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Exhibit 1.2
[ ] 2000
AVNET, INC.
COMMON STOCK
STANDARD UNDERWRITING AGREEMENT PROVISIONS
1. Introductory. Avnet, Inc., a New York corporation (the
"Company"), proposes to issue and sell from time to time shares (the "Shares")
of its common stock, par value $1.00 per share (the "Common Stock"), contracts
to purchase shares of Common Stock ("Stock Purchase Contracts"), contracts to
purchase Common Stock sold as units with other securities of Avnet or other
issuers ("Stock Purchase Units") and warrants to purchase Common Stock
("Warrants"). Shares, Stock Purchase Contracts and Warrants are hereinafter
collectively referred to as "Securities."
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 number of Securities
to be purchased by each Underwriter and the purchase price to be paid by the
Underwriters (which, in the case of Securities that are Shares, shall not be
less than the aggregate par value of such Shares), (4) the time and date on
which delivery of the Securities will be made to the Representatives for the
accounts of the several Underwriters (such time and date, 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, being
herein and in the Pricing Agreement referred to as the "Closing Date"), and (5)
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.
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
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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 Shares 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-_____), 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 plan of
distribution of any Securities, 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 (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 and the Prospectus
comply in all material respects with the applicable requirements of the
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 Registration Statement or the Prospectus;
(c) 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
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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 Shares as herein contemplated ("Subsidiary" meaning any
subsidiary of the Company, "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 could 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 Schedule 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, could not be expected to 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,
could not be expected to have a Material Adverse Effect, and except
for, in the case of clause (ii) above, breaches and defaults which,
individually or in the aggregate, could not be expected to have a
Material Adverse Effect, and the execution, delivery and performance of
the Pricing Agreement (including these Provisions), and the issuance of
the Securities and consummation of the transactions contemplated
hereby, 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 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, could not be expected to 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, could not be expected to have a Material Adverse Effect;
(f) the Securities have been duly authorized and, when issued as
contemplated herein, will be validly issued and, if such Securities are
Shares, fully paid and nonassessable; all of the outstanding shares of
capital stock of the Company have been duly authorized and validly
issued, and are fully paid and nonassessable; and no holder of any
Shares or any shares of outstanding capital stock of the Company is or
will be subject to personal liability by
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reason of being such a holder; and none of the Shares or any of the
outstanding capital shares of the Company was issued in violation of
the preemptive rights of any shareholder of the Company.
(g) Each Stock Purchase Contract has been, or as of the
date of the applicable Pricing Agreement will have been, duly
authorized and executed and when delivered against payment therefor in
accordance with the terms thereof and of such Pricing Agreement, will
constitute a valid and legally binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium, or other similar laws relating to or
affecting creditors rights generally or by general equitable
principles.
(h) the Shares at the Closing Date will be authorized for
listing on the New York Stock Exchange and the Pacific Exchange.
(i) the Pricing Agreement has been duly authorized,
executed and delivered by the Company;
(j) the Securities 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 as contemplated hereby
other than registration of the Securities under the Act and any
necessary qualification under the securities or blue sky laws of the
various jurisdictions in which the 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
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, except where
the failure to have, make or obtain such licenses, authorizations,
consents, approvals and filings, individually or in the aggregate,
could not be expected to have a Material Adverse Effect; 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 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,
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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; such financial statements have been prepared in conformity
with generally accepted accounting principles applied on a consistent
basis during the periods involved;
(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,
regulatory environment, 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, except for Avnet Europe NV/SA;
(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, 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;
(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") 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;
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(u) except as described in the Registration Statement and
the Prospectus, (i) the operations of the Company and its Subsidiaries
are in compliance with all applicable environmental laws, except where
the failure to comply with such laws, individually or in the aggregate,
could not be expected to have a Material Adverse Effect, (ii) the
Company and its Subsidiaries have obtained all environmental, health
and safety permits, licenses and approvals necessary for its operation,
all such permits, licenses and approvals are in effect and the Company
and its Subsidiaries are in compliance with the terms and conditions
thereof, except where the failure to so obtain, keep in effect and
comply with such permits, licenses and approvals, whether individually
or in the aggregate, could not be expected to have a Material Adverse
Effect, (iii) with respect to any property currently or formerly owned,
leased or operated by the Company or any of its Subsidiaries, (a)
neither the Company nor any such Subsidiary is subject to any judicial
or administrative proceeding or any order from or agreement with any
governmental authority (collectively, "Proceedings"), and (b) the
