EXHIBIT 1
REGISTRATION RIGHTS AGREEMENT
-----------------------------
This REGISTRATION RIGHTS AGREEMENT is dated as of January 3, 2000 between
SEI Investments B.V., a private company with limited liability (besloten
vennootschap met beperkte aansprakelijkheid) organized under the laws of The
Netherlands ("Seller") and Avnet, Inc., a New York corporation ("Purchaser").
W I T N E S S E T H :
WHEREAS, Seller and Purchaser have entered into a Share Purchase Agreement
of even date herewith (the "Share Purchase Agreement") providing for the sale
and transfer of shares of Eurotronics B.V. (the "SEI Shares") by Seller to
Purchaser;
WHEREAS, the Share Purchase Agreement calls for the issuance by Purchaser
to Seller of 1,171,270 shares of common stock, par value $1.00 per share, of
Purchaser ("Consideration Shares"). As a condition to the sale by Seller of the
SEI shares to Purchaser, the Purchaser has agreed to provide registration rights
with respect to the Consideration Shares as set forth in this Agreement;
In consideration of the premises, and of the mutual covenants,
representations, warranties and agreements herein contained, the parties hereto
agree as follows:
1. Certain Definitions.
--------------------
As used in this Agreement, the following terms shall have the following
respective meanings:
(a) "Affiliate" means, as applied to any person, any other person that
directly or indirectly, through one or more intermediaries, controls, or is
controlled by, or is under common control with, such person at the time at
which the determination of affiliation is made. The term "control"
(including, with correlative meanings, the terms "controlled by" and "under
common control with"), as applied to any person, means the possession,
direct or indirect, of the power to direct or cause the direction of the
management and policies of that person, whether through the ownership of
voting securities, voting rights or other ownership interests, by contract
or otherwise.
(b) "Closing Date" shall mean the Closing Date specified in the Share
Purchase Agreement.
(c) "Commission" shall mean the Securities and Exchange Commission, or
any other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular
purpose.
(d) "Exchange Act" shall mean the Securities Exchange Act of 1934, or
any successor thereto, and the rules and regulations promulgated
thereunder, all as the same shall be amended from time to time.
(e) The term "holder" shall mean the Seller and/or any Affiliate of
the Seller which, on the Closing Date, becomes the holder of record of any
Registrable Securities, and their respective successors and assigns
pursuant to Section 8(d) of this Agreement.
(f) The term "person" shall mean a corporation, association,
partnership or other entity or an individual, government or political
subdivision thereof or governmental agency.
(g) "Registration Expenses" shall have the meaning set forth in
Section 4 of this Agreement.
(h) "Registrable Securities" shall mean the Consideration Shares
purchased pursuant to the Share Purchase Agreement, and any securities into
which or for which the Consideration Shares may hereafter be changed,
converted or exchanged, and any other shares or securities issued with
respect to the Consideration Shares to holders of the Consideration Shares;
provided, however, that securities shall cease to be Registrable Securities
when (i) a registration statement covering such Registrable Securities has
been declared effective and they have been sold or otherwise transferred by
the holder thereof pursuant to such effective registration statement or
(ii) they have been distributed to the public pursuant to Rule 144 (or any
successor provision) promulgated under the Securities Act.
(i) "Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
(j) "Shelf Registration" shall have the meaning set forth in Section 2
of this Agreement.
2
2. Registration Under the Securities Act.
--------------------------------------
Purchaser shall file on or prior to a date that is 11 business days after
the Closing Date, but not prior to the Closing Date, a "shelf" registration
statement providing for the offer and sale by the holders of all the Registrable
Securities, on an appropriate form pursuant to Rule 415 under the Securities Act
and/or any similar rule that may be adopted by the Commission (the "Shelf
Registration"). Purchaser agrees to use its reasonable best efforts to cause
such Shelf Registration to be declared effective as promptly as practicable
after such filing and to keep such Shelf Registration continuously effective for
a period ending on the earlier of (x) the second anniversary of the Closing Date
and (y) the earliest time the Registrable Securities can all be sold by the
Seller in a single transaction pursuant to Rule 144 under the Securities Act.
