<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 11, 2000
REGISTRATION NO. 333-95057
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
AVX CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 3670 33-0379007
(STATE OR OTHER JURISDICTION (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
------------------------
801 17TH AVENUE SOUTH
MYRTLE BEACH, SOUTH CAROLINA 29577
(843) 448-9411
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICE)
------------------------
DONALD B. CHRISTIANSEN
SENIOR VICE PRESIDENT OF FINANCE AND CHIEF FINANCIAL OFFICER
801 17TH AVENUE SOUTH
MYRTLE BEACH, SOUTH CAROLINA 29577
(843) 448-9411
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
WITH COPIES TO:
<TABLE>
<S> <C>
GARY C. IVEY, ESQ. ALAN L. JAKIMO, ESQ.
PARKER, POE, ADAMS & BERNSTEIN L.L.P. BROWN & WOOD LLP
2500 CHARLOTTE PLAZA ONE WORLD TRADE CENTER
CHARLOTTE, NORTH CAROLINA 28244 NEW YORK, NEW YORK 10048-0557
(704) 372-9000 (212) 839-5300
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
possible after the effective date of this registration statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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- --------------------------------------------------------------------------------
<PAGE> 2
EXPLANATORY NOTE
This Amendment No. 2 to Registration Statement is being filed with the
Securities and Exchange Commission solely for the purpose of filing Exhibits
1.1, 5.1, 23.1, 23.2 and 23.3 herein.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the fees and expenses payable by the
registrant and Kyocera in connection with the sale and distribution of the
securities being registered, other than underwriting discounts and commissions.
All of the amounts shown are estimates, except the Securities and Exchange
Commission ("SEC") registration fee and the filing fee with the National
Association of Securities Dealers, Inc. ("NASD").
<TABLE>
<S> <C>
SEC registration fee........................................ $ 81,378
NASD filing fee............................................. 30,500
Printing and engraving expenses............................. 175,000
Accountants' fees and expenses.............................. 30,000
Legal fees and expenses..................................... 140,000
Blue Sky qualification fees and expenses.................... 2,500
Transfer Agent and Registrar fees........................... 5,000
Miscellaneous............................................... 95,622
--------
Total............................................. $560,000*
========
</TABLE>
- ---------------
* Payable initially by the registrant. Kyocera will reimburse the registrant for
such expenses.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law 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 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
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.
Our Restated Certificate of Incorporation provides that no director of AVX
will be personally liable to AVX 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 Delaware General
Corporation Law as currently in effect or as the same may hereafter be amended.
Pursuant to Section 102(b)(7) of the Delaware General Corporation Law, our
Restated Certificate of Incorporation eliminates the liability of our directors
to AVX or its stockholders, except for liabilities related to breach of duty of
loyalty, actions not in good faith and certain other liabilities.
II-1
<PAGE> 3
AVX maintains directors' and officers' liability insurance policies. Our
by-laws provide for indemnification of the officers and directors of AVX to the
fullest extent permitted by applicable law.
The purchase agreement to be entered into by AVX, Kyocera and the
underwriters who are parties thereto will contain certain provisions for the
indemnification of, among others, controlling persons, directors and officers of
AVX for certain liabilities.
ITEM 16. EXHIBIT.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF EXHIBIT
- ----------- ----------------------
<C> <S>
1.1 Form of Purchase Agreement.
5.1 Opinion of Parker, Poe, Adams & Bernstein L.L.P.
23.1 Consent of Parker, Poe, Adams & Bernstein L.L.P. (included
in Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of Tomotsune Kimura & Mitomi.
*24.1 Powers of Attorney (included on Signature Page of
Registration Statement).
</TABLE>
- ---------------
* Filed previously.
II-2
<PAGE> 4
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes that:
(a) For purposes of determining any liability under the Securities Act
of 1933, each filing of the registrant'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 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.
(b) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 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 Act and will be governed by the final
adjudication of such issue.
(c)(1) For purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as
part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be
part of this registration statement as of the time it was declared
effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form
of prospectus 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.
II-3
<PAGE> 5
SIGNATURES
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-3 and has duly caused this Amendment No. 2 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Myrtle Beach, South Carolina, on the
11th day of February, 2000.
AVX CORPORATION
By /s/ BENEDICT P. ROSEN
------------------------------------
Benedict P. Rosen
Chairman and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 2 to the Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
* Chairman Emeritus of the February 11, 2000
- ----------------------------------------------------- Board
Kazuo Inamori
/s/ BENEDICT P. ROSEN Chairman of the Board and February 11, 2000
- ----------------------------------------------------- Chief Executive Officer
Benedict P. Rosen
* President and Chief Operating February 11, 2000
- ----------------------------------------------------- Officer and Director
John S. Gilbertson
* Senior Vice President of February 11, 2000
- ----------------------------------------------------- Finance, Chief Financial
Donald B. Christiansen Officer and Treasurer and
Director
Director , 2000
- -----------------------------------------------------
Carroll A. Campbell
* Director February 11, 2000
- -----------------------------------------------------
Richard Tressler
* Director February 11, 2000
- -----------------------------------------------------
Kensuke Itoh
* Director February 11, 2000
- -----------------------------------------------------
Rodney N. Lanthorne
* Director February 11, 2000
- -----------------------------------------------------
Michihisa Yamamoto
</TABLE>
II-4
<PAGE> 6
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
* Director February 11, 2000
- -----------------------------------------------------
Masahiro Umemura
* Director February 11, 2000
- -----------------------------------------------------
Masahiro Yamamoto
* Director February 11, 2000
- -----------------------------------------------------
Yuzo Yamamura
* Director February 11, 2000
- -----------------------------------------------------
Yasuo Nishiguchi
* Director February 11, 2000
- -----------------------------------------------------
Henry C. Lucas
*By: /s/ BENEDICT P. ROSEN
-----------------------------------------------
Benedict P. Rosen
(Attorney-in-fact for each
of the persons indicated)
</TABLE>
II-5
<PAGE> 7
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF EXHIBIT
- ----------- ----------------------
<C> <S>
1.1 Form of Purchase Agreement.
5.1 Opinion of Parker, Poe, Adams & Bernstein L.L.P.
23.1 Consent of Parker, Poe, Adams & Bernstein L.L.P. (included
in Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of Tomotsune Kimura & Mitomi.
*24.1 Powers of Attorney (included on Signature Page of
Registration Statement).
</TABLE>
- ---------------
* Filed previously.
