Exhibit 1
AVNET, INC.
DEBT SECURITIES
PRICING AGREEMENT
March 1, 0000
XXXX XX XXXXXXX SECURITIES LLC
CREDIT SUISSE FIRST BOSTON LLC
BANC ONE CAPITAL MARKETS, INC.
ABN AMRO ROTHSCHILD LLC
SCOTIA CAPITAL (USA) INC.
RBC CAPITAL MARKETS
WACHOVIA CAPITAL MARKETS, LLC
As Representatives of the Several Underwriters
c/o Bank of America Securities LLC
0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Referring to the debt securities of Avnet, Inc., a New York
corporation (the "Company"), covered by the Registration Statement on Form S-3
(No. 333-107474) filed by the Company, on the basis of the representations,
warranties and agreements contained in this Agreement and in the Company's
Standard Underwriting Agreement Provisions for Debt Securities attached hereto
(the "Standard Underwriting Agreement"), and subject to the terms and conditions
set forth herein and therein, the underwriters named in Schedule I hereto (the
"Underwriters") agree to purchase, severally and not jointly, and the Company
agrees to sell to the Underwriters, $270,000,000 aggregate principal amount of
2% Convertible Senior Debentures due 2034 (the "Firm Debentures") in the
respective principal amounts set forth opposite the names of the Underwriters on
Schedule I hereto, and the Company also agrees to issue and sell to the
Underwriters, at the option of the Underwriters, an aggregate of not more than
$30,000,000 principle amount of Debentures (the "Optional Debentures," and,
together with the Firm Debentures, the "Debentures").
The price at which the Debentures shall be purchased from the
Company by the Underwriters shall be 97.5% of the principal amount thereof plus
accrued interest from March 5, 2004. The Debentures will be offered as set forth
in the Prospectus Supplement relating thereto. The Debentures will have the
following terms:
Title: 2% Convertible Senior Debentures due 2034.
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Interest Rate The Debentures will bear interest from March 5, 2004
at 2% per annum.
Interest Payment Dates: Interest on the Debentures is payable semi-annually
on March 15 and September 15 of each year commencing
on September 15, 2004.
Maturity: The Debentures will mature on March 15, 2034.
Conversion Rights: The Debentures are convertible at the option of the
holders under the circumstances and terms set forth
in the Prospectus Supplement.
Over-Allotment Option: The Company will grant an option to the Underwriters
to purchase from time to time, severally and not
jointly, up to $30,000,000 aggregate principal
amount of Debentures from the Company at the same
price as the purchase price to be paid by the
Underwriters for the Firm Debentures. Optional
Debentures may be purchased pursuant to a written
notice (the "Notice") from the Representatives to
the Company at their determination, on behalf of the
Underwriters, to purchase an aggregate number,
specified in said notice, of Optional Debentures, as
shall be designated by the Representatives. The
Notice may be given by the Representatives at any
time during the 13 days after the date of this
Pricing Agreement. If any Optional Debentures are to
be purchased, each Underwriter agrees, severally and
not jointly, to purchase the number of Optional
Debentures (subject to such adjustments to eliminate
fractional securities as the Representatives may
determine) that bears the same proportion to the
total number of Optional Debentures to be purchased
as the amount of Firm Debentures set forth opposite
the name of such Underwriter on Schedule I hereto
bears to the total amount of Firm Debentures.
Other Provisions: As set forth in the Prospectus Supplement relating
to the Debentures.
Closing for Firm Debentures: 9:30 a.m. on March 5, 2004, at the offices
of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP,
000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxxxxx,
Xxxxxxxxxx 00000, or such other time and
date not later than seven full business days
thereafter as the Representatives and the
Company agree to as to time and date for
payment and delivery (the "First Closing
Date").
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Closing for Optional Debentures: 9:30 a.m. on such date as shall be
designated in the Notice, at the offices of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP,
000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxxxxx,
Xxxxxxxxxx 00000, or such other time and
date not later than seven full business days
thereafter as the Representatives and the
Company agree to as to time and date for
payment and delivery, in any case no later
than 13 days after the First Closing Date
(an "Optional Closing Date").
Address of Representatives of the Underwriters:
c/o Bank of America Securities LLC
0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
The provisions contained in the Standard Underwriting Agreement
Provisions, a copy of which is attached hereto, are incorporated herein by
reference.
The First Closing Date and each Optional Closing Date, if any, may
be sometimes referred to as a "Closing Date."
A global certificate representing all of the Debentures will be made
available for inspection at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP, 000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, at least one
business day prior to the Closing Date.
This Pricing Agreement may be executed in one or more counterparts,
all of which counterparts shall constitute one and the same instrument.
[Signature page follows]
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If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon
it will become a binding agreement among the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
AVNET, INC.
By __________________________
Xxxxxxx Xxxxxxxx
Senior Vice President and
Chief Financial Officer
The foregoing Pricing Agreement
is hereby confirmed and accepted as of the
date first above written.
BANC OF AMERICA SECURITIES LLC
CREDIT SUISSE FIRST BOSTON LLC
BANC ONE CAPITAL MARKETS, INC.
ABN AMRO ROTHSCHILD LLC
SCOTIA CAPITAL (USA) INC.
RBC CAPITAL MARKETS
WACHOVIA CAPITAL MARKETS, LLC
Acting on behalf of themselves and as
Representatives of the several Underwriters
By: BANC OF AMERICA SECURITIES LLC
By: ______________________________
Xxxxxx Xxxxxxx
Managing Director
Schedule I
Principal
Underwriter Amount of Debentures
----------- --------------------
BANC OF AMERICA SECURITIES LLC............ $86,400,000
CREDIT SUISSE FIRST BOSTON LLC............ $86,400,000
BANC ONE CAPITAL MARKETS, INC............. $29,700,000
ABN AMRO ROTHSCHILD LLC................... $20,250,000
SCOTIA CAPITAL (USA) INC.................. $20,250,000
RBC CAPITAL MARKETS....................... $13,500,000
WACHOVIA CAPITAL MARKETS, LLC............. $13,500,000
----------------
Total............................... $270,000,000.00
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Xxxxx 0, 0000
XXXXX, INC.
DEBT SECURITIES
STANDARD UNDERWRITING AGREEMENT PROVISIONS
1. Introductory. Avnet, Inc., a New York corporation (the "Company"),
proposes to issue and sell from time to time certain of its senior or
subordinated debt securities, warrants to purchase such debt securities (senior
or subordinated debt securities and warrants to purchase such debt securities
are referred to herein as "Securities") or units consisting of one or more
Securities registered under the registration statement referred to in Section
3(a). The Securities will be issued under an indenture, dated as of the First
Closing Date, between the Company and X.X. Xxxxxx Trust Company, National
Association, as Trustee, as supplemented by an officer's certificate, dated as
of the First Closing Date, (such indenture as amended or supplemented is herein
referred to as the "Indenture"), in one or more series, which series may vary as
to interest rates, maturities, redemption provisions, conversion provisions,
selling prices and other terms, with all such terms for any particular series of
the Securities being determined at the time of sale. Particular series of the
Securities will be sold pursuant to a Pricing Agreement referred to in Section
2, for resale in accordance with terms of offering determined at the time of
sale.
