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Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
KEMET CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 57-0923789
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
2835 KEMET WAY
SIMPSONVILLE, SOUTH CAROLINA 29681
TELEPHONE: (864) 963-6300
(Address of principal executive offices)
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KEMET CORPORATION 1995 EXECUTIVE STOCK OPTION PLAN
(Full title of the plan)
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GLENN H. SPEARS
SENIOR VICE PRESIDENT AND SECRETARY
KEMET CORPORATION
2835 KEMET WAY
SIMPSONVILLE, SOUTH CAROLINA 29681
TELEPHONE: (864) 963-6300
(Name, address and telephone number of agent for service)
COPY TO:
H. KURT VON MOLTKE
KIRKLAND & ELLIS
200 EAST RANDOLPH DRIVE
CHICAGO, ILLINOIS 60601
TELEPHONE: (312) 861-2000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
Proposed maximum Proposed maximum
Amount to be offering aggregate Amount of
Title of securities to be registered registered price per share offering price registration fee
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<S> <C> <C> <C> <C>
Common Stock, par value $0.01 per share(1) 1,354,000 shares $ 12.84(2) $17,385,360(2) $4,834(2)
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Common Stock, par value $0.01 per share(1) 104,000 shares $32.125(3) $3,341,000(3) $929(3)
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Common Stock, par value $0.01 per share(1) 116,000 shares $19.25(4) $2,233,000(4) $621(4)
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Common Stock, par value $0.01 per share(1) 128,000 shares $25.75(5) $3,296,000(5) $917(5)
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Common Stock, par value $0.01 per share(1) 248,000 shares $11.41(6) $2,829,680(6) $787(6)
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</TABLE>
(1) Includes associated Preferred Share Purchase Rights.
(2) Based on the number of shares not yet subject to options issuable pursuant
to the executive stock option plan and estimated pursuant to Rule 457(h)
solely for the purpose of calculating the aggregate offering price and the
amount of the registration fee based upon the average of the bid and asked
prices reported for the shares on the Nasdaq National Market on November
19, 1998.
(3) Based on the number of shares subject to options issued pursuant to stock
option agreements where the exercise price is fixed at $32.125 and
determined pursuant to Rule 457(h) solely for the purpose of calculating
the aggregate offering price and the amount of the registration fee.
(4) Based on the number of shares subject to options issued pursuant to stock
option agreements where the exercise price is fixed at $19.25 and
determined pursuant to Rule 457(h) solely for the purpose of calculating
the aggregate offering price and the amount of the registration fee.
(5) Based on the number of shares subject to options issued pursuant to stock
option agreements where the exercise price is fixed at $25.75 and
determined pursuant to Rule 457(h) solely for the purpose of calculating
the aggregate offering price and the amount of the registration fee.
(6) Based on the number of shares subject to options issued pursuant to stock
option agreements where the exercise price is fixed at $11.41 and
determined pursuant to Rule 457(h) solely for the purpose of calculating
the aggregate offering price and the amount of the registration fee.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing information specified in Part I (plan information
and registrant information) will be sent or given to key employees of KEMET
Corporation (the "Company" or the "Registrant") selected to participate in the
KEMET Corporation 1995 Executive Stock Option Plan (the "Plan") as specified by
Rule 428(b)(1) under the Securities Act of 1933, as amended (the "Securities
Act"). Such documents need not be filed with the Securities and Exchange
Commission (the "Commission") either as part of this Registration Statement or
as prospectuses or prospectus supplements pursuant to Rule 424 under the
Securities Act. These documents and the documents incorporated by reference in
this Registration Statement pursuant to Item 3 of Part II of this Registration
Statement, taken together, constitute a prospectus that meets the requirements
of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Commission are
incorporated in and made a part of this Registration Statement by reference, as
of their respective dates:
(a) Annual Report on Form 10-K for the fiscal year ended March 31, 1998.
(b) Quarterly Reports on Form 10-Q for the quarterly periods ended June 30,
1998 and September 30, 1998.
(c) The description of the Registrant's common stock under the caption
"Item 1. Description of Registrant's Securities to be Registered" contained
in the Registrant's Registration Statement on Form 8-A, as amended (File
No. 000-20289), filed with the Commission on June 1, 1992 pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), including
any amendments or reports filed for the purpose of updating such
descriptions.