<PAGE> 1
EXHIBIT 1.1
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AVX CORPORATION
(a Delaware corporation)
5,250,000 Shares of Common Stock
PURCHASE AGREEMENT
Dated: February 15, 2000
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<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PURCHASE AGREEMENT................................................................................................1
SECTION 1. Representations and Warranties......................................................2
(a) Representations and Warranties by the Company.......................................2
(i) Compliance with Registration Requirements.................................3
(ii) Incorporated Documents....................................................3
(iii) Independent Accountants...................................................4
(iv) Financial Statements......................................................4
(v) No Material Adverse Change in Business....................................4
(vi) Good Standing of the Company..............................................4
(vii) Good Standing of Subsidiaries.............................................4
(viii) Capitalization............................................................5
(ix) Authorization of Agreement................................................5
(x) Authorization and Description of Securities...............................5
(xi) Absence of Defaults and Conflicts.........................................5
(xii) Absence of Labor Dispute..................................................6
(xiii) Absence of Proceedings....................................................6
(xiv) Accuracy of Exhibits......................................................6
(xv) Possession of Intellectual Property.......................................6
(xvi) Absence of Further Requirements...........................................7
(xvii) Possession of Licenses and Permits........................................7
(xviii) Title to Property.........................................................7
(xix) Compliance with Laws......................................................8
(xx) Environmental Laws........................................................8
(xxi) Taxes.....................................................................8
(xxii) Registration Rights.......................................................9
(xxiii) Investment Company........................................................9
(xxiv) Listing...................................................................9
(xxv) Insurance.................................................................9
(xxvi) Accounting................................................................9
(xxvii) No Broker's Fees..........................................................9
(xxviii) Absence of Manipulation...................................................9
(xxix) Relationships.............................................................9
(xxx) Delivery of Information..................................................10
(xxxi) Relationships with Selling Stockholder...................................10
(b) Representations and Warranties by the Selling Stockholder..........................10
(i) Accurate Disclosure......................................................10
(ii) Authorization of Agreements..............................................10
(iii) Good and Marketable Title................................................11
(iv) Due Execution of Power of Attorney and Custody
Agreement................................................................11
(v) Absence of Manipulation..................................................11
(vi) Absence of Further Requirements..........................................12
(vii) Restriction on Sale of Securities........................................12
(viii) Certificates Suitable for Transfer.......................................12
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
(ix) No Association with NASD.................................................12
(x) Civil Enforceability.....................................................12
(xi) Submission to Jurisdiction...............................................13
(xii) No Duty Taxes............................................................13
(xiii) Relationships with the Company...........................................13
(c) Officer's Certificates.............................................................13
SECTION 2. Sale and Delivery to Underwriters; Closing.........................................14
(a) Initial Securities.................................................................14
(b) Option Securities..................................................................14
(c) Payment............................................................................14
(d) Denominations; Registration........................................................15
SECTION 3. Covenants of the Company...........................................................15
(a) Compliance with Securities Regulations and Commission
Requests...........................................................................15
(b) Filing of Amendments...............................................................16
(c) Delivery of Registration Statements................................................16
(d) Delivery of Prospectuses...........................................................16
(e) Continued Compliance with Securities Laws..........................................16
(f) Blue Sky Qualifications............................................................17
(g) Rule 158...........................................................................17
(h) Listing............................................................................17
(i) Restriction on Sale of Securities..................................................17
(j) Reporting Requirements.............................................................17
SECTION 4. Payment of Expenses................................................................18
(a) Expenses...........................................................................18
(b) Expenses of the Selling Stockholder................................................18
(c) Termination of Agreement...........................................................18
(d) Allocation of Expenses.............................................................18
SECTION 5. Conditions of Underwriters' Obligations............................................18
(a) Effectiveness of Registration Statement............................................19
(b) Opinion of Counsel for Company.....................................................19
(c) Opinion of Counsel for the Selling Stockholder.....................................19
(d) Opinion of Counsel for Underwriters................................................19
(e) Officers' Certificate..............................................................19
(f) Certificate of Selling Stockholder.................................................20
(g) Accountant's Comfort Letter........................................................20
(h) Bring-down Comfort Letter..........................................................20
(i) No Objection.......................................................................20
(j) Lock-up Agreements.................................................................20
(k) Conditions to Purchase of Option Securities........................................20
(l) Additional Documents...............................................................21
(m) Termination of Agreement...........................................................22
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
SECTION 6. Indemnification....................................................................22
(a) Indemnification of Underwriters....................................................22
(b) Indemnification of Company, Directors and Officers and Selling
Stockholder........................................................................23
(c) Actions against Parties; Notification .............................................23
(d) Settlement without Consent if Failure to Reimburse.................................24
(e) Other Agreements with Respect to Indemnification...................................24
SECTION 7. Contribution.......................................................................24
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery...........................................................................25
SECTION 9. Termination of Agreement...........................................................26
(a) Termination; General...............................................................26
(b) Liabilities........................................................................26
SECTION 10. Default by One or More of the Underwriters.........................................26
SECTION 11. Default by the Selling Stockholder.................................................27
SECTION 12. Notices............................................................................27
SECTION 13. Parties............................................................................27
SECTION 14. Waiver of Immunities. ............................................................28
SECTION 15. Selling Stockholder's Consent to Jurisdiction; Appointment of
Agent for Service of Process.......................................................28
SECTION 16. GOVERNING LAW AND TIME. ..........................................................29
SECTION 17. Effect of Headings.................................................................30
</TABLE>
iii
<PAGE> 5
AVX CORPORATION
(a Delaware corporation)
5,250,000 Shares of Common Stock
(Par Value $.01 Per Share)
PURCHASE AGREEMENT
February 15, 2000
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Donaldson, Lufkin & Jenrette Securities Corporation
Morgan Stanley & Co. Incorporated
Salomon Smith Barney Inc.
as Representative(s) of the several Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
AVX Corporation, a Delaware corporation (the "Company"), and Kyocera
Corporation, a Japan corporation (the "Selling Stockholder"), confirm their
respective agreements with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated ("Merrill Lynch") and each of the other Underwriters named in
Schedule A hereto (collectively, the "Underwriters", which term shall also
include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom Merrill Lynch, Donaldson, Lufkin & Jenrette Securities
Corporation, Morgan Stanley & Co. Incorporated, and Salomon Smith Barney Inc.
are acting as representatives (in such capacity, the "Representatives"), with
respect to (i) the sale by the Selling Stockholder and the purchase by the
Underwriters, acting severally and not jointly, of the respective numbers of
shares of Common Stock, par value $.01 per share, of the Company ("Common
Stock") set forth in Schedule A hereto and (ii) the grant by the Selling
Stockholder to the Underwriters, acting severally and not jointly, of the option
described in Section 2(b) hereof to purchase all or any part of 750,000
additional shares of Common Stock to cover over-allotments, if any. The
aforesaid 5,250,000 shares of Common Stock (the "Initial Securities") to be
purchased by the Underwriters and all or any part of the 750,000 shares of
Common Stock subject to the option described in Section 2(b) hereof (the "Option
Securities") are hereinafter called, collectively, the "Securities".
1
<PAGE> 6
The Company and the Selling Stockholder understand that the
Underwriters propose to make a public offering of the Securities as soon as the
Representatives deem advisable after this Agreement has been executed and
delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-95057) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will
prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations. The information included in such prospectus that was
omitted from such registration statement at the time it became effective but
that is deemed to be part of such registration statement at the time it became
effective pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A
Information." Each prospectus used before such registration statement became
effective, and any prospectus that omitted, as applicable, the Rule 430A
Information, that was used after such effectiveness and prior to the execution
and delivery of this Agreement, is herein called a "preliminary prospectus."
Such registration statement, including the exhibits thereto and schedules
thereto, if any, and the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the 1933 Act, at the time it became effective and
including the Rule 430A Information is herein called the "Registration
Statement." The final prospectus, including the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, in the
form first furnished to the Underwriters for use in connection with the offering
of the Securities is herein called the "Prospectus." For purposes of this
Agreement, all references to the Registration Statement, any preliminary
prospectus or the Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system ("EDGAR").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which is
incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectuses, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date hereof, as of the
Closing Time referred to in Section 2(c) hereof, and as of each Date of Delivery
(if any) referred to in Section 2(b) hereof, and agrees with each Underwriter,
as follows:
2
<PAGE> 7
(i) Compliance with Registration Requirements. The Company
meets the requirements for use of Form S-3 under the 1933 Act. The
Registration Statement has become effective under the 1933 Act and no
stop order suspending the effectiveness of the Registration Statement
has been issued under the 1933 Act and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the
part of the Commission for additional information has been complied
with.
At the respective times the Registration Statement and any
post-effective amendments thereto became effective and at the Closing
Time (and, if any Option Securities are purchased, at the Date of
Delivery), the Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and
did not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. Neither the
Prospectus nor any amendments or supplements thereto, at the time the
Prospectus or any such amendment or supplement was issued and at the
Closing Time (and, if any Option Securities are purchased, at the Date
of Delivery), included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through Merrill
Lynch expressly for use in the Registration Statement or Prospectus.
Each preliminary prospectus and the prospectus filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with this offering
was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to EDGAR, except to the extent permitted
by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement
and the Prospectus, when they became effective or at the time they were
or hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the 1933 Act and the
1933 Act Regulations or the 1934 Act and the rules and regulations of
the Commission thereunder (the "1934 Act Regulations"), as applicable,
and, when read together with the other information in the Prospectus,
at the time the Registration Statement became effective, at the time
the Prospectus was issued and at the Closing Time (and, if any Option
Securities are purchased, at the Date of Delivery), did not and will
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading.
3
<PAGE> 8
(iii) Independent Accountants. The accountants who certified
the financial statements and supporting schedules included in the
Registration Statement are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements included
in the Registration Statement and the Prospectus, together with the
related schedules and notes, present fairly the financial position of
the Company and its consolidated subsidiaries at the dates indicated
and the statement of operations, stockholders' equity and cash flows of
the Company and its consolidated subsidiaries for the periods
specified; said financial statements have been prepared in conformity
with generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved. The supporting
schedules, if any, included in the Registration Statement present
fairly in accordance with GAAP the information required to be stated
therein. The selected financial data and the summary financial
information included in the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with that of
the audited financial statements included in the Registration
Statement.
(v) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein or
contemplated thereby, (A) there has been no material adverse change in
the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business (a "Material Adverse Effect"), (B) there have been
no transactions entered into by the Company or any of its subsidiaries,
other than those in the ordinary course of business, which are material
with respect to the Company and its subsidiaries considered as one
enterprise, and (C) except for regular quarterly dividends on the
Common Stock in amounts per share that are consistent with past
practice, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under this Agreement; and the Company is duly qualified
as a foreign corporation to transact business and is in good standing
in each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02 of
Regulation S-X) (each a "Subsidiary" and, collectively, the
"Subsidiaries") has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation to
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<PAGE> 9
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect; except as otherwise disclosed in the
Registration Statement, all of the issued and outstanding capital stock
of each such Subsidiary has been duly authorized and validly issued, is
fully paid and non-assessable and is owned by the Company, directly or
through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of any Subsidiary was issued in
violation of the preemptive or similar rights of any securityholder of
such Subsidiary. Except for the shares of capital stock of each of the
subsidiaries owned by the Company and such subsidiaries and except for
the Company's equity interest in each of AVX/Alpine PolyVision Inc.,
Gujarat Poly AVX Electronics Limited, Elco NPFF (India) Private
Limited, and Nitzanim-AVX/Kyocera-Venture Capital Fund Ltd., neither
the Company nor any such subsidiary owns any shares of stock or any
other equity securities of any corporation or has any equity interest
in any firm, partnership, association or other entity, except as
described in the Prospectus. Schedule E hereto sets forth all of the
subsidiaries of the Company.
