Registration No. 333-00890
State of Delaware 33-0379007
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
801 17th Avenue South
Myrtle Beach, South Carolina 29577
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(Address of principal (Zip Code)
executive offices)
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Copy to:
Gary C. Ivey, Esq.
Parker, Poe, Adams & Bernstein, L.L.P.
2500 Charlotte Plaza
Charlotte, North Carolina 28244
(704) 372-9000
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 to Registration Statement on Form S-8 (Registration No. 333-00890) (the "Registration Statement") relates only to securities issued under the AVX Nonqualified Supplemental Retirement Plan and the AVX Corporation SERP as successor plans to the AVX Corporation Deferred Compensation Plan and/or the AVX Corporation Deferred Compensation Plan Trust pursuant to which such securities are issued. This Post-Effective Amendment should not be regarded as an amendment to the Registration Statement as it pertains to securities issued pursuant to the AVX Vancouver Corporation Retirement Savings and Stock Bonus Plan, also included therein.
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8 will be sent or given to employees participating in the AVX Corporation SERP and the AVX Nonqualified Supplemental Retirement Plan (each, a "Plan" and, collectively, the "Plans") as specified by Rule 428(b)(1) under the Securities Act of 1933 (the "Securities Act"). These documents and the documents incorporated by reference into this Post-Effective Amendment, taken together, constitute a prospectus with respect to each Plan that meets the requirements of Section 10(a) of the Securities Act. Capitalized terms used but not defined herein shall have the same meanings ascribed to them in the AVX Corporation SERP and AVX Nonqualified Supplemental Retirement Plan.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by AVX Corporation ("AVX") are incorporated herein by reference:
(i) AVX's Annual Report on Form 10-K for the year ended March 31, 1999;
(ii) AVX's Registration Statement on Form 8-A dated July 7, 1995 registering its $.01 par value common stock under Section 12(b) of the Securities Exchange Act of 1934 (the "Exchange Act").
The following document filed by the Plans (or a predecessor thereof) is herein incorporated by reference:
Annual Report on Form 11-K for the year ended December 31, 1998 of AVX Nonqualified Supplemental Retirement Plan (formerly known as the AVX Corporation Deferred Compensation Plan).
All documents filed by AVX and the AVX Corporation SERP and the AVX Nonqualified Supplemental Retirement Plan pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, after the date hereof and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein 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.
None.
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 legal 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. 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 officer, director, employee or agent acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests and, for criminal actions and proceedings, had no reasonable cause to believe that his conduct was unlawful. A Delaware corporation may indemnify officers and directors 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 the officer or director is adjudged to be liable to the corporation. Where an officer or director 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 officer or director actually or reasonably incurred.
The registrant's Restated Certificate of Incorporation provides that no director of the registrant will be personally liable to the registrant 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.
Pursuant to Section 102(b)(7) of the DGCL, the Restated Certificate of Incorporation of the registrant eliminates the liability of the registrant's directors to the registrant or its stockholders, except for liabilities related to breach of duty of loyalty, actions not in good faith and certain other liabilities.
The registrant maintains directors, and officers, liability insurance policies. The By-laws of the registrant provide for indemnification of the officers and directors of the registrant to the fullest extent permitted by applicable law.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit Description
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4.1 AVX Corporation SERP, effective January 1, 1998
**4.2 AVX Nonqualified Supplemental Retirement Plan, restated as of
January 1, 1998 (incorporated by reference to Exhibit 99.1 to
Annual Report on Form 11-K for the year ended December 31, 1998
of AVX Nonqualified Supplemental Retirement Plan (formerly known
as the AVX Corporation Deferred Compensation
Plan)).
*4.3 Trust Agreement incident to the AVX Corporation Deferred
Compensation Plan
*4.4 First Amendment to the Trust Agreement incident to the AVX
Corporation Deferred Compensation Plan
*4.5 Second Amendment to the Trust Agreement incident to the AVX
Corporation Deferred Compensation Plan
4.6 Third Amendment to AVX Corporation Deferred Compensation Trust
23.1 Consent of PricewaterhouseCoopers LLP
*24.1 Power of Attorney
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* Previously filed as Exhibits 4.4, 4.4.1, 4.4.2 and 24.1, respectively, to AVX's original filing of this Registration Statement on Form S-8 (Registration No. 333-00890) on or about June 24, 1996. ** Incorporated by reference to another document on file with the Commission with which such exhibit is physically filed, to be a part hereof as of the date thereof.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
(2) that, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and
(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 registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13 (a) or Section 15(d) of the Exchange Act and each filing of the AVX Corporation SERP and AVX Nonqualified Supplemental Retirement Plan annual report pursuant to Section 15(d) of the Exchange Act that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-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 the 6th day of August, 1999.
