginning with its year ending December 31, 2009. The Company is currently assessing the potential impacts, if any, on its consolidated financial statements.

In May 2009, the FASB issued Topic 855, Subsequent Events. Topic 855 requires entities to disclose the date through which subsequent events have been evaluated, as well as whether that date is the date the financial statements were issued or the date the financial statements were available to be issued. The Company adopted Topic 855 in the second quarter of 2009 and has evaluated all subsequent events through October 28, 2009 (the date the Company’s financial statements are issued).

In June 2009, the FASB issued Statement of Financial Accounting Standards No. 166, Accounting for Transfer of Financial Assets — an amendment of Topic 860 (“FAS 166”). FAS 166 removes the concept of a qualifying special-purpose entity from Topic 860 and removes the exception from applying Topic 810, Consolidation of Variable Interest Entities, to qualifying special-purpose entities. This Statement modifies the financial-components approach used in Topic 860 and limits the circumstances in which a financial asset, or portion of a financial asset, should be derecognized. Additionally, enhanced disclosures are required to provide financial statement users with greater transparency about transfers of financial assets and a transferor’s continuing involvement with transferred financial assets. FAS 166 is effective for the Company beginning with its quarter ending March 31, 2010. The adoption of FAS 166 is not expected to have a material impact on the Company’s consolidated financial position, results of operations or cash flows.

In June 2009, the FASB issued Statement of Financial Accounting Standards No. 167, Amendments to Topic 810 (“FAS 167”). FAS 167 amends Topic 810 to require ongoing reassessments of whether an enterprise is the primary beneficiary of a variable interest entity. Additionally, FAS 167 requires enhanced disclosures that will provide users of financial statements with more transparent information about an enterprise’s involvement in variable interest entities. FAS 167 is effective for the Company beginning with its quarter ending March 31, 2010. The adoption of FAS 167 is not expected to have a material impact on the Company’s consolidated financial position, results of operations or cash flows.

In June 2009, the FASB issued Topic 105, The FASB Accounting Standards Codification and the Hierarchy of Generally Accepted Accounting Principles. This Topic instituted a major change in the way accounting standards are organized. The accounting standards Codification became the single official source of authoritative, nongovernmental U.S. generally accepted accounting principles (“GAAP”). As of September 30, 2009 only one level of authoritative GAAP exists, other than guidance issued by the Securities and Exchange Commission. All other literature is non-authoritative. The Company has adopted the Codification in the third quarter of 2009. The adoption of the Codification had no impact on the Company’s consolidated financial position, results of operations or cash flows.

This adoption required all issued authoritative literature to be disclosed using Codification Sections. Authoritative literature has been referenced within our third quarter report on Form 10-Q under these new Codification Sections. New standards not yet codified have been referenced as issued and will be updated when codified.

(20) Recent Transactions

BERU AG — Domination and Profit Transfer Agreement and “Squeeze-out” of Minority Shareholders

In the second quarter of 2008, the Company and BERU AG (“BERU”) completed a Domination and Profit Transfer Agreement (“DPTA”), giving BorgWarner full control of BERU. Under this agreement BERU is obligated to transfer 100% of its annual profits or losses to the Company. Upon request of BERU minority shareholders, the Company is obligated to purchase their shares for a cash payment of €71.32 per share. Those BERU minority shareholders who did not sell their shares are entitled to receive an annual compensatory payment (perpetual dividend) of €4.23 (net) per share. The DPTA is a binding agreement. However, certain minority shareholders of BERU initiated an appraisal proceeding in the German court system that challenged the valuation of the €71.32 purchase price and €4.23 annual compensatory payment (perpetual dividend).

On January 7, 2009 the Company informed BERU of its intention to purchase the remaining outstanding shares at that time of approximately 4%, using the required German legal process referred to as a “squeeze-out” to complete the 100% ownership. This process included an affirmative vote of BERU shareholders at its May 20, 2009 annual shareholder meeting. The registration of the “squeeze-out” was challenged by certain minority shareholders of BERU with the commercial register in June 2009. The “squeeze-out” share price passed by the BERU shareholders in May 2009 was €73.39. The increase in price per share of €2.07 resulting from the “squeeze out” was reflected as an increase to the Company’s total DPTA obligation.

The DPTA obligation as of September 30, 2009 was approximately €22.9 ($33.5) million, and approximates the cost if all remaining shares were purchased by the Company at €73.39 per share. As of September 30, 2009, the DPTA obligation is presented in the Condensed Consolidated Balance Sheet as $33.5 million in current liabilities.

