EXHIBIT 4
THIS WARRANT AND THE COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS
OF ANY STATE, AND MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN
THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM
REGISTRATION.
For the Purchase of 261,000 Shares
AMENDED AND RESTATED
STOCK PURCHASE WARRANT
TO PURCHASE SHARES OF COMMON STOCK OF
AVNET, INC.
On February 2, 2000, Kent Electronics Corporation, a Texas corporation
("Kent"), issued to Applied Materials, Inc., a Delaware corporation, a warrant
to purchase 300,000 shares of the common stock of Kent at a price of $22-13/16
per share. Such warrant is hereby being amended and restated inter alia to
effect the changes required by Section 6.4 thereof resulting from the merger of
Kent into Avnet, Inc., a New York corporation, pursuant to an amended and
restated agreement and plan of merger dated as of March 21, 2001, by and between
Kent and Avnet, Inc. This merger became effective on June 8, 2001.
* * *
This Amended and Restated Stock Purchase Warrant (this "Warrant") certifies
that, for value received, Applied Materials, Inc., a Delaware corporation, or
Assigns (the "Holder"), is entitled, subject to the terms and conditions of this
Warrant, at any time or from time to time during the period commencing on the
date hereof and terminating on February 2, 2005 (the "Exercise Period"), to
purchase up to 261,000 shares of common stock, par value $1.00 per share
("Common Stock"), of Avnet, Inc., a New York corporation (the "Company"). This
Warrant is fully vested, so that Holder may exercise all or part of it at any
time or from time to time. The exercise price per share applicable to this
Warrant (the "Exercise Price") shall be $26.221264. The Exercise Price and the
number of shares for which this Warrant is exercisable shall be subject to
adjustment as set forth in this Warrant.
1. Exercise of Warrant.
1.1 Exercise. The purchase rights represented by this Warrant are
exercisable by Holder within the Exercise Period at any time or from time
to time in installments or in whole upon surrender to the Company at its
principal office (as designated in Section 10 herein) of this Warrant,
together with the Notice of Exercise attached hereto duly completed and
signed, and upon payment to the Company of the aggregate Exercise Price for
the shares
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so purchased. Payment of the aggregate Exercise Price with respect to the
portion of this Warrant being exercised shall be made in cash, by wire
transfer, or by certified or official bank check, payable to the order of
the Company. Subject to the restrictions and requirements of Section 2
herein, not later than ten days after the exercise of this Warrant in whole
or in part and the payment of the Exercise Price as set forth above, the
Company shall prepare and issue a certificate for the Common Stock so
purchased in the name of the Holder of this Warrant or as such Holder may
direct in writing.
If this Warrant is exercised in respect of less than all of the Common
Stock at that time purchasable hereunder, the Holder hereof shall be
entitled, upon surrender of this Warrant, to receive a new Warrant covering
the number of shares in respect of which this Warrant shall not have been
exercised; provided, however, that this Warrant and all rights and options
hereunder shall expire at the end of the Exercise Period and shall be
wholly void to the extent this Warrant is not exercised before it expires.
1.2 Net Exercise. In lieu of exercising this Warrant, the Holder may
elect to receive shares of Common Stock equal to the value of this Warrant
(or the proportionate part thereof if exercised in part) by surrender of
this Warrant at the principal office of the Company (as designated in
Section 10 herein) with notice of such election, in which event the Company
shall issue to the Holder a number of shares of Common Stock computed using
the following formula:
Y (A - B)
---------
X = A
Where
X = The number of shares of Common Stock to
be issued to the Holder.
Y = The number of shares of Common Stock
exercised at such time under this Warrant.
A = The Fair Market Value (as defined below)
of one share of the Common Stock.
B = The Exercise Price (as adjusted to the
date of such calculations).
For purposes of this Section 1.2, the "Fair Market Value" of the
Common Stock shall be determined in good faith by the Board of Directors of
the Company, provided, that if the Company's Common Stock is then trading
on a national securities exchange or in the over-the-counter-market, such
determination shall be the last closing price of the Common Stock
immediately preceding the exercise of the Warrant.