The firm or firms which agree to purchase the Securities are
hereinafter referred to as the "Underwriters" of such Securities, and the
representative or representatives of the Underwriters, if any, specified in a
Pricing Agreement referred to in Section 2 are hereinafter referred to as the
"Representatives"; provided, however, that if the Pricing Agreement does not
specify any representative of the Underwriters, the term "Representatives," as
used herein (other than in the second sentence of Section 2), shall mean the
Underwriters.
2. Purchase and Offering of Securities. The obligation of the
Underwriters to purchase any Securities will be evidenced by an exchange of
written communications ("Pricing Agreement") at the time the Company determines
to sell Securities. The Pricing Agreement will incorporate by reference these
Standard Underwriting Agreement Provisions (these "Provisions"), except as
otherwise provided therein, and will specify (1) the firm or firms which will be
Underwriters, (2) the names of any Representatives, (3) the principal amount of
Securities to be purchased by each Underwriter and the purchase price to be paid
by the Underwriters, (4) the terms of the Securities not already specified in
the Indenture, (5) the time and date on which delivery of the Securities will be
made to the Representatives for the accounts of the several Underwriters and (6)
the place of delivery and payment.
The obligations of the Underwriters to purchase the Securities will
be several and not joint. The Securities delivered to the Underwriters on the
Closing Date will be in definitive fully registered form, in such denominations
and registered in such names as the Representatives may request.
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The Underwriters, through the Representatives, will pay to the
Company the purchase price for the Securities, less the commission of the
Underwriters, on the Closing Date, by wire transfer of same-day funds to an
account to be specified by the Company not less than two full business days in
advance of the Closing Date.
Certificates for the Securities shall be registered in such names
and in such denominations as the Representatives may request not less than two
full business days in advance of the Closing Date.
3. Representations and Warranties of the Company: The Company
represents and warrants to each of the Underwriters as of the date of execution
of any Pricing Agreement (the "Representation Date") and as of any Closing Date
that:
(a) the Company is permitted to use Form S-3 under the Securities
Act of 1933, as amended (the "Act"), and has filed with the Securities and
Exchange Commission (the "Commission") a registration statement on such
Form (Registration No. 333-107474), which has become effective, for the
registration under the Act of various securities of the Company, including
the Securities. Such registration statement, as amended at the
Representation Date, meets the requirements set forth in Rule 415(a)(1)(x)
under the Act and complies in all other material respects with said Rule.
Such registration statement, including the exhibits thereto, as amended at
the Representation Date, is hereinafter called the "Registration
Statement," and the prospectus included in the Registration Statement, as
supplemented to reflect the terms of any series of the Securities and the
plan of distribution thereof, in the form furnished to the Underwriters
for use in connection with the offering of the Securities, is hereinafter
called the "Prospectus." Any reference herein to the Registration
Statement or the Prospectus shall be deemed to include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on or before the Representation Date or the date of the
Prospectus, as the case may be, and any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the Registration
Statement or the Prospectus shall be deemed to include the filing of any
document under the Exchange Act after the Representation Date or the date
of the Prospectus, as the case may be, deemed to be incorporated therein
by reference;
(b) (i) the Registration Statement, the Prospectus and the
Indenture comply in all material respects with the applicable requirements
of the Act, the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the Exchange Act and the respective rules thereunder,
and (ii) neither the Registration Statement nor the Prospectus contains
any untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading; provided, however, that the Company
makes no warranty or representation with respect to any statement
contained in the Registration Statement or the Prospectus in reliance upon
and in conformity with information furnished in writing by or on behalf of
any Underwriter through the Representatives to the Company expressly for
use in the
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Registration Statement or the Prospectus or that part of the Registration
Statement that constitutes the Statement of Eligibility (Form T-1) under
the Trust Indenture Act;
(c) all of the issued and outstanding shares of capital stock of
the Company have been duly and validly authorized and issued and are fully
paid, non-assessable and free of statutory and contractual preemptive
rights; the Company and each of its Material Subsidiaries have been duly
incorporated and are validly existing as corporations in good standing
under the laws of their respective jurisdictions of incorporation, with
full power and authority to own their respective properties and conduct
their respective businesses as described in the Registration Statement and
the Prospectus; the Company has full power and authority to execute and
deliver the Pricing Agreement (including these Provisions) and the
Indenture and to issue and sell the Securities as herein contemplated
("Subsidiary" meaning any subsidiary of the Company, and "Material
Subsidiary" meaning a Subsidiary which would be a "significant subsidiary"
as that term is defined in Item 1-02(w) of Regulation S-X promulgated
under the Act, if "5 percent" were substituted in each place in which "10
percent" appears in such definition, and "Non-Material Subsidiary" meaning
a Subsidiary which is not a Material Subsidiary);
(d) the Company and each of its Subsidiaries are duly qualified or
licensed by, and are in good standing in, each jurisdiction in which they
conduct their respective businesses and in which the failure, individually
or in the aggregate, to be so licensed or qualified would have a material
adverse effect on the operations, business, prospects or financial
condition of the Company and its Subsidiaries taken as a whole (a
"Material Adverse Effect"), and with respect to the Company, the
jurisdictions listed on Exhibit A hereto constitute a complete list of
such jurisdictions; and the Company and each of its Subsidiaries are in
compliance with the laws, orders, rules, regulations and directives issued
or administered by such jurisdictions, except where the failure to so
comply with such laws, orders, rules, regulations and directives, whether
individually or in the aggregate, would not have a Material Adverse
Effect;
(e) neither the Company nor any of its Subsidiaries is in breach
of, or in default under (nor has any event occurred which with notice,
lapse of time, or both would constitute a breach of, or default under),
(i) its respective charter or by-laws or (ii) in the performance or
observance of any obligation, agreement, covenant or condition contained
in any indenture, mortgage, deed of trust, bank loan or credit agreement
or other agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which any of them is bound, except for, in
the case of clause (i) above, breaches and defaults of Non-Material
Subsidiaries which, individually or in the aggregate, would not have a
Material Adverse Effect, and except for, in the case of clause (ii) above,
breaches and defaults which, individually or in the aggregate, would not
have a Material Adverse Effect, and the execution, delivery and
performance of the Pricing Agreement (including these Provisions) and the
Indenture, and the issuance of the Securities and any Underlying
Securities (as hereinafter defined) and consummation of the transactions
contemplated hereby and thereby, will not conflict with, or result in any
breach of or constitute a default under (nor constitute any event which
with notice, lapse of time, or
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both would constitute a breach of, or default under), any provision of (x)
the charter or by-laws of the Company or any of its Subsidiaries or (y)
any license, indenture, mortgage, deed of trust, bank loan or credit
agreement or other agreement or instrument to which the Company or any of
its Subsidiaries is a party or by which any of them or their respective
properties may be bound or affected, or (z) any federal, state, local or
foreign law, regulation or rule or any decree, judgment or order
specifically binding on the Company or any of its Subsidiaries, except
for, in the case of clause (x) above, conflicts, breaches and defaults of
Non-Material Subsidiaries which, individually or in the aggregate, would
not have a Material Adverse Effect, and except for, in the case of clauses
(y) and (z) above, conflicts, breaches and defaults which, individually or
in the aggregate, would not have a Material Adverse Effect or materially
adversely affect the ability of the Company to execute, deliver and
perform the Pricing Agreement (including these Provisions);
(f) the Indenture has been duly authorized, executed and delivered
by the Company and is a legal, valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except as
the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, and by general principles of equity;
(g) the Securities have been duly authorized by the Company and
when executed and delivered by the Company will constitute legal, valid
and binding obligations of the Company enforceable against the Company in
accordance with their terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally, and by general principles of
equity;
(h) If the Securities being sold pursuant to the applicable
Pricing Agreement are convertible into or exchangeable or exercisable for
any equity securities ("Underlying Equity Securities"), the Underlying
Equity Securities initially issuable upon the conversion or exchange or
exercise of the Securities have been, or as of the date of such Pricing
Agreement will have been, duly authorized, reserved for issuance and will,
when issued upon the conversion of Securities into, or the exchange or
exercise of Securities for, the Underlying Equity Securities, be duly
issued, fully paid and non-assessable, will not be subject to any
preemptive rights of any security holder of the Company and no holder
thereof will be subject to personal liability by reason of being such a
holder. If the Securities being sold pursuant to the applicable Pricing
Agreement are convertible into or exchangeable or exercisable for any debt
securities ("Underlying Debt Securities" and together with Underlying
Equity Securities, "Underlying Securities"), the Underlying Debt
Securities initially issuable upon the conversion or exchange or exercise
of the Securities have been, or as of the date of such Pricing Agreement
will have been, duly authorized for issuance upon the conversion of
Securities into, or the exchange or exercise of Securities for, such
Underlying Debt Securities. Such Underlying Debt Securities, when issued
and authenticated in the manner provided for in the applicable indenture
and delivered in accordance with the terms thereof, will constitute valid
and
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legally binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as enforcement thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium, or other
similar laws relating to or affecting creditors rights generally or by
general equitable principles. Any indenture under which Underlying Debt
Securities will be issued has been, or prior to the date of the applicable
Pricing Agreement will have been, duly authorized, executed and delivered
by the Company and constitutes or will constitute a valid and legally
binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium, or other similar laws
relating to or affecting creditors rights generally or by general
equitable principles.
