As filed with the Securities and Exchange Commission on August 19, 1999.
Registration 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 registrant as specified in its charter)
State of Delaware 33-0379007
------------------------------- -----------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
801 17th Avenue South
Myrtle Beach, South Carolina 29577
------------------------------- -----------------------------
(Address of principal executive (Zip Code)
offices)
AVX Corporation 1995 Stock Option Plan
AVX Corporation Non-Employee Directors' Stock Option Plan
-------------------------------------------------------------
(Full title of the plan)
Donald B. Christiansen
AVX Corporation
801 17th Avenue South
Myrtle Beach, South Carolina 29577
(843) 449-9411
-----------------------------
(Name, address and telephone number
of agent for service)
Copy to:
Gary C. Ivey, Esq.
Parker, Poe, Adams & Bernstein L.L.P.
2500 Charlotte Plaza
Charlotte, North Carolina 28244
(704) 372-9000
CALCULATION OF REGISTRATION FEE
-------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Title of Proposed maximum Proposed maximum
Securities to be Amount to be offering price aggregate offering Amount of
registered: registered (1): per share: price: registration fee:
-------------- -------------- -------------- -------------- --------------
<S> <C> <C> <C> <C>
Common Stock, 127,800 shares $17.30 (2) $ 2,210,500 $ 615
$.01 par value 522,200 shares $32.75 (3) $17,102,050 4,755
------
$5,370
</TABLE>
(1) 1,650,000 shares were previously registered under Registration No. 33-98094
for issuance under the AVX Corporation 1995 Stock Option Plan or AVX
Corporation Non-Employee Directors' Stock Option Plan (collectively, the
"Plans"), and an additional 1,100,000 shares were previously registered
under Registration No. 333-37201 for issuance under the AVX Corporation
1995 Stock Option Plan.
(2) Estimated solely for the purposes of calculating the registration fee
pursuant to Rule 457(h)(1) under the Securities Act of 1933 and based on
the exercise prices of the options ($15.00 per share for 50,000 shares,
$16.00 per share for 62,800 shares and $30.38 per share for 15,000 shares)
for shares of Common Stock granted to date.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933 and based on the
average of the highest and lowest prices at which shares of Common Stock of
AVX Corporation ("AVX") were sold on August 12, 1999 (NYSE-Composite
Transactions).
Pursuant to Rule 429 of the Rules and Regulations of the Securities Act of 1933
(the "Securities Act"), this Registration Statement also constitutes a
post-effective amendment to: (i) AVX's Registration Statement on Form S-8
(Registration No. 33-98094) relating to the registration of 1,650,000 shares of
Common Stock under the Plans and (ii) AVX's Registration Statement on Form S-8
(Registration No. 333-37201) relating to the registration of an additional
1,100,000 shares of Common Stock under the AVX Corporation 1995 Stock Option
Plan, in each case to include the material amendments to the Plans.
- -------------------
The Exhibit Index is located on page 6.
<PAGE>
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 persons participating in the Plans, as specified by Rule
428(b)(1) under the Securities Act. These documents and the documents
incorporated by reference into this Registration Statement, taken together,
constitute a prospectus with respect to the Plans 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 Plans.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by AVX are incorporated herein by reference:
(a) AVX's Annual Report on Form 10-K for the year ended March 31, 1999;
(b) AVX's Quarterly Report on Form 10-Q for the fiscal quarter ended June 30,
1999; and
(c) 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").
All documents filed by AVX 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.
2
<PAGE>
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
*4.1 AVX Corporation 1995 Stock Option Plan, as amended July 15,
1999 (incorporated by reference to Exhibit 10.10 to AVX's
Quarterly Report on Form 10-Q for the quarter ended June 30,
1999)
4.2 AVX Corporation Non-Employee Directors' Stock Option Plan, as
amended July 15, 1999
*4.3 Form of Stock Option Agreements under the AVX Corporation
1995 Stock Option Plan (incorporated by reference to Exhibit
4.2 to AVX's Registration Statement on Form S-8 (No.
33-98094) filed October 13, 1995)
*4.4 Form of Stock Option Agreement under the AVX Corporation
Non-Employee Directors' Stock Option Plan (incorporated by
reference to Exhibit 4.4 to AVX's Registration Statement on
Form S-8 (No. 33-98094) filed October 13, 1995)
5.1 Opinion of Parker, Poe, Adams & Bernstein L.L.P. as to the
legality of the securities to be registered
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Parker, Poe, Adams & Bernstein L.L.P. (included in
Exhibit 5.1)
24.1 Power of Attorney
- ----------
* 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 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
3
<PAGE>
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 appear on the following page.]