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2. Representations and Warranties of Holder.
2.1 Purchase Entirely for Own Account. This Warrant and the Common
Stock issuable upon exercise hereof (collectively, the "Securities") will
be acquired for Holder's own account, not as a nominee or agent and not
with a view to the resale or distribution of any part thereof, and Holder
has no present intention of selling, granting any participation in or
otherwise distributing the same. Holder represents that it has full power
and authority to enter into this Warrant.
2.2 Restricted Securities. Holder understands that the Securities are
characterized as "restricted securities" under the federal securities laws
inasmuch as they are being acquired from the Company in a transaction not
involving a public offering and agrees that the Common Stock received upon
exercise of this Warrant may not be transferred without an effective
registration statement therefor under the Securities Act of 1933, as
amended (the "Act"), and applicable state securities laws or unless the
proposed transaction is exempt from registration. Unless registered, any
Common Stock issued to Holder upon exercise of this Warrant shall bear a
legend similar to the following:
The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or the
securities laws of any state, and may not be sold, offered for sale,
pledged or hypothecated in the absence of such registration unless
such transaction is exempt from registration.
3. Transfer Taxes. The Company will pay when due and payable any and all
United States federal and state transfer taxes and charges that may be payable
in respect of the issuance or delivery to the Holder of this Warrant or of any
Common Stock upon the exercise of this Warrant, but the Holder shall be
responsible for and pay when due any and all such taxes and changes that may be
payable in respect of the transfer of this Warrant or the issuance of Common
Stock upon the exercise of this Warrant to any person other than the Holder.
4. Lost or Destroyed Warrant. In case this Warrant shall be lost, stolen,
destroyed or mutilated, the Company shall execute, issue and deliver in exchange
and substitution for and upon cancellation of the mutilated Warrant, or in lieu
of and substitution for the lost, stolen or destroyed Warrant, a new Warrant of
like tenor and representing an equivalent right or interest; but only upon
receipt of evidence satisfactory to the Company of such loss, theft or
destruction of this Warrant and an indemnity agreement, if requested, reasonably
satisfactory to the Company.
5. Reservation and Issuance of Shares of Common Stock. The Company will at
all times reserve for issuance from its authorized and unissued shares of Common
Stock the number of shares of Common Stock needed for issuance upon the exercise
of this Warrant. The Company
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covenants that all Common Stock which may be issued upon the exercise of this
Warrant will, upon exercise of the rights represented by this Warrant, be fully
paid and nonassessable and free from all preemptive rights, taxes, liens and
charges in respect of the issuance thereof (other than taxes payable by the
Holder in respect of any transfer occurring contemporaneously with such issue).
The Company covenants that its issuance of this Warrant shall constitute full
authority to its officers who are charged with the duty of executing stock
certificates to execute and issue the necessary certificates for shares of
Common Stock upon the exercise of the purchase rights under this Warrant.
6. Certain Adjustments. The existence of this Warrant shall not affect in
any way the right or power of the Company or its stockholders to make or
authorize any or all adjustments, recapitalizations, reorganizations or other
changes in the Company's capital structure or its business, or any merger or
consolidation of the Company, or any issue of bonds, debentures, preferred or
prior preference stock ahead of or affecting the Common Stock or the rights
thereof, or the dissolution or liquidation of the Company, or any sale or
transfer of all or any part of its assets or business, or any other corporate
act or proceeding, whether of a similar character or otherwise.
6.1 Subdivisions. In case the Company shall at any time fix a record
date to effect a split or subdivision of the outstanding shares of the
Common Stock, or to determine the holders of Common Stock entitled to
receive a dividend or other distribution payable in additional shares of
Common Stock or other securities or rights convertible into, or entitling
the holder thereof to receive directly or indirectly, additional shares of
Common Stock (the "Common Stock Equivalents") without payment of any
consideration by such holder for the additional shares of Common Stock or
Common Stock Equivalents (including the additional shares of Common Stock
issuable upon conversion or exercise thereof), then, as of such record date
(or the date of such distribution, split or subdivision if no record date
is fixed) the Exercise Price in effect immediately prior to such
subdivision shall be proportionately decreased.