The table below summarizes activity related to the Company’s DPTA obligation as of September 30, 2009 as follows (in millions):


Domination and Profit Transfer Agreement Obligation at December 31, 2008	$	44.0
Shares Purchased During the Three Months Ended March 31, 2009		(12.2	)
Translation Adjustment		(2.1	)

Domination and Profit Transfer Agreement Obligation at March 31, 2009		29.7
Share Resolution to €73.39 per Share		0.9
Shares Purchased During the Three Months Ended June 30, 2009		(0.7	)
Translation Adjustment		2.3

Domination and Profit Transfer Agreement Obligation at June 30, 2009		32.2
Shares Purchased During the Three Months Ended September 30, 2009		(0.2	)
Translation Adjustment		1.5

Domination and Profit Transfer Agreement Obligation at September 30, 2009	$	33.5

As of September 30, 2009, the portion of the acquisition related to the DPTA represents a non-cash transaction of €22.9 ($33.5) million.

As a result of the tendering of shares, the Company owned approximately 97% of all BERU’s outstanding shares at September 30, 2009. The tendering of approximately 1.3% of BERU shares, at a cost of $13.1 million, has been reflected as an Investing activity in the Consolidated Statements of Cash Flows for the nine months ended September 30, 2009. Additionally, on May 22, 2009 the Company paid the annual perpetual dividend of $1.9 million, which is also reflected as an Investing activity in the Consolidated Statement of Cash Flows for the nine months ended September 30, 2009.

On September 18, 2009 the minority shareholders of BERU who had challenged the “squeeze-out” resolution dropped their complaint. The elimination of all actions against the resolution allowed BERU to register the “squeeze-out” with the commercial register. The “squeeze-out” became effective on September 30, 2009, making the Company the only shareholder of BERU. On October 6, 2009 the Company paid €22.9 ($33.5) million for the approximately 311,000 outstanding shares of BERU. Certain minority shareholders have challenged the “squeeze out” share price of €73.39. A hearing date for this action will be set after January 5, 2010.

For a description of our earlier acquisition of BERU, see Note 20 to the Notes to Consolidated Financial Statements in our most recently filed Annual Report on Form 10-K.

Acquisition of Etatech, Inc. Technology

On June 2, 2009, the Company announced the purchase of advanced gasoline ignition technology and related intellectual property from Florida-based Etatech, Inc. The high-frequency ignition technology enables high-performing, lean burning engines to significantly improve fuel economy and reduce emissions compared with conventional combustion technologies. Amortization expense for the three and nine months ended September 30, 2009 was approximately $0.6 million and $0.8 million, respectively.

For the nine months ended September 30, 2009, a $7.5 million payment has been reflected as an investing activity in the Consolidated Statement of Cash Flows.


Item 2.		Management’s Discussion and Analysis of Financial Condition and Results of Operations

INTRODUCTION

BorgWarner Inc. and Consolidated Subsidiaries (the “Company”) is a leading global supplier of highly engineered systems and components primarily for powertrain applications. Our products help improve vehicle performance, fuel efficiency, air quality and vehicle stability. They are manufactured and sold worldwide, primarily to original equipment manufacturers (“OEMs”) of light vehicles (i.e., passenger cars, sport-utility vehicles (“SUVs”), cross-over vehicles, vans and light-trucks). Our products are also manufactured and sold to OEMs of commercial trucks, buses and agricultural and off-highway vehicles. We also manufacture and sell our products into the aftermarket for light and commercial vehicles. We operate manufacturing facilities serving customers in the Americas, Europe and Asia, and are an original equipment supplier to every major automaker in the world.

The Company’s products fall into two reporting segments: Engine and Drivetrain. The Engine segment’s products include turbochargers, timing chain systems, air management, emissions systems, thermal systems, as well as diesel and gas ignition systems. The Drivetrain segment’s products are all-wheel drive transfer cases, torque management systems, and components and systems for automated transmissions.

RESULTS OF OPERATIONS

Three Months Ended September 30, 2009 vs. Three Months Ended September 30, 2008

Consolidated net sales for the three months ended September 30, 2009 totaled $1,027.8 million, a 22.0% decrease from the three months ended September 30, 2008. This decrease occurred while light-vehicle production was down 9% worldwide and down 20% in North America from the previous year’s third quarter. Light-vehicle production was flat in Asia-Pacific and decreased 14% in Europe. The net sales decrease included the effect of weaker foreign currencies, primarily the Euro, of approximately $50 million. Currency fluctuations impacted all of the Company’s product lines. Without the currency impact, the decrease in global net sales would have been approximately 18%.

