avxcorpforms8.htm
As filed with the Securities and Exchange Commission on November 8, 2011.
File No. 333-
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)
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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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1 AVX Boulevard
Fountain Inn, South Carolina 29644
(864) 967-2150
(Address, including zip code, and telephone number of Principal Executive Offices)
AVX Corporation Retirement Plan
(Full Title of the Plans)
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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)
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Copy to:
Gary C. Ivey
Kristen N. Higbee
Alston & Bird LLP
Bank of America Plaza
101 South Tryon Street, Suite 4000
Charlotte, North Carolina 28280-4000
(704) 444-1090
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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 |
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Accelerated filer |
X |
| Non-accelerated filer |
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(Do not check if a smaller reporting company) |
Smaller reporting company |
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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 $0.01 par value (2)
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3,000,000 |
(3) |
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$ |
11.95 |
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$ |
35,850,000 |
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$ |
4,162.19 |
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(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 September 30, 2011.
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(2) Pursuant to Rule 416(c), this Registration Statement also covers an indeterminate amount of interests to be offered or sold pursuant to the AVX Corporation Retirement Plan (the “Plan”).
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(3) This Registration Statement also includes any additional shares that may hereafter become issuable in accordance with the adjustment and anti-dilution provisions of the Plan.
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PART I.
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
(a) The documents constituting Part I of this Registration Statement will be sent or given to participants in the 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.
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, 2011;
(2) The Plan’s Annual Report on Form 11-K for the year ended December 31, 2010;
(3) All other reports filed by the Company pursuant to Section 13(a) or 15(d) of the Exchange Act since March 31, 2011;
(4) All other reports filed by the Plan pursuant to Section 13(a) or 15(d) of the Exchange Act since December 31, 2010;
(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 or the Plan 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 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 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)
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 November 8, 2011.
AVX CORPORATION
By: /s/ Kurt P. Cummings
Kurt P. Cummings
Vice President, Chief Financial Officer,
Treasurer and Secretary
IN WITNESS WHEREOF, the undersigned has executed this Power-of-Attorney on the date set opposite his respective name.
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Signatures
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Title
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Date
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/s/ John S. Gilbertson
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JOHN S. GILBERTSON
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Chief Executive Officer, President and Director (Principal Executive Officer)
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November 8, 2011
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/s/ Kurt P. Cummings
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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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November 8, 2011
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*
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DONALD B. CHRISTIANSEN
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Director
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November 8, 2011
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*
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| DAVID A. DECENZO |
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Director |
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November 8, 2011 |
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*
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KAZUO INAMORI
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Director
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November 8, 2011
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*
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KENSUKE ITOH
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Director
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November 8, 2011
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*
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MAKOTO KAWAMURA
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Director
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November 8, 2011
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*
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RODNEY N. LANTHORNE
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Director
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November 8, 2011
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*
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NOBORU NAKAMURA
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Director
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November 8, 2011
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*
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JOSEPH STACH
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Director
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November 8, 2011
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*
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YUZO YAMAMURA
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Director
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November 8, 2011
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* by: /s/ Kurt P. Cummings
KURT P. CUMMINGS, Attorney-in-fact for each of the persons indicated
The Plan. Pursuant to the requirements of the Securities Act of 1933, the trustees (or other persons who administer the employee benefit plan) have duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Greenville, State of South Carolina, on November 8, 2011.
AVX Corporation Retirement Plan
By: /s/Kathleen M. Kelly
Plan Administrator
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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By-laws of AVX Corporation as Amended and Restated March 30, 2009 (incorporated by reference to Exhibit 3.2 of the Current Report on Form 8-K filed with the Securities and Exchange Commission on March 31, 2009).
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23.1
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23.2
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24.1
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Power of Attorney (incorporated by reference to Exhibit 24.1 to the Company’s Annual Report on Form 10-K filed with the Securities and Exchange Commission on May 20, 2011)
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99.1
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99.2
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In lieu of the opinion of counsel or determination letter contemplated by Item 601(b)(5)(ii) of Regulation S-K, the undersigned registrant hereby undertakes that it will submit or has submitted the Plan and any amendment thereto to the Internal Revenue Service (“IRS”) in a timely manner and has made or will make all changes required by the IRS in order to qualify the Plan under Section 401 of the Internal Revenue Code of 1986, as amended.
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