6.2 Combinations. In case the Company shall at any time combine the
outstanding shares of its Common Stock, the Exercise Price in effect
immediately prior to such combination shall be proportionately increased as
of the date of such combination.
6.3 Common Stock Dividends. If the Company shall pay a dividend with
respect to Common Stock payable in Common Stock or Common Stock
Equivalents, or make any other distribution of Common Stock or Common Stock
Equivalents with respect to Common Stock, then the Exercise Price per share
shall be reduced, from and after the date of determination of the
shareholders entitled to receive such dividend or distribution, to that
price determined by multiplying the per share purchase price in effect by a
fraction (a) the numerator of which shall be the total number of shares of
Common Stock outstanding immediately prior to such dividend or distribution
and (b) the denominator of which shall be the total number of shares of the
Common Stock outstanding immediately after such dividend or distribution,
assuming the conversion to Common Stock of all Common Stock
4
Equivalents is issued in such dividend or distribution, provided that the
Exercise Price per share shall be increased and recalculated pursuant to
this sentence at such time as any Common Stock Equivalents issued in such
dividend or distribution cease to be outstanding prior to being converted
into Common Stock.
6.4 Reorganization, Reclassification, Consolidation or Merger. In
case, at any time after the date of this Warrant, of any capital
reorganization, or any reclassification of the stock of the Company (other
than a change in par value or as a result of a stock dividend or
subdivision, split-up or combination of shares), or the consolidation or
merger of the Company with or into another entity (other than a
consolidation or merger in which the Company is the continuing entity and
which does not result in any change in the Common Stock), this Warrant
shall, after such reorganization, reclassification, consolidation or
merger, be exercisable into the kind and number of shares of stock or other
securities or property of the Company or of the entity resulting from such
consolidation or surviving such merger to which Holder would have been
entitled if immediately prior to such reorganization, reclassification,
consolidation or merger, Holder had exercised this Warrant for Common
Stock. The provisions of this Subsection shall similarly apply to
successive reorganizations, reclassifications, consolidations or mergers.
6.5 Cash or Other Dividends or Distributions. No adjustment will be
made to the Exercise Price on account of dividends or distributions paid on
or with respect to the Common Stock in cash, property or securities other
than Common Stock or Common Stock Equivalents.
7. Fractional Interests. The Company shall not be required to issue
fractional shares of Common Stock upon the exercise of this Warrant. In lieu
thereof, the Company shall pay Holder a sum in cash equal to any such fractional
shares based upon the difference between the Fair Market Value of such
fractional shares and the Exercise Price allocable thereto.
8. No Rights as Stockholders. Nothing contained in this Warrant shall be
construed as conferring upon the Holder the right to vote or to receive
dividends or to consent to or receive notice as a stockholder in respect of any
meeting of stockholders for the election of directors of the Company or any
other matter, or any rights whatsoever as a stockholder of the Company.
9. Warrant Register. The Company shall maintain at its principal office (as
designated in Section 10 herein) a registry for the registration of Warrants and
the registration of the transfer of Warrants. Prior to the Company's receipt of
written notice from Holder to the contrary, the Company shall be entitled to
rely in all respects upon such registry and may deem and treat Holder as the
owner hereof for all purposes.
10. Notices. All notices, requests, demands, claims and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be
5
deemed duly given if (and then two business days after) it is sent by registered
or certified mail, return receipt requested, postage prepaid, and addressed to
the intended recipient as set forth below or duly given upon receipt if made by
hand delivery, facsimile or e-mail transmission (with receipt confirmation) or
other personal delivery:
If to the Company, to:
Avnet, Inc.
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
E-Mail: xxx.xxxxxxxx@xxxxx.xxx
If to Applied, to:
Applied Materials, Inc.
0000 Xxxxxx Xxxxxx, X/X 0000
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Treasurer
Telephone: 000-000-0000
Fax: 000-000-0000
E-Mail: xxxxxx_xxxxx@xxxx.xxx
With a copy to:
Applied Materials, Inc.