(i) the Pricing Agreement has been duly authorized, executed and
delivered by the Company;
(j) the Securities, any Underlying Securities and the Indenture
conform in all material respects to the description thereof contained in
the Registration Statement and Prospectus;
(k) no approval, authorization, consent or order of or filing with
any national, state or local governmental or regulatory commission, board,
body, authority or agency is required in connection with the issuance and
sale of the Securities and any Underlying Securities as contemplated
hereby other than registration of the Securities and any Underlying
Securities under the Act, qualification of the Indenture under the Trust
Indenture Act and any necessary qualification under the securities or blue
sky laws of the various jurisdictions in which the Securities and any
Underlying Securities are being offered by the Underwriters;
(l) the accountants whose reports on the consolidated financial
statements of the Company and its Subsidiaries are filed with the
Commission as part of the Registration Statement and Prospectus are (or,
in the case of Xxxxxx Xxxxxxxx LLP, were at the time of their engagement
by the Company and its Subsidiaries) independent public accountants as
required by the Act and the applicable published rules and regulations
thereunder;
(m) each of the Company and its Subsidiaries (i) has all necessary
licenses, authorizations, consents and approvals, (ii) has made all
filings required under any federal, state, local or foreign law,
regulation or rule, and (iii) has obtained all necessary authorizations,
consents and approvals from other persons, in each case, necessary to
conduct their respective businesses, except where the failure to have,
make or obtain such licenses, authorizations, consents, approvals and
filings, individually or in the aggregate, would not have a Material
Adverse Effect; and neither the Company nor any of its Subsidiaries is in
violation of, or in default under, any such license, authorization,
consent or approval or any federal, state, local or foreign law,
regulation or rule or any decree, order or judgment applicable to the
Company or any of its Subsidiaries the effect
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of which violation or default, singly or in the aggregate, would have a
Material Adverse Effect;
(n) all legal or governmental proceedings, contracts or documents
of a character required to be described in the Registration Statement or
the Prospectus or to be filed as an exhibit to the Registration Statement
have been so described or filed as required;
(o) there are no actions, suits or proceedings pending or
threatened against the Company or any of its Subsidiaries or any of their
respective properties, at law or in equity, before or by any federal,
state, local or foreign governmental or regulatory commission, board,
body, authority or agency which, singly or in the aggregate, have a
reasonable likelihood of resulting in judgments, decrees or orders having
a Material Adverse Effect;
(p) the audited financial statements included in the Registration
Statement and the Prospectus present fairly the consolidated financial
position of the Company and its Subsidiaries as of the dates indicated and
the consolidated results of operations and cash flows of the Company and
its Subsidiaries for the periods specified and such financial statements
have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis during the periods involved,
except as may be expressly stated in such financial statements;
(q) subsequent to the respective dates as of which information is
given in the Registration Statement and Prospectus, and except as may be
otherwise stated in the Registration Statement or Prospectus, there has
not been (A) any material and unfavorable change, financial or otherwise,
in the business, properties, prospects, results of operations or condition
(financial or otherwise), present or prospective, of the Company and its
Subsidiaries taken as a whole, (B) any transaction, which is material and
unfavorable to the Company and its Subsidiaries taken as a whole,
contemplated or entered into by the Company or any of its Subsidiaries or
(C) any obligation, contingent or otherwise, directly or indirectly,
incurred by the Company or any of its Subsidiaries which is material and
unfavorable to the Company and its Subsidiaries taken as a whole;
(r) no Subsidiary is a "significant subsidiary" as that term is
defined in Item 1-02(w) of Regulation S-X promulgated under the Act;
(s) the Company and each of the Subsidiaries have filed all
material federal and state income and franchise tax returns (or obtained
extensions with respect to the filing of such returns) and have paid all
taxes shown thereon as currently due, except as may be being contested in
good faith and by appropriate proceedings, and the Company has no
knowledge of any material tax deficiency which has been or might be
asserted against the Company or any of the Subsidiaries; all material tax
liabilities are adequately provided for on the books of the Company and
each of the Subsidiaries;
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(t) the Company and its Subsidiaries own or possess, or can
acquire on reasonable terms, adequate material patents, patent rights,
licenses, trademarks, inventions, service marks, trade names,
copyrights and know-how (including trade secrets and other proprietary
or confidential information, systems or procedures, whether patented or
unpatented) (collectively, "intellectual property") reasonably
necessary to conduct the business now or proposed to be operated by
them as described in the Registration Statement and in the Prospectus,
and neither the Company nor any of its Subsidiaries has received any
notice of infringement of or conflict with (or knows of any such
infringement of or conflict with) asserted rights of others with
respect to any of such intellectual property which, if such assertion
of infringement or conflict were sustained, would result, singly or in
the aggregate, in any Material Adverse Effect;
(u) neither the Company nor any agent acting on its behalf has
taken or will take any action that might cause the Pricing Agreement or
sale of the Securities to violate Regulation T, U or X of the Board of
Governors of the Federal Reserve System, in each case as in effect, or
as the same may hereafter be in effect, on the Closing Date;
(v) except as would not, singularly or in the aggregate, have
a Material Adverse Effect on the Company and its Subsidiaries or
otherwise require disclosure in the Registration Statement, or except
as described in the Registration Statement and the Prospectus, (i) none
of the Company or any of its Subsidiaries has been or is in violation
of any federal, state or local laws and regulations relating to
pollution or protection of human health or the environment, including,
without limitation, laws and regulations relating to emissions,
discharges, releases or threatened releases of toxic or hazardous
substances, materials or wastes, or petroleum and petroleum products,
or radon or mold, fungi or other substances that may have an adverse
effect on human health ("Materials of Environmental Concern"), or
otherwise relating to the protection of human health and safety, or the
use, treatment, storage, disposal, transport or handling of Materials
of Environmental Concern (collectively, "Environmental Laws"), which
violation includes, but is not limited to, noncompliance with, or lack
of, any permits or other governmental authorizations required for the
operation of the business of the Company or its Subsidiaries under
applicable Environmental Laws; (ii) to the knowledge of the Company,
there are no circumstances, either past, present or that are reasonably
foreseeable, that may lead to any such violation in the future; (iii)
none of the Company or any of its Subsidiaries has received any written
or, to the best of the Company's knowledge, oral communication (as to
oral communication, to those employees of the Company responsible for
environmental matters), whether from a governmental authority or
otherwise, alleging any such violation; (iv) there is no pending or (to
the best of the Company's knowledge) threatened claim, action,
investigation or written or, to the best of the Company's knowledge,
oral notice by any person or entity alleging potential liability of the
Company or any of its Subsidiaries (or (to the best of the Company's
knowledge) against any person or entity for whose acts or omissions the
Company or any of its Subsidiaries is or may reasonably be expected to
be liable, either contractually or by operation of law) for
investigatory, cleanup, or other response costs, or natural resources
or property damages, or personal injuries, attorney's fees or penalties
relating to (A) the
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presence, or release into the environment, of any Materials of
Environmental Concern at any location, or (B) circumstances forming the
basis of any violation or potential violation, of any Environmental Law
(collectively, "Environmental Claims"); and (v) to the knowledge of the
Company, there are no past or present actions, activities,
