As filed with the Securities and Exchange Commission on February 7, 2014.
File No. 333-123456789
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
AVX CORPORATION
(Exact Name of Issuer as Specified in its Charter)
|
Delaware |
33-0379007 |
|
(State or Other Jurisdiction of Incorporation or Organization) |
(I.R.S. Employer Identification Number) |
1 AVX Boulevard
Fountain Inn, South Carolina 29644
( 864) 967-2150
(Address, including zip code, and telephone number of Principal Executive Offices)
AVX Corporation 2014 Stock Option Plan
AVX Corporation 2014 Non-Employee Directors’ Stock Option Plan
(Full Title of the Plans)
|
Kurt P. Cummings Vice President , Chief Financial Officer, Treasurer and Secretary AVX Corporation 1 AVX Boulevard Fountain Inn, South Carolina 29644 (864) 967-2150 (Name, address, including zip code, and telephone number, including area code, of agent for service) |
Copy to: Gary C. Ivey Kri sten H . H ughes 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 Accelerated filer X
Non-accelerated filer (Do not check if a smaller reporting company) Smaller reporting company
CALCULATION OF REGISTRATION FEE
|
Title of Securities to be Registered |
|
Amount to be Registered |
|
Proposed Maximum Offering Price Per Share (1) |
|
Proposed Maximum Aggregate Offering Price (1) |
|
Amount of Registration Fee |
|
Common Stock $ 0 .01 par value |
|
11 ,000,000 (2 ) |
|
$ 1 2.81 |
|
$ 140,910,000 |
|
$ 18,149.21 |
(1) Determined in accordance with Rule 457 ( h), the registration fee calculation is based on the average high and low prices of the Company’s Common Stock reported on the New York Stock Exchange on February 3 , 201 4 .
( 2 ) Consists of 10,000,000 shares issuable upon exercise of stock options under the AVX Corporation 2014 Stock Option Plan and 1,000,000 shares issuable upon exercise of stock options under the AVX Corporation 2014 Non-Employee Directors’ Stock Option Plan. This Registration Statement also includes any additional shares that may hereafter become issuable in accordance with the adjustment and anti-dilution provisions of the Plans.
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 (the “Securities Act”) . These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this form, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
(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.
2
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:
(1) The Company ’ s Annual Report on Form 10-K /A for the fisca l year ended March 31, 201 3 ;
( 2 ) All other reports filed by the Company pursuant to Section 13(a) or 15(d) of the Exchange Act since March 31, 201 3 ;
( 3 ) 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
( 4 ) All other documents , including without limitation the Company’s Annual Report on Form 10-K for the fiscal year ended March 31, 2014, 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 , which documents shall be deemed to be so incorporated and a part hereof from the date of the filing of such documents .
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
3
such person is adjudged to be lia ble to the corporation. Where a 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 th e 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 th e Registration Statement or any material change to such information in th e 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 th e Registration Statement.
4
(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 th e 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)
5
SIGNATURES
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 Fountain Inn , State of South Carolina, on February 7, 2014 .
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 of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
6
|
* |
|
|
|
DONALD B. CHRISTIANSEN |
Director |
February 7, 2013 |
|
* |
|
|
|
DAVID DECENZO |
Director |
February 7, 2013 |
|
* |
|
|
|
TATSUMI MAEDA |
Director |
February 7, 2013 |
|
* |
|
|
|
JOSEPH STACH |
Director |
February 7, 2013 |
|
* by Kurt P. Cummings |
KURT P. CUMMINGS, Attorney-in-fact for each of the persons indicated
7
EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM S-8
|
Exhibit Number |
|
Description |
|
4.1 |
|
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)) |
|
4.2 |
|
