As
filed with the Securities and Exchange Commission on August 4,
2008.
File
No.
333-
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON, D.C.
20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
(Exact
Name of Issuer as Specified in its Charter)
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Delaware
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33-0379007
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|
(State
or Other Jurisdiction of
Incorporation
or Organization)
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(I.R.S.
Employer
Identification
Number)
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801
17th Avenue South
Myrtle
Beach, South Carolina 29577
(843)
448-9411
(Address,
including zip code, and telephone number of Principal Executive
Offices)
AVX
Corporation 1995 Stock Option Plan
AVX
Corporation Non-Employee Directors’ Stock Option Plan
(Full
Title of the Plans)
|
Kurt
P. Cummings
Vice President
,
Chief Financial
Officer,
Treasurer
and Secretary
AVX
Corporation
801
17th Avenue South
Myrtle
Beach, South Carolina 29577
(843)
448-9411
(Name,
address, including zip code, and telephone number,
including
area code, of agent for service)
|
Copy
to:
Gary
C. Ivey
Alston
& Bird LLP
Bank
of America Plaza
101
South Tryon Street, Suite 4000
Charlotte,
North Carolina 28280-4000
(704)
444-1090
|
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer,”
“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act.
Large accelerated filer [X]
Accelerated filer
[ ]
Non-accelerated filer [ ]
(Do not check if a smaller reporting company)
Smaller reporting company
[ ]
CALCULATION
OF REGISTRATION FEE
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Title
of Securities
to
be Registered
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|
Amount
to
be
Registered
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Proposed
Maximum
Offering
Price
Per
Share (1)
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Proposed
Maximum
Aggregate
Offering
Price (1)
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|
Amount
of
Registration
Fee
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Common
Stock $0.01 par value
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|
2,312,052
(2)
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$
13.80
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$31,906,317.60
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$1,254.00
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(1)
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Determined
in accordance with Rule 457 paragraph (h), the registration fee
calculation is based on the weighted average exercise price of
previously-granted stock
options.
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(2)
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Consists
of (i) 2,268,718 shares issuable upon exercise of stock options currently
outstanding under the AVX Corporation 1995 Stock Option Plan as amended
through October 24, 2000 and (ii) 43,334 shares issuable upon exercise of
stock options currently outstanding under the AVX Corporation Non-Employee
Directors’ Stock Option Plan as amended through February 4,
2003. This Registration Statement also includes any additional
shares that may hereafter become issuable in accordance with the
adjustment provisions of the Plans.
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PART
I.
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
(a) The
documents constituting Part I of this Registration Statement with respect to
each Plan will be sent or given to participants in such Plan as specified by
Rule 428(b)(1) under the Securities Act of 1933, as amended.
(b) Upon
written or oral request, AVX Corporation (the “Company”) will provide, without
charge, the documents incorporated by reference in Item 3 of Part II of this
Registration Statement. The documents are incorporated by reference in the
Section 10(a) prospectus. The Company will also provide, without charge, upon
written or oral request, other documents required to be delivered to employees
pursuant to Rule 428(b). Requests for the above mentioned information, should be
directed to Kurt P. Cummings, Corporate Secretary, at the address and telephone
number on the cover of this Registration Statement.
PART
II.
INFORMATION
REQUIRED IN REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference
The
following documents filed by the Company with the Securities and Exchange
Commission (the “Commission”) pursuant to the Securities Exchange Act of 1934,
as amended (the “Exchange Act”) are incorporated by reference into this
Registration Statement and are deemed to be a part hereof from the date of the
filing of such documents:
(1) The
Company’s Annual Report on Form 10-K for the fiscal year ended March 31,
2008;
(2) The
Company’s Quarterly Report on Form 10-Q for the fiscal quarter ended June 30,
2008;
(3) All
other reports filed by the Company pursuant to Section 13(a) or 15(d) of the
Exchange Act since March 31, 2008;
(4) The
description of Common Stock contained in the Company’s Registration Statement
filed under Section 12 of the Exchange Act, including all amendments or reports
filed for the purpose of updating such description; and
(5) All
other documents subsequently filed by the Company pursuant to Section 13(a),
13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective
amendment to this Registration Statement that indicates that all securities
offered have been sold or that deregisters all securities that remain
unsold.
Any
statement contained in a document incorporated or deemed incorporated herein by
reference shall be deemed to be modified or superseded for the purpose of this
Registration Statement to the extent that a statement contained herein or in any
subsequently filed document which also is, or is deemed to be, incorporated
herein by reference modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
Item
4. Description of Securities.
Not
Applicable.
Item
5. Interests of Named Experts and Counsel.
Not
Applicable.