Gross profit and gross margin were $151.8 million and 14.8% for the third quarter of 2009 as compared to $202.3 million and 15.4% for third quarter 2008. The gross margin percentage decrease was due to sales volume declining faster than our ability to reduce our cost structure. Cost reduction actions taken in 2009 to reduce our cost structure included headcount reductions, global pay cuts, selected plant shutdowns and reduced work weeks outside of the U.S.

Third quarter selling, general and administrative (“SG&A”) costs decreased $8.9 million to $125.9 million from $134.8 million, and increased as a percentage of net sales to 12.2% from 10.2%. R&D costs, which are included in SG&A expenses, decreased $9.3 million to $41.4 million from $50.7 million as compared to third quarter 2008. As a percentage of sales, R&D costs increased to 4.0% from 3.8% in the third quarter of 2008. Our continued investment in a number of cross-business R&D programs, as well as other key programs, is necessary for the Company’s short and long-term growth.

Equity in affiliates’ earnings of $6.5 million decreased $2.7 million as compared with the third quarter of 2008 primarily due to lower vehicle production in Asia.

Third quarter interest expense and finance charges of $13.0 million increased $1.8 million as compared with third quarter 2008 primarily due to increased debt levels, offset somewhat by reduced global interest rates.

The Company’s net earnings were $17.2 million for the third quarter, or $0.15 per diluted share, an increase of $1.27 per diluted share over the previous year’s third quarter. The Company believes the following table is useful for comparison with on-going results from prior periods. It details a number of non-recurring or non-comparable items that impacted earnings or loss per share in 2009 and 2008.


	Three Months Ended
	September 30,
	2009		2008
GAAP earnings or (loss) per share — diluted	$	0.15	$	(1.12	)

Non-recurring or non-comparable items:
Goodwill impairment charge		—		(1.27	)
Restructuring activities		—		(0.16	)
Tax valuation allowance		—		(0.12	)
DTP retiree healthcare litigation outcome		—		(0.03	)

Total impact of non-recurring or non-comparable items per share — diluted	$	—	$	(1.58	)

Nine months ended September 30, 2009 vs. Nine months ended September 30, 2008

Consolidated net sales for the nine months ended September 30, 2009 totaled $2,763.5 million, a 36.2% decrease over the nine months ended September 30, 2008. This decrease occurred while light-vehicle production was down 23% worldwide and down 41% in North America from the previous year’s first nine months. Light-vehicle production decreased 13% in Asia-Pacific and 29% in Europe. The net sales decrease included the effect of weaker foreign currencies, primarily the Euro, of approximately $232 million. Currency fluctuations impacted all of the Company’s product lines. Without the currency impact, the decrease in global net sales would have been approximately 31%.

Gross profit and gross margin were $347.6 million and 12.6% for the first nine months of 2009 as compared to $764.6 million and 17.6% for the first nine months of 2008. The gross margin percentage decrease was due to sales volume declining faster than our ability to reduce our cost structure. Cost reduction actions taken in 2009 to reduce our cost structure included headcount reductions, global pay cuts, selected plant shutdowns and reduced work weeks outside of the U.S.

closure of the Muncie Plant, the Company recorded a curtailment gain of $41.9 million in the first quarter of 2009.

Selling, general and administrative (“SG&A”) costs for the first nine months of 2009 decreased $135 million to $315.4 million from $450.4 million, and increased as a percentage of net sales to 11.4% from 10.4%. The decrease in SG&A was impacted by a $27.9 million aforementioned net gain related to the Company’s Plant Shutdown Agreement with the UAW and subsequent closure of the Muncie Plant. This gain was partially offset by a $4.8 million expense associated with the adoption of Topic 805. Without these non-comparable items, SG&A as a percentage of net sales was 12.2%. R&D costs, which are included in SG&A expenses, decreased $56.3 million to $109.7 million from $166.0 million as compared to the first nine months of 2008. As a percentage of sales, R&D costs increased to 4.0% from 3.8% in the first nine months of 2008. Our continued investment in a number of cross-business R&D programs, as well as other key programs, is necessary for the Company’s short and long-term growth.

Equity in affiliates’ earnings of $11.5 million decreased $18.7 million as compared to the first nine months of 2008 primarily due to lower vehicle production in Asia.

Interest expense and finance charges for the first nine months of 2009 were $41.1 million and increased $12.6 million as compared with the first nine months of 2008. This increase was primarily due to increased debt levels and a net $1.8 million non-cash charge related to net hedge ineffectiveness, offset somewhat by reduced global interest rates.