(viii) Capitalization. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectus (except
for subsequent issuances, if any, pursuant to this Agreement, pursuant
to reservations, agreements or employee benefit plans referred to in
the Prospectus or pursuant to the exercise of convertible securities or
options referred to in the Prospectus). The shares of issued and
outstanding capital stock, including the Securities to be purchased by
the Underwriters from the Selling Stockholder, have been duly
authorized and validly issued and are fully paid and non-assessable;
none of the outstanding shares of capital stock, including the
Securities to be purchased by the Underwriters from the Selling
Stockholder, was issued in violation of the preemptive or other similar
rights of any securityholder of the Company.
(ix) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(x) Authorization and Description of Securities. The Common
Stock conforms to all statements relating thereto contained in the
Prospectus and such description conforms to the rights set forth in the
instruments defining the same; no holder of the Securities will be
subject to personal liability by reason of being such a holder; and, to
the best knowledge of the Company, the sale of the Securities is not
subject to the preemptive or other similar rights of any securityholder
of the Company.
(xi) Absence of Defaults and Conflicts. Neither the Company
nor any of its subsidiaries is in violation of its charter or by-laws
or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Company or any of its subsidiaries
is a party or by which it or any of them may be bound, or to which any
of the property or assets of the Company or any subsidiary is subject
(collectively, "Agreements and Instruments") except for such defaults
that would not result in a Material Adverse Effect; and the
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execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated herein and compliance by
the Company with its obligations hereunder have been duly authorized by
all necessary corporate action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with
or constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
subsidiary pursuant to, the Agreements and Instruments (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
would not result in a Material Adverse Effect), nor will such action
result in any violation of the provisions of the charter or by-laws of
the Company or any subsidiary or, except for such violations that would
not result in a Material Adverse Effect, any applicable law, statute,
rule, regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any subsidiary or any of their assets,
properties or operations. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture or
other evidence of indebtedness (or any person acting on such holder's
behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Company or any subsidiary.
(xii) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any subsidiary exists or, to the knowledge
of the Company, is imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its
or any subsidiary's principal suppliers, manufacturers, customers or
contractors, which, in either case, may reasonably be expected to
result in a Material Adverse Effect.
(xiii) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company or any subsidiary, which is required to be disclosed in the
Registration Statement (other than as disclosed therein), or which
might reasonably be expected to result in a Material Adverse Effect, or
which might reasonably be expected to materially and adversely affect
the properties or assets thereof or the consummation of the
transactions contemplated in this Agreement or the performance by the
Company of its obligations hereunder; the aggregate of all pending
legal or governmental proceedings to which the Company or any
subsidiary is a party or of which any of their respective property or
assets is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the
business, are not reasonably expected to result in a Material Adverse
Effect.
(xiv) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statement or the Prospectus or the documents incorporated by reference
therein or to be filed as exhibits thereto which have not been so
described and filed as required.
(xv) Possession of Intellectual Property. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights,
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licenses, inventions, copyrights, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks, trade
names or other intellectual property (collectively, "Intellectual
Property") necessary to carry on the business now operated by them, and
neither the Company nor any of its subsidiaries has received any notice
or is otherwise aware of any infringement of or conflict with asserted
rights of others with respect to any Intellectual Property or of any
facts or circumstances which would render any Intellectual Property
invalid or inadequate to protect the interest of the Company or any of
its subsidiaries therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or invalidity
or inadequacy, singly or in the aggregate, would result in a Material
Adverse Effect; and the use, in connection with the business and
operations of the Company and its subsidiaries, of such Intellectual
Property does not violate or infringe, in any material respect, any
Intellectual Property of any other person, firm, corporation or
association whatsoever.
(xvi) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations hereunder, in connection with the offering or sale of
the Securities hereunder or the consummation of the transactions
contemplated by this Agreement, except such as have been already
obtained or as may be required under the 1933 Act or the 1933 Act
Regulations or state securities laws.
(xvii) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by
the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them; the
Company and its subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure
so to comply would not, singly or in the aggregate, have a Material
Adverse Effect; all of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full
force and effect would not have a Material Adverse Effect; and neither
the Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would result in a
Material Adverse Effect.
(xviii) Title to Property. The Company and its subsidiaries
have good and marketable title to all real property owned by the
Company and its subsidiaries and good title to all other properties
owned by them, in each case, free and clear of all mortgages, pledges,
liens, security interests, claims, restrictions or encumbrances of any
kind except such as (a) are described in the Prospectus or (b) do not,
singly or in the aggregate, materially affect the value of such
property and do not materially interfere with the use made and proposed
to be made of such property by the Company or any of its subsidiaries;
and all of the leases and subleases material to the business of the
Company and its subsidiaries, considered as one enterprise, and under
which the Company or any of its subsidiaries holds properties described
in the Prospectus, are in full force and effect,
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<PAGE> 12
and neither the Company nor any subsidiary has any notice of any
material claim of any sort that has been asserted by anyone adverse to
the rights of the Company or any subsidiary under any of the leases or
subleases mentioned above, or affecting or questioning the rights of
the Company or such subsidiary to the continued possession of the
leased or subleased premises under any such lease or sublease which
would result in a Material Adverse Effect.
(xix) Compliance with Laws. The Company and its subsidiaries
are in compliance in all material respects with all applicable laws,
statutes, ordinances, rules or regulations of any applicable
jurisdiction, the enforcement of which, individually or in the
aggregate, would reasonably be expected to have a Material Adverse
Effect.
(xx) Environmental Laws. Except as described in the
Registration Statement and except as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the Company
nor any of its subsidiaries is in violation of any federal, state,
local or foreign statute, law, rule, regulation, ordinance, code,
policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order,
consent, decree or judgment, relating to pollution or protection of
human health, the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations relating
to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum
or petroleum products (collectively, "Hazardous Materials") or to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and its subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any of its
subsidiaries and (D) to the best knowledge of the Company, there are no
events or circumstances that might reasonably be expected to form the
basis of an order for clean-up or remediation, or an action, suit or
proceeding by any private party or governmental body or agency, against
or affecting the Company or any of its subsidiaries relating to
Hazardous Materials or any Environmental Laws.
(xxi) Taxes. The Company and its subsidiaries have filed all
federal, state, local and foreign tax returns required to have been
filed by them or appropriate extensions for such filings have been
obtained as required by law, and have paid all taxes required to be
paid by any of them and all assessments, fines, penalties and other
governmental charges or levies made against them, except any such tax,
assessment, fine or penalty as are not yet due or are being contested
in good faith and by appropriate proceedings; and adequate charges,
accruals and reserves have been provided for in the financial
statements referred to in Section 1(a)(iv) above in respect of all
federal, state, local and foreign taxes for all periods as to which the
tax liability of the Company or any of its subsidiaries has not been
finally determined or remains open to examination by applicable taxing
authorities.
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(xxii) Registration Rights. There are no persons with
registration rights or other similar rights to have any securities
registered pursuant to the Registration Statement or otherwise
registered by the Company under the 1933 Act.
(xxiii) Investment Company. The Company is not, and following
the offering and sale of the Securities as herein contemplated, will
not be, an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the Investment
Company Act of 1940, as amended (the "1940 Act").
(xxiv) Listing. The Securities have been approved for listing
on the New York Stock Exchange.
(xxv) Insurance. The Company and its subsidiaries carry or are
entitled to the benefits of insurance in such amounts and covering such
risks as is generally maintained by companies of established repute
engaged in the same or similar business, and all such insurance is in
full force and effect.
(xxvi) Accounting. The Company and its subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general and specific authorizations; (ii) transactions are
recorded as necessary to permit preparations of financial statements in
conformity with GAAP and to maintain accountability for assets; (iii)
access to assets is permitted only in accordance with management's
general or specific authorizations; and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
(xxvii) No Broker's Fees. Other than as contemplated by this
Agreement, there is no broker, finder or other party that is entitled
to receive from the Company or any of its subsidiaries any brokerage or
finder's fee or any other fee, commission or payment as a result of the
transactions contemplated by this Agreement.
(xxviii) Absence of Manipulation. Neither the Company nor any
of its subsidiaries has (i) taken, directly or indirectly, any action
designed to cause or to result in, or that has constituted or which
might reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities or (ii) since the initial filing
of the Registration Statement (A) sold, bid for, purchased or paid
anyone any compensation for soliciting purchases of, the Securities, or
(B) paid or agreed to pay to any person any compensation for soliciting
another to purchase any other securities of the Company.
(xxix) Relationships. No relationship, direct or indirect,
exists between or among any of the Company or any affiliate of the
Company, on the one hand, and any director, officer, stockholder,
customer or supplier of any of them, on the other hand, which is
required by the 1933 Act or by the 1933 Act Regulations to be described
in the Registration Statement or the Prospectus which is not described
as required.