Signatures Title Date
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/s/ Benedict P. Rosen
--------------------------------------- Chairman of the Board and
Benedict P. Rosen Chief Executive Officer August 6, 1999
AVX Corporation
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on the
date indicated.
Signatures Title Date
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*
--------------------------------------- Chairman Emeritus of the August 6, 1999
Kazuo Inamori Board and Director
/s/ Benedict P. Rosen Chairman of the Board, August 6, 1999
--------------------------------------- Chief Executive Officer,
Benedict P. Rosen and Director
(Principal Executive
officer)
* President, Chief August 6, 1999
---------------------------------------- Operating Officer and
John S. Gilbertson Director
/s/ Donald B. Christiansen Chief Financial Officer, August 6, 1999
---------------------------------------- Senior Vice President of
Donald B. Christiansen Finance, Treasurer, and
Director (Principal
Financial and Principal
Accounting Officer)
*
---------------------------------------- Director August 6, 1999
Carroll A. Campbell, Jr.
*
---------------------------------------- Director August 6, 1999
Kensuke Itoh
*
---------------------------------------- Director August 6, 1999
Rodney N. Lanthorne
*
---------------------------------------- Director August 6, 1999
Masahiro Umemura
*
---------------------------------------- Director August 6, 1999
Masahiro Yamamoto
4
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Signatures Title Date
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*
---------------------------------------- Director August 6, 1999
Yuzo Yamamura
/s/ Donald B. Christiansen
----------------------------------------
Donald B. Christiansen
Attorney-in-fact
pursuant to a power of
attorney filed herewith
as part of this
Registration Statement
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The Plans. Pursuant to the requirements of the Securities Act of 1933, the Administrative Committee of the AVX Corporation SERP and the AVX Nonqualified Supplemental Retirement Plan 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 6, 1999.
AVX CORPORATION SERP
AVX NONQUALIFIED SUPPLEMENTAL RETIREMENT PLAN
By: /s/ Donald B. Christiansen -------------------------------------------- Name: Donald B. Christiansen Title: Member of Administrative Committee |
EXHIBIT INDEX
Exhibit Description
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4.1 AVX Corporation SERP, effective January 1,
1998
**4.2 AVX Nonqualified Supplemental Retirement Plan,
restated as of January 1, 1998 (incorporated by
reference to Exhibit 99.1 to Annual Report on Form
11-K for the year ended December 31, 1998 of AVX
Nonqualified Supplemental Retirement Plan (formerly
known as the AVX Corporation Deferred
Compensation Plan))
*4.3 Trust Agreement incident to AVX Corporation
Deferred Compensation Plan
*4.4 First Amendment to the Trust Agreement
incident to AVX Corporation Deferred Compensation Plan
*4.5 Second Amendment to the Trust Agreement
incident to AVX Corporation Deferred Compensation Plan
4.6 Third Amendment to AVX Corporation Deferred Compensation Trust
23.1 Consent of PricewaterhouseCoopers LLP
*24.1 Power of Attorney
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Exhibit 4.1
Section 1 Purpose of the Plan
The purpose of the AVX Corporation SERP (the "Plan") is to provide certain
management or highly compensated employees of AVX Corporation (the "Company")
with supplemental retirement benefits. The Plan is effective as of January 1,
1998.
Section 2 Eligibility to Participate The Chief Executive Officer of the Company shall have the right in his sole and complete discretion to designate which, if any, management or highly compensated employees shall be eligible to participate in the Plan. An employee who is designated as being eligible to participate and elects to do so is hereinafter referred to as a "Participant".
Section 3 Benefits
3.1 Each employee who is designated as being eligible to participate in
the Plan shall be entitled to make an irrevocable election, as specified in
Section 3.2, to defer receipt of all or a portion of compensation otherwise
payable by the Company to such employee. For purposes of the Plan, compensation
shall include any amounts not includible in the gross income of the Participant
due to any salary reduction agreement maintained with the Company under Sections
125 or 401(k) of the Internal Revenue Code of 1986, as amended (the "Code") and
any compensation deferred under the AVX Nonqualified Supplemental Retirement
Plan (the "Supplemental Plan").