Purchaser further agrees, if necessary, to supplement or make amendments to the
Shelf Registration, if required by the rules, regulations or instructions
applicable to the registration form used by Purchaser for such Shelf
Registration or by the Securities Act or rules and regulations thereunder for
shelf registration.
Notwithstanding anything herein to the contrary, Purchaser shall be
entitled to delay such filing and/or the effective time of the Shelf
Registration for up to 60 days if Purchaser shall determine in good faith that
such filing or effectiveness is reasonably likely to interfere with a pending or
contemplated financing, merger, sale or acquisition of assets, recapitalization
or other corporate action or policies of the Company, it being understood that
Purchaser shall be entitled to delay only twice for up to 60 days in the
aggregate.
3. Registration Procedures.
------------------------
In connection with Purchaser=s obligations with respect to the Shelf
Registration pursuant to Section 2 hereof, Purchaser shall use its reasonable
best efforts to effect or cause the registration of the Registrable Securities
under the Securities Act to permit the offer and sale of such Registrable
Securities by the holders thereof in accordance with the holders' intended
method or methods of distribution thereof, and pursuant thereto, Purchaser
shall, as soon as reasonably possible:
(a) prepare and file with the Commission a registration statement or
registration statements with respect to the Shelf Registration on any form
which may be utilized by Purchaser and which shall permit the disposition
of the Registrable Securities in accordance with the method or methods
thereof disclosed to Purchaser by the holders, and use its reasonable best
efforts to cause such registration statement or registration statements to
become effective as promptly as practicable after filing;
(b) prepare and file with the Commission such amendments and
supplements to a registration statement or statements hereunder and the
prospectus used in connection therewith as may be necessary to maintain the
effectiveness of such registration statement for the applicable period
specified in Section 2 hereof, and comply with the provisions of
3
the Exchange Act and the Securities Act with respect to the disposition of
all of the Registrable Securities to be included in such registration
statement during such applicable period in accordance with the methods of
disposition disclosed to Purchaser by the holders;
(c) not less than five business days before filing a registration
statement or related prospectus with respect to a Shelf Registration or any
amendments or supplements thereto, furnish to each holder of Registrable
Securities covered by such Shelf Registration and their counsel and
managing underwriters, if any, copies of all such documents proposed to be
filed (including exhibits), and Purchaser will not file any such document
with the Commission if (i) in the case of the registration statement, the
holders of a majority of the Registrable Securities included in such
registration statement shall reasonably object to such filing within three
business days of their receipt of such document or (ii) any holder shall
reasonably object to information in such a document concerning such holder
within three business days of its receipt of such document;
(d) promptly notify the selling holders of Registrable Securities to
be included in a registration statement hereunder and the managing
underwriters, if any, of the Registrable Securities being sold and (if
requested by any such person) confirm such advice in writing, (i) when such
registration statement, the prospectus or any prospectus supplement or
post-effective amendment has been filed, and, with respect to such
registration statement or any post-effective amendment, when the same has
become effective, (ii) of any request by the Commission for amendments or
supplements to such registration statement or the prospectus or for
additional information, (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of such registration statement or the
initiation of any proceedings for that purpose, (iv) of the receipt by
Purchaser of any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose, or (v) at
any time when a prospectus is required to be delivered under the Securities
Act, of the happening of any event as a result of which such registration
statement, prospectus, any prospectus supplement, or any document
incorporated by reference in any of the foregoing contains an untrue
statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(e) use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of a registration statement hereunder or
any post-effective amendment thereto at the earliest practicable date;
(f) in connection with an underwritten offering of Registrable
Securities, promptly prepare a revised prospectus, a prospectus supplement
or post-effective amendment that complies with the Securities Act and that
includes such information that Purchaser and the managing underwriter or
underwriters of such offering may deem
4
reasonably appropriate; and make all required filings of such prospectus
supplement or post-effective amendment promptly after notification of the
matters to be included in such prospectus supplement or post-effective
amendment;
(g) furnish to the holders of Registrable Securities to be included in