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(xxx) Delivery of Information. The Company has not distributed
and, prior to the later to occur of (i) the Closing Time and (ii)
completion of the distribution of the Securities, will not distribute
any offering material in connection with the offering and sale of the
Securities other than the Registration Statement, any preliminary
prospectus, the Prospectus or other materials, if any, permitted by the
1933 Act or by the 1933 Act Regulations and approved by Merrill Lynch.
(xxxi) Relationships with Selling Stockholder. The Company has
entered into certain written agreements described in the Registration
Statement with the Selling Stockholder with respect to certain business
relationships between the Company and the Selling Stockholder (the
"Intercompany Agreements") that, by their terms, are intended to be
and, to the best knowledge of the Company, are sufficient to enable the
Company to continue certain on-going arrangements with the Selling
Stockholder in effect prior to the date hereof with respect to the
matters covered by the Intercompany Agreements after the consummation
of the transactions contemplated hereby in substantially the same
manner as prior to entering into this Agreement; and each of the
Intercompany Agreements has been duly and validly authorized, executed
and delivered by the Company.
(b) Representations and Warranties by the Selling Stockholder. The
Selling Stockholder represents and warrants to each Underwriter as of the date
hereof, as of the Closing Time, and, if the Selling Stockholder is selling
Option Securities on a Date of Delivery, as of each such Date of Delivery, and
agrees with each Underwriter, as follows:
(i) Accurate Disclosure. The Selling Stockholder has reviewed
and is familiar with the Registration Statement and the Prospectus and,
with respect to information contained therein regarding the Selling
Stockholder, neither the Prospectus nor any amendments or supplements
thereto or, when read together with the other information in the
Prospectus, documents incorporated or deemed to be incorporated by
reference therein, includes any untrue statement of a material fact or
omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; the Selling Stockholder is not prompted to
sell the Securities to be sold by the Selling Stockholder hereunder by
any information concerning the Company or any subsidiary of the Company
which is not set forth in the Prospectus. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement
and the Prospectus, when they became effective or at the time they were
or hereafter are filed with the Commission, when read together with the
other information in the Prospectus, at the time the Registration
Statement became effective, at the time the Prospectus was issued and
at the Closing Time (and, if any Option Securities are purchased, at
the Date of Delivery), with respect to the Selling Stockholder, did not
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading.
(ii) Authorization of Agreements. The Selling Stockholder has
the full right, power and authority to enter into this Agreement and a
Power of Attorney and Custody Agreement (the "Power of Attorney and
Custody Agreement") and to sell, transfer and deliver the Securities to
be sold by the Selling Stockholder hereunder. The execution and
delivery of this Agreement and the Power of Attorney and Custody
Agreement and the
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sale and delivery of the Securities to be sold by the Selling
Stockholder and the consummation of the transactions contemplated
herein and compliance by the Selling Stockholder with its obligations
hereunder have been duly authorized by the Selling Stockholder and do
not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or
default under, or result in the creation or imposition of any tax,
lien, charge or encumbrance upon the Securities to be sold by the
Selling Stockholder or any property or assets of the Selling
Stockholder pursuant to any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, license, lease or other
agreement or instrument to which the Selling Stockholder is a party or
by which the Selling Stockholder may be bound, or to which any of the
property or assets of the Selling Stockholder is subject, nor will such
action result in any violation of the provisions of the Articles of
Incorporation or Regulations of the Board of Directors or other
organizational instrument of the Selling Stockholder, if applicable, or
any applicable treaty, law, statute, rule, regulation, judgment, order,
writ or decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Selling Stockholder
or any of its properties.
(iii) Good and Marketable Title. The Selling Stockholder has
and will at the Closing Time and, if any Option Securities are
purchased, on the Date of Delivery have good and marketable title to
the Securities to be sold by the Selling Stockholder hereunder, free
and clear of any security interest, mortgage, pledge, lien, charge,
claim, equity or encumbrance of any kind, other than pursuant to this
Agreement; and upon delivery of such Securities and payment of the
purchase price therefor as herein contemplated, assuming each such
Underwriter has no notice of any adverse claim, each of the
Underwriters will receive good and marketable title to the Securities
purchased by it from the Selling Stockholder, free and clear of any
security interest, mortgage, pledge, lien, charge, claim, equity or
encumbrance of any kind.
(iv) Due Execution of Power of Attorney and Custody Agreement.
The Selling Stockholder has duly executed and delivered, in the form
heretofore furnished to the Representatives, the Power of Attorney and
Custody Agreement with Benedict P. Rosen, John S. Gilbertson and Donald
B. Christiansen, or any of them, as attorneys-in-fact (the
"Attorneys-in-Fact") and Benedict P. Rosen, John S. Gilbertson and
Donald B. Christiansen, or any of them, as custodian (the "Custodian");
the Custodian is authorized to deliver the Securities to be sold by the
Selling Stockholder hereunder and to accept payment therefor; and each
Attorney-in-Fact is authorized to execute and deliver this Agreement
and the certificate referred to in Section 5(f) or that may be required
pursuant to Sections 5(l) and 5(m) on behalf of the Selling
Stockholder, to sell, assign and transfer to the Underwriters the
Securities to be sold by the Selling Stockholder hereunder, to
determine the purchase price to be paid by the Underwriters to the
Selling Stockholder, as provided in Section 2(a) hereof, to authorize
the delivery of the Securities to be sold by the Selling Stockholder
hereunder, to accept payment therefor, and otherwise to act on behalf
of the Selling Stockholder in connection with this Agreement.
(v) Absence of Manipulation. The Selling Stockholder has not
taken, and will not take, directly or indirectly, any action which is
designed to or which has constituted or which might reasonably be
expected to cause or result in stabilization or manipulation
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of the price of any security of the Company to facilitate the sale or
resale of the Securities.
(vi) Absence of Further Requirements. No filing with, or
consent, approval, authorization, order, registration, qualification or
decree of, any court or governmental authority or agency, domestic or
foreign, is necessary or required for the performance by the Selling
Stockholder of its obligations hereunder or in the Power of Attorney
and Custody Agreement, or in connection with the sale and delivery of
the Securities hereunder or the consummation of the transactions
contemplated by this Agreement, except such as may have previously been
made or obtained or as may be required under the 1933 Act or the 1933
Act Regulations or state securities laws or securities laws of other
jurisdictions, and except that certain reports have been or shall be
filed by the Selling Stockholder with the Minister of Finance of Japan
under the Securities and Exchange Law and the Foreign Exchange and
Foreign Trade Law of Japan.
(vii) Restriction on Sale of Securities. During a period of 90
days from the date of the Prospectus, the Selling Stockholder will not,
without the prior written consent of Merrill Lynch, (i) offer, pledge,
sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or
warrant to purchase or otherwise transfer or dispose of, directly or
indirectly, any share of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock or file any
registration statement under the 1933 Act with respect to any of the
foregoing or (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Stock,
whether any such swap or transaction described in clause (i) or (ii)
above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not
apply to the Securities to be sold hereunder.
(viii) Certificates Suitable for Transfer. Certificates for
all of the Securities to be sold by the Selling Stockholder pursuant to
this Agreement, in suitable form for transfer by delivery or
accompanied by duly executed instruments of transfer or assignment in
blank with signatures guaranteed, have been placed in custody with the
Custodian with irrevocable conditional instructions to deliver such
Securities to the Underwriters pursuant to this Agreement.
(ix) No Association with NASD. Neither the Selling Stockholder
nor any of its affiliates directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common
control with, or has any other association with (within the meaning of
Article I, Section 1(m) of the By-laws of the National Association of
Securities Dealers, Inc.), any member firm of the National Association
of Securities Dealers, Inc.
(x) Civil Enforceability. The Selling Stockholder and its
obligations under this Agreement are subject to civil and commercial
law and to suit and neither it nor any of its properties, assets or
revenues has any right of immunity from any legal action, suit or
proceeding, from the giving of any relief in any such legal action,
suit or proceeding,
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from setoff or counter-claim, from the jurisdiction of any court, from
service of process, attachment upon or prior to judgment, or attachment
in aid of execution of judgment, or from execution of a judgment, or
other legal process or proceeding for the giving of any relief or for
the enforcement of a judgment, in any jurisdiction, with respect to its
obligations, liabilities or any other matter under or arising out of or
in connection with this Agreement and the Power of Attorney and Custody
Agreement, and to the extent that the Selling Stockholder or any of its
properties, assets or revenues may have or may hereafter become
entitled to any such right of immunity in any jurisdiction in which
proceedings may at any time be commenced, the Selling Stockholder has
effectively waived such right and consented to such relief and
enforcement pursuant to Section 14 of this Agreement.
(xi) Submission to Jurisdiction. The Selling Stockholder has
the power to submit, and pursuant to Section 15 of this Agreement has
legally, validly and effectively submitted, to the jurisdiction of any
federal or state court in the State of New York, County of New York,
and has the power to designate, appoint and empower and pursuant to
Section 15 of this Agreement has legally, validly and effectively
designated, appointed and empowered an agent for service of process in
any suit or proceeding based on or arising under this Agreement in any
federal or state court in the State of New York, County of New York.
(xii) No Duty Taxes. No stamp duty or similar tax or duty is
payable by or on behalf of the Underwriters in connection with the sale
and delivery by the Selling Stockholder of the Securities to be sold by
the Selling Stockholder to the Underwriters as contemplated by this
Agreement.