3.2 A Participant may elect to defer compensation pursuant to Section 3.1
by giving written notice to the Company. Such notice must be received by the
Company prior to January 1, 1998, and thereafter prior to the first day of the
calendar year to which such election is applicable. Notwithstanding the
preceding sentence, for each employee who enters the Plan after January 1, 1998,
in the first year in which such employee becomes eligible to participate, such
newly eligible employee may make an election to defer compensation for
services to be performed subsequent to such election within 30 days after the date such employee becomes eligible.
A Participant's initial election to defer compensation shall also include an election as to the manner of payment which shall be (i) a lump sum distribution, or (ii) installment payments over a period of years (not to exceed 10 years). The time of payment shall be in accordance with Section 5.2.
Section 4 Deferred Compensation Accounts
4.1 In furtherance of the purposes of this Plan, the Company has
established the Trust Under the AVX Corporation Deferred Compensation Plans (the
"Trust") which is intended to be a "grantor trust" within the meaning of Subpart
E, Part I, Subchapter J, Chapter 1, Subtitle A of the Code. The trustee of the
Trust (the "Trustee") shall hold, invest and distribute any assets contributed
to the Trust in accordance with the provisions thereof.
The AVX Stock Fund is an investment option under the Trust.
Notwithstanding anything contained in the Plan or Trust to the contrary, the
purchase price to be paid for shares of AVX Stock acquired by the Trust shall be
equal to the fair market value of such shares and the maximum number of such
shares that may be purchased during the existence of the Plan shall not exceed
one (1) million shares.
Section 5 Distribution of Benefits
5.1 Each Participant shall be fully vested and shall have a nonforfeitable
interest in his/her account.
5.2 Benefits under the Plan shall be payable to a Participant or
beneficiary, as the case may be, upon the earlier of such Participant's
termination of employment (for any reason), or death.
5.3 In the event a Participant dies before all amounts credited to
such Participant's account have been distributed to him/her, then the
beneficiary designated by the Participant shall be paid the balance of such
account. If a Participant shall fail to designate a beneficiary or if the
beneficiary designated does not survive the Participant, then the beneficiary
shall be deemed to be one
of the following, in the order named: (i) spouse, (ii) children, per stirpes and
(iii) estate of the Participant. Such designation of beneficiary may be changed
from time to time by the Participant filing a new designation with the Company.
5.4 The Trustee shall deduct from each payment under the Plan, any
federal, state or local withholding or other taxes or charges which the Trustee
may be required to deduct under applicable laws.
5.5 Notwithstanding anything contained in this Plan or Trust to the
contrary, if at any time the Trust is determined by the Internal Revenue Service
(the "IRS") not to be a "grantor trust" with the result that the income of the
Trust is not treated as income of the Company pursuant to Subpart E of
Subchapter J of the Code, or if a tax is finally determined by the IRS to be
payable by the Participants or their beneficiaries in respect of any vested
interests in their accounts prior to payment of such interest to the
Participants or their beneficiaries, then the Board of Directors of the Company
or the Chief Executive Officer of the Company shall have the right in its or his
sole and complete discretion (i) to permit the distribution of the amount of
such tax or (ii) terminate the Plan and Trust and the full fair market value of
the assets in the Trust distributed to the Participants. For purposes of this
Section 5.5, a final determination of the IRS shall be a decision rendered by
the IRS which is no longer subject to administrative appeal within the IRS.
5.6 Notwithstanding anything contained herein to the contrary, a
"derivative security" (as defined in rules issued by the Securities and Exchange
Commission under Section 16 of the Securities Exchange Act of 1934) issued under
the Plan shall not be transferable by a Participant other than by will or the
laws of descent and distribution or pursuant to a qualified domestic relations
order as defined under the Code.
Section 6 Status of Plan Assets
6.1 The Trust assets are and shall remain at all time subject to the
claims of the general creditors of the Company. Accordingly, the Company shall
not create a security interest in the Trust assets in favor of the Participants
(or their beneficiaries).
6.2 Except insofar as applicable law may otherwise require and subject to the provisions of the Trust, (i) no amount payable to or in respect of the Participants or their beneficiaries at any time under the Plan shall be subject in any manner to alienation by anticipation, sale, transfer, assignment, bankruptcy, pledge, attachment, charge or encumbrance of any kind, and any attempt to so alienate, sell, transfer, assign, pledge, attach, charge or otherwise encumber any such amount, whether presently or thereafter payable, shall be void; and (ii) the Plan shall in no manner be liable for or subject to the debts or liabilities of the Participants or their beneficiaries.