Company does not have knowledge of any pending or threatened
investigation by any governmental authority (collectively,
"Investigations") relating to any violation or alleged violation of any
environmental law, any release or threatened release of a hazardous
material into the environment, or any remedial action that may be
necessary in connection with any such violation or release, except for
such Proceedings or Investigations which, whether individually or in
the aggregate, could not be expected to have a Material Adverse Effect,
(iv) neither the Company nor any such Subsidiary has filed any notice
under any environmental law indicating past or present treatment,
storage, disposal or release of a hazardous material into the
environment in a manner that is not in compliance with, or which could
result in liability under, applicable environmental laws, except where
such non-compliance or liability, whether individually or in the
aggregate, could not be expected to have a Material Adverse Effect, (v)
neither the Company nor any such Subsidiary has received notice of a
claim that it may be subject to liability (a "Notice") as a result of a
release or threatened release of hazardous material, except for such
Notice which, whether individually or in the aggregate, could not be
expected to have a Material Adverse Effect, and (vi) there are no
events, circumstances or conditions that might reasonably be expected
to form the basis of an order for clean-up or remediation, or an
action, suit or proceeding by any private party or governmental body or
agency, against or affecting the Company or any of its Subsidiaries
relating to chemicals, pollutants, contaminants, wastes, toxic
substances, petroleum or petroleum products or any environmental law,
except for events, circumstances and conditions which, individually or
in the aggregate, could not be expected to have a Material Adverse
Effect, and to the best of the Company's knowledge, there is no
reasonable basis for any such order, action, suit or proceeding with
respect to any environmental law which could be expected to have a
Material Adverse Effect;
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(v) 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; (the "Investment Company Act") and
(w) 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 could 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
(including the provisions of Florida blue sky law, if requested,
relating to issuers doing business with Cuba) 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 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 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 (A) when any Prospectus supplement relating to the
Securities shall have been filed with the Commission pursuant to Rule
424, (B) when, prior to termination of the offering of the Securities,
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
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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, (ii) copies of
all annual, quarterly and current reports filed with the Commission on
Forms 10-K, 10-Q and 8-K, or such other similar form as may be
designated by the Commission, and (iii) such other information as the
Representatives may reasonably request regarding the Company or its
Subsidiaries;
(e) to advise the Underwriters promptly of the happening
of any event known to the Company within the time during which a
prospectus relating to the Securities 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, 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 the
holders of Shares 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 Shares
in the manner set forth under the caption "Use of Proceeds" in the
Prospectus;
(h) if the Securities being purchased are Shares, to use
its reasonable efforts to effect the listing of the Shares prior to the
Closing Date on the New York Stock Exchange and the Pacific Exchange;
and
(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,
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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, 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 filing for review
of the public offering of the Securities by the National Association of
Securities Dealers, Inc. (the "NASD"), and (vii) the performance of the
Company's other obligations hereunder.
5. Reimbursement of Underwriters' Expenses: If the Securities 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)(ii), (a)(iii) or (a)(iv) 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 the 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:
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(a) The Company shall furnish to the Representatives at
the Closing Date an opinion of Xxxxxx, Xxxxxxx & Xxxxxxx, 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 (which incorporates by
reference all of these Provisions) has been duly authorized,
executed and delivered by the Company;
(ii) the Securities have been duly authorized
and, following the issuance and sale thereof in accordance
with the provisions of the Pricing Agreement, will be validly
issued and, if such Securities are Shares, fully paid and
nonassessable;
(iii) If the Securities are or include Stock
Purchase Contracts, each Stock Purchase Contract has been duly
authorized and executed and when delivered against payment
therefor in accordance with the terms thereof and of the
applicable Pricing Agreement, will constitute a valid and
legally binding obligation of the Company, enforceable against
the Company in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium, or other similar laws relating to
or affecting creditors rights generally or by general
equitable principles;
(iv) the Securities conform in all material
respects to the summary descriptions thereof contained in the
Registration Statement and Prospectus;
(v) the Registration Statement and the
Prospectus (except as to the financial statements and
schedules and other financial and statistical 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) comply as to form in all material
respects with the requirements of the Act;
(vi) the Registration Statement has become
effective under the Act and, to the best of such counsel's
knowledge, no stop order proceedings with respect thereto are
pending or threatened under the Act;
(vii) no approval, authorization, consent or order
of or filing with any United States Federal or New York State
governmental or regulatory commission, board, body, authority
or agency is required in connection with the issue or sale of
the Securities by the Company as contemplated hereby, other
than registration of the Securities under the Act (except such
counsel need express no opinion as to any necessary
qualification under the state securities or blue sky laws of
the various jurisdictions in which the Securities are being
offered by the Underwriters); and
(viii) the Company is not an "investment company"
or an entity "controlled" by an "investment company" as such
terms are defined in the Investment Company Act.