(xiii) Relationships with the Company. The Selling Stockholder
has entered into the Intercompany Agreements with the Company and such
Intercompany Agreements, by their terms, are intended to be and, to the
best knowledge of the Selling Stockholder, are sufficient to enable the
Company to continue certain on-going arrangements with the Selling
Stockholder in effect prior to the date hereof with respect to the
matters covered by the Intercompany Agreements after the consummation
of the transactions contemplated hereby in substantially the same
manner as prior to entering into this Agreement; and each of the
Intercompany Agreements has been duly and validly authorized, executed
and delivered by the Selling Stockholder.
(c) Officer's Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to the Representatives or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Company to each Underwriter as to the matters covered thereby; and any
certificate signed by or on behalf of the Selling Stockholder as such and
delivered to the Representatives or to counsel for the Underwriters pursuant to
the terms of this Agreement shall be deemed a representation and warranty by the
Selling Stockholder to the Underwriters as to the matters covered thereby.
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SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Selling Stockholder agrees to sell to each Underwriter, severally and
not jointly, and each Underwriter, severally and not jointly, agrees to purchase
from the Selling Stockholder, at the price per share set forth in Schedule C,
that proportion of the number of Initial Securities set forth in Schedule B
opposite the name of the Selling Stockholder, which the number of Initial
Securities set forth in Schedule A opposite the name of such Underwriter, plus
any additional number of Initial Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof, bears to
the total number of Initial Securities, subject, in each case, to such
adjustments among the Underwriters as the Representatives in their sole
discretion shall make to eliminate any sales or purchases of fractional
securities.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Selling Stockholder hereby grants an option to the Underwriters,
severally and not jointly, to purchase up to an additional 750,000 shares of
Common Stock, as set forth in Schedule B, at the price per share set forth in
Schedule C, less an amount per share equal to any dividends or distributions
declared by the Company and payable on the Initial Securities but not payable on
the Option Securities. The option hereby granted will expire 30 days after the
date hereof and may be exercised in whole or in part from time to time only for
the purpose of covering over-allotments which may be made in connection with the
offering and distribution of the Initial Securities upon notice by the
Representatives to the Selling Stockholder and the Company setting forth the
number of Option Securities as to which the several Underwriters are then
exercising the option and the time and date of payment and delivery for such
Option Securities. Any such time and date of delivery (a "Date of Delivery")
shall be determined by the Representatives, but shall not be later than seven
full business days after the exercise of said option, nor in any event prior to
the Closing Time, as hereinafter defined. If the option is exercised as to all
or any portion of the Option Securities, each of the Underwriters, acting
severally and not jointly, will purchase that proportion of the total number of
Option Securities then being purchased which the number of Initial Securities
set forth in Schedule A opposite the name of such Underwriter bears to the total
number of Initial Securities, subject in each case to such adjustments as the
Representatives in their discretion shall make to eliminate any sales or
purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of Brown &
Wood LLP, One World Trade Center, New York, New York 10048, or at such other
place as shall be agreed upon by the Representatives and the Company and the
Selling Stockholder, at 9:00 A.M. (Eastern time) on the third (fourth, if the
pricing occurs after 4:30 P.M. (Eastern time) on any given day) business day
after the date hereof (unless postponed in accordance with the provisions of
Section 10), or such other time not later than ten business days after such date
as shall be agreed upon by the Representatives and the Company and the Selling
Stockholder (such time and date of payment and delivery being herein called
"Closing Time").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option
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Securities shall be made at the above-mentioned offices, or at such other place
as shall be agreed upon by the Representatives and the Company and the Selling
Stockholder, on each Date of Delivery as specified in the notice from the
Representatives to the Company and the Selling Stockholder.
Payment shall be made to the Selling Stockholder by wire transfer of
immediately available funds to a bank account designated by the Custodian
pursuant to the Selling Stockholder's Power of Attorney and Custody Agreement
against delivery to the Representatives for the respective accounts of the
Underwriters of certificates for the Securities to be purchased by them. It is
understood that each Underwriter has authorized the Representatives, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Initial Securities and the Option Securities, if any, which it
has agreed to purchase. Merrill Lynch, individually and not as representative of
the Underwriters, may (but shall not be obligated to) make payment of the
purchase price for the Initial Securities or the Option Securities, if any, to
be purchased by any Underwriter whose funds have not been received by the
Closing Time or the relevant Date of Delivery, as the case may be, but such
payment shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial
Securities and the Option Securities, if any, shall be in such denominations and
registered in such names as the Representatives may request in writing at least
one full business day before the Closing Time or the relevant Date of Delivery,
as the case may be. The certificates for the Initial Securities and the Option
Securities, if any, will be made available for examination and packaging by the
Representatives in The City of New York not later than 10:00 A.M. (Eastern time)
on the business day prior to the Closing Time or the relevant Date of Delivery,
as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section 3(b), will comply with the
requirements of Rule 430A and will notify the Representatives
immediately, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become
effective, or any supplement to the Prospectus or any amended
Prospectus shall have been filed, (ii) of the receipt of any comments
from the Commission, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for additional information, and (iv) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing
or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Securities for offering or sale
in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect
the filings necessary pursuant to Rule 424(b) and will take such steps
as it deems necessary to ascertain promptly whether the form of
prospectus transmitted for filing under Rule 424(b) was received for
filing by the Commission and, in the event that it was not, it will
promptly file such prospectus. The Company will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order
is issued, to obtain the lifting thereof at the earliest possible
moment.
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(b) Filing of Amendments. The Company will give the
Representatives notice of its intention to file or prepare any
amendment to the Registration Statement or any amendment, supplement or
revision to either the prospectus included in the Registration
Statement at the time it became effective or to the Prospectus, will
furnish the Representatives with copies of any such documents a
reasonable amount of time prior to such proposed filing or use, as the
case may be, and will not file or use any such document to which the
Representatives or counsel for the Underwriters shall object.
(c) Delivery of Registration Statements. The Company has
furnished or will deliver to the Representatives and counsel for the
Underwriters, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by reference
therein) and signed copies of all consents and certificates of experts,
and will also deliver to the Representatives, without charge, such
number of conformed copies of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) for each of the
Underwriters as the Representatives shall reasonably request. The
copies of the Registration Statement and each amendment thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR,
except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to
each Underwriter, without charge, as many copies of each preliminary
prospectus as such Underwriter reasonably requested, and the Company
hereby consents to the use of such copies for purposes permitted by the
1933 Act. The Company will furnish to each Underwriter, without charge,
during the period when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act, such number of copies of the Prospectus
(as amended or supplemented) as such Underwriter may reasonably
request. The Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR,
except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company
will comply with the 1933 Act and the 1933 Act Regulations so as to
permit the completion of the distribution of the Securities as
contemplated in this Agreement and in the Prospectus. If at any time
when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the
opinion of counsel for the Underwriters or for the Company, to amend
the Registration Statement or amend or supplement the Prospectus in
order that the Prospectus will not include any untrue statements of a
material fact or omit to state a material fact necessary in order to
make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or
if it shall be necessary, in the opinion of such counsel, at any such
time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or
the 1933 Act Regulations, the Company will promptly prepare and file
with the Commission, subject to Section 3(b), such amendment or
supplement as may be necessary to correct such statement or omission or
to make the
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Registration Statement or the Prospectus comply with such requirements,
and the Company will furnish to the Underwriters such number of copies
of such amendment or supplement as the Underwriters may reasonably
request.
(f) Blue Sky Qualifications. The Company will use its best
efforts, in cooperation with the Underwriters, to qualify the
Securities for offering and sale under the applicable securities laws
of such states and other jurisdictions (domestic or foreign) as the
Representatives may designate; provided, however, that the Company
shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Securities have been so qualified, the
Company will file such statements and reports as may be required by the
laws of such jurisdiction to continue such qualification in effect for
a period of not less than one year from the effective date of the
Registration Statement.
(g) Rule 158. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally
available to its securityholders as soon as practicable an earnings
statement for the purposes of, and to provide the benefits contemplated
by, the last paragraph of Section 11(a) of the 1933 Act.
(h) Listing. The Company will use its best efforts to maintain
the listing of the Securities on the New York Stock Exchange.
(i) Restriction on Sale of Securities. During a period of 90
days from the date of the Prospectus, the Company will not, without the
prior written consent of Merrill Lynch, (i) directly or indirectly,
offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase or otherwise transfer or dispose of any
share of Common Stock or any securities convertible into or exercisable
or exchangeable for Common Stock or file any registration statement
under the 1933 Act with respect to any of the foregoing or (ii) enter
into any swap or any other agreement or any transaction that transfers,
in whole or in part, directly or indirectly, the economic consequence
of ownership of the Common Stock, whether any such swap or transaction
described in clause (i) or (ii) above is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise. The
foregoing sentence shall not apply to (A) the Securities to be sold
hereunder, (B) any shares of Common Stock issued by the Company upon
the exercise of an option or warrant or the conversion of a security
outstanding on the date hereof and referred to in the Prospectus, (C)
any shares of Common Stock issued or options to purchase Common Stock
granted pursuant to existing employee benefit plans of the Company
referred to in the Prospectus or (D) any shares of Common Stock issued
pursuant to any non-employee director stock plan or dividend
reinvestment plan.