(d) The description of the Registrant's preferred share purchase rights
under the caption "Item 1. Description of Registrant's Securities to be
Registered: Preferred Stock Purchase Rights" contained in the Registrant's
Registration Statement on Form 8-A (File No. 000-20289) filed with the
Commission on July 8, 1996 pursuant to the Exchange Act, including any
amendments or reports filed for the purpose of updating such descriptions.
(e) All reports and other documents filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, subsequent to the
date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference herein and to be a part
hereof from the date of filing of such reports and documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is
incorporated or deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is incorporated under the laws of the State of Delaware.
Section 145 of the General Corporation Law of the State of Delaware ("Section
145") provides that a Delaware corporation may indemnify any person who is, or
is threatened to be made, a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of such corporation), by
reason of the fact that such person is or was an officer, director, employee or
agent of such corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another corporation or
enterprise. The indemnity may include expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding, provided such
person acted in good faith and in a manner he reasonably believed to be in or
not opposed to the corporation's best interests and, with respect to any
criminal action or proceeding, had no reasonable cause to believe that his
conduct was illegal. A Delaware corporation may indemnify any persons who are,
or are threatened to be made, a party to any threatened, pending or completed
action or suit by or in the right of the corporation by reason of the fact that
such person was a director, officer, employee or agent of such corporation, or
is or was serving at the request of such corporation as a director, officer,
employee or agent of another corporation or enterprise. The indemnity may
include expenses (including attorney's fees) actually and reasonably incurred by
such person in connection with the defense or settlement of such action or suit,
provided such person acted in good faith and in a manner he reasonably believed
to be in or not opposed to the corporation's best interests 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 has actually and reasonably incurred.
The Company's Restated Certificate of Incorporation provides for the
indemnification of directors and officers of the Company to the fullest extent
permitted by Section 145.
In that regard, the Restated Certificate of Incorporation provides that the
Company shall indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that he is or was a
director or officer of such corporation, or is or was serving at the request of
such corporation as a director, officer or member of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of such corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. Indemnification in connection with an action or suit
by or in the right of such corporation to procure a judgment in its favor is
limited to payment of settlement of such an action or suit except that no such
indemnification may be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable for negligence or misconduct
in the performance of his duty to the indemnifying corporation unless and only
to the extent that the Court of Chancery of Delaware or the court in which such
action or suit was brought shall determine that, despite the adjudication of
liability but in consideration of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such expenses which the court
shall deem proper.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibits to this Registration Statement are listed in the Index to
Exhibits of this Registration Statement, which Index to Exhibits is incorporated
herein by reference.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that the undertakings set forth in paragraphs (i) and
(ii) above do not apply if the Registration Statement is on Form S-3 or
Form S-8 and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of any employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act 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
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as expressed in the Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
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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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Simpsonville, State of South Carolina, on November
24, 1998.
KEMET CORPORATION
By: /s/ D. Ray Cash
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Name: D. Ray Cash
Title: Senior Vice President of
Administration, Treasurer and
Assistant Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints each of David E. Maguire and D. Ray Cash his true
and lawful attorney-in-fact, each with full power of substitution and
revocation, for him and in his name, place and stead, in any and all capacities
(including his capacity as a director and/or officer of KEMET Corporation), to
sign any and all amendments (including post-effective amendments) to this
Registration Statement, and to file the same with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto each such attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done, as fully to all intents and purposes as such person might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents or any of them, or their or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement and Power of Attorney have been signed on November 24,
1998, by the following persons in the capacities indicated.
<TABLE>
<CAPTION>
Signature Capacity
--------- --------
<S> /s/ DAVID E. MAGUIRE <C>
- ---------------------------------- Chairman, Chief Executive Officer, President and
David E. Maguire Director (Principal Executive Officer)
/s/ D. RAY CASH
- ---------------------------------- Senior Vice President of Administration,
D. Ray Cash Treasurer and Assistant Secretary
(Principal Accounting and Financial Officer)
/s/ CHARLES E. VOLPE
- ---------------------------------- Director
Charles E. Volpe
/s/ STEWART A. KOHL
- ---------------------------------- Director
Stewart A. Kohl
/s/ E. ERWIN MADDREY, II
- ---------------------------------- Director
E. Erwin Maddrey, II
/s/ PAUL C. SCHORR IV
- ---------------------------------- Director
Paul C. Schorr IV
</TABLE>
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INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
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4.1 Certificate representing shares of Common Stock of the Company
(incorporated by reference to Exhibit 4.1 to the Company's Registration
Statement on Form S-1 (Reg. No. 33-48056)).