The Company’s net loss was $25.7 million for the first nine months of 2009, or $0.22 loss per diluted share, a decrease of $0.61 per diluted share over the previous year’s first nine months. The Company believes the following table is useful for comparison with on-going results from prior periods. It details a number of non-recurring or non-comparable items that impacted earnings or loss per share in 2009 and 2008.


	Nine Months Ended
	September 30,
	2009			2008
GAAP earnings or (loss) per share — diluted	$	(0.22	)	$	0.39

Non-recurring or non-comparable items:
Goodwill impairment charge		—			(1.24	)
Restructuring activities		(0.29	)		(0.16	)
Tax valuation allowance		—			(0.11	)
DTP retiree healthcare litigation outcome		—			(0.03	)
Interest rate derivative agreements		(0.03	)		—
Topic 805 adoption		(0.03	)		—
Change in retiree obligation related to Muncie closure		0.15			—
BERU purchase accounting		—			(0.04	)

Total impact of non-recurring or non-comparable items per share — diluted	$	(0.20	)	$	(1.58	)

Reporting Segments

The Company believes that EBIT is useful to demonstrate the operational profitability of our segments by excluding interest and income taxes, which are generally accounted for across the entire Company on a consolidated basis. EBIT is also one of the measures used by the Company to determine resource allocation within the Company. Although the Company believes that EBIT enhances understanding of our business and performance, it should not be considered an alternative to, or more meaningful than, net earnings (loss) or cash flows from operations as determined in accordance with GAAP.

The following tables present net sales and segment EBIT by reporting segment for the three and nine months ended September 30, 2009 and 2008.

Net Sales by Reporting Segment


	Three months ended						Nine months ended
	September 30,						September 30,
(millions)	2009			2008			2009			2008
Engine	$	735.3		$	974.1		$	2,030.2		$	3,181.2
Drivetrain		296.8			347.2			743.8			1,171.4
Inter-segment eliminations		(4.3	)		(4.4	)		(10.5	)		(20.2	)

Net sales	$	1,027.8		$	1,316.9		$	2,763.5		$	4,332.4

Segment Earnings (Loss) Before Interest and Income Taxes


	Three months ended						Nine months ended
	September 30,						September 30,
(millions)	2009			2008			2009			2008
Engine	$	56.6		$	94.1		$	136.5		$	358.4
Drivetrain		7.5			(2.9	)		(34.0	)		37.2

Segment earnings before interest and income taxes (“Segment EBIT”)		64.1			91.2			102.5			395.6
Muncie closure retiree obligation net gain		—			—			27.9			—
Corporate, including equity in affiliates’ earnings and stock-based compensation		(30.1	)		(14.1	)		(85.1	)		(54.0	)

Consolidated earnings before interest and taxes (“EBIT”)		34.0			77.1			45.3			341.6
Restructuring expense		—			25.0			50.3			25.0
Goodwill impairment charge		—			146.8			—			146.8
Interest income		(0.5	)		(2.2	)		(1.7	)		(6.4	)
Interest expense and finance charges		13.0			11.2			41.1			28.5

Earnings (loss) before income taxes and noncontrolling interest		21.5			(103.7	)		(44.4	)		147.7
Provision (benefit) for income taxes		1.5			24.3			(24.2	)		87.7

Net earnings (loss)		20.0			(128.0	)		(20.2	)		60.0
Net earnings attributable to the noncontrolling interest		2.8			2.4			5.5			14.2

Net earnings (loss) attributable to BorgWarner Inc.	$	17.2		$	(130.4	)	$	(25.7	)	$	45.8

Three Months Ended September 30, 2009 vs. Three Months Ended September 30, 2008

The Engine segment net sales decreased $238.8 million, or 24.5%, and segment EBIT decreased $37.5 million, or 39.9%, from third quarter 2008. Excluding the impact of weaker foreign currencies, primarily the Euro, sales decreased approximately 21%. The sales and EBIT decrease was primarily driven by reduced global vehicle production that depressed demand for engine products, especially in Europe.

The Drivetrain segment net sales decreased $50.4 million, or 14.5%, and segment EBIT increased $10.4 million from third quarter 2008. Excluding the impact of weaker foreign currencies, primarily the Euro, sales decreased approximately 10%. The sales decrease was driven by lower global production, primarily in

Europe, North America and Japan. The EBIT increase was driven by the Company’s 2009 cost reduction actions to reduce our cost structure.