(j) Reporting Requirements. The Company, during the period
when the Prospectus is required to be delivered under the 1933 Act or
the 1934 Act, will file all documents required to be filed with the
Commission pursuant to the 1934 Act within the
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time periods required by the 1934 Act and the rules and regulations of
the Commission thereunder.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company and the Selling Stockholder will pay or cause
to be paid all expenses incident to the performance of their obligations under
this Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Agreement, any Agreement among
Underwriters and such other documents as may be required in connection with the
offering, purchase, sale or delivery of the Securities, (iii) the preparation
and delivery of the certificates for the Securities to the Underwriters,
including any stock or other transfer taxes and any stamp or other duties
payable upon the sale or delivery of the Securities to the Underwriters, (iv)
the fees and disbursements of the Company's counsel, accountants and other
advisors, (v) the qualification of the Securities under securities laws in
accordance with the provisions of Section 3(f) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (vi) the printing and delivery to the
Underwriters of copies of each preliminary prospectus and of the Prospectus and
any amendments or supplements thereto, (vii) the preparation, printing and
delivery to the Underwriters of copies of the Blue Sky Survey and any supplement
thereto, (viii) the fees and expenses of any transfer agent or registrar for the
Securities and (ix) the filing fees incident to, and the reasonable fees and
disbursements of counsel to the Underwriters in connection with, the review by
the National Association of Securities Dealers, Inc. (the "NASD") of the terms
of the sale of the Securities.
(b) Expenses of the Selling Stockholder. The Selling Stockholder will
pay all expenses incident to the performance of its obligations under, and the
consummation of the transactions contemplated by, this Agreement, including (i)
any stamp duties, capital duties and stock transfer taxes, if any, payable upon
the sale of the Securities to the Underwriters, and their transfer between the
Underwriters pursuant to an agreement between such Underwriters, and (ii) the
fees and disbursements of its counsel and accountants.
(c) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5, Section 9(a)(i)
or Section 11 hereof, the Company and the Selling Stockholder shall reimburse
the Underwriters for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
(d) Allocation of Expenses. The provisions of this Section shall not
affect any agreement that the Company and the Selling Stockholder may make for
the sharing of such costs and expenses.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company and the Selling Stockholder
contained in Section 1 hereof or in certificates of any officer of the Company
or any subsidiary of the Company or on behalf of the Selling Stockholder
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delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement has become effective and at Closing Time no stop order
suspending the effectiveness of the Registration Statement shall have
been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the Underwriters. A
prospectus containing the Rule 430A Information shall have been filed
with the Commission in accordance with Rule 424(b) (or a post-effective
amendment providing such information shall have been filed and declared
effective in accordance with the requirements of Rule 430A).
(b) Opinion of Counsel for Company. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of
Closing Time, of Parker, Poe, Adams & Bernstein L.L.P., counsel for the
Company, in form and substance satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter
for each of the other Underwriters to the effect set forth in Exhibit A
hereto and to such further effect as counsel to the Underwriters may
reasonably request.
(c) Opinion of Counsel for the Selling Stockholder. At Closing
Time, the Representatives shall have received the favorable opinion,
dated as of Closing Time, of Tomotsune Kimura & Mitomi, counsel for the
Selling Stockholder, in form and substance satisfactory to counsel for
the Underwriters, together with signed or reproduced copies of such
letter for each of the other Underwriters, to the effect set forth in
Exhibit B hereto and to such further effect as counsel to the
Underwriters may reasonably request.
(d) Opinion of Counsel for Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of
Closing Time, of Brown & Wood LLP, counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of
the other Underwriters with respect to the matters set forth in clauses
(i), (ii), (v), (vi) (solely as to preemptive or other similar rights
arising by operation of law or under the charter or by-laws of the
Company), (viii) through (x), inclusive, (xii), (xiv) (solely as to the
information in the Prospectus under "Description of Capital
Stock--Common Stock") and the penultimate paragraph of Exhibit A
hereto. In giving such opinion such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the law of the State
of New York, the federal law of the United States and the General
Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the Representatives. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to
the extent they deem proper, upon certificates of officers of the
Company and its subsidiaries and certificates of public officials.
(e) Officers' Certificate. At Closing Time, there shall not
have been, since the date hereof or since the respective dates as of
which information is given in the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries
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considered as one enterprise, whether or not arising in the ordinary
course of business, and the Representatives shall have received a
certificate of the President or a Vice President of the Company and of
the chief financial or chief accounting officer of the Company, dated
as of Closing Time, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties in
Section 1(a) hereof are true and correct with the same force and effect
as though expressly made at and as of Closing Time, (iii) the Company
has complied in all material respects with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to
Closing Time, and (iv) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or are contemplated by the
Commission.
(f) Certificate of Selling Stockholder. At Closing Time, the
Representatives shall have received a certificate of an
Attorney-in-Fact on behalf of the Selling Stockholder, dated as of
Closing Time, to the effect that (i) the representations and warranties
of the Selling Stockholder contained in Section 1(b) hereof are true
and correct with the same force and effect as though expressly made at
and as of Closing Time and (ii) the Selling Stockholder has complied in
all material respects with all agreements and satisfied all conditions
on its part to be performed under this Agreement at or prior to Closing
Time. The Attorney-in-Fact shall be entitled to rely upon certificates
of the Selling Stockholder in giving this certificate.
(g) Accountant's Comfort Letter. At the time of the execution
of this Agreement, the Representatives shall have received from
PricewaterhouseCoopers a letter dated such date, in form and substance
satisfactory to the Representatives, together with signed or reproduced
copies of such letter for each of the other Underwriters containing
statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
(h) Bring-down Comfort Letter. At Closing Time, the
Representatives shall have received from PricewaterhouseCoopers a
letter, dated as of Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (g) of
this Section, except that the specified date referred to shall be a
date not more than three business days prior to Closing Time.
(i) No Objection. The NASD has confirmed that it has not
raised any objection with respect to the fairness and reasonableness of
the underwriting terms and arrangements.
(j) Lock-up Agreements. At the date of this Agreement, the
Representatives shall have received an agreement substantially in the
form of Exhibit C hereto signed by the persons listed on Schedule D
hereto.
(k) Conditions to Purchase of Option Securities. In the event
that the Underwriters exercise their option provided in Section 2(b)
hereof to purchase all or any portion of the Option Securities, the
representations and warranties of the Company and
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the Selling Stockholder contained herein and the statements in any
certificates furnished by the Company, any subsidiary of the Company
and the Selling Stockholder hereunder shall be true and correct as of
each Date of Delivery and, at the relevant Date of Delivery, the
Representatives shall have received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of the President or a Vice President of the Company and of
the chief financial or chief accounting officer of the Company
confirming that the certificate delivered at the Closing Time pursuant
to Section 5(e) hereof remains true and correct as of such Date of
Delivery.
(ii) Certificate of Selling Stockholder. A certificate, dated
such Date of Delivery, of an Attorney-in-Fact on behalf of the Selling
Stockholder confirming that the certificate delivered at Closing Time
pursuant to Section 5(f) remains true and correct as of such Date of
Delivery.
(iii) Opinion of Counsel for Company. The favorable opinion of
Parker, Poe, Adams & Bernstein L.L.P., counsel for the Company, in form
and substance satisfactory to counsel for the Underwriters, dated such
Date of Delivery, relating to the Option Securities to be purchased on
such Date of Delivery and otherwise to the same effect as the opinion
required by Section 5(b) hereof.
(iv) Opinion of Counsel for the Selling Stockholder. The
favorable opinion of Tomotsune Kimura & Mitomi, counsel for the Selling
Stockholder, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Section 5(c) hereof.
(v) Opinion of Counsel for Underwriters. The favorable opinion
of Brown & Wood LLP, counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Securities to be purchased on such
Date of Delivery and otherwise to the same effect as the opinion
required by Section 5(d) hereof.
(vi) Bring-down Comfort Letter. A letter from
PricewaterhouseCoopers, in form and substance satisfactory to the
Representative(s) and dated such Date of Delivery, substantially in the
same form and substance as the letter furnished to the Representatives
pursuant to Section 5(g) hereof, except that the "specified date" in
the letter furnished pursuant to this paragraph shall be a date not
more than five calendar days prior to such Date of Delivery.
(l) Additional Documents. At Closing Time and at each Date of
Delivery counsel for the Underwriters shall have been furnished with
such documents and opinions as they may reasonably require for the
purpose of enabling them to pass upon the sale of the Securities as
herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company
and the Selling Stockholder in
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connection with the sale of the Securities as herein contemplated shall
be satisfactory in form and substance to the Representatives and
counsel for the Underwriters.
