-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, MWuKedfLR6F5xGWDk1RJRiwPE5p8NJHQlYawitzabLvu+qMTHSmqd3F8Pv87cLnI FT2+mYX1wPCfkZJ3Yz/Zlg== 0000927016-99-002806.txt : 19990806 0000927016-99-002806.hdr.sgml : 19990806 ACCESSION NUMBER: 0000927016-99-002806 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19990805 EFFECTIVENESS DATE: 19990805 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AEROVOX INC CENTRAL INDEX KEY: 0000856164 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRICAL INDUSTRIAL APPARATUS [3620] IRS NUMBER: 760254329 STATE OF INCORPORATION: DE FISCAL YEAR END: 0102 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-84591 FILM NUMBER: 99678751 BUSINESS ADDRESS: STREET 1: 740 BELLEVILLE AVE CITY: NEW BEDFORD STATE: MA ZIP: 02745-6194 BUSINESS PHONE: 5089958000 MAIL ADDRESS: STREET 1: 740 BELLEVILLE AVE CITY: NEW BEDFORD STATE: MA ZIP: 02745-6194 S-8 1 EMPLOYEE STOCK PURCHASE PLAN As filed with the Securities and Exchange Commission on August 5, 1999 File No. 333-______________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------------------ FORM S-8 REGISTRATION STATEMENT Under THE SECURITIES ACT OF 1933 ------------------------ AEROVOX INCORPORATED (Exact name of registrant as specified in its charter) DELAWARE 76-0254329 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification No.) 740 Belleville Avenue New Bedford, Massachusetts 02745 (Address of principal executive offices, including zip code) EMPLOYEE STOCK PURCHASE PLAN ------------------------ (Full title of the plan) Jeffrey A. Templer Chief Financial Officer Aerovox Incorporated 740 Belleville Avenue New Bedford, Massachusetts 02745 (508) 994-9661 -------------------------------------------- (Name, Address and Telephone Number, including Area Code, of Agent for Service) CALCULATION OF REGISTRATION FEE
============================================================================================================= Title Of Securities Amount To Be Proposed Maximum Proposed Maximum Amount Of To Be Registered Registered Offering Price Per Aggregate Offering Registration Fee Share (1) Price (1) - ------------------------------------------------------------------------------------------------------------- Common Stock, Par Value $1.00 (including preferred share purchase rights) 100,000 shares (2) $2.50 $250,000 $69.50 =============================================================================================================
(1) Determined pursuant to Rule 457(h) solely for the purpose of determining the registration fee. All 100,000 shares are available for purchase under the Employee Stock Purchase Plan at prices still to be determined. The maximum per share and aggregate offering prices for these shares have been determined on the basis of the average of the high and low prices of the Common Stock reported on the National Association of Security Dealers, Inc. Automated Quotations National Market System on August 4, 1999 to be $2.50 and $250,000, respectively. (2) Plus such indeterminate number of additional shares as may be required in the event of a stock dividend, stock split or combination of shares, reverse stock split or other change in the capitalization of Aerovox Incorporated. Prior to the occurrence of certain events the preferred share purchase rights will not be evidenced separately from the Common Stock. Exhibit Index on Page II-5 Page 1 of 8 Pages. ================================================================================ PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. --------------------------------------- Aerovox Incorporated (the "Registrant" or the "Company") hereby incorporates the following documents herein by reference: (a) Annual Report on Form 10-K for the fiscal year ended January 2, 1999 filed with the Securities and Exchange Commission (the "Commission") on April 1, 1999. (File No. 000-18018). (b) (i) Quarterly Report on Form 10-Q for the quarter ended April 3, 1999 filed with the Commission on May 18, 1999. (ii) Current Report on Form 8-K filed with the Commission on April 14, 1999. (c) Description of the Company's Common Stock contained in its information statement dated February 9, 1990 filed with the Commission on February 15, 1990 as an Amendment on Form 8 to the Company's Registration Statement on Form 10 filed with the Commission on October 11, 1989. All documents subsequently filed by the Registrant or the Plan pursuant to Section 13(a), Section 13(c), Section 14 and Section 15(d) of the Exchange Act prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated herein by reference from the date of filing of such documents. Item 4. Description of Securities. ------------------------- Not applicable. Item 5. Interests of Named Experts and Counsel. -------------------------------------- Not applicable. Item 6. Indemnification of Directors and Officers. ----------------------------------------- Section 145 of the Delaware General Corporation Law, as amended, provides that a corporation may 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 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, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent 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 the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. Section 145 further provides that a corporation similarly may indemnify any such person serving in any such capacity who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor, against expenses actually and reasonably incurred in connection with the defense or settlement of such action or suit if he 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 except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Delaware Court of Chancery or such other court in which such action or suit was brought shall determine upon application that, despite the adjudication II-1 of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. Section 102(b)(7) of the Delaware General Corporation Law, as amended, permits a corporation to include in its certificate of incorporation a provision eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision shall not eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law (relating to unlawful payment of dividends and unlawful stock purchase and redemption) or (iv) for any transaction from which the director derived an improper personal benefit. Aerovox's Restated Certificate of Incorporation (the "Aerovox Certificate") provides that each person who is or was a party, or is threatened to be made a party, to any action, suit, proceeding or claim by reason of the fact that he or she is or was or has agreed to be a director or officer of Aerovox (or is or was serving at the request of Aerovox as a director, officer, partner, trustee, employee or agent for any other entity) shall be indemnified and held harmless by Aerovox, to the full extent authorized by Delaware law, as in effect from time to time, against all expenses (including attorneys' fees), judgments, fines, penalties and amounts paid in settlement incurred by such person in connection with the investigation, preparation to defend or defense of such action, suit, proceeding or claim. The rights to indemnification and the payment of expenses provided by the Aerovox Certificate do not apply to any action, suit, proceeding or claim initiated by or on behalf of a person otherwise entitled to the benefit of such provisions. Any person seeking indemnification under the Aerovox Certificate shall be deemed to have met the standard of conduct required for such indemnification unless the contrary shall be established. The Aerovox Certificate provides that the rights to indemnification and the payment of expenses provided thereby shall not be exclusive of any other right which any person may have or acquire under any provision of the Aerovox By-Laws, or otherwise. Any repeal or modification of such indemnification provisions shall not adversely affect any right or protection of a director or officer with respect to any conduct of such director or officer occurring prior to such repeal or modification. Aerovox has also entered into Indemnification Agreements with each director and certain officers of Aerovox and its subsidiary, Aerovox Canada. The Indemnification Agreements provide a number of procedures, presumptions and remedies used in the determination of the rights of the director or officer to indemnification. These procedures, presumptions and remedies substantially broaden the indemnity rights of directors and officers beyond that provided by the Aerovox Certificate. If an action against an indemnified party is dismissed with or without prejudice, the defense is deemed to have been successful and the indemnification is required to be made. The Indemnification Agreements provide that expenses must be paid within twenty days of the indemnification request (otherwise a determination in favor of the indemnified party is deemed to have been made). If there is a change in control of Aerovox (as defined in the Indemnification Agreement), the indemnified party is presumed to be entitled to indemnification (although Aerovox may overcome this presumption). The indemnified party may require that independent counsel make the determination of entitlement and may choose such counsel, subject to objection by Aerovox on limited grounds. If a determination of entitlement is made, Aerovox is bound, but if the indemnified party has previously been denied indemnification pursuant to the terms of the Indemnification Agreement he or she is entitled to seek a de novo determination from a court. Aerovox is precluded from challenging the validity of the procedures and presumptions contained in the Indemnification Agreement in any court proceeding. The Indemnification Agreement covers proceedings brought on or after the date of the execution of the particular Indemnification Agreement, including proceedings based on acts prior to the date of that Agreement. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. II-2 Item 7. Exemption From Registration Claimed. ----------------------------------- Not applicable. Item 8. Exhibits. -------- Exhibit 4.1 Employee Stock Purchase Plan. 5 Opinion of Ropes & Gray. 23.1 Consent of PricewaterhouseCoopers LLP. 23.2 Consent of Ropes & Gray (see Exhibit 5). 24 Power of Attorney (included on Signature Page). 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 of 1933, (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, and (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 paragraphs (a)(1)(i) and (a)(1)(ii) shall not apply if 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 Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement; (2) that, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, 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 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 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. (c) 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 II-3 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. II-4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, 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 on Form S-8 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New Bedford, The Commonwealth of Massachusetts, on this 30th day of July, 1999. AEROVOX INCORPORATED By: /s/ Jeffrey A. Templer ------------------------------------- Name: Jeffrey A. Templer Title: Senior Vice President and Chief Financial Officer POWER OF ATTORNEY ----------------- Pursuant to the requirement of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated. Each person whose signature appears below hereby authorizes and constitutes Robert D. Elliott and Jeffrey A. Templer, and each of them singly, his or her true and lawful attorneys with full power to them, and each of them singly, to sign for him or her and in his or her name in the capacities indicated below any and all amendments (including post- effective amendments) to this Registration Statement and to file the same, with exhibits thereto, and other documents in connection therewith, and he or she hereby ratifies and confirms his or her signature as it may be signed by said attorneys, or any of them, to any and all such amendments.