a registration statement hereunder and each underwriter, if any, of the
Consideration Shares being sold such number of copies of such registration
statement, each such amendment and supplement thereto (in each case
including all exhibits thereto), the prospectus included in such
registration statement and such other documents as such holder and
underwriter, if any, may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by such holders; at any
time when such holders have not been given notice of the occurrence of any
event described in Section 3(d)(iii), (iv) or (v) above, or when Purchaser
has not been given the notice described in the last sentence of Section 3,
Purchaser consents to the use of the prospectus or any amendment or
supplement thereto by the selling holders of Registrable Securities and the
underwriters in connection with the offering and sale of the Registrable
Securities covered by the prospectus or any supplement or amendment
thereto;
(h) use its reasonable best efforts to (i) register or qualify the
Registrable Securities to be included in a registration statement hereunder
under such other securities laws or blue sky laws of such jurisdictions in
the United States as the holders of such Registrable Securities and each
managing underwriter, if any, of the Registrable Securities being sold
shall reasonably request, (ii) keep such registrations or qualifications in
effect for so long as the registration statement remains in effect and
(iii) take any and all such actions as may be reasonably necessary or
advisable to enable such holders and underwriter, if any, to consummate the
disposition in such jurisdictions of such Registrable Securities; provided,
however, that Purchaser shall not be required for any such purpose to (A)
qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not otherwise be required to qualify but for
the requirements of this Section 3(h), (B) subject itself to taxation in
any such jurisdiction, or (C) consent to general service of process in any
such jurisdiction;
(i) use its reasonable best efforts to cause all of the Registrable
Securities to be included in a registration statement hereunder to be
registered with or approved by such other United States governmental
agencies or authorities as may be necessary by virtue of the business and
operations of Purchaser to enable the holder or holders thereof to
consummate the disposition of such Registrable Securities;
(j) cooperate with the holders of the Registrable Securities to be
included in a registration statement hereunder and the managing
underwriters, if any, to furnish for delivery at least two business days
prior to the closing of any sale certificates representing Registrable
Securities to be sold and not bearing any restrictive legends; and, in the
case of an underwritten offering, enable such Registrable Securities to be
5
registered in such names as the managing underwriters may request at least
two business days prior to any sale of the Registrable Securities;
(k) enter into such customary agreements (including an underwriting
agreement) and take such other actions in connection therewith as the
holders of a majority of the Registrable Securities shall reasonably
request in order to expedite or facilitate the disposition of such
Registrable Securities, and in connection with an underwritten offering, at
the request of the holders of a majority of the Registrable Securities or
the managing underwriters, (i) make such representations and warranties to
the underwriters in form, substance and scope as are customarily made in an
underwritten offering; (ii) obtain such opinions of counsel to Purchaser
(which may be Purchaser's General Counsel) in customary form and covering
such matters of the type customarily covered by such opinion as the
managing underwriters may reasonably request, addressed to the underwriters
and dated the date of the closing under the underwriting agreement; (iii)
obtain "cold comfort" letters from the independent certified public
accountants of Purchaser addressed to the underwriters and dated the
effective date of such registration statement and the date of the closing
under the underwriting agreement, such letters to be in customary form and
covering such matters of the type customarily covered by such letters; and
(iv) deliver such documents and certificates as may be reasonably requested
by the managing underwriters to evidence compliance with clause (i) above
and with any customary conditions contained in the underwriting agreement
or other agreement entered into by Purchaser;
(l) use its reasonable best efforts to list all such Registrable
Securities on each securities exchange and automated inter-dealer quotation
system on which such Registrable Securities are then listed or admitted for
trading;
(m) use its reasonable efforts to assist the holders of Registrable
Securities in the marketing of Registrable Securities in connection with
such registration hereunder, it being understood that no directors,
officers or other representatives of Purchaser will be required to attend
any "road shows" or analyst or investor presentations in connection with
the Shelf Registration; and
(n) otherwise use its best efforts to comply with all applicable rules
and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, an earning statement covering a
period of at least twelve months which shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder.