4
<PAGE>
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 18th
day of August, 1999.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ Benedict P. Rosen Chairman of the Board and Chief August 18, 1999
- ----------------------------------------------- Executive-Officer
Benedict P. Rosen
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
---------- ----- ----
* Chairman Emeritus of the Board August 18, 1999
- ----------------------------------------------- and-Director
Kazuo Inamori
/s/ Benedict P. Rosen Chairman of the Board, Chief August 18, 1999
- ----------------------------------------------- Executive-Officer,-and-Director
Benedict P. Rosen (Principal Executive officer)
* President, Chief Operating Officer August 18, 1999
- ----------------------------------------------- and-Director
John S. Gilbertson
/s/ Donald B. Christiansen Chief Financial Officer, Senior August 18, 1999
- ----------------------------------------------- Vice-President-of-Finance,
Donald B. Christiansen Treasurer, and Director (Principal
Financial and Principal Accounting
Officer)
* Director August 18, 1999
- -----------------------------------------------
Carroll A. Campbell, Jr.
* Director August 18, 1999
- -----------------------------------------------
Kensuke Itoh
* Director August 18, 1999
- -----------------------------------------------
Rodney N. Lanthorne
* Director August 18, 1999
- -----------------------------------------------
Masahiro Umemura
* Director August 18, 1999
- -----------------------------------------------
Masahiro Yamamoto
* Director August 18, 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
</TABLE>
5
<PAGE>
EXHIBIT INDEX
Exhibit Description
- ------- -----------
*4.1 Amended AVX Corporation 1995 Stock Option Plan, effective
July 15, 1999 (incorporated by reference to Exhibit 10.10 to
AVX's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1999)
4.2 AVX Corporation Non-Employee Directors' Stock Option Plan,
as amended July 15, 1999
*4.3 Form of Stock Option Agreements under the AVX Corporation
1995 Stock Option Plan (incorporated by reference to Exhibit
4.2 to AVX's Registration Statement on Form S-8 (No.
33-98094) filed October 13, 1995)
*4.4 Form of Stock Option Agreement under the AVX Corporation
Non-Employee Directors' Stock Option Plan (incorporated by
reference to Exhibit 4.4 to AVX's Registration Statement on
Form S-8 (No. 33-98094) filed October 13, 1995)
5.1 Opinion of Parker, Poe, Adams & Bernstein L.L.P. as to the
legality of the securities to be registered
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Parker, Poe, Adams & Bernstein L.L.P. (included
in Exhibit 5.1)
24.1 Power of Attorney
- ----------
* 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.
6
EXHIBIT 4.2
AVX CORPORATION
NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
AS AMENDED JULY 15, 1999
1. Adoption and Purpose. The AVX Corporation (the "Company")
hereby adopts the AVX Corporation Non-Employee Directors' Stock Option Plan (the
"Plan") to secure for the Company and its stockholders the benefits of the
incentive inherent in increased common stock ownership by the members of the
Board of Directors (the "Board") of the Company who are not employees of the
Company or any of its subsidiaries (a "Non-Employee Director").
2. Administration. The Plan shall be administered by the
Board. The Board shall have all the powers vested in it by the terms of the
Plan, such powers to include authority (within the limitations described herein)
to prescribe the form of the agreement embodying awards of stock options made
under the Plan (the "Options") and the power to determine the restrictions, if
any, on the ability of participants to earn-out and to dispose of any stock
issued in connection with the exercise of any Options granted pursuant to the
Plan.
The Board shall, subject to the provisions of the Plan, have
the power to interpret the Plan and to prescribe, amend and rescind rules and
regulations for the administration of the Plan as it may deem desirable. Any
decisions of the Board in the administration of the Plan, as described herein,
shall be final and conclusive. The Board may authorize any one or more of their
number (each, a "Director") or the Secretary or any other officer of the Company
to execute and deliver documents on behalf of the Board. The Board hereby
authorizes the Secretary to execute and deliver all documents to be delivered by
the Board pursuant to the Plan. No member of the Board shall be liable for
anything done or omitted to be done by such member or by any other member of the
Board in connection with the Plan, except for such member's own willful
misconduct or as expressly provided by statute.