4.2 Restated Certificate of Incorporation of the Company, as amended to
date (incorporated by reference to Exhibit 3.1 to the Company's
Quarterly Report on Form 10-Q for the Quarter ended December 31, 1992
(Reg. No. 000-20289).
4.3 Restated Bylaws of the Company, as amended to date (incorporated by
reference to Exhibit 3.1 to the Company's Quarterly Report on Form 10-Q
for the Quarter ended December 31, 1996 (Reg. No. 000-20289).
4.4 KEMET Corporation 1995 Executive Stock Option Plan (incorporated by
reference to the Company's Annual Report on Form 10-K for the Fiscal
Year ended March 31, 1996).
*5 Opinion of Kirkland & Ellis.
*23.1 Consent of Kirkland & Ellis (included in opinion filed as Exhibit 5).
*23.2 Consent of KPMG Peat Marwick LLP, independent certified public
accountants.
*24 Powers of Attorney (included in signature page).
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* Filed herewith.
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EXHIBIT 5.1
Kirkland & Ellis
Partnerships Including Professional Corporations
200 East Randolph Drive
Chicago, Illinois 60601
(312) 861-2000
To call writer direct: Facsimile:
(312) 861-2000 (312) 861-2200
November 24, 1998
KEMET Corporation
2835 KEMET Way
Simpsonville, South Carolina 29681
Re: KEMET Corporation
Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as special counsel to KEMET Corporation (the
"Company") in connection with the proposed registration by the Company of up to
1,950,000 shares of the Company's common stock, par value $.01 per share (the
"Common Stock"), issuable upon exercise of stock options granted under the KEMET
Corporation 1995 Executive Stock Option Plan (the "Plan"), pursuant to a
Registration Statement on Form S-8 filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Act") (such Registration Statement, as amended or supplemented, is hereinafter
referred to as the "Registration Statement").
The opinions contained in this letter (herein called "our
opinions") are based exclusively upon the General Corporation Law of the State
of Delaware, as now constituted. We express no opinion as to the applicability
of, compliance with, or effect of any other law or governmental requirement with
respect to the Company. For purposes of our opinions we have assumed without
independent investigation that factual information supplied to us for purposes
of our opinions is complete and accurate.
Based upon and subject to the foregoing, we hereby advise you
that in our opinion:
(1) The Company is a corporation existing and in good standing
under the General Corporation Law of the State of Delaware.
(2) Each share of Common Stock registered under the
Registration Statement and issuable under the Plan, when issued as
authorized by the Company upon payment of the
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KEMET Corporation
November 24, 1998
Page 2
consideration to be paid therefor (in an amount at least equal to the
par value of the related shares), will be validly issued, fully paid
and non-assessable.
For purposes of this letter we have relied without any
independent verification upon (i) information contained in one or more
certificates provided by the Secretary of State of the State of Delaware and
(ii) factual information supplied to us by the Company. We have assumed without
investigation that there has been no relevant change or development between the
dates as of which the information cited in the preceding sentence was given and
the date of this letter and that the information upon which we have relied is
accurate and does not omit disclosures necessary to prevent such information
from being misleading. For purposes of the opinion in numbered paragraph 1, we
have relied exclusively upon a certificate issued by the Secretary of State of
the State of Delaware, and such opinion is not intended to provide any
conclusion or assurance beyond that conveyed by that certificate.
We hereby consent to the filing of this opinion with the
Commission as Exhibit 5 to the Registration Statement. We also consent to the
reference to our firm under the heading "Legal Matters" in the related
Prospectus. In giving this consent, we do not thereby 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 thereunder.
We do not find it necessary for the purposes of this opinion,
and accordingly we do not purport to cover herein, the application of the
securities or "Blue Sky" laws of the various states to the issuance and sale of
each share of Common Stock registered under the Registration Statement.
This opinion is limited to the specific issues addressed
herein, and no opinion may be inferred or implied beyond that expressly stated
herein. We assume no obligation to revise or supplement this opinion should the
present laws of the State of Delaware be changed by legislative action, judicial
decision or otherwise.
Sincerely,
/s/ Kirkland & Ellis
Kirkland & Ellis
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EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
KEMET Corporation:
We consent to the use of our report incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the prospectus.
KPMG PEAT MARWICK LLP
Greenville, South Carolina
November 20, 1998