Item
6. Indemnification of Directors and Officers
Section
145 of the General Corporation Law of the State of Delaware (the “DGCL”)
provides that a corporation may indemnify any person, including an officer or
director, who was or is, or is threatened to be made, a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of such
corporation), by reason of the fact that such person is or was a director,
officer, employee or agent of such corporation, or is or was serving at the
request of such corporation as a director, officer, employee or agent of another
corporation or other enterprise. The indemnity may include expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding, provided such director, officer, employee or agent acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation and, for criminal actions and proceedings, had no
reasonable cause to believe that his conduct was unlawful. A Delaware
corporation may indemnify a director, officer, employee or agent against
expenses (including attorney’s fees) actually and reasonably incurred in an
action by or in the right of the corporation under the same conditions, except
that no indemnification is permitted without judicial approval if such person is
adjudged to be liable to the corporation. Where an director or officer is
successful on the merits or otherwise in the defense of any action referred to
above, the corporation must indemnify him against the expenses which such
director or officer actually or reasonably incurred.
The
Company’s Restated Certificate of Incorporation provides that no director of the
Company will be personally liable to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a director, except to the
extent such exemption from liability or limitation thereof is not permitted
under the DGCL as currently in effect or as the same may hereafter be
amended.
The
Company’s Amended and Restated Bylaws provide for indemnification of the
Company’s officers and directors to the fullest extent permitted by applicable
law.
The
Company maintains directors’ and officers’ liability insurance
policies.
Item
7. Exemption from Registration Claimed.
Not
Applicable.
Item
8. Exhibits
See
Exhibit Index, which is incorporated herein by reference.
Item
9. Undertakings
(a) The
undersigned Company hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act of
1933;
(ii)
To reflect in the prospectus any facts or events arising after the effective
date of this Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in this Registration
Statement. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a
20 percent change in the maximum aggregate offering price set forth in the
“Calculation of Registration Fee” table in the effective registration
statement;
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any material change to
such information in this Registration Statement;
Provided, however,
that
paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the Registration
Statement is on Form S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in reports filed with
or furnished to the Commission by the Company pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in this Registration Statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(b) The
undersigned Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company’s annual
report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan’s annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers and controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
(signatures
on following page)
Pursuant
to the requirements of the Securities Act of 1933, the Company certifies that it
has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Myrtle Beach, State of South Carolina, on August 4, 2008.
AVX
CORPORATION
By:
/s/ Kurt P.
Cummings
Kurt
P. Cummings
Vice
President, Chief Financial Officer,
Treasurer
and Secretary
Pursuant
to the requirements of the Securities Act, this Registration Statement has been
signed below by the following persons in the capacities and on the dates
indicated:
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Signatures
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Title
|
Date
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*
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||
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JOHN
S. GILBERTSON
/s/
Kurt P. Cummings
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Chief
Executive Officer, President and Director (Principal Executive
Officer)
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August
4, 2008
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KURT
P. CUMMINGS
*
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Vice
President, Chief Financial Officer, Treasurer and Secretary (Principal
Financial and Accounting Officer)
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August
4, 2008
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DONALD
B. CHRISTIANSEN
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Director
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August
4, 2008
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*
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DAVID
A. DECENZO
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Director
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August
4, 2008
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*
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KAZUO INAMORI
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Director
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August
4, 2008
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*
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KENSUKE
ITOH
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Director
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August
4, 2008
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*
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MAKOTO
KAWAMURA
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Director
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August
4, 2008
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*
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RODNEY
N. LANTHORNE
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Director
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August
4, 2008
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*
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NOBORU
NAKAMURA
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Director
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August
4, 2008
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*
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JOSEPH
STACH
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Director
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August
4, 2008
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*
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YUZO
YAMAMURA
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Director
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August
4, 2008
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*
by:
/s/ Kurt P.
Cummings
KURT
P. CUMMINGS, Attorney-in-fact for each of the persons indicated
EXHIBIT
INDEX
TO
REGISTRATION
STATEMENT ON FORM S-8
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Exhibit Number
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Description
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4.1
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Restated
Certificate of Incorporation of the Company (incorporated by reference to
Exhibit 3.1 to the Company’s Registration Statement on Form S-1 (File
Number 33-94310))
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4.2
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Bylaws
of the Company as Amended and Restated December 21, 2007 (incorporated by
reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed
with the Securities & Exchange Commission on December 21,
2007)
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5.1
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23.1
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23.2
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24.1
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99.1
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AVX
Corporation 1995 Stock Option Plan as amended through October 24, 2000
(incorporated by reference to Exhibit 10.11 to the Company’s Quarterly
Report on Form 10-Q for the quarter ended December 31, 2000)
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99.2
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AVX
Corporation Non-Employee Directors’ Plan as amended through February 4,
2003 (incorporated by reference to Exhibit 10.1 to the Company’s Quarterly
Report on Form 10-Q for the quarter ended December 31,
2002)
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99.3
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Form
of Notice of Grant of Stock Options and Option Agreement (incorporated by
reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q
for the quarter ended June 30,
2005)
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