Nine months ended September 30, 2009 vs. Nine months ended September 30, 2008

The Engine segment net sales decreased $1,151 million, or 36.2%, and segment EBIT decreased $221.9 million, or 61.9%, from the first nine months of 2008. Excluding the impact of weaker foreign currencies, primarily the Euro, sales decreased approximately 31%. The sales and EBIT decrease was primarily driven by reduced global vehicle production that depressed demand for engine products, especially in Europe.

The Drivetrain segment net sales decreased $427.6 million, or 36.5%, and segment EBIT decreased $71.2 million from the first nine months of 2008. Excluding the impact of weaker foreign currencies, primarily the Euro, sales decreased approximately 32%. The sales and EBIT decrease was driven by lower global production, primarily in Europe, North America and Japan.

Outlook for the Remainder of 2009

The Company is cautiously optimistic about the remainder of 2009. The Company expects global production volumes to be incrementally higher in the fourth quarter of 2009 compared with the first nine months. However, visibility is limited in Europe due to uncertainty surrounding consumer demand, the impact of expiring government-sponsored incentive programs and other market dynamics. The impact of non-U.S. currencies is expected to be unfavorable in 2009 versus 2008.

The Company maintains a positive long-term outlook for its global business and is committed to new product development and strategic capital investments to enhance its product leadership strategy. The trends that are driving our long-term growth are expected to continue, including the growth of direct injection diesel and gasoline engines worldwide, the increased adoption of automated transmissions in Europe and Asia-Pacific, and the move to variable cam and chain engine timing systems in both Europe and Asia-Pacific. As the recovery from current global economic conditions occurs, we expect long-term sales and net earnings growth to resume to historical rates.

FINANCIAL CONDITION AND LIQUIDITY

The Company had $258.8 million of cash on hand at September 30, 2009. The Company has a multi-currency revolving credit facility, which provides for borrowings up to $250 million through January 22, 2011. The facility is secured by unperfected pledges of the Company’s equity interests in its subsidiaries and certain assets. No secured party is entitled to perfect its lien on any of the collateral until the long term unsecured senior, non-credit enhanced debt rating of the Company is less than or equal to BB+ by Standard & Poor’s and less than or equal to Ba1 by Moody’s. The three key covenants of the credit agreement are a net worth test, a debt compared to EBITDA (“Earnings Before Interest, Taxes, Depreciation and Amortization”) test, and an interest coverage test. The Company was in compliance with all covenants at September 30, 2009 and expects to be compliant in future periods. At September 30, 2009 and December 31, 2008 there were no outstanding borrowings under the facility. In addition to the credit facility, as of September 30, 2009, the Company had approximately $376 million available under a universal shelf registration statement on file with the Securities and Exchange Commission under which a variety of debt and equity instruments could be issued. From a credit quality perspective, the Company has a credit rating of BBB from Standard & Poor’s and Ba1 from Moody’s. On March 18, 2009, Moody’s downgraded the Company’s credit rating from Baa3 to Ba1. The current outlook from Standard & Poor’s and Moody’s is negative. None of the Company’s debt agreements require accelerated repayment in the event of a decrease in credit ratings.

On April 24, 2009 the Company’s $50 million accounts receivable securitization facility matured and was not renewed. The impact of this maturity was an increase in receivables of $50 million and a decrease in cash of $50 million in the second quarter of 2009. This is reflected as a Financing activity in the Condensed Consolidated Statements of Cash Flows.

In 2006, the Company entered into a series of interest rate swap agreements to effectively convert a portion of its senior notes from fixed to variable interest rates and were designated as fair value hedges for the senior notes. In the first quarter of 2009, $100 million of interest rate swap agreements relating to the 2009 fixed-rate debt matured. Also, in the first quarter of 2009, the Company terminated $150 million of interest rate swap agreements relating to the 2016 fixed rate debt and $75 million of interest rate swap agreements relating to the 2019 fixed rate debt. The early termination of the 2016 and 2019 interest rate swap agreements resulted in a gain of $34.5 million that will be amortized as a reduction of interest expense over the remaining life of the respective 2016 and 2019 debt. The Company recognized $5.7 million in interest expense in the first quarter of 2009 as a result of the early termination. This early termination also resulted in the Company receiving net cash proceeds of $30.0 million. As of September 30, 2009, there were no outstanding interest rate swap agreements.