(m) Termination of Agreement. If any condition specified in
this Section shall not have been fulfilled when and as required to be
fulfilled, this Agreement, or, in the case of any condition to the
purchase of Option Securities on a Date of Delivery which is after the
Closing Time, the obligations of the several Underwriters to purchase
the relevant Option Securities, may be terminated by the
Representatives by notice to the Company and the Selling Stockholder at
any time at or prior to Closing Time or such Date of Delivery, as the
case may be, and such termination shall be without liability of any
party to any other party except as provided in Section 4 and except
that Sections 1, 6, 7 and 8 shall survive any such termination and
remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company and the Selling
Stockholder, jointly and severally, agree to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in
any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company and the Selling Stockholder;
and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Merrill
Lynch), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
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provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through Merrill Lynch expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A Information or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto). The foregoing indemnity with respect to any untrue statement contained
in or omission from a preliminary prospectus shall not inure to the benefit of
any Underwriter (or any person controlling such Underwriter) from whom the
person asserting any such loss, liability, claim, damage or expense purchased
any of the Securities which are the subject thereof if the Company or the
Selling Stockholder shall sustain the burden of proving that such person was not
sent or given a copy of the Prospectus (or the Prospectus as amended or
supplemented) at or prior to the written confirmation of the sale of such
Securities to such person and the untrue statement contained in or omission from
such preliminary prospectus was corrected in the Prospectus (or the Prospectus
as amended or supplemented).
(b) Indemnification of Company, Directors and Officers and Selling
Stockholder. Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and the Selling
Stockholder and each person, if any, who controls the Selling Stockholder within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
including the Rule 430A Information or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through Merrill Lynch expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Merrill Lynch, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company and/or the Selling
Stockholder. An indemnifying party may participate at its own expense in the
defense of any such action; provided, however, that counsel to the indemnifying
party shall not (except with the consent of the indemnified party) also be
counsel to the indemnified party. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior
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written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
(e) Other Agreements with Respect to Indemnification. The provisions of
this Section shall not affect any agreement among the Company and the Selling
Stockholder with respect to indemnification.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Selling Stockholder on the one hand and the Underwriters on the other hand from
the offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the
Selling Stockholder on the one hand and of the Underwriters on the other hand in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company and the Selling
Stockholder on the one hand and the Underwriters on the other hand in connection
with the offering of the Securities pursuant to this Agreement shall be deemed
to be in the same respective proportions as the total net proceeds from the
offering of the Securities pursuant to this Agreement (before deducting
expenses) received by the Company and the Selling Stockholder and the total
underwriting discount received by the Underwriters, in each case as set forth on
the cover of the Prospectus, bear to the aggregate public offering price of the
Securities as set forth on such cover.
24
<PAGE> 29
The relative fault of the Company and the Selling Stockholder on the
one hand and the Underwriters on the other hand shall be determined by reference
to, among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Selling Stockholder or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company, the Selling Stockholder and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
7. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company or the
Selling Stockholder within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Company or
the Selling Stockholder, as the case may be. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the number of Initial Securities set forth opposite their respective names in
Schedule A hereto and not joint.
The provisions of this Section shall not affect any agreement among the
Company and the Selling Stockholder with respect to contribution.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or the Selling
Stockholder submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any
25
<PAGE> 30
Underwriter or controlling person, or by or on behalf of the Company or the
Selling Stockholder, and shall survive delivery of the Securities to the
Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Company and the Selling Stockholder, at any time at
or prior to Closing Time (i) if there has been, since the time of execution of
this Agreement or since the respective dates as of which information is given in
the Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
judgment of the Representatives, impracticable to market the Securities or to
enforce contracts for the sale of the Securities, or (iii) if trading in any
securities of the Company has been suspended or materially limited by the
Commission or the New York Stock Exchange, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the Nasdaq National
Market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by
any of said exchanges or by such system or by order of the Commission, the
National Association of Securities Dealers, Inc. or any other governmental
authority, or (iv) if a banking moratorium has been declared by either Federal
or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at Closing Time or a Date of Delivery to purchase
the Securities which it or they are obligated to purchase under this Agreement
(the "Defaulted Securities"), the Representatives shall have the right, within
24 hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10%
of the number of Securities to be purchased on such date, each of the
non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
number of Securities to be purchased on such date, this Agreement or,
with respect to any Date of Delivery
26
<PAGE> 31
which occurs after the Closing Time, the obligation of the Underwriters
to purchase and of the Selling Stockholder to sell the Option
Securities to be purchased and sold on such Date of Delivery shall
terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after the
Closing Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Selling Stockholder to sell the relevant Option
Securities, as the case may be, either the (i) Representatives or (ii) the
Company and the Selling Stockholder shall have the right to postpone Closing
Time or the relevant Date of Delivery, as the case may be, for a period not
exceeding seven days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements. As used
herein, the term "Underwriter" includes any person substituted for an
Underwriter under this Section 10.
SECTION 11. Default by the Selling Stockholder. If the Selling
Stockholder shall fail at Closing Time or at a Date of Delivery to sell and
deliver the number of Securities which the Selling Stockholder is obligated to
sell hereunder, then the Underwriters may, at option of the Representatives,
either (a) terminate this Agreement without any liability on the fault of any
non-defaulting party except that the provisions of Sections 1, 4, 6, 7 and 8
shall remain in full force and effect or (b) elect to purchase the Securities
which the Selling Stockholder have agreed to sell. No action taken pursuant to
this Section 11 shall relieve the Selling Stockholder so defaulting from
liability, if any, in respect of such default.
In the event of a default by the Selling Stockholder as referred to in
this Section 11, each of the Representatives shall have the right to postpone
Closing Time or Date of Delivery for a period not exceeding seven days in order
to effect any required change in the Registration Statement or Prospectus or in
any other documents or arrangements.
SECTION 12. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at North Tower, World
Financial Center, New York, New York 10281-1201, attention of Equity Syndicate;
notices to the Company and the Selling Stockholder shall be directed to either
of them at AVX Corporation, 801 17th Avenue South, Myrtle Beach, SC 29577,
attention of Mr. Donald B. Christiansen, Chief Financial Officer.
SECTION 13. Parties. This Agreement shall each inure to the benefit of
and be binding upon the Underwriters, the Company and the Selling Stockholder
and their respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriters, the Company and the Selling
Stockholder and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained.
27
<PAGE> 32
This Agreement and all conditions and provisions hereof are intended to be for
the sole and exclusive benefit of the Underwriters, the Company and the Selling
Stockholder and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 14. Waiver of Immunities. To the extent that the Selling
Stockholder or any of its properties, assets or revenues may have or may
hereafter become entitled to, or have attributed to the Selling Stockholder, any
right of immunity, on the grounds of sovereignty or otherwise, from any legal
action, suit or proceeding, from the giving of any relief in any such legal
action, suit or proceeding, from setoff or counterclaim, from the jurisdiction
of any court, from service of process, from attachment upon or prior to
judgment, from attachment in aid of execution of judgment, or from execution of
judgment, or other legal process or proceeding for the giving of any relief or
for the enforcement of any judgment, in any jurisdiction in which proceedings
may at any time be commenced, with respect to the obligations and liabilities of
the Selling Stockholder, or any other matter under or arising out of or in
connection with this Agreement, the Selling Stockholder hereby irrevocably and
unconditionally waives, and agrees not to plead or claim, any such immunity and
consents to such relief and enforcement.
SECTION 15. Selling Stockholder's Consent to Jurisdiction; Appointment
of Agent for Service of Process.
(a) The Selling Stockholder, by the execution and delivery of this
Agreement, agrees that service of process may be made upon CT Corporation
System, 111 Eighth Avenue, New York, NY, 10011 (or its successors as agent for
service of process), in the County, City and State of New York, United States of
America in any suit or proceeding against the Selling Stockholder instituted by
any Underwriter or by any person controlling any Underwriter based on or arising
under this Agreement in any federal or state court in the State of New York,
County of New York, and hereby irrevocably consents and submits to the
nonexclusive jurisdiction of any such court in personam generally and
unconditionally in respect of any such suit or proceeding.