By-laws of AVX Corporation as Amended and Restated Ma y 7 , 20 12 (incorporated by reference to Exhibit 3.2 of the Current Report on Form 8-K filed with the Securities and Exchange Commission on Ma y 11 , 20 12 ). |
|
5.1 |
|
Opinion of Alston & Bird LLP |
|
23.1 |
|
Consent of Alston & Bird LLP (included in Exhibit 5.1) |
|
23. 2 |
|
Consent of PricewaterhouseCoopers LLP |
|
24.1 |
|
Power of Attorney |
|
99.1 |
|
AVX Corporation 2014 Stock Option Plan (incorporated by reference to Exhibit 10.17 to the Company’s Annual Report on Form 10-K/A for the fiscal year ended March 31, 2013) |
|
99.2 |
|
AVX Corporation 2014 Non-Employee Directors’ Stock Option Plan (incorporated by reference to Exhibit 10.18 to our Annual Report on Form 10-K/A for the fiscal year ended March 31, 2013) |
8
Bank of America Plaza
101 South Tryon Street, Suite 4000
Charlotte, NC 28280-4000
704-444-1000
Fax: 704-444-1690
www.alston.com
F ebruary 7 , 2013
1 AVX Boulevard
Fountain Inn, South Carolina 29644
We have acted as counsel to AVX Corporation, a Delaware corporation (the “ Company ”), in connection with the filing of the above-referenced Registration Statement (the “ Registration Statement ”) with the Securities and Exchange Commission (the “ Commission ”) to register under the Securities Act of 1933, as amended (the “ Securities Act ”), 10,000,000 shares issuable upon exercise of stock options under the AVX Corporation 2014 Stock Option Plan (the “ 2014 Plan ”) and 1,000,000 shares issuable upon the exercise of stock options under the AVX Corporation 2014 Non-Employee Directors’ Stock Option Plan (the “ 2014 Directors’ Plan ”) . S uch shares issuable upon the exercise of stock options under the 2014 Plan or the 2014 Directors’ Plan are herein referred to collectively as the “ Shares ” . We are furnishing this opinion letter pursuant to Item 8 of Form S-8 and Item 601(b)(5) of the Commission’s Regulation S-K.
We have examined the Restated Certificate of Incorporation of the Company, the Amended and Restated Bylaws of the Company, records of proceedings of the Board of Directors, or committees thereof, and the stockholders of the Company deemed by us to be relevant to this opinion letter, the 2014 Plan, the 2014 Directors’ Plan, the Registration Statement and other records, agreements, documents, instruments and certificates we deemed necessary for purposes of expressing the opinion set forth herein. We also have made such further legal and factual examinations and investigations as we deemed necessary for purposes of expressing the opinion set forth herein. In our examination, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as original documents and the conformity to original documents of all documents submitted to us as certified, conformed, facsimile, electronic or photostatic copies.
As to certain factual matters relevant to this opinion letter, we have relied conclusively upon originals or copies, certified or otherwise identified to our satisfaction, of such records, agreements, documents , instruments and certificates , including certificates or comparable documents of officers of the Company and of public officials, as we have deemed appropriate as a basis for the opinion hereinafter set forth. Except to the extent expressly set forth herein, we have made no independent investigations with regard to matters of fact, and, accordingly, we do not express any opinion as to matters that might have been disclosed by independent verification.
Our opinion set forth below is limited to the General Corporation Law of the State of Delaware, applicable provisions of the Constitution of the State of Delaware and reported judicial decisions interpreting such General Corporation Law and Constitution, and we do not express any opinion herein concerning any other laws.
Page
This opinion letter is provided for use solely in connection with the transactions contemplated by the Registration Statement and may not be used, circulated, quoted or otherwise relied upon for any other purpose without our express written consent. The only opinion rendered by us consists of those matters set forth in the sixth paragraph hereof, and no opinion may be implied or inferred beyond the opinion expressly stated.
Based upon the foregoing, it is our opinion that the Shares, when issued by the Company in accordance with the terms of the 2014 Plan or the 2014 Directors’ Plan, as applicable , will be validly issued, fully paid and nonassessable.