Net cash provided by operating activities decreased $38.8 million to $226.3 million for the first nine months of 2009 from $265.1 million in the first nine months of 2008. The decrease reflected lower earnings, somewhat offset by lower working capital needs in the first nine months of 2009 as compared to the first nine months of 2008. Capital spending, including tooling outlays, was $127.2 million in the first nine months of 2009, compared with $265.6 million in 2008. Selective capital spending remains an area of focus for the Company, both in order to support our book of new business and for cost reductions and productivity improvements. The Company expects to continue to spend capital to support the launch of our new applications and for cost reductions and productivity improvement projects, but at levels considerably lower than 2008. The Company expects that net cash provided by operating activities, after capital expenditures, including tooling outlays to be positive in 2009.

As of September 30, 2009, debt increased from year-end 2008 by $67.4 million and cash increased by $155.4 million. Our debt to capital ratio was 28.1% at the end of the third quarter versus 27.7% at the end of 2008. The debt and debt to capital ratio increase between September 30, 2009 and December 31, 2008 was primarily due to the April 9, 2009 issuance of $373.8 million in convertible senior notes due April 15, 2012, offset somewhat by the maturity of our $136.7 million, 6.50% senior notes. The net proceeds from the convertible senior notes issuance were used to repay both short and long-term bank debt and provide cash for operating needs. The Company paid dividends to its stockholders of $13.8 million and $38.3 million in the first nine months of 2009 and 2008, respectively. The Company repurchased 1,148,608 shares of its common stock for $48.4 million in the first nine months of 2008, while no common shares were repurchased in the first nine months of 2009.

On March 5, 2009, the Company announced the temporary suspension of the Company’s quarterly dividend of $0.12 per share until global economic conditions improve. This action is expected to save the Company approximately $42 million in cash flow in 2009.

On April 9, 2009, the Company issued $373.8 million in convertible senior notes due April 15, 2012. Under Topic 470, Accounting for Convertible Debt Instruments That May be Settled in Cash Upon Conversion (Including Partial Cash Settlement), the Company must account for the convertible senior notes by bifurcating the instrument between their liability and equity components. The value of the debt component is based on the fair value of issuing a similar nonconvertible debt security. The equity component of the convertible debt security is calculated by deducting the value of the liability from the proceeds received at issuance. Therefore, the Company’s September 30, 2009 Condensed Consolidated Balance Sheet includes an increase in debt of $325.9 million and an increase in capital in excess of par of $36.5 million. Additionally, Topic 470 requires us to accrete the discounted carrying value of the convertible notes to their face value over the term of the notes. The Company’s interest expense associated with this bond accretion is based on the effective interest rate of the convertible senior notes of 9.365%. The total interest expense related to the convertible notes in the Company’s Consolidated Statement of Operations for the three and nine months ended September 30, 2009 was $7.1 million and $14.5 million, respectively. The non-cash portion of interest expense for the convertible notes for the three and nine months ended September 30, 2009 was $4.2 million and $8.4 million, respectively. For the full year of 2009, interest expense related to the convertible notes will be approximately $22.2 million, of which approximately $12.7 million will be non-cash. The notes will pay interest semi-annually of $6.5 million, which is at a coupon rate of 3.50% per year, beginning in October of this year.

Holders of the notes may convert their notes at their option at any time prior to the close of business on the second scheduled trading day immediately preceding the maturity date of the notes, in multiples of $1,000 principal amount. The initial conversion rate for the notes is 30.4706 shares of the Company’s common stock per $1,000 principal amount of notes (representing an initial conversion price of approximately $32.82 per share of common stock). The conversion price represents a conversion premium of 27.5% over the last reported sale price of the Company’s common stock on the New York Stock Exchange on April 6, 2009, of $25.74 per share. As of September 30, 2009, the Company’s stock price was below the conversion price of $32.82. There was no dilutive impact to weighted average shares outstanding for the three and nine months ended September 30, 2009 due to the convertible senior notes. In conjunction with the note offering, the Company entered into a bond hedge overlay at a net pre-tax cost of $25.2 million, effectively raising the conversion premium to 50.0%, or approximately $38.61 per share. Upon conversion, the Company will pay or deliver cash, shares of our common stock or a combination thereof at our election. The convertible senior notes were issued under the Company’s $750 million universal shelf registration filed with the Securities and Exchange Commission, leaving approximately $376 million available as of September 30, 2009.

We believe that the combination of cash from operations, cash balances, available credit facilities, the April issuance of the convertible senior notes described above, and the remaining shelf registration capacity will be sufficient to satisfy our cash needs for our current level of operations and our planned operations for the foreseeable future. We will continue to balance our needs for internal growth, external growth, debt reduction and cash conservation.