circumstances, conditions, events or incidents that could reasonably be
expected to form the basis of any Environmental Claim;
(w) the Company is not an "investment company" or an
affiliated person of, or "promoter" or "principal underwriter" for, an
"investment company," as such terms are defined in the Investment
Company Act of 1940, as amended, and the rules and regulations
thereunder; and
(x) to the best knowledge of the Company, no labor problem
exists with employees of the Company or any of its Subsidiaries or is
imminent that would have a Material Adverse Effect.
4. Certain Covenants of the Company: The Company hereby agrees:
(a) to furnish such information as may be reasonably required
by and otherwise to cooperate with, the Representatives in qualifying
the Securities for offering and sale under the securities or blue sky
laws of such states as the Representatives may designate and to
maintain such qualifications in effect as long as required for the
distribution of the Securities; provided that the Company shall not be
required to qualify as a foreign corporation or a dealer or to consent
to the service of process under the laws of any such state (except
service of process with respect to the offering and sale of the
Securities) or to take any action which would or could subject the
Company to taxation in any state where it is not now so subject; and to
promptly advise the Representatives of the receipt by the Company of
any notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose;
(b) to make available to the Representatives in New York City,
as soon as practicable after the Registration Statement becomes
effective, and thereafter from time to time to furnish to the
Underwriters, as many copies of the Prospectus (or of the Prospectus as
amended or supplemented if the Company shall have made any amendments
or supplements thereto after the effective date of the Registration
Statement) as the Underwriters may reasonably request for the purposes
contemplated by the Act;
(c) that the Company will use its best efforts to cause any
amendment of the Registration Statement to become effective promptly.
The Company will not file any amendment to the Registration Statement
or amendment or supplement to the Prospectus relating to any series of
the Securities to which the Underwriters of such series shall object in
writing after a reasonable opportunity to review the same. Subject to
the foregoing sentence, the Company will cause each Prospectus
supplement relating to the
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Securities to be filed with the Commission pursuant to the applicable
paragraph of Rule 424 within the time period prescribed and will
provide evidence satisfactory to the Underwriters of such timely
filing. The Company will promptly advise the Underwriters of any series
of Securities (A) when any Prospectus supplement relating to such
series shall have been filed with the Commission pursuant to Rule 424,
(B) when, prior to termination of the offering of such series, any
amendment to the Registration Statement shall have been filed with the
Commission or become effective, (C) of any request by the Commission
for any amendment of the Registration Statement or supplement to the
Prospectus or for any additional information, (D) of the receipt by the
Company of any notification of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement
or the use of any Prospectus or Prospectus supplement or, if the
Company has knowledge, of the institution or threat of any proceeding
for that purpose and (E) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or, if the Company has
knowledge, of the initiation or threat of any proceeding for such
purpose. The Company will make every reasonable effort to prevent the
issuance of any such stop order or of any order suspending or
preventing any such use and, if issued, to obtain as soon as possible
the withdrawal thereof;
(d) to furnish to the Representatives and, upon request, to
each of the other Underwriters for a period of three years from the
date of each Pricing Agreement (i) copies of any reports or other
communications which the Company shall send to its shareholders or
shall from time to time publish or publicly disseminate, and (ii) such
other information as the Representatives may reasonably request
regarding the Company or its Subsidiaries;
(e) to advise the Underwriters of a series of Securities
promptly of the happening of any event known to the Company within the
time during which a prospectus relating to such series is required to
be delivered under the Act which, in the judgment of the Company, would
require the making of any change in the Prospectus then being used, or
in the information incorporated therein by reference, so that the
Prospectus would not include an untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in light of the circumstances under which they are made, not
misleading, and, subject to Section 4(c) during such time, to prepare
and furnish, at the Company's expense, to the Underwriters promptly
such amendments or supplements to such Prospectus as may be necessary
to reflect any such change and to furnish to the Representatives a copy
of such proposed amendment or supplement before filing any such
amendment or supplement with the Commission;
(f) that, as soon as practicable after the date of each
Pricing Agreement, the Company will make generally available to its
Security holders an earnings statement that satisfies the provisions of
Section 11(a) of the Act and Rule 158 under the Act;
(g) to apply the net proceeds from the sale of the Securities
in the manner set forth under the caption "Use of Proceeds" in the
Prospectus;
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(h) if the Securities being sold pursuant to the applicable
Pricing Agreement are convertible into or exchangeable or exercisable
for Underlying Securities, to take all actions contemplated by Section
3(h) hereof and, if such Underlying Securities are Underlying Equity
Securities, to reserve and keep available at all times, free of
preemptive or other similar rights, a sufficient number of shares of
Underlying Equity Securities for the purpose of enabling the Company to
satisfy any obligation to issue such Underlying Equity Securities
initially issuable upon any such conversion, exchange or exercise;
(i) to pay all expenses, fees and taxes (other than any
transfer taxes and fees and disbursements of counsel for the
Underwriters except as set forth under Section 5 hereof and (iv) below)
in connection with (i) the preparation and filing of the Registration
Statement, each preliminary prospectus, the Prospectus, and any
amendments or supplements thereto, and the printing and furnishing of
copies of each thereof to the Underwriters and to dealers (including
costs of mailing and shipment), (ii) the preparation, issuance,
execution, authentication and delivery of the Securities, (iii) the
printing of the Pricing Agreement (including these Provisions), an
Agreement Among Underwriters, any dealer agreements, any Powers of
Attorney, the Indenture and the reproduction and/or printing and
furnishing of copies of each thereof to the Underwriters and to dealers
(including costs of mailing and shipment), (iv) the qualification of
the Securities for offering and sale under state laws and the
determination of their eligibility for investment under state law as
aforesaid (including the legal fees and filing fees and other
disbursements of counsel for the Underwriters) and the printing and
furnishing of copies of any blue sky surveys or legal investment
surveys to the Underwriters and to dealers, (v) any listing of the
Securities on any securities exchange and any registration thereof
under the Exchange Act, (vi) any fees payable to investment rating
agencies with respect to the Securities, (vii) any filing for review of
the public offering of the Securities by the National Association of
Securities Dealers, Inc. (the "NASD"), and (viii) the performance of
the Company's other obligations hereunder;
(j) that the Company will not, without the consent of the
Representatives, offer or sell, or publicly announce its intention to
offer or sell, (i) any equity or debt securities pursuant to a public
offering or (ii) any equity or unsecured debt securities pursuant to a
private placement which contemplates the purchasers of such equity or
debt securities receiving customary registration rights, in each case
during the period beginning on the date of the Pricing Agreement and
ending the 90th day following the date of the Pricing Agreement. The
Company has not taken, and will not take, directly or indirectly, any
action which might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security to
facilitate the sale or resale of the Securities; and
(k) that the Company will use its reasonable efforts to
prevent, without the consent of the Representatives, sales of its
common stock, par value $1.00 per share ("Common Stock"), covered by
the Registration Statement on Form S-3 (No. 333-94957)
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filed by the Company, during the period beginning on the date of the
Pricing Agreement and ending the fifteenth day following the date of
the Pricing Agreement.