Section 7 Amendment and Termination The Plan may, at any time or from time to time, be amended, modified or terminated by the Company. However, no amendment, modification or termination of the Plan shall, without the consent of a Participant, adversely affect such Participant's rights with respect to amounts then accrued in his/her account.
Section 8 Miscellaneous
8.1 If the Company shall find that any person to whom any payment is
payable under the Plan is unable to care for his affairs because of illness or
accident, or is a minor, any payment due (unless a prior claim therefore shall
have been made by a duly appointed guardian, committee or other legal
representative) may be paid to a spouse, a child, a parent, or a brother or
sister, or to any person deemed by the Company to have incurred expense for such
person otherwise entitled to payment, in such manner and proportions as the
Company may determine. Any such payment shall be a complete discharge of the
liabilities of the Company under the Plan.
8.2 Nothing contained herein shall be construed as conferring upon a
Participant the right to continue in the employ of the Company as an executive
or in any other capacity.
8.3 The Company (or such party or committee as the Company may designate)
shall have full power and authority to interpret, construe and
administer the Plan (except to the extent authority has been explicitly granted
to the Chief Executive Officer or to the Trustee under the Trust) and such
interpretation, construction, and actions hereunder shall be binding and
conclusive on all persons for all purposes. The Company, Chief Executive Officer
(or party or committee as the Company may designate) shall not be liable to any
person for any action taken or omitted in connection with the interpretation and
administration of this Plan unless attributable to willful misconduct or lack of
good faith.
8.4 Titles to the Sections of the Plan are included for convenience only
and shall not control the meaning or interpretation of any provision of the
Plan.
8.5 Except to the extent preempted by federal law, this Plan and the Trust
established hereunder shall be governed by and construed, enforced, and
administered in accordance with the laws of the State of New York and the
Trustee shall be liable to account only in the courts of the State of New York.
8.6 All expenses of administering the Plan and Trust shall be borne by the
Company.
8.7 For Participants of the Plan who are subject to Section 16(b) of the
Securities Exchange Act of 1934, the Company (or such party or committee as the
Company may designate) may adopt such rules and procedures as it considers
appropriate.
Exhibit 4.6
AMENDMENT made this 1st day of January, 1998, by and between AVX CORPORATION ("Company") and MARINE MIDLAND BANK ("Trustee");
WHEREAS, the Company and Trustee have established a trust ("Trust") incident to the AVX CORPORATION DEFERRED COMPENSATION PLAN ("Original Plan"); and
WHEREAS, the Original Plan has been amended and restated, effective January
1, 1998 and renamed the AVX NONQUALIFIED SUPPLEMENT RETIREMENT PLAN
("Supplemental Plan"); and
WHEREAS, the Company has also adopted the AVX CORPORATION SERP ("SERP") effective January 1, 1998; and
WHEREAS, the parties desire to amend the Trust, pursuant to Section 12 thereof, in order that the provisions of the Trust apply to both the Supplemental Plan and the SERP;
NOW, THEREFORE, the Trust is hereby amended, effective January 1, 1998, as follows:
"The Term 'Plan' shall mean each of the Supplemental Plan and the SERP. As used throughout the Trust, the term 'Plan' shall apply separately to each of the Supplemental Plan and the SERP."
IN WITNESS WHEREOF, the Company and the Trustee have caused this Amendment to be executed by their duly authorized officers as of the day and year first above written.
ATTEST: AVX CORPORATION /s/ Benedict Rosen By: /s/ Donald Christiansen ------------------------------ ---------------------------- Chairman and CEO Sr. VP of Finance & CFO ------------------------------ -------------------------------- Title Title ATTEST: MARINE MIDLAND BANK /s/ Gloria E. Nizich By: /s/ James Esposito ------------------------------ ---------------------------- Vice President Vice President ------------------------------ -------------------------------- Title Title |
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 (File No. 333-00890) of our report dated May 14, 1999 relating to the financial statements, which appears in AVX Corporation's Annual Report on Form 10-K for the year ended March 31, 1999. We also consent to the incorporation by reference in this Registration Statement on Form S-8 (File No. 333-00890) of our report dated March 26, 1999 relating to the financial statements, which appears in the Annual Report of the AVX Corporation Deferred Compensation Plan on Form 11-K for the year ended December 31, 1998.
PricewaterhouseCoopers LLP
Atlanta, Georgia
August 5, 1999