(b) The Selling Stockholder further, by the execution and delivery of
this Agreement, for a period ending on the sixth anniversary of the Closing Date
irrevocably agrees to designate, appoint and empower CT Corporation System, 111
Eight Avenue, New York, NY, 10011, as its designee, appointee and authorized
agent to receive for and on its behalf service of any and all legal process,
summons, notices and documents that may be served in any action, suit or
proceeding brought against the Selling Stockholder with respect to its
obligations, liabilities or any other matter arising out of or in connection
with this Agreement and that may be made on such designee, appointee and
authorized agent in accordance with legal procedures prescribed for such courts,
and it being understood that the designation and appointment of CT Corporation
System as such authorized agent shall become effective immediately without any
further action on the part of the Selling Stockholder. The Selling Stockholder
represents to each Underwriter that it has notified CT Corporation System of
such designation and appointment and that CT Corporation System has accepted the
same. The Selling Stockholder further agrees that, to the extent permitted by
law, service of process upon CT Corporation System (or its successors as agent
for service of process) and written notice of said service to the Selling
Stockholder
28
<PAGE> 33
pursuant to Section 12, shall be deemed in every respect effective service of
process upon the Selling Stockholder in any such suit or proceeding. If for any
reason such designee, appointee and agent hereunder shall cease to be available
to act as such, the Selling Stockholder agrees to designate a new designee,
appointee and agent in The City and County of New York, New York on the terms
and for the purposes of this Section 15 reasonably satisfactory to the
Representatives. The Selling Stockholder further hereby irrevocably consents and
agrees to accept the service of any and all legal process, summons, notices and
documents in any such action, suit or proceeding against the Selling Stockholder
if service of a copy thereof is made upon the relevant agent for service of
process referred to in this Section 15 (whether or not the appointment of such
agent shall for any reason prove to be ineffective or such agent shall accept or
acknowledge such service) and copies thereof are mailed by registered or
certified air mail, postage prepaid, by the Underwriters and other persons
referred to in Section 12 to the Selling Stockholder at its address specified in
or designated pursuant to this Agreement. So long as proper mail service is
accorded the Selling Stockholder, it agrees that the failure of any such
designee, appointee and agent to give any notice of such service to it shall not
impair or affect in any way the validity of such service or any judgment
rendered in any action or proceeding based thereon. Nothing herein shall in any
way be deemed to limit the ability of the Underwriters and the other persons
referred to in Section 12 to serve any such legal process, summons, notices and
documents in any other manner permitted by applicable law or to obtain
jurisdiction over the Selling Stockholder or bring actions, suits or proceedings
against the Selling Stockholder in such other jurisdictions, and in such manner,
as may be permitted by applicable law. The Selling Stockholder hereby
irrevocably and unconditionally waives, to the fullest extent permitted by law,
any objection that it may now or hereafter have to the laying of venue of any of
the aforesaid actions, suits or proceedings arising out of or in connection with
this Agreement brought in the federal courts located in The City and County of
New York, New York or the courts of the State of New York located in The City
and County of New York, New York and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
(c) The provisions of this Section 15 shall survive any termination of
this Agreement, in whole or in part.
SECTION 16. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 17. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
29
<PAGE> 34
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Attorney-in-Fact for
the Selling Stockholder a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement among the Underwriters,
the Company and the Selling Stockholder in accordance with its terms.
Very truly yours,
AVX CORPORATION
By
----------------------------------------
Title:
KYOCERA CORPORATION, the Selling
Stockholder
By
----------------------------------------
As Attorney-in-Fact acting on behalf of
Kyocera Corporation as Selling
Stockholder
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
MORGAN STANLEY & CO. INCORPORATED
SALOMON SMITH BARNEY INC.
BY: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By
--------------------------------------------
Authorized Signatory
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
30
<PAGE> 35
SCHEDULE A
Number of
Name of Underwriter Initial Securities
------------------- ------------------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated..................................
Donaldson, Lufkin & Jenrette Securities Corporation
Morgan Stanley & Co. Incorporated
Salomon Smith Barney Inc.
---------
Total............................................. 5,250,000
=========
Sch A - 1
<PAGE> 36
SCHEDULE B
Number of Initial Maximum Number of Option
Securities to be Sold Securities to Be Sold
--------------------- ------------------------
Kyocera Corporation 5,250,000 750,000
Total....................... 5,250,000 750,000
Sch B - 1
<PAGE> 37
SCHEDULE C
AVX CORPORATION
5,250,000 Shares of Common Stock
(Par Value $.01 Per Share)
1. The public offering price per share for the Securities, determined
as provided in said Section 2, shall be $*.
2. The purchase price per share for the Securities to be paid by
the several Underwriters shall be $*, being an amount equal to the public
offering price set forth above less $o per share; provided that the purchase
price per share for any Option Securities purchased upon the exercise of the
over-allotment option described in Section 2(b) shall be reduced by an amount
per share equal to any dividends or distributions declared by the Company and
payable on the Initial Securities but not payable on the Option Securities.
Sch C - 1
<PAGE> 38
SCHEDULE D
List of persons and entities subject to lock-up
Sch D - 1
<PAGE> 39
SCHEDULE E
Subsidiaries of AVX Corporation
Sch E - 1
<PAGE> 40
Exhibit A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)
A-1
<PAGE> 41
Exhibit B
FORM OF OPINION OF COUNSEL FOR THE SELLING STOCKHOLDER
TO BE DELIVERED PURSUANT TO SECTION 5(c)
B-1
<PAGE> 42
FORM OF LOCK-UP FROM DIRECTORS, OFFICERS OR OTHER STOCKHOLDERS PURSUANT TO
SECTION 5(k)
Exhibit C
February __, 2000
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated,
Donaldson, Lufkin & Jenrette Securities Corporation
Morgan Stanley & Co. Incorporated
Salomon Smith Barney Inc.
as Representative(s) of the several
Underwriters to be named in the
within-mentioned Purchase Agreement
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Re: Proposed Registration by AVX Corporation
Dear Sirs:
The undersigned, a stockholder, officer and/or director of AVX Corporation, a
Delaware corporation (the "Company"), understands that Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch"), Donaldson,
Lufkin & Jenrette Securities Corporation, Morgan Stanley & Co. Incorporated,
Salomon Smith Barney Inc., propose to enter into a Purchase Agreement (the
"Purchase Agreement") with the Company and the Selling Stockholder (as defined
therein) providing for the public offering of shares (the "Securities") of the
Company's common stock, par value $.01 per share (the "Common Stock"). In
recognition of the benefit that such an offering will confer upon the
undersigned as a stockholder, officer and/or director of the Company, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the undersigned agrees with each underwriter to be named in
the Purchase Agreement that, during a period of 90 days from the date of the
Purchase Agreement, the undersigned will not, without the prior written consent
of Merrill Lynch, directly or indirectly, (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant for the sale of, or otherwise
dispose of or transfer any shares of the Company's Common Stock or any
securities convertible into or exchangeable or exercisable for Common Stock,
whether now owned or hereafter acquired by the undersigned or with respect to
which the undersigned has or hereafter acquires the power of disposition, or
file any registration statement under the Securities Act of 1933, as amended,
with respect to any of the foregoing or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Stock, whether
any such swap or transaction is to be settled by delivery of Common Stock or
other securities, in cash or otherwise.
Very truly yours,
Signature:
---------------------------
Print Name:
--------------------------
C-1
<PAGE> 1
Exhibit 5.1
February 11, 2000
Board of Directors
AVX Corporation
801 17th Avenue South
Myrtle Beach, South Carolina 29577
Re: AVX Corporation/6,000,000 Shares of Common Stock
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 (No. 333-95057) on Form S-3 (as amended through the date
hereof, the "Registration Statement"). 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.
The Registration Statement covers resales by a selling stockholder
listed in the Registration Statement (the "Selling Stockholder") of certain
shares of the Company's Common Stock, par value $.01 per share (the "Common
Stock"), to the public pursuant to a Purchase Agreement by and between the
Company, the Selling Stockholder, and Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Donaldson, Lufkin & Jenrette Securities
Corporation, Morgan Stanley & Co. Incorporated and Salomon Smith Barney Inc. as
representatives of the underwriters (the "Purchase Agreement").
In our representation of the Company, we have examined (1) the
Registration Statement, (2) the Company's Certificate of Incorporation and
Bylaws, as amended to date, (3) pertinent actions of the Company's Board of
Directors and stockholders, (4) the form of certificate for the Company's Common
Stock, (5) the form of Purchase Agreement filed as Exhibit 1.1 to the
Registration Statement, 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 6,000,000
shares of Common Stock issued by the Company to the Selling Stockholder and
included in the Registration Statement have been, and will be when sold pursuant
to the Registration Statement, duly authorized, validly issued, fully paid and
non-assessable.
The opinions expressed herein are limited to the laws of the General
Corporation Law of the State of Delaware and the Act.
<PAGE> 2
Board of Directors
AVX Corporation
February 11, 2000
Page 2
We hereby consent to the use of this opinion letter as Exhibit 5.1 to
the Registration Statement and to the use of our name under the heading "Legal
Matters" in related prospectuses. 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,
Parker, Poe, Adams & Bernstein L.L.P.
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report, dated May 14, 1999, relating to the
financial statements, which appear in AVX Corporation's Annual Report on Form
10-K for the year ended March 31, 1999 and the use in this Registration
Statement on Form S-3 of our report dated May 14, 1999 relating to the financial
statements which appear in such Registration Statement. We also consent to the
references to us under the headings "Experts" and "Selected Financial Data" in
such Registration Statement.
PricewaterhouseCoopers LLP
Atlanta, Georgia
February 11, 2000
<PAGE> 1
EXHIBIT 23.3
TOMOTSUNE KIMURA & MITOMI
SANNO GRAND BUILDING
14-2, NAGATACHO 2-CHOME, CHIYODA-KU
TOKYO 100-0014, JAPAN
TELEPHONE: 81-3-3580-0800
TELEX: J28596 TKANDM
FACSIMILE: 81-3-3593-3336
CONSENT OF TOMOTSUNE KIMURA & MITOMI
We hereby consent to the reference to Tomotsune Kimura & Mitomi under
the caption "Enforceability of Civil Liabilities" in the Registration Statement
No. 333-95057 and the related Prospectus.
/s/ Tomotsune Kimura & Mitomi
Tomotsune Kimura & Mitomi
February 8, 2000