3. Shares Subject to Plan. The stock which may be issued and
sold under the Plan will be the Common Stock (par value $1.00 per share) of the
Company. The total amount of stock for which Options may be granted under the
Plan shall not exceed 250,000 shares of Common Stock, subject to adjustment as
provided in Paragraph 6 below. The stock to be issued may be either authorized
and unissued shares or shares held by the Company in its treasury. Shares that
by reason of the expiration of an option or otherwise are no longer subject to
purchase pursuant to an Option granted under the Plan may be reoffered under the
Plan.
4. Participants. Each Non-Employee Director shall be eligible
to receive an Option in accordance with Paragraph 5 below.
1
<PAGE>
5. Terms and Conditions of Options. Each Option granted under
the Plan shall be evidenced by an agreement in such form as the Board shall
prescribe from time to time in accordance with the Plan, and shall comply with
the following terms and conditions:
(a) The Option exercise price shall be the Fair Market Value
of the Common Stock shares subject to such Option on the date the Option is
granted, which, except as provided in paragraph (b) of this Section, shall be
the average of the high and the low sales prices of a share of Common Stock on
the date of grant (or, if not a trading day, on the last preceding trading day)
as reported on the New York Stock Exchange Composite Transactions Tape or, if
not listed on the New York Stock Exchange, the principal stock exchange or the
NASDAQ National Market on which the Common Stock is then listed or traded;
provided, however, that if the Common Stock is not so listed or traded then the
Fair Market Value shall be determined in good faith by the Board.
(b) Each Non-Employee Director serving on the date of the
initial public offering of the Common Stock in 1995 and each other Non-Employee
Director subsequently elected for the first time shall automatically receive an
Option for 7,500 shares of Common Stock (each, an "Initial Option"); provided,
however, that the Option price for the Non-Employee Director serving at the date
of the initial public offering shall be the public offering price.
(c) Each Non-Employee Director serving on the date of the
Annual Meeting of Stockholders of the Company in 1998 shall automatically
receive an Option for 7,500 shares of Common Stock (each, a "1998 Grant") as of
the first day of the month following such annual meeting. Beginning in the year
in which the third anniversary of the 1998 Grant occurs, and in every year in
which a subsequent third anniversary occurs, as of the first day of the month
following the Annual Meeting of Stockholders of the Company, each Non-Employee
Director who is entitled to a 1998 Grant and who has been re-elected as a
Non-Employee Director shall automatically receive an additional Option for 7,500
shares of Common Stock in the year in which the third anniversary of his or her
Initial Option occurs and in every year in which a subsequent third anniversary
of his or her Initial Option occurs provided that he/she has been re-elected as
a Non-Employee Director in such year. Such Option shall be granted as of the
first day of the month following the Annual Meeting of Stockholders of the
Company in such year.
(d) The Option shall not be transferable by the optionee
otherwise than by will or the laws of descent and distribution and shall be
exercisable during the lifetime of the optionee only by the optionee.
(e) No Option or any part of an Option shall be exercisable:
(i) after the expiration of ten years from the date the Option was granted, (ii)
unless written notice of the exercise is delivered to the Company specifying the
number of shares to be purchased and payment in full is made for the shares of
Common Stock being acquired thereunder at the time of exercise; such payment
shall be made (A) in cash or by check, (B) by tendering to the
2
<PAGE>
Company Common Stock shares owned by the person exercising the Option and having
a Fair Market Value equal to the cash exercise price applicable to such Option,
it being understood that the Board shall determine acceptable methods for
tendering Common Stock shares and may impose such conditions on the use of
Common Stock shares to exercise Options as it deems appropriate, or (C) by a
combination of cash or check and Common Stock shares as aforesaid; and (iii)
unless the person exercising the Option has been, at all times during the period
beginning with the date of grant of the Option and ending on the date of such
exercise, a Director of the Company, except that if such person shall cease to
be such a Director by reason of Retirement (as defined below), Incapacity (as
defined below) or death while holding an Option that has not expired and has not
been fully exercised, such person, or in the case of death, the executors,
administrators, or distributees, as the case may be, may at any time after the
date such person ceased to be such a Director (but in no event after the Option
has expired under the provisions of subparagraph 5(e)(i) above) exercise the
Option (to the extent exercisable by the Director on the date he ceased to be a
Director) with respect to any shares of Common Stock as to which such person has
not exercised. If any person who has ceased to be a Director for any reason
other than death, shall die holding an Option that has not expired and has not
been fully exercised, such person's executors, administrators, or distributees,
as the case may be, may exercise the Option (to the extent exercisable by the
decedent on his date of death) provided that in no event may the Option be
exercised after it has expired pursuant to subparagraph 5(e)(i). In the event
any Option is exercised by the executors, administrators, legatees, or
distributees of the estate of a deceased optionee, the Company shall be under no
obligation to issue stock thereunder unless and until the Company is satisfied
that the person or persons exercising the Option are the duly appointed legal
representatives of the deceased optionee's estate or the proper legatees or
distributees thereof.