Notwithstanding anything herein to the contrary, at any time after the
effectiveness of the Shelf Registration, Purchaser shall be entitled by
notifying the holders of the Registrable Securities to postpone or suspend for a
reasonable period of time (not to exceed 90 days in the aggregate minus the
number of days, if any, used by Purchaser pursuant to the last
6
sentence of Section 2) the offering of any Registrable Securities if Purchaser
shall determine in good faith that such offering is reasonably likely to
interfere with a pending or contemplated financing, merger, sale or acquisition
of assets, recapitalization or other corporate action or policies of Purchaser.
If Purchaser elects to so postpone or suspend the offering of any Registrable
Securities, the Purchaser shall, to the extent necessary, amend or supplement
the registration statement for the Shelf Registration to permit the offering of
Registrable Securities immediately following the end of such postponement or
suspension (it being understood that Purchaser may so postpone or suspend the
offering of Registrable Securities only twice in any 365 day period for a period
not to exceed in the aggregate 90 days minus the number of days, if any, used by
Purchaser pursuant to the last sentence of Section 2.
Upon the occurrence of any event described in Section 3(d)(v) above,
Purchaser shall prepare and furnish to each holder included in such registration
statement and underwriter, if any, a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to the purchasers of
the Registrable Securities, such prospectus shall not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing. Each holder of Registrable Securities
agrees that upon receipt of any notice from Purchaser of the happening of any
event of the kind described in Section 3(d)(v) hereof, such holder shall
forthwith discontinue the disposition of Registrable Securities pursuant to the
registration statement applicable to such Registrable Securities until such
holder receives copies of such amended or supplemented registration statement or
prospectus, and if so directed by Purchaser, such holder shall deliver to
Purchaser (at Purchaser=s expense) all copies, other than permanent file copies,
then in such holders' possession of the prospectus covering such Registrable
Securities at the time of receipt of such notice.
Purchaser may require the holders of Registrable Securities to furnish to
Purchaser such information regarding such holder and the plan of distribution of
such Registrable Securities as Purchaser may from time to time reasonably
request in order to comply with the Securities Act. Without limiting the
foregoing, Purchaser may exclude a holder's Registrable Securities from any
Shelf Registration, or (if Seller is the only holder) suspend its preparation of
the Shelf Registration, if such holder has not furnished to Purchaser in
writing, within five business days after the Closing Date, the information with
respect to such holder and its intended plan of distribution which is required
by Items 507 and 508 of Regulation S-K under the Securities Act for disclosure
in the shelf registration statement or the prospectus included therein, it being
understood, however, that Purchaser shall (i) promptly include in such Shelf
Registration the Registrable Securities of any holder who provides such
information following such five business day period and (ii) file the Shelf
Registration or an appropriate amendment thereto on or prior to the date that is
ten business days after Purchaser receives such information. The holders of
Registrable Securities agree to notify Purchaser as promptly as practicable of
any inaccuracy or change in information previously furnished by such holders to
Purchaser or of the happening of any event in either case as a result of which
any prospectus relating to such registration contains an untrue statement of a
material fact regarding such holders or the
7
distribution of such Registrable Securities or omits to state any material fact
regarding such holders or the distribution of such Registrable Securities
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing, and to promptly furnish
to Purchaser any additional information required to correct and update any
previously furnished information or required such that such prospectus shall not
contain, with respect to such holders or the distribution of such Registrable
Securities, an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing.
4. Registration Expenses.
----------------------
All expenses incident to Purchaser=s performance of or compliance with this
Agreement, including, without limitation, all Commission and any National
Association of Securities Dealers, Inc. registration and filing fees and
expenses, fees and expenses of compliance with securities and blue sky laws
(including reasonable fees and disbursements of counsel for the underwriters, if
any, in connection with blue sky qualifications of the Registrable Securities),
document preparation and printing expenses, messenger and delivery expenses,
fees and expenses of any escrow agent or custodian, internal expenses
(including, without limitation, all salaries and expenses of Purchaser=s
officers and employees performing legal or accounting duties), fees and
disbursements of counsel and independent certified public accountants of
Purchaser (including the expenses of any special audit or "cold comfort" letters
required by or incident to such performance and compliance), and fees and
expenses of any other persons, including special experts, retained by Purchaser
(collectively, the "Registration Expenses") will be borne by Purchaser.