We consent to the filing of this opinion letter as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
ALSTON & BIRD LLP
By: /s/ Gary C. Ivey
Gary C. Ivey, Partner
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated May 22, 2013 relating to the financial statements and the effectiveness of internal control over financial reporting, which appears in AVX Corporation’s Annual Report on Form 10-K for the year ended March 31, 2013.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Atlanta, GA
February 7, 2014
AVX CORPORATION
POWER OF ATTORNEY
Each of the undersigned directors and officers of AVX Corporation, a Delaware corporation (the "Corporation"), hereby severally constitutes and appoints Kurt Cummings, Michael Hufnagel, and Holl irae Olson , each of them signing singly , to be his Attorney-in-Fact with full power of substitution to act in his name on his behalf to sign and to file with the Securities and Exchange Commission (1) under the Securities Exchange Act of 1934, the Corporation's Annual Report on Form 10-K for the fiscal year ended March 31, 20 1 4 (the “Annual Report”) and (2) under the Securities Act of 1933, Registration Statements on Form S-8 or other appropriate Forms which incorporate by reference the Annual Report ( each a "Registration Statement"), and any and all amendments to any such Registration Statement, for shares of the Corporation's Common Stock, $.01 par value, and other interests therein issuable under each of the following employee benefit plans as the same may be amended from time to time, (i) AVX Corporation 1995 Stock Option Plan, (ii) AVX Corporation Non-Employee Directors' Stock Option Plan, (iii) AVX Corporation Retirement Plan, (iv) AVX Corporation Non-qualified Supplemental Retirement Plan, (v) AFGWU Local 1028 401(K) Retirement Plan for Employees of AVX Corporation in Raleigh, North Carolina , (vi) AVX Corporation 401(K) Plan (vii) ELCO Corporation, U.S.A. Salaried Employees Retirement Plan, (viii) AVX Pension Plan for Bargaining Unit and Hourly Employees, (ix) AVX Corporation 2004 Stock Option Plan, (x) AVX Corporation 2004 Non-Employee Director’s Stock Option Plan , (xi) AVX Corporation 2014 Stock Option Plan, (xii) AVX Corporation 2014 Non-Employee Directors’ Stock Option Plan, and in each case, to execute and deliver any agreements, instruments, certificates or other documents which such person shall deem necessary or proper in connection with the filing of any such Registration Statement or the Annual Report , including any amendments or supplements thereto , and generally to act for and in the name of the undersigned with respect to any such filing as fully as could the undersigned if then personally present and acting.
In addition, to act in his name on his behalf to:
(a) execute for and on behalf of the undersigned in the undersigned's capacity as an officer and/or director of AVX Corporation (the "Company"), Forms 3, 4 and 5 in accordance with Section 16(a) of the Securities Exchange Act of 1934 and the rules thereunder;
(b) do and perform any and all acts for and on behalf of the undersigned which may be necessary or desirable to complete and execute any such Form 3, 4 or 5 and timely file such form with the United States Securities and Exchange Commission and any stock exchange or similar authority, and
LEGAL01/13106487v3
(c) take any other action of any type whatsoever in connection with the foregoing which, in the opinion of such attorney-in-fact, may be of benefit to, in the undersigned, it being understood that the documents executed by such attorney-in-fact on behalf of the undersigned pursuant to this Power of Attorney shall be conditions as such attorney-in-fact may approve in such attorney-in-fact's discretion
The undersigned hereby grants to each such attorney-in-fact full power and authority to do and perform any and every act and thing whatsoever requisite, necessary, or proper to be done in the exercise of any of the rights and powers herein granted, as fully to all intents and purposes as the undersigned might or could do if personally present, with full power of substitution or revocation, hereby ratifying and confirming all that such attorney-in-fact, or such attorney-in-fact, or such attorney-in-fact's substitute or substitutes, shall lawfully do or cause to be done by virtue of this power of attorney and the rights and powers herein granted. The undersigned acknowledges the foregoing attorneys-in-fact, in serving in such capacity at the request of the undersigned, are not assuming, nor is the Company assuming, any of the undersigned's responsibilities to comply with Section 16 of the Securities Exchange Act of 1934.
This Power of Attorney shall remain in full force and effect unless earlier revoked by the undersigned in a signed writing delivered to the foregoing attorneys-in-fact.
IN WITNESS WHERE OF, the undersigned has executed this Power-of-Attorney on the date set opposite his respective name .
|
SIGNATURE |
|
TITLE |
|
DATE |
|
|
|
|
|
|
|
/s/ Kazuo Inamori |
|
Director |
|
October 23, 2013 |
|
KAZUO INAMORI |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/ John S. Gilbertson |
|
Director |
|
October 23, 2013 |
|
JOHN S. GILBERTSON |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Tetsuo Kuba |
|
Director |
|
October 23, 2013 |
|
TETSUO KUBA |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
- 2 -
LEGAL01/13106487v3
|
/s/ Goro Yamaguchi |
|
Director |
|
October 23, 2013 |
|
GORO YAMAGUCHI |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Tatsumi Maeda |
|
Director |
|
October 23, 2013 |
|
TATSUMI MAEDA |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Shoichi Aoki |
|
Director |
|
October 23, 2013 |
|
SHOICHI AOKI |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Donald Christiansen |
|
Director |
|
October 23, 2013 |
|
DONALD CHRISTIANSEN |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Joseph Stach |
|
Director |
|
October 23, 2013 |
|
JOSEPH STACH |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/ David Decenzo |
|
Director |
|
October 23, 2013 |
|
DAVID DECENZO |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
- 3 -
LEGAL01/13106487v3