(f) One-third of the total number of shares of Common Stock
covered by all Options shall become exercisable beginning with the first
anniversary date of the grant of the Option; thereafter an additional one-third
of the total number of shares of Common Stock covered by the Option shall become
exercisable on each subsequent anniversary date of the grant of the Option until
on the third anniversary date of the grant of the Option the total number of
shares of Common Stock covered by the Option shall become exercisable. The
preceding sentence shall apply to Options granted prior to 1998; provided,
however that it shall not effect the vesting of any such Option prior to the
anniversary date of the grant of such Option occurring in 1998. In the event the
Non-Employee Director ceases to be a Director by reason of Retirement,
Incapacity or death, the total number of shares of Common Stock covered by the
Option shall thereupon become exercisable. Such exercisable options must be
exercised prior to the earlier of (i) one year after the date of such
Retirement, Incapacity or death and (ii) the date of their original expiration.
(g) Options granted to a person shall automatically be
forfeited by such person if such person shall cease to be a Director for reasons
other than Retirement, Incapacity or death.
(h) As used in this Paragraph 5, the term "Retirement" means
the
3
<PAGE>
termination of a Director's service on the Board, including resignation from
the Board upon reaching retirement age or otherwise resigning or not standing
for reelection with the approval of the Board, but shall not include any
termination of service resulting from an act of (i) fraud or intentional
misrepresentation or (ii) embezzlement, misappropriation or conversion of assets
or opportunities of the Company or any direct or indirect majority-owned
subsidiary of the Company, by such Director. The determination of whether
termination results from any such act shall be made by the Board, whose
determination shall be conclusive.
(i) As used in this paragraph 5, the term "Incapacity" means
any material physical, mental or other disability rendering the Director
incapable of substantially performing his or her services hereunder that is not
cured within 180 days of the first occurrence of such incapacity. In the event
of any dispute between the Company and the Director as to whether he or she is
incapacitated as defined herein, the determination of whether the Director is so
incapacitated shall be made by an independent physician selected by the Board
and the decision of such physician shall be binding upon the Company and the
Director.
6. Adjustment in the Event of Certain Changes in Stock. (a) If
there is any change in the number of outstanding shares of Common Stock by
reason of any stock dividend, stock split, recapitalization, combination,
exchange of shares, merger, consolidation, liquidation, split-up, spin-off or
other similar change in capitalization, any distribution to common shareholders,
including a rights offering, other than cash dividends, or any like change, then
the number of shares of Common Stock available for options, the number of such
shares covered by outstanding options, and the price per share of such options
shall be proportionately adjusted by the Board to reflect such change or
distribution; provided, however, that any fractional shares resulting from such
adjustment shall be eliminated.
(b) In the event of change in the Common Stock of the Company
as presently constituted, the shares resulting from any such change shall be
deemed to be the Common Stock within the meaning of the Plan.
(c) In the event of a reorganization, recapitalization,
merger, consolidation, acquisition of property or stock, extraordinary dividend
or distribution (other than as covered by Section 6(a) hereof), separation or
liquidation of the Company, or any other event similarly affecting the Company,
the Board shall have the right, but not the obligation, notwithstanding anything
to the contrary in this Plan, to provide that outstanding options granted under
this Plan shall (i) be canceled in respect of a cash payment or the payment of
securities or property, or any combination thereof, with a per share value
determined by the Board in good faith to be equal to the value received by the
stockholders of the Company in such event in the respect of each share of Common
Stock, with appropriate deductions of exercise prices, or (ii) be adjusted to
represent options to receive cash, securities, property, or any combination
thereof, with a per share value determined by the Board in good faith to be
equal to the value received by the stockholders of the Company in such event in
respect of each share of Common Stock, at such exercise prices as the Board in
its discretion may determine is appropriate.
4
<PAGE>
(d) To the extent that the foregoing adjustments relate to
stock or securities of the Company, such adjustments shall be made by the Board,
whose determination in that respect shall be final, binding and conclusive.
7. Nonexclusive Plan. Neither the adoption of the Plan by the
Board nor the submission of the Plan to the stockholders of the Company for
approval shall be construed as
creating any limitations on the power of the Board to adopt such other incentive
arrangements as it may deem desirable, including, without limitation, the
granting of stock options otherwise than under the Plan, and such arrangements
may be either generally applicable or applicable only in specific cases.