OTHER MATTERS

Litigation

DTP filed a declaratory judgment action in the United States District Court, Southern District of Indiana (Indianapolis Division) against the UAW Local No. 287 and Jim Barrett and others individually, and as representatives of a defendant class, on February 26, 2009 again seeking the Court’s affirmation that DTP will not violate the Labor — Management Relations Act or the Employment Retirement Income Security Act (ERISA) by modifying the level of benefits provided retirees to make them comparable to other Company retiree benefit plans after April 24, 2009. Certain retirees, on behalf of themselves and others, filed a mirror-image action in the United States District Court, Eastern District of Michigan (Southern Division) on March 11, 2009, for which a class has been certified. Both actions are pending.

Environmental

to work with the Mississippi Department of Environmental Quality and Kuhlman Electric to investigate and remediate to the extent necessary, historical contamination at the plant and surrounding area. Kuhlman Electric and others, including the Company, were sued in numerous related lawsuits, in which multiple claimants alleged personal injury and property damage. In 2005, the Company and other defendants entered into settlements that resolved approximately 99% of the then known personal injury and property damage claims relating to the alleged environmental contamination.

Conditional Asset Retirement Obligations

In March 2005, Topic 410, Accounting for Conditional Asset Retirement Obligations, which requires the Company to recognize legal obligations to perform asset retirements in which the timing and/or method of settlement are conditional on a future event that may or may not be within the control of the entity. Certain government regulations require the removal and disposal of asbestos from an existing facility at the time the facility undergoes major renovations or is demolished. The liability exists because the facility will not last forever, but it is conditional on future renovations (even if there are no immediate plans to remove the materials, which pose no health or safety hazard in their current condition). Similarly, government regulations require the removal or closure of underground storage tanks and above ground storage tanks when their use ceases, the disposal of polychlorinated biphenyl transformers and capacitors when their use ceases, and the disposal of used furnace bricks and liners, and lead-based paint in conjunction with facility renovations or demolition. The Company currently has 32 manufacturing locations that have been identified as containing these items. The fair value to remove and dispose of this material has been estimated and recorded at $1.7 million as of September 30, 2009 and $1.4 million as of December 31, 2008.

Product Liability

claims under a funding arrangement. In June 2004, primary layer insurance carriers notified the Company of the alleged exhaustion of their policy limits. This led the Company to access the next available layer of insurance coverage. Since June 2004, secondary layer insurers have paid asbestos-related litigation defense and settlement expenses pursuant to a funding arrangement. To date, the Company has paid $74.7 million in defense and indemnity in advance of insurers’ reimbursement and has received $18.5 million in cash from insurers. The outstanding balance of $56.2 million is expected to be fully recovered. Timing of the recovery is dependent on final resolution of the declaratory judgment action referred to below. At December 31, 2008, insurers owed $35.9 million in association with these claims.

The amounts recorded in the Consolidated Balance Sheets related to the estimated future settlement of existing claims are as follows:


	September 30,		December 31,
(millions)	2009		2008
Assets:
Prepayments and other current assets	$	24.1	$	22.1
Other non-current assets		21.8		12.6

Total insurance receivable	$	45.9	$	34.7


Liabilities:
Accounts payable and accrued expenses	$	24.1	$	22.1
Other non-current liabilities		21.8		12.6

Total accrued liability	$	45.9	$	34.7

New Accounting Pronouncements

The principal effect on the prior year balance sheets related to the adoption of Topic 810 is summarized as follows:

Balance Sheet


(millions)	December 31, 2008
Total stockholders’ equity, as previously reported	$	2,006.0
Increase for Topic 810 reclass of noncontrolling interest		31.5

Total stockholders’ equity, as adjusted	$	2,037.5

The principal effect on the prior year statement of operations related to the adoption of Topic 810 is summarized as follows:

Consolidated Statement of Operations


	Three Months Ended			Nine Months Ended
(millions)	September 30, 2008			September 30, 2008
Net earnings (loss), as previously reported	$	(130.4	)	$	45.8
Topic 810 reclass of noncontrolling interest		(2.4	)		(14.2	)

Net earnings (loss), as adjusted	$	(128.0	)	$	60.0
Less: Net earnings attributable to noncontrolling interest		(2.4	)		(14.2	)

Net earnings attributable to BorgWarner Inc.	$	(130.4	)	$	45.8

The principal effect on the prior year statement of cash flows related to the adoption of Topic 810 is summarized as follows:

Statement of Cash Flows


	Nine Months Ended
(millions)	September 30, 2008
Net earnings, as previously reported	$	45.8
Topic 810 reclass of noncontrolling interest		(14.2	)