Signature Capacity in Which Signed Date - --------- ------------------------ ---- /s/ Robert D. Elliott Chief Executive Officer July 30, 1999 - --------------------------------------- (Principal Executive Officer) and Robert D. Elliott Director /s/ Jeffrey A. Templer Chief Financial Officer July 30, 1999 - --------------------------------------- (Principal Financial Officer and Jeffrey A. Templer Principal Accounting Officer) /s/ William G. Little Director July 30, 1999 - --------------------------------------- William G. Little /s/ John L. Sprague Director July 30, 1999 - --------------------------------------- John L. Sprague /s/ John F. Brennan Director July 30, 1999 - --------------------------------------- John F. Brennan
II-5
/s/ Dennis Horowitz Director July 30, 1999 - --------------------------------------- Dennis Horowitz /s/ Sherel D. Horsley Director July 30, 1999 - --------------------------------------- Sherel D. Horsley /s/ Benedict P. Rosen Director July 30, 1999 - --------------------------------------- Benedict P. Rosen
II-6 EXHIBIT INDEX
Number Title of Exhibit Page - ------ ---------------- ---- 4.1 Employee Stock Purchase Plan. 5 Opinion of Ropes & Gray. 23.1 Consent of PricewaterhouseCoopers LLP. 23.2 Consent of Ropes & Gray (see Exhibit 5). 24 Power of Attorney (included on Signature Page).
EX-4.1 2 EMPLOYEE STOCK PURCHASE PLAN AEROVOX INCORPORATED EMPLOYEE STOCK PURCHASE PLAN ---------------------------- 1. Participation: All full-time adult employees (including employees who ------------- are also directors) of Aerovox Incorporated ("Aerovox") and/or of any majority- owned subsidiary of Aerovox (collectively, the "Company") are eligible to participate in the Aerovox Incorporated Employee Stock Purchase Plan set forth herein (the "Plan") during their period of employment. Periods of leave and layoff are considered as employment only in accordance with the personnel rules of the particular Company employing the participant in effect at the time of a purchase of Common Stock, $1.00 par value per share, of Aerovox ("Aerovox Stock") under the Plan. An eligible employee may commence participation in the Plan by completing the enrollment form, which is available from the Personnel Department. Participation in the Plan will commence on the date indicated on such form. 2. Participant Payments. Each participant may make optional payments in -------------------- each calendar year up to 15% of his year-to-date compensation to be applied to the purchase of Aerovox Stock. If a participant elects to make payments in an amount less than the maximum 15% amount in a year, the difference between the 15% maximum and the amount of his actual payments cannot be carried over to any other year. Payments to be applied toward the purchase of shares for a month may be made in cash or by payroll deduction and in each case must be paid on or before the last business day of Aerovox's accounting period for such month. For purposes of the Plan, "compensation" means base compensation without regard to overtime, bonuses, etc. Compensation shall be determined prior to any elective contributions under a cash or other deferred arrangement qualified under Section 401(k) of the Internal Revenue Code of 1986, as amended (the "Code"), or under a so-called cafeteria plan within the meaning of Section 125 of the Code. 3. Employer Payments: Each particular Company employing a participant ----------------- shall apply its own funds to the purchase of Aerovox Stock in an amount equal to 10% of the participant's optional payment plus an additional 0.75% for each full year of the participant's continuous employment with the Company since January 1, 1973 (except that if the particular Company employing a participant has been acquired by Aerovox or one of its majority-owned subsidiaries, only employment subsequent to such acquisition shall be counted) up to a maximum Company payment of 25% of the participant's optional payment. 4. Purchase of Aerovox Stock: (a) Participant and Company payments shall ------------------------- be used to purchase the maximum number of whole shares of authorized but unissued or treasury shares of Aerovox Stock which can be purchased with the aggregate payments. The purchase price for the Aerovox Stock is the average of the reported high and low sales prices for the Aerovox Stock on the New York Stock Exchange ("NYSE") on the last business day of the accounting period for Aerovox each month or, if the Aerovox Stock is listed on the NYSE but is not traded on the NYSE on such day, the purchase price is the average of such sales prices on the next day on which the Aerovox Stock is traded, or if the Aerovox Stock is not listed on the NYSE on such day, the average of the reported high and low sales prices on such day for the Aerovox Stock on the principal securities market in which the Aerovox Stock is then traded, or if the Aerovox Stock is principally traded in a securities market which customarily reports sales prices but there are not reported high and low sales prices for such day, the average of the reported high and low sales prices on the next day on which such prices are proved, or if the Aerovox Stock is principally traded in a securities market which does not customarily report sales prices, the average of the high and low bid prices and the high and low asked prices for such day. (b) No fractional shares shall be sold under the Plan; funds from optional