EXHIBIT 1
August 1998
AVNET, 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 debt securities
registered under the registration statement referred to in Section 3(a)
("Securities"). The Securities will be issued under an indenture, dated as of
February 1, 1994 (such indenture as amended or supplemented is herein referred
to as the "Indenture"), between the Company and The First National Bank of
Chicago, as Trustee, in one or more series, which series may vary as to interest
rates, maturities, redemption 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 the Securities will be evidenced by an exchange of written
communications ("Pricing Agreement") at the time the Company determines to sell
the 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 against
payment by the several Underwriters through the Representatives of the purchase
price in New York Clearing House funds (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 (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.
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, which has become effective, for the registration under the Act of 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 (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 (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
2
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) 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 subsidiaries (the "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;
(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 or condition of the Company and
its Subsidiaries taken as a whole, 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 in all material respects with the laws, orders, rules,
regulations and directives issued or administered by such jurisdictions;
(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), its
respective charter or by-laws or in the performance or observance of any
obligation, agreement, covenant or condition contained in any material
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, and the execution, delivery and
performance of the Pricing Agreement (including these Provisions) and the
Indenture, and the issuance of the Securities 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 both would constitute a breach
of, or default under), any provisions of the charter or by-laws of the
Company or any of its Subsidiaries or under any provision of any material
license, indenture, mortgage, deed of trust, bank loan or credit agreement
or other agreement or instrument to which the Company or any of its
3
Subsidiaries is a party or by which any of them or their respective
properties may be bound or affected, or under 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;
(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) the Pricing Agreement has been duly authorized, executed and
delivered by the Company;
(i) the Securities and the Indenture conform in all material respects
to the description thereof contained in the Registration Statement and
Prospectus;
(j) 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, 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 are
being offered by the Underwriters;
(k) 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;
(l) each of the Company and its Subsidiaries (i) has all necessary
licenses, authorizations, consents and approvals which are material to its
business, (ii) has made all filings required under any federal, state,
local or foreign law, regulation or rule, the failure to make which 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 (iii) has obtained
4
all necessary authorizations, consents and approvals from other persons
which are material to its business; 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;
(m) 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;
(n) 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;
(o) 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;
(p) 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;
(q) no Subsidiary is a "significant subsidiary" as that term is
defined in Item 1-02(w) of Regulation S-X promulgated under the Act;
(r) the Company and each of the Subsidiaries have filed all material
federal and state income and franchise tax returns (or obtained extensions
with respect
5
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;
(s) 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;
(t) 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;
(u) except as described in the Registration Statement and the
Prospectus, (i) the operations of the Company and its Subsidiaries are in
compliance in all material respects with all applicable environmental laws,
(ii) the Company and its Subsidiaries have obtained all material
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 in all material
respects with the terms and conditions thereof, (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
6
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 materially affecting the
Company or any of its subsidiaries relating to chemicals, pollutants,
contaminants, wastes, toxic substances, petroleum or petroleum products or
any environmental law, 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;
(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; 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;
7
(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
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, (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;
8
(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, 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;
(h) 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 (iii) 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; and
9
(i) 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 debt securities pursuant to a public offering or (ii) any
unsecured debt securities pursuant to a private placement which
contemplates the purchasers of such 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.
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) 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 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:
(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 Indenture has been duly authorized, executed and
delivered by the Company and constitutes the legal, valid and binding
agreement of the Company enforceable against the Company in accordance
with its terms, except insofar 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;
10
(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, except insofar as
the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally,
and by general principles of equity;
(iv) the Securities and the Indenture 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 and qualification of the Indenture under the Trust Indenture
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);
(viii) the Indenture has been duly qualified under the Trust
Indenture 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 come to
the attention of such
11
counsel, in the course of such participation, that causes 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;
(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 (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 the jurisdictions listed on Schedule A hereto,
other than the
12
State of New York (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), 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 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 the Indenture and the issuance of the Securities by the
Company and the consummation by the Company of the transactions
contemplated hereby and thereby 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 provisions of the charter or by-laws
of the Company or any of its Subsidiaries or under any provision of
any material 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 under any law,
regulation or rule or any decree, judgment or order applicable to the
Company or any of its Subsidiaries;
(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
13
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 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 the forms theretofore approved by 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, (i) 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, and (ii) no transaction
which is material and unfavorable to the Company shall have been entered
into by the Company or any of its Subsidiaries.
(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.
14
(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.
(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.
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;
15
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.
(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.
16
(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 such indemnified party in accordance with
17
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 to 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
18
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 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) 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
"nationally recognized statistical rating organization," as that term is
defined by the Commission in Rule 15c3-1(c)(2)(vi)(F)(ii) under the
Exchange Act, 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
19
to enforce contracts for the sale of the Securities, or (iv) 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
(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.
20
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
21
AVNET, INC.
DEBT SECURITIES
PRICING AGREEMENT
-----------------
, 199
Avnet, Inc.
00 Xxxxxx Xxxx Xxxx
Xxxxx Xxxx, Xxx Xxxx 00000
Attention:
Ladies and Gentlemen:
Referring to the Debt Securities of Avnet, Inc. (the "Company") covered by
the Registration Statement on Form S-3 (No. 333-53691) (the "Registration
Statement") 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, $ aggregate principal amount of % Due (the "Securities") in
the respective principal amounts set forth opposite the names of the
Underwriters on Schedule A hereto.
The price at which the Securities shall be purchased from the Company by
the Underwriters shall be % of the principal amount thereof [plus accrued
interest from , 199 ]. The Securities will be offered as set forth in the
Prospectus Supplement relating thereto.
The Securities will have the following terms:
Title:
Interest Rate: % per annum
Interest Payment Dates: and
commencing , 199
Maturity:
Other Provisions: as set forth in the Prospectus Supplement relating to the
Securities
Closing: A.M. on , 199 , at , in New York Clearing
House (next 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 to the Registration Statement, are
incorporated herein by reference.
The Securities will be made available for checking and packaging at the
office of at least 24 hours prior to the Closing Date.
We represent that we are authorized to act for the several Underwriters
named in Schedule A 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.
2
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:
3
SCHEDULE I
Principal
Underwriter Amount
----------- ------
-------
Total. . . . . . . . . . . .. . . . . . $_______