Net earnings (loss), as adjusted	$	60.0

Statement of Cash Flows


	Nine Months Ended
(millions)	September 30, 2008
Equity in affiliates’ earnings, net of dividends received, minority interest and other, as previously reported	$	16.9
Less: Topic 810 reclass of noncontrolling interest		(14.2	)

Equity in affiliates’ earnings, net of dividends received and other	$	2.7

The principal effect on the prior year comprehensive income related to the adoption of Topic 810 is summarized as follows:

Comprehensive Income (Loss)


	Three Months Ended			Nine Months Ended
(millions)	September 30, 2008			September 30, 2008
Comprehensive loss, as previously reported	$	(306.7	)	$	(40.7	)
Topic 810 reclass of noncontrolling interest		1.3			3.5

Comprehensive loss, as adjusted	$	(308.0	)	$	(44.2	)
Less: Comprehensive income (loss) attributable to noncontrolling interest		1.3			3.5

Comprehensive loss attributable to BorgWarner Inc.	$	(306.7	)	$	(40.7	)

815. See Note 10 to the Consolidated Financial Statements for more information regarding the implementation of Topic 815.

DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS

Statements contained in this Form 10-Q (including Management’s Discussion and Analysis of Financial Condition and Results of Operations) may contain forward-looking statements as contemplated by the 1995 Private Securities Litigation Reform Act that are based on management’s current outlook, expectations, estimates and projections. Words such as “outlook”, “expects,” “anticipates,” “intends,” “plans,” “believes,” “estimates,” variations of such words and similar expressions are intended to identify such forward-looking statements. Forward-looking statements are subject to risks and uncertainties, many of which are difficult to predict and generally beyond our control, that could cause actual results to differ materially from those expressed, projected or implied in or by the forward-looking statements. Such risks and uncertainties include: fluctuations in domestic or foreign vehicle production, the continued use of outside suppliers, fluctuations in demand for vehicles containing our products, changes in general economic conditions, as well as the other risks detailed in our filings with the Securities and Exchange Commission, including the Risk Factors, identified in the Form 10-K for the fiscal year ended December 31, 2008. We do not undertake any obligation to update any forward-looking statements.


Item 3.		Quantitative and Qualitative Disclosure About Market Risk

There have been no material changes to the information concerning our exposures to market risk as stated in the Company’s Annual Report on Form 10-K for the year ended December 31, 2008.


Item 4.		Controls and Procedures

The Company maintains disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) that are designed to provide reasonable assurance that the information required to be disclosed in the reports it files with the Securities and Exchange Commission is collected and then processed, summarized and disclosed within the time periods specified in the rules of the Securities and Exchange Commission. Under the supervision and with the participation of the Company’s management, including the Company’s Chief Executive Officer and Chief Financial Officer, the Company has evaluated the effectiveness of the design and operation of its disclosure controls and procedures as of the end of the period covered by this report. Based on such evaluation, the Company’s Chief Executive Officer and Chief Financial Officer have concluded that these procedures are effective. There have been no changes in internal control over financial reporting that occurred during the period covered by this report that have materially affected, or are reasonably likely to materially affect, the Company’s internal control over financial reporting.

PART II. OTHER INFORMATION


Item 1.		Legal Proceedings

The Company is subject to a number of claims and judicial and administrative proceedings (some of which involve substantial amounts) arising out of the Company’s business or relating to matters for which the Company may have a contractual indemnity obligation. See Note 14 — Contingencies to the condensed consolidated financial statements for a discussion of environmental, product liability and other litigation, which is incorporated herein by reference.


Item 6.		Exhibits


Exhibit 31.1		Rule 13a-14(a)/15d-14(a) Certification of the Principal Executive Officer

Exhibit 31.2		Rule 13a-14(a)/15d-14(a) Certification of the Principal Financial Officer

Exhibit 32.1		Section 1350 Certifications

Exhibit 101		The following materials from BorgWarner Inc.’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2009, formatted in XBRL (Extensible Business Reporting Language): (i) the Condensed Consolidated Statements of Operations, (ii) the Condensed Consolidated Balance Sheets, (iii) the Condensed Consolidated Statements of Cash Flows, and (iv) Notes to the Condensed Consolidated Financial Statements, tagged as blocks of text

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, hereunto duly authorized.


	BorgWarner Inc. (Registrant)
	By	/s/ Jeffrey L. Obermayer
		(Signature)
		Jeffrey L. Obermayer Vice President and Controller (Principal Accounting Officer)

Date: October 28, 2009