5. Reimbursement of Underwriters' Expenses: If the Securities of a
series to which the attached Pricing Agreement relates are not delivered for any
reason other than (a) a termination of the obligations of the several
Underwriters in accordance with clause (a)(iii), (a)(iv)(B) or (a)(v) of Section
9 hereof, or (b) a default by one or more of the Underwriters in its or their
respective obligations hereunder, the Company shall reimburse the Underwriters
for all of their out-of-pocket expenses, including the reasonable fees and
disbursements of their counsel.
6. Conditions of Underwriters' Obligations: The several obligations of
the Underwriters to purchase and pay for the Securities are subject to the
accuracy of the representations and warranties on the part of the Company herein
on the Representation Date and at each Closing Date (including those contained
in the Pricing Agreement), to the accuracy of the statements of officers of the
Company made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following conditions:
(a) The Company shall furnish to the Representatives at each
Closing Date an opinion of Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the
Company, or other counsel to the Company reasonably acceptable to the
Representatives, addressed to the Underwriters and dated the Closing
Date and in form satisfactory to counsel for the Underwriters, stating
that:
(i) the Pricing Agreement has been duly authorized,
executed and delivered by the Company;
(ii) the Indenture has been duly authorized, executed
and delivered by the Company and, assuming due authorization,
execution and delivery by the Trustee, constitutes the legal,
valid and binding agreement of the Company enforceable against
the Company in accordance with its terms, subject to (i) the
effect of any bankruptcy, insolvency, reorganization,
moratorium or other similar laws or arrangements relating to
or affecting the rights and remedies of creditors (including,
without limitation, the effect of statutory or other laws
regarding fraudulent transfers or preferential transfers) or
(ii) general equitable principles, including, without
limitation, concepts of materiality, reasonableness, good
faith and fair dealing and the possible unavailability of
specific performance, injunctive relief or other equitable
remedies, regardless of whether considered in a proceeding in
equity or at law;
(iii) the Securities have been duly authorized by the
Company and, when executed and authenticated in accordance
with the terms of the Indenture and delivered to and paid for
by the Underwriters, will be legal, valid and binding
obligations of the Company enforceable against the Company in
accordance with their terms, subject to (i) the effect of any
bankruptcy, insolvency, reorganization, moratorium or other
similar laws or arrangements relating to or affecting the
B-15
rights and remedies of creditors (including, without
limitation, the effect of statutory or other laws regarding
fraudulent transfers or preferential transfers) or (ii)
general equitable principles, including, without limitation,
concepts of materiality, reasonableness, good faith and fair
dealing and the possible unavailability of specific
performance, injunctive relief or other equitable remedies,
regardless of whether considered in a proceeding in equity or
at law;
(iv) if any Securities are convertible into, or
exchangeable or exercisable for, Underlying Equity Securities,
the Underlying Equity Securities initially issuable upon
conversion of the Securities have been duly authorized and
reserved and, when duly issued upon such conversion, exchange
or exercise in accordance with the terms of the Indenture,
will be validly issued, fully paid and non-assessable;
(v) The statements in the Registration Statement and
the Prospectus under the caption "Description of the
Debentures," "Description of the Debt Securities," and, if any
Securities are convertible into, or exchangeable or
exercisable for, Underlying Equity Securities, the caption
"Description of Capital Stock," insofar as such statements
purport to describe specific provisions of the Indenture, the
Securities, Underlying Equity Securities or the documents
described therein, present in all material respects an
accurate summary of such provisions;
(vi) The statements in the Registration Statement and
the Prospectus under the caption "Material United States
Federal Income Tax Considerations," insofar as such statements
purport to describe specific provisions of law, present in all
material respects a fair and accurate summary of such
provisions;
(vii) the Registration Statement, as of its effective
date (which in the case of the Registration Statement for
purposes of such opinion shall have the meaning set forth in
Rule 158(c) under the Act), and the Prospectus (other than the
financial statements and supporting schedules, other
financial, statistical and accounting data, and the Form T-1
included or incorporated by reference therein or in exhibits
thereto, as to which no opinion need be rendered) comply as to
form in all material respects with the applicable requirements
of the Act;
(viii) the Registration Statement was declared
effective under the Act on November 25, 2003 and, to the
knowledge of such counsel, based solely upon telephonic
confirmation from the Staff of the Commission on the Closing
Date as of the time of such confirmation, no stop order
suspending the effectiveness of the Registration Statement has
been issued under the Act and no proceedings for such purpose
have been instituted or threatened by, or are pending before,
the Commission;
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(ix) Any required filing of the Prospectus and any
supplement thereto pursuant to Rule 424(b) under the Act has
been made in the manner and within the time period required by
such Rule 424(b);
(x) the execution and delivery of the Pricing
Agreement and the Indenture, the issuance of the Securities by
the Company and the performance by the Company of its
obligations thereunder do not conflict with, or result in any
breach of or constitute a default under (nor constitute any
event which with notice, lapse of time or both would
constitute a default under) (A) the Indenture, dated as of
February 1, 1994, between the Company and The First National
Bank of Chicago, as Trustee, and the Officers' Certificates
establishing the terms of the Company's 6.45% Notes due 2003,
8.20% Notes due 2003, 6 7/8% Notes due 2004, 7 7/8% Notes due
2005 and 8.00% Notes due 2006, (B) the Receivables Sale
Agreement, dated as of June 28, 2001 between the Company, as
Originator and Avnet Receivables Corporation as Buyer (as
amended through the Closing Date), (C) the Amended and
Restated Receivables Purchase Agreement dated as of February
6, 2002 among Avnet Receivables Corporation, as Seller, the
Company, as Servicer, the Companies, as defined therein, the
Financial Institutions, as defined therein, and Bank One, NA
(Main Office Chicago) as Agent (as amended through the Closing
Date) and (D) the Indenture, dated as of October 1, 2000,
between the Company and Bank One Trust Company, N.A., as
Trustee, and the Officers' Certificate, dated February 4,
2003, establishing the terms of the Company's 9 3/4% Notes due
2008;
(xi) the execution, delivery and performance by the
Company of the Pricing Agreement and consummation of the
transactions contemplated thereby do not require any filing
with, or approval of, any governmental authority or agency of
the State of New York or the United States of America under
any law or regulation of the State of New York or the United
States of America applicable to the Company that, in such
counsel's experience is generally applicable to the
transactions in the nature of those contemplated by the
Pricing Agreement; provided, however, that this subparagraph
does not include any opinion regarding any federal or state
securities or blue sky laws or regulations);
(xii) the Indenture has been qualified under the
Trust Indenture Act;
(xiii) the Company is not, and solely after giving
effect to the offering and sale of the Securities and the
application of the proceeds thereof as described in the
Prospectus, will not be an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
In addition, such counsel shall state that it has
participated in conferences with officers and other
representatives of the Company, representatives of the