8. Section 16 Persons. Transactions under the Plan are
intended to comply with all applicable conditions of Rule 16b-3 or its
successors under Section 16 of the Securities Exchange Act of 1934 (the
"Exchange Act"). To the extent any provision of the Plan or action by the
Committee fails to so comply, it shall be deemed null and void, to the extent
permitted by law and deemed advisable by the Committee.
9. Nonassignability. Options may not be transferred other than
by will or by the laws of descent and distribution. During a Director's
lifetime, options granted to a Director may be exercised only by the Director or
by his or her guardian or legal representative.
10. Amendment or Discontinuance. The Plan may be amended or
discontinued by the Board without the approval of the stockholders of the
Company, except that (a) stockholder approval shall be required for any
amendment that would (i) increase (except as provided in Section 6 hereof) the
maximum number of shares of Common Stock for which Options may be granted under
the Plan, (ii) change the class of persons eligible to participate in the Plan
or (iii) adopt any other amendments to the Plan that are considered material for
purposes of Rule 16b-3(b) under the Exchange Act and (b) to the extent required
by Rule 16b-3 under Section 16 of the Securities Exchange Act of 1934 in effect
from time to time, Plan provisions relating to the amount, price and timing of
Options shall not be amended more than once every six months, except to comply
with changes in the Internal Revenue Code of 1986 or the rules thereunder in
effect from time to time. No termination, modification or amendment of the Plan
may, without the consent of the Director to whom any Option shall theretofore
have been granted, adversely affect the rights of such Director (or his or her
transferee) under such Option.
11. Effect of Plan. Neither the adoption of the Plan nor any
action of the Board shall be deemed to give any Non-Employee Director any right
to be granted an option to purchase Common Stock or any other rights except as
may be evidenced by a stock option agreement, or any amendment thereto, duly
authorized by the Board and executed on behalf of the Company, and then only to
the extent and on the terms and conditions expressly set forth therein.
5
<PAGE>
12. Term. Unless sooner terminated by action of the Board,
this Plan will terminate on August 1, 2005. The Board may not grant Options
under the Plan after that date, but Options granted before that date will
continue to be effective in accordance with their terms.
13. Effectiveness; Approval of Stockholders. The Plan shall
take effect upon its adoption by the Board, but its effectiveness and the
exercise of any options shall be subject to the approval of the holders of a
majority of the voting shares of the Company, which approval must occur within
twelve months after the date on which the Plan is adopted by the Board.
14. Withholding Taxes. If the Board shall so require, as a
condition of exercise, each Non-Employee Director shall agree that (a) no later
than the date of exercise of any Option, such Non-Employee Director will pay to
the Company or make arrangements satisfactory to the Board regarding payment of
any Federal, state or local taxes of any kind required by law to be withheld
upon the exercise of such option (any such tax, a "Withholding Tax"); and (b)
the Company shall, to the extent permitted or required by law, have the right to
deduct from any payment of any kind otherwise due to such Non-Employee Director,
any such Withholding Tax.
6
EXHIBIT 5.1
August 19, 1999
Board of Directors
AVX Corporation
801 17th Avenue South
Myrtle Beach, South Carolina 29577
Dear Sirs:
We are acting as counsel to AVX Corporation, a Delaware corporation
(the "Company"), in connection with the preparation, execution, filing and
processing with the Securities and Exchange Commission (the "Commission"),
pursuant to the Securities Act of 1933, as amended (the "Act"), of a
Registration Statement on Form S-8 (the "Registration Statement") relating to
the issuance and sale of up to 650,000 additional shares (the "Shares") of
common stock, par value $.01 per share (the "Common Stock"), reserved for
issuance under the AVX Corporation 1995 Stock Option Plan, as amended July 15,
1999 and the AVX Corporation Non-Employee Directors Stock Option Plan, as
amended July 15, 1999 (collectively, the "Plans"), in addition to the 1,650,000
shares of Common Stock reserved under the Plans and previously registered on the
Company's Registration Statement on Form S-8 (Registration No. 33-98094) and the
1,100,000 shares of Common Stock reserved under the AVX Corporation 1995 Stock
Option Plan and previously registered on the Company's Registration Statement on
Form S-8 (Registration No. 333-37201). This opinion is furnished to you for
filing with the Commission pursuant to Item 601(b)(5) of Regulation S-K
promulgated under the Act.