cash payments by a participant remaining after the purchase of the maximum number of whole shares of Aerovox Stock which can be purchased with optional payments and Company payments shall be, at the participant's option, returned to him or carried forward and applied to the next monthly sale of Aerovox Stock under the Plan. Certificates for shares purchased under the Plan shall be issued in the name of the participant immediately prior to the record date for the next dividend after the purchase of such shares, or in the event Aerovox is not declaring regular dividends no less frequently than once each fiscal quarter, with the specific time determined by the Vice President-Finance of Aerovox. Adjustment shall be made in the number of shares purchased for stock dividends, stock splits and similar changes in the capitalization of Aerovox which occur between the time of purchase and the time at which such shares are issued in the name of the participant. 5. Interpretation and Amendment of the Plan: The Board of Directors of ---------------------------------------- Aerovox has complete authority to interpret the Plan; all interpretations by the Board are final and binding on participants. The Board also has the right to amend or terminate the Plan at any time with respect to shares not already purchased thereunder. 6. Miscellaneous. An aggregate of 200,000 shares of Aerovox Stock are ------------- reserved for issuance under the Plan, which number of shares shall be appropriately adjusted for stock dividends, stock splits and similar changes in the capitalization of Aerovox occurring after the effective date of the Plan. The Plan shall become effective on the first day on which the Aerovox Stock is publicly traded or such later time as shall be determined by the Vice President- Finance of Aerovox. A participant may withdraw from the Plan at any time and shall be deemed to have withdrawn upon termination of employment with the Company. Upon such withdrawal the Company shall pay to the participant in cash the amount of his optional payments (but not including any Company payments) to the Plan which have not theretofore been used to purchase Aerovox Stock. There are no restrictions under the Plan on assigning or pledging a participant's interest in contributions held under the Plan. The adoption of the Plan does not confer on any employee any right to continued employment with the Company, nor does it interfere in any way with the right of the Company to terminate the employment of any of its employees at any time. -2- EX-5 3 OPINION OF ROPES & GRAY Ropes & Gray ONE INTERNATIONAL PLACE ONE FRANKLIN SQUARE BOSTON, MASSACHUSETTS 02110-2624 1301 K STREET, N.W. 30 KENNEDY PLAZA (617) 951-7000 SUITE 800 EAST PROVIDENCE, RI 02903-2358 FAX:(617) 951-7050 WASHINGTON, DC 20005-3333 (401) 455-4400 (202) 626-3900 FAX: (401) 455-4401 FAX:(202) 626-3961 August 5, 1999 Aerovox Incorporated 740 Belleville Avenue New Bedford, Massachusetts 02745 Re: Aerovox Incorporated -------------------- Ladies and Gentlemen: This opinion is furnished to you in connection with a registration statement on Form S-8 (the "Registration Statement"), filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended, for the registration of 100,000 shares of Common Stock, $1.00 par value (the "Shares"), of Aerovox Incorporated, a Delaware corporation (the "Company"). We have acted as counsel for the Company and are familiar with the action taken by the Company in connection with the Company's Employee Stock Purchase Plan (the "Plan"). For purposes of this opinion, we have examined the Plan and such other documents, records, certificates, and other instruments as we have deemed necessary. We express no opinion as to the applicability of compliance with or effect of federal law or the law of any jurisdiction other than The Commonwealth of Massachusetts and the General Corporation Law of the State of Delaware. Based on the foregoing, we are of the opinion that the Shares have been duly authorized and, when the Shares have been issued and sold and consideration received therefor by the Company in accordance with the terms of the Plan, the Shares will be validly issued, fully paid, and non-assessable. We, hereby, consent to your filing this opinion as an exhibit to the Registration Statement. It is understood that this opinion is to be used only in connection with the offer and sale of the Shares while the Registration Statement is in effect. Very truly yours, /s/ Ropes & Gray Ropes & Gray EX-23.1 4 CONSENT OF PRICEWATERHOUSECOOPERS LLP Exhibit 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS ---------------------------------- We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated February 23, 1999, except for certain information presented in Note 3 for which the date is February 26, 1999, relating to the financial statements, which appears in the 1998 Annual Report to Shareholders of Aerovox Incorporated, which is incorporated by reference in Aerovox Incorporated's Annual Report on Form 10-K for the year ended January 2, 1999. We also consent to the incorporation by reference of our report dated February 23, 1999, except for certain information presented in Note 3 for which the date is February 26, 1999 relating to the financial statement schedules, which appears in such Annual Report on Form 10-K. /s/ PricewaterhouseCoopers LLP Boston, Massachusetts August 4, 1999 -----END PRIVACY-ENHANCED MESSAGE-----