independent public accountants of the Company and
representatives of the Underwriters, at which the contents of
the Registration Statement and Prospectus
B-17
were discussed and, although such counsel (i) has not
independently verified, is not passing upon and does not
assume responsibility for, the accuracy, completeness or
fairness of the statements contained in the Registration
Statement or Prospectus (except as and to the extent stated in
subparagraph (v) above), and (ii) does not assume
responsibility for the accuracy, completeness or fairness of,
and has not independently verified the adequacy of the methods
or mechanics of the compilation or derivation of, the
statistical data contained in the Registration Statement or
Prospectus, on the basis of the foregoing, nothing has come to
such counsel's attention which would lead it to believe that
the Registration Statement as of its effective date, or any
post-effective amendment thereto as of the date it was
declared effective, contained an untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading or that the Prospectus, as of its date and the
Closing Date, contained or contains an untrue statement of a
material fact or omitted 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 (it being understood that such counsel need express
no belief as to the the financial statements, including the
notes thereto, and any other financial or statistical data
that is found in or derived from the internal accounting or
financial records of the Company and its Subsidiaries or to
any Form T-1 included or incorporated by reference in the
Registration Statement or the Prospectus or any amendments or
supplements thereto).
In rendering such opinion, counsel may state that such opinion
is limited to United States Federal and New York law.
(b) The Company shall furnish to the Representatives at each
Closing Date an opinion of Xxxxx X. Xxxx, Senior Vice President and
General Counsel for the Company, or such other counsel to the Company
reasonably acceptable to the Representatives, addressed to the
Underwriters and dated the Closing Date and in form satisfactory to
counsel for the Underwriters, stating that:
(i) the Company is a corporation validly existing and
in good standing under the laws of the State of New York, with
full corporate power and authority to own its properties and
conduct its business as described in the Registration
Statement and the Prospectus and to issue, sell and deliver
the Securities as herein contemplated;
(ii) the outstanding shares of capital stock of the
Company have been duly and validly authorized and issued and
are fully paid, non-assessable and free of statutory and
contractual preemptive rights;
(iii) each of the Subsidiaries organized in the
United States of America is a corporation validly existing and
in good standing under the laws of its respective jurisdiction
of incorporation with full corporate power and authority to
B-18
own its respective properties and to conduct its respective
business, except where the failure to be validly existing, to
be in good standing, and to have such power and authority
would not, individually or in the aggregate, have a Material
Adverse Effect (in rendering this opinion with respect to
jurisdictions other than the State of New York, such counsel
may state that he is relying exclusively on certificates and
other documents of public officials of such jurisdictions);
(iv) the Company is duly qualified to transact
business as a foreign corporation in Arizona, California,
Massachusetts, North Carolina and Texas (in rendering this
opinion, such counsel may state that he is relying exclusively
on certificates and other documents of public officials of
such jurisdictions);
(v) to the best of such counsel's knowledge, neither
the Company nor any of its Subsidiaries is in breach of, or in
default under (nor has any event occurred which with notice,
lapse of time, or both would constitute a breach of, or
default under), (i) its charter or by-laws, (ii) any "material
contract" (within the meaning of Item 601(b)(10) of Regulation
S-K promulgated under the Exchange Act) to which the Company
or any of its Subsidiaries is a party or by which any of them
or their respective properties may be bound or affected, (iii)
any United States Federal or New York State law, regulation or
rule, or (iv) any decree, judgment or order applicable to the
Company or any of its Subsidiaries;
(vi) the execution and delivery of the Pricing
Agreement and the Indenture, the issuance of the Securities
and any Underlying Securities by the Company and the
performance by the Company of its obligations thereunder do
not and will not conflict with, or result in any breach of, or
constitute a default under (nor constitute any event which
with notice, lapse of time, or both would constitute a breach
of or default under), any provision of (x) the charter or
by-laws of the Company or any of its Subsidiaries or (y) any
license, indenture, mortgage, deed of trust, bank loan, credit
agreement or other agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which any
of them or their respective properties may be bound or
affected, or (z) any law, regulation or rule or any decree,
judgment or order applicable to the Company or any of its
Subsidiaries, except for, in the case of clause (x) above,
conflicts, breaches and defaults of Non-Material Subsidiaries
which, individually or in the aggregate, would not have a
Material Adverse Effect, and except for, in the case of
clauses (y) and (z) above, conflicts, breaches and defaults
which, individually or in the aggregate, would not have a
Material Adverse Effect;
(vii) to the best of such counsel's knowledge, there
are no contracts, licenses, agreements, leases or documents of
a character which are required to be filed as exhibits to the
Registration Statement or to be summarized or described in the
Prospectus which have not been so filed, summarized or
described;
B-19
(viii) to the best of such counsel's knowledge, there
are no actions, suits or proceedings pending or threatened
against the Company or any of its Subsidiaries or any of their
respective properties, at law or in equity or before or by any
commission, board, body, authority or agency which are
required to be described in the Prospectus but are not so
described;
(ix) the documents incorporated by reference in the
Registration Statement and Prospectus, when they were filed
(or, if an amendment with respect to any such document was
filed when such amendment was filed), complied as to form in
all material respects with the requirements of the Exchange
Act and the rules thereunder (except as to the financial
statements and schedules and other financial data contained or
incorporated by reference therein, and the Trustee's Statement
of Eligibility on Form T-1, as to which such counsel need
express no opinion);
(x) In addition, such counsel shall state that he has
participated in conferences with officers and other
representatives of the Company, and members of such counsel's
staff have participated in conferences with representatives of
the independent public accountants of the Company and
representatives of the Underwriters, at which the contents of
the Registration Statement and Prospectus were discussed and,
although such counsel has not independently verified, is not
passing upon, and does not assume responsibility for, the
accuracy, completeness or fairness of the statements contained
in the Registration Statement or Prospectus, on the basis of
the foregoing, nothing has come to such counsel's attention
which would lead it to believe that the Registration Statement
as of its effective date, or any post-effective amendment
thereto as of the date it was declared effective, contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading or that the
Prospectus, as of its date and on the Closing Date, contained
or contains an untrue statement of a material fact or omitted
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 (it being
understood that such counsel need express no belief as to the
financial statements, including the notes thereto, and any
other financial or statistical data that is found in or
derived from the internal accounting or financial records of
the Company and its Subsidiaries or to any Form T-1 included
or incorporated by reference in the Registration Statement or
the Prospectus or any amendments or supplements thereto).