In our representation of the Company, we have examined and relied upon
the accuracy of the matters set forth in the Registration Statement, the Plans,
the Company's Restated Certificate of Incorporation and Bylaws, each as amended
to date, pertinent actions of the Company's Board of Directors recorded in the
Company's minute book, all as provided to us by the Company, pertinent filings
by the Company with the Commission under the Act and under the Securities
Exchange Act of 1934, as amended, and such other documents as we have considered
necessary for purposes of rendering the opinions expressed below.
Based upon the foregoing, we are of the opinion that the Shares
proposed to be offered and sold by the Company under the Plans have been duly
authorized for issuance and, subject to the Registration Statement becoming
effective under the Act and to compliance with any applicable state securities
laws and to the issuance of such Shares in accordance with the provisions of the
Plans for a consideration at least equal to their par value per share, the
Shares
<PAGE>
Board of Directors
AVX Corporation
August 19, 1999
Page 2
will be, when so issued, legally issued, fully paid and non-assessable shares of
Common Stock of the Company.
The opinions expressed herein are limited to the laws of the General
Corporation Law of the State of Delaware and the Act.
We hereby consent to the use of this opinion letter as Exhibit 5.1 to
the Registration Statement. In giving this consent, we do not admit that we are
in the category of persons whose consent is required under Section 7 of the Act
or the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Parker, Poe, Adams & Bernstein L.L.P.
GCI:pjs
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 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.
PricewaterhouseCoopers LLP
Atlanta, Georgia
August 18, 1999
EXHIBIT 24.1
POWER OF ATTORNEY
Each of the undersigned directors and officers of AVX Corporation, a
Delaware corporation (the "Corporation"), hereby severally constitutes and
appoints Benedict P. Rosen, John S. Gilbertson and Donald B. Christiansen, and
each of them, 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 (the "SEC") under the Securities Act of 1933 Registration Statements
on Form S-8 (the "Registration Statement"), or other appropriate Forms, 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: (i) AVX Corporation 1995
Stock Option Plan, (ii) AVX Corporation Non-Employee Directors Stock Option
Plan, (iii) AVX Corporation Retirement Plan, (iv) AVX Corporation Stock Bonus
Plan, (v) AVX Corporation Deferred Compensation Plan, (vi) AVX Tantalum
Corporation Stock Bonus Plan, (vii) AVX Vancouver Corporation Savings and Stock
Bonus Plan, (viii) Elco Corporation Retirement Savings Plan, and (ix) Elco
Corporation Retirement Savings Plan for Union Employees, and 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 and generally to act for and in the name of the
undersigned with respect to such filing as fully as could the undersigned if
then personally present and acting.
IN WITNESS WHEREOF, the undersigned has executed this Power-of-Attorney
on the date set opposite his respective name.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ Kazuo Inamori Chairman of the Board and August 31, 1995
- ----------------------------------------------- Director
Kazuo Inamori
/s/ Benedict P. Rosen President, Chief Executive August 31, 1995
- ----------------------------------------------- Officer, and Director
Benedict P. Rosen (Principal Executive Officer)
/s/ John S. Gilbertson Executive Vice President, August 31, 1995
- ----------------------------------------------- Chief Operating Officer and
John S. Gilbertson Director
<PAGE>
Signatures Title Date
---------- ----- ----
/s/ Donald B. Christiansen Chief Financial Officer, Vice August 31, 1995
- ----------------------------------------------- President, Treasurer, and
Donald B. Christiansen Director (Principal Financial
and Principal Accounting
Officer)
/s/ Marshall D. Butler Director August 31, 1995
- -----------------------------------------------
Marshall D. Butler
/s/ Carroll A. Campbell, Jr. Director August 31, 1995
- -----------------------------------------------
Carroll A. Campbell, Jr.
/s/ Kensuke Itoh Director August 31, 1995
- -----------------------------------------------
Kensuke Itoh
/s/ Rodney N. Lanthorne Director August 31, 1995
- -----------------------------------------------
Rodney N. Lanthorne
/s/ Masato Takeda Director August 31, 1995
- -----------------------------------------------
Masato Takeda
/s/ Masahiro Umemura Director August 31, 1995
- -----------------------------------------------
Masahiro Umemura
/s/ MasahiroYamamoto Director August 31, 1995
- -----------------------------------------------
MasahiroYamamoto
/s/ Yuzo Yamamura Director August 31, 1995
- -----------------------------------------------
Yuzo Yamamura
</TABLE>