0000 Xxxxxx Xxxxxx, M/S 2064
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Group Vice President,
Legal Affairs and Intellectual Property
Telephone: 000-000-0000
Fax: 000-000-0000
Either party may send any notice, request, demand, claim or other
communication hereunder to the intended recipient at the address set forth above
using any other means, but no such notice, request, demand, claim or other
communication shall be deemed to have been duly given unless and until it
actually is received by the intended recipient. Either party may change the
address to which notices, requests, demands, claims, and other communications
hereunder are to be delivered by giving the other party notice in the manner
herein set forth.
6
11. Amendments; Waivers. No amendment to, modification of, or waiver of any
provision of this Warrant will be binding unless in writing and signed by a duly
authorized representative of the party sought to be bound.
12. Successors and Assigns. The terms of this Warrant shall be binding upon
and shall inure to the benefit of any successor or assign of the Company and of
the holder or holders hereof and of the Common Stock issued upon exercise of
this Warrant, and all obligations of the Company relating to the Common Stock
issuable upon exercise of this Warrant shall survive the exercise of this
Warrant.
13. Construction of Dates. If the last or appointed day for the taking of
any action or the expiration of any right required or granted herein shall be a
Saturday or a Sunday or shall be a legal holiday, then such action may be taken
or such right may be exercised, except as to the payment of the Exercise Price,
on the next succeeding day not a legal holiday.
14. Severability and Validity. Any term or provision of this Warrant that
is invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction.
15. Governmental Filings. The Company shall assist and cooperate with the
Holder, on the Holder's written request and at the Holder's expense, to make any
governmental filings or obtain any governmental approvals required prior to or
in connection with any exercise of this Warrant.
16. Governing Law. This Warrant shall be governed by, be subject to, and be
construed in accordance with the internal laws of the State of Texas, excluding
conflicts of law rules. The parties agree that any suit arising out of this
Warrant, for any claim or cause of action, whether in contract, in tort,
statutory, at law or in equity, shall exclusively be brought in the United
States District Court for the Western District of Texas, Austin Division, or the
Texas State District Courts of Xxxxxx County, Texas, provided that such court
has jurisdiction over the subject matter of the action. Each party agrees that
each of the named courts shall have personal jurisdiction over it and consents
to such jurisdiction. Each party further agrees that venue of any suit arising
out of this Warrant is proper and exclusive in any of the courts identified
above; each party consents to such venue therein.
17. Captions. All Section titles or captions contained in this Warrant or
in any Exhibit or Attachment annexed hereto or referred to herein are for
convenience only, shall not be deemed a part of this Warrant and shall not
constitute a waiver of any of Holder's rights under this Warrant, at law or in
equity.
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IN WITNESS WHEREOF, the parties to this Amended and Restated Stock Purchase
Warrant have caused their names to be signed hereto by their respective duly
authorized officers as of this 8th day of June, 2001.
AVNET, INC.
a New York Corporation
By: /s/Xxxxxxx Xxxxxxxx
--------------------------------
Xxxxxxx Xxxxxxxx
Senior Vice President and
Chief Financial Officer
APPLIED MATERIALS, INC.
a Delaware corporation
By:
---------------------------------
Name:
Title:
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Exhibit A
NOTICE OF EXERCISE
(To be executed by the Holder upon partial
or full exercise of the attached Warrant)
To: Avnet, Inc.
The undersigned hereby irrevocably elects to exercise the right to purchase
_______ shares of Common Stock covered by the Amended and Restated Warrant
issued by you dated June 8, 2001 (which is attached hereto), according to the
terms and conditions thereof and [Alternative One: herewith makes payment of the
Exercise Price of such shares in full in the amount of $_______ therefor]
[Alternative Two: herewith directs that the Exercise Price be paid from a
portion of such shares as provided in Section 1.2 of the Warrant] and requests
that the certificates for the Common Stock be issued in the name of the
undersigned.
APPLIED MATERIALS, INC.
a Delaware corporation
By:
----------------------
Name:
----------------------
Title:
----------------------
By:
----------------------
Name:
----------------------
Title:
----------------------
Dated: __________, ____.
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