(c) The Representatives shall have received from the Company's
independent public accountants letters dated, respectively, as of the
Representation Date and the Closing Date, and addressed to the
Underwriters in form and substance reasonably satisfactory to the
Representatives.
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(d) The Representatives shall have received at the Closing Date
the favorable opinion of counsel for the Underwriters, dated the Closing
Date, in form and substance reasonably satisfactory to the
Representatives.
(e) Prior to the Closing Date, the Company shall have filed the
Prospectus Supplement with the Commission in the manner and within the
time period required by Rule 424(b) under the Securities Act and no stop
order suspending the effectiveness of the Registration Statement, or any
post-effective amendment to the Registration Statement, shall be in effect
and no proceedings for such purpose shall have been instituted or
threatened by the Commission.
(f) Between the Representation Date and the Closing Date, there
shall not have occurred any change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of
the Company and its Subsidiaries taken as one enterprise, whether or not
arising in the ordinary course of business, which, in the judgment of a
majority in interest of the Underwriters, including any Representatives,
is material and adverse and makes it impractical or inadvisable to proceed
with completion of the public offering or the sale of and payment for the
Securities.
(g) The Company will, at the Closing Date, deliver to
the Representatives a certificate of two of its executive officers to the
effect that the representations and warranties of the Company set forth in
Section 3 of this Agreement and the conditions set forth in subsections
(e) and subsection (f) of this Section 6 have been met and are true and
correct as of such date and to the effect that the statistical information
included in the Prospectus is true and correct in all material respects as
of the date of the Prospectus.
(h) The Representatives shall have received from the Company's
Chief Financial Officer a letter dated the Closing Date and addressed to
the Underwriters, in form and substance reasonably satisfactory to the
Representatives, with respect to financial information included in the
Prospectus and the Registration Statement.
(i) Subsequent to the execution of the Pricing Agreement, there
shall not have occurred (i) any major disruption of settlements of
securities or clearance services in the United States, or (ii) any attack
on, outbreak or escalation of hostilities or act of terrorism involving
the United States, any declaration of war by Congress or any other
national or international calamity or emergency if, in the judgment of a
majority in interest of the Underwriters, including any Representatives,
the effect of any such attack, outbreak, escalation, act, declaration,
calamity or emergency is so material and so adverse as to make it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Securities.
(j) The Company shall have furnished to the Representatives such
other documents and certificates as to the accuracy and completeness of
any statement in the Registration Statement and the Prospectus as of the
Closing Date as the Representatives may reasonably request.
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(k) The Company shall perform such of its obligations under these
Provisions and the Pricing Agreement as are to be performed by the terms
hereof and thereof at or before the Closing Date.
(l) No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or threatened.
(m) At the Closing Date, counsel for the Underwriters shall have
been furnished with such information, certificates and documents as they
may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as contemplated herein and related
proceedings, 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 opinions and certificates mentioned
above or elsewhere in this Agreement shall be reasonably satisfactory in
form and substance to the Representatives and counsel for the
Underwriters.
(n) On or prior to the Closing Date, the Representatives shall
have received lockup letters from each of the executive officers and
directors of the Company in form and substance satisfactory to the
Representatives; provided, however, that such lockup letters will not be
applicable to up to an aggregate of 250,000 shares of Common Stock held by
the executive officers and directors of the Company.
7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act as
follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of or based upon any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto),
including the information deemed to be part of the Registration
Statement pursuant to Rule 430A(b) under the Act (the "Rule 430A
Information") or Rule 434 under the Act (the "Rule 434
Information"), if applicable, 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 or based upon 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;
B-22
(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 7(d) below) any such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 7(c) hereof, the fees and
disbursements of counsel chosen by the Representatives), 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;
provided, however, that the indemnity provided in this Section 7(a) 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 or on behalf of any Underwriter
through the Representatives expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A Information
and the Rule 434 Information deemed to be a part thereof, if applicable,
or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) (the "Furnished Information"); and provided, further,
that with respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary prospectus, the indemnity
provided in this Section 7(a) shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims,
damages, liabilities or expenses purchased the Securities concerned to the
extent that (i) any such loss, claim, damage, liability or expense of such
Underwriter and its affiliates results from the fact that a copy of the
final Prospectus (excluding documents incorporated by reference) was not
sent or given to such person at or prior to the written confirmation of
sale of such Securities as required by the Act, and (ii) the untrue
statement or omission has been corrected in the final Prospectus; and
provided, further, that the indemnity provided in this Section 7(a) shall
be limited, to the extent it applies to fees and disbursements of counsel,
to reasonable amounts of such fees and disbursements.
(b) 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 Act or Section 20 of the Exchange
Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section 7,
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 and the
Rule 434 Information deemed to be a part
B-23
thereof, if applicable, or any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto) in reliance upon and in
conformity with the Furnished Information, which the Underwriters agree to
identify by letter to the Company dated each Closing Date.
(c) 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 7(a) above, counsel to the indemnified parties shall be
selected by the Representatives, and, in the case of parties indemnified
pursuant to Section 7(b) above, counsel to the indemnified parties shall
be selected by the Company. 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 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 7 or Section 8 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) 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 7(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. Notwithstanding the immediately preceding
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, an indemnifying party shall not be liable for any
settlement of the nature contemplated by Section 7(a)(ii) effected without
its consent if such indemnifying party (i) reimburses
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such indemnified party in accordance with such request to the extent it
considers such request to be reasonable and (ii) provides written notice
to the indemnified party substantiating the unpaid balance as
unreasonable, in each case prior to the date of such settlement.
8. Contribution.
If the indemnification provided for in Section 7 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, on the one hand, and the
Underwriters, on the other hand, from the offering of the Securities pursuant to
the applicable Pricing 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, on the one hand, and 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, on the one hand, and
the Underwriters, on the other hand, in connection with the offering of the
Securities pursuant to the applicable Pricing Agreement shall be deemed to be in
the same respective proportions as the total net proceeds from the offering of
such Securities (before deducting expenses) received by the Company and the
total underwriting discount received by the Underwriters, in each case as set
forth on the cover of the Prospectus, or, if Rule 434 is used, the corresponding
location on the term sheet, bear to the aggregate initial public offering price
of such Securities as set forth on such cover.
The relative fault of the Company, 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 by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 8 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 8. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 8 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
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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 8, 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 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 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange 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 within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 8 are several in
proportion to the number or aggregate principal amount, as the case may be, of
Securities set forth opposite their respective names in the applicable Pricing
Agreement, and not joint.