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 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
(except as and to the extent stated in subparagraph (iv) above), no
facts have
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come to the attention of such counsel, in the course of such
participation, that cause it to believe that the Registration
Statement, 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 or any supplement thereto, at the date of such Prospectus or
such supplement and at all times up to and including the Closing Date,
contained or contains an untrue statement of a material fact or omitted
or omits to state a material fact required to be stated therein or
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 opinion with respect to
the financial statements and schedules and other financial and
statistical data included in the Registration Statement or Prospectus
or with respect to the Trustee's Statement of Eligibility on Form T-1).
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
the 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, and no holder thereof is
subject to personal liability by reason of being such a
holder;
(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
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
could 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);
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(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, or (iii) under any United States Federal or New York
State law, regulation or rule, or under any decree, judgment
or order applicable to the Company or any of its Subsidiaries;
(vi) the execution, delivery and performance of
the Pricing Agreement and any Stock Purchase Contract, the
issuance of the Securities by the Company and the consummation
by the Company of the transactions contemplated hereby 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), (i) any provision of the charter or
by-laws of the Company or any of its Subsidiaries, or (ii)
under any provision of 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 (iii) under 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 (i) above, conflicts, breaches and defaults of
Non-Material Subsidiaries which, individually or in the
aggregate, could not be expected to have a Material Adverse
Effect, and except for, in the case of clauses (ii) and (iii)
above, conflicts, breaches and defaults which, individually or
in the aggregate, could not be expected to 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;
(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
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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);
(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.
(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 (i) the Registration
Statement and all amendments thereto, or modifications thereof, if any,
shall not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading and (ii) the
Prospectus and all amendments or supplements thereto, or modifications
thereof, if any, shall not contain an untrue statement of material fact
or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
(f) Between the Representation Date and the Closing Date,
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business.
(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.
(h) 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.
(i) 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.
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(j) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or threatened.
(k) 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.
(l) On the Closing Date, the Securities (if such
Securities are Shares) shall have been approved for listing on the New
York Stock Exchange and the Pacific Exchange, subject only to official
notice of issuance, if and as specified in the applicable Pricing
Agreement.
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 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 any untrue statement or alleged
untrue statement of a material fact included in any
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation, or
any investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject
to Section 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
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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 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
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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 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
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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 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
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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, or (ii)
there has occurred any material adverse change in the financial markets
in the United States 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 Shares or to enforce contracts for the sale
of the Shares, or (iii) trading in any securities of the Company has
been suspended or materially limited by the Commission or the New York
Stock Exchange, or 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 (iv) a
banking moratorium has been declared by either Federal or New York
authorities.
(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.
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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.
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SCHEDULE A
JURISDICTIONS IN WHICH AVNET, INC. IS INCORPORATED OR QUALIFIED
Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Florida,
Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Maryland,
Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nevada, New
Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma,
Oregon, Pennsylvania, Puerto Rico, Rhode Island, Tennessee, Texas, Utah,
Washington, Wisconsin
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AVNET, INC.
COMMON STOCK
PRICING AGREEMENT
, 200_
Avnet, Inc.
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention:
Ladies and Gentlemen:
Referring to the Common Stock of Avnet, Inc. (the "Company") covered by
the Registration Statement on Form S-3 (No. 333-_____) 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
attached hereto (the "Standard Underwriting Agreement"), and subject to the
terms and conditions set forth herein and therein, the Underwriters named on
Schedule I hereto ("Underwriters") agree to purchase, severally and not jointly,
and the Company agrees to sell to the Underwriters, an aggregate of _____ [state
title of securities] (the "Shares") in the respective amounts set forth opposite
the names of the Underwriters on Schedule I hereto.
The public offering price for the Shares, as set forth on the cover
page of the Prospectus Supplement relating thereto, shall be $________ per
Share. The price at which the Shares shall be purchased from the Company by the
Underwriters shall be $_____ per share. The Shares will be offered as set forth
in the Prospectus Supplement relating thereto.
Closing: A.M. on , 200_, at
, in same day funds.
Name[s] and Address[es] of Representative[s]:
The provisions contained in the Standard Underwriting Agreement
Provisions, a copy of which has been filed as Exhibit 1.2 to Registration No.
333-_____, are incorporated herein by reference.
A global certificate representing all of the Shares will be made
available for inspection at the office of ___________________, at least 24 hours
prior to the Closing Date.
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We represent that we are authorized to act for the several Underwriters
named in Schedule I hereto in connection with this financing and any action
under this agreement by any of us will be binding upon all the Underwriters.
This Pricing Agreement may be executed in one or more counterparts, all
of which counterparts shall constitute one and the same instrument.
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,
[NAMES OF REPRESENTATIVES]
On behalf of themselves and
as Representatives of the
Several Underwriters
By_____________________________
By_____________________________
Name:
Title:
The foregoing Pricing Agreement
is hereby confirmed as of the
date first above written
AVNET, INC.
By__________________________
Name:
Title:
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