9. Termination.
(a) The Representatives may terminate the applicable Pricing
Agreement, by notice to the Company, at any time at or prior to the
Closing Date, if (i) there has been, since the Representation Date 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, which, in the judgment of
the Representatives, is so material and adverse as to make it
impracticable or inadvisable to proceed with the purchase by the
Underwriters of the Securities on the terms and in the manner contemplated
by the Prospectus or to enforce contracts for the sale of securities, or
(ii) any of the ratings accorded any of the Company's debt securities
shall have been downgraded, or placed under surveillance or review, other
than with positive implications, by any credit rating agency recognized by
the Commission as a "nationally recognized statistical rating
organization," or (iii) there has occurred any material adverse change in
the financial markets in the United States or, if the Securities are
denominated or payable in, or indexed to, one or more foreign or composite
currencies, in the applicable international financial markets, or 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
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contracts for the sale of the Securities, or (iv)(A) trading in any
securities of the Company has been suspended or materially limited by the
Commission or the New York Stock Exchange, or (B) trading generally on the
New York Stock Exchange or the American 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 either of said exchanges or by such system or by
order of the Commission, the NASD or any other governmental authority, or
(v) a banking moratorium has been declared by either Federal or New York
authorities or, if the Securities include debt securities denominated or
payable in, or indexed to, one or more foreign or composite currencies, by
the relevant authorities in the related foreign country or countries.
(b) If these Provisions or the applicable Pricing Agreement is
terminated pursuant to this Section 9, such termination shall be without
liability of any party to any other party except as provided in Section 5
hereof, and provided further that Sections 3, 7, 8 and 9 shall survive
such termination and remain in full force and effect.
10. Notices:
Except as otherwise herein provided, all statements, requests,
notices and agreements shall be in writing and, if to the Underwriters, at their
addresses furnished to the Company in the Pricing Agreement for the purpose of
communications hereunder and, if to the Company, shall be sufficient in all
respects if delivered or telefaxed to the Company at the offices of the Company
at 0000 Xxxxx 00xx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, Attention: Xx. Xxxxxxx
Xxxxxxxx (fax no. (000) 000-0000).
11. Construction:
These Provisions and the Pricing Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York. The section
headings in these Provisions have been inserted as a matter of convenience of
reference and are not a part of these Provisions.
12. Parties at Interest:
The agreements set forth herein and in the Pricing Agreement have
been and are made solely for the benefit of the Underwriters and the Company and
the controlling persons, directors and officers referred to in Sections 7 and 8
hereof, and their respective successors, assigns, executors and administrators.
No other person, partnership, association or corporation (including a purchaser,
as such purchaser, from any of the Underwriters) shall acquire or have any right
under or by virtue of these Provisions or the Pricing Agreement.
13. Default of Underwriters:
If any Underwriter or Underwriters default in their obligations to
purchase Securities under the Pricing Agreement and the aggregate principal
amount of Securities that
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such defaulting Underwriter or Underwriters agreed but failed to purchase does
not exceed 10% of the total principal amount of Securities to be sold pursuant
to the Pricing Agreement, the Representatives may make arrangements satisfactory
to the Company for the purchase of such Securities by other persons, including
any of the Underwriters, but if no such arrangements are made by the Closing
Date, the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments under the Pricing Agreement, to
purchase the Securities that such defaulting Underwriters agreed but failed to
purchase. If any Underwriter or Underwriters so default and the aggregate
principal amount of Securities to be sold pursuant to the Pricing Agreement with
respect to which such default or defaults occur exceeds 10% of the total
principal amount of Securities to be sold pursuant to the Pricing Agreement and
arrangements satisfactory to the Representatives and the Company for the
purchase of such Offered Securities by other persons are not made within 36
hours after such default, the Pricing Agreement will terminate without liability
on the part of any non-defaulting Underwriter or the Company, except as provided
in Section 8. As used in these Provisions, the term "Underwriter" includes any
person substituted for an Underwriter under this Section 13. Nothing herein will
relieve a defaulting Underwriter from liability for its default. The respective
commitments of the several Underwriters for the purposes of this Section 13
shall be determined without regard to reduction in the respective Underwriters'
obligations to purchase the principal amounts of the Securities set forth
opposite their names in the Pricing Agreement as a result of delayed delivery
contracts entered into by the Company.
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EXHIBIT A
COMPANY DETAILS : AVNET, INC.
ACCOUNT NUMBER 366650000
REGISTERED AGENT C T Corporation System
DOMESTIC JURISDICTION New York
AGENT ADDRESS 000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
LIST OF JURISDICTIONS
JURISDICTION FILING DATE SERVICE REGISTERED AGENT
-------------- ----------- ----------------------- -----------------------
Alabama 10-24-1984 Foreign Representation The Corporation Company
Alaska 02-20-1990 Foreign Representation C T Corporation System
Arizona 03-04-1987 Foreign Representation C T Corporation System
Arkansas 01-10-1995 Foreign Representation The Corporation Company
California 06-28-1968 Foreign Representation C T Corporation System
Colorado 11-19-1979 Foreign Representation The Corporation Company
Connecticut 07-16-1969 Foreign Representation C T Corporation System
Florida 10-20-1980 Foreign Representation C T Corporation System
Georgia 04-01-1969 Foreign Representation C T Corporation System
Idaho 12-18-1996 Foreign Representation C T Corporation System
Illinois 12-16-1964 Foreign Representation C T Corporation System
Indiana 07-17-1980 Foreign Representation C T Corporation System
Iowa 02-26-1990 Foreign Representation C T Corporation System
Kansas 03-19-1969 Foreign Representation The Corporation Company, Inc.
Kentucky 10-12-1984 Foreign Representation C T Corporation System
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Maryland 05-03-1967 Foreign Representation The Corporation Trust Incorporated
Massachusetts 06-28-1968 Foreign Representation The Secretary of the Commonwealth
Michigan 03-19-1968 Foreign Representation The Corporation Company
Minnesota 05-09-1966 Foreign Representation C T Corporation System
Mississippi 04-25-1995 Foreign Representation C T Corporation System
Missouri 04-07-1969 Foreign Representation C T Corporation System
Nevada 10-21-1983 Foreign Representation The Corporation Trust Company of Nevada
New Hampshire 05-04-1990 Foreign Representation C T Corporation System
New Jersey 06-29-1966 Foreign Representation The Corporation Trust Company
New Mexico 03-07-1990 Foreign Representation C T Corporation System
New York 07-22-1955 Domestic Representation C T Corporation System
North Carolina 01-07-1985 Foreign Representation C T Corporation System
Ohio 05-23-1968 Foreign Representation C T Corporation System
Oklahoma 06-23-1986 Foreign Representation The Corporation Company
Oregon 06-30-1969 Foreign Representation C T Corporation System
Pennsylvania 01-05-1965 Foreign Representation Registered Office
Rhode Island 12-18-1995 Foreign Representation C T Corporation System
South Carolina 02-26-2004 Foreign Representation C T Corporation System
Tennessee 07-22-1955 Foreign Representation C T Corporation System
Texas 12-23-1968 Foreign Representation C T Corporation System
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Utah 05-11-1989 Foreign Representation C T Corporation System
Washington 05-19-1986 Foreign Representation C T Corporation System
Wisconsin 03-30-1990 Foreign Representation C T Corporation System
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