Notwithstanding the foregoing, the holders of the Registrable Securities being
registered shall pay all underwriting discounts and commissions attributable to
the sale of such Registrable Securities and the fees and disbursements of any
counsel, advisors or experts retained by such holders.
5. Indemnification.
----------------
(a) Indemnification by Purchaser. Upon the registration of the Registrable
Securities pursuant to Section 2 hereof, Purchaser shall, and it hereby agrees
to, indemnify and hold harmless the holders of the Registrable Securities, the
directors and officers and partners of such holders, each person who
participates as an underwriter in the offering or sale of such Registrable
Securities, each officer, director or partner of such underwriter, and each
other person, if any, who controls any such holder or any such underwriter
within the meaning of the Securities Act, from and against any and all losses,
claims, damages or liabilities, joint or several, and expenses (including
reasonable fees of counsel and any amounts paid in any settlement effected with
the consent of Purchaser) to which such holder, such director, officer or
partner of such holder, such underwriter, such officer, director or partner of
such underwriter, or such controlling person may become subject under the
Securities Act, common law or otherwise, insofar as such losses, claims, damages
or liabilities
8
or expenses (including all such losses, claims, damages, liabilities and
expenses arising out of any actions or proceedings, whether commenced or
threatened) arise out of or are based upon (i) any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which such Registrable Securities were registered under the Securities
Act, or any preliminary, final or summary prospectus contained therein, or any
amendment or supplement thereto, or (ii) any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statement therein not misleading; provided, however, that Purchaser shall
not be liable to any such person in any such case to the extent that any such
loss, claim, damage, liability (or action or proceeding, whether commenced or
threatened, in respect thereof) or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement, or preliminary, final or summary
prospectus, or amendment or supplement in reliance upon and in conformity with
written information furnished to Purchaser by such person expressly for use in
such registration statement or preliminary, final or summary prospectus,
amendment or supplement (including such information provided to Purchaser
pursuant to the second sentence of the last paragraph of Section 3 of this
Agreement); and provided further, however, that Purchaser will not be liable in
any case with respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary prospectus or prospectus, or in
any amendment thereof or supplement thereto, to the extent that any such loss,
claim, damage or liability (or action in respect thereof) resulted from the fact
that any holder sold Registrable Securities to a person to whom there was not
sent or given, at or prior to the written confirmation of such sale, a copy of
the prospectus as then amended or supplemented in any case where such delivery
is required by the Securities Act, if Purchaser had previously complied with the
provisions of Section 3(g) hereof and if the untrue statement contained in or
omission from such preliminary prospectus or prospectus was corrected in the
prospectus as then amended or supplemented. Such indemnification and
reimbursement of expenses shall remain in full force and effect regardless of
any investigation made by or on behalf of such holder, such director, officer or
partner of such holder, such underwriter, such director, officer or partner of
such underwriter, or such controlling person and shall survive the transfer of
such Registrable Securities by such holder. If, in connection with any
underwritten offering of Registrable Securities, the Purchaser enters into an
underwriting agreement, the indemnification provisions of such underwriting
agreement shall supersede the provisions of this Section 5(a) as between the
Purchaser and the underwriters that are party to such underwriting agreement.
(b) Indemnification by the Holders. Seller and any other holders of the
Registrable Securities hereby agree, severally and not jointly, to indemnify and
hold harmless Purchaser, each director and officer of Purchaser and each other
person, if any who controls Purchaser within the meaning of the Securities Act,
from and against any and all losses, claims, damages or liabilities, joint or
several, and expenses (including fees of counsel and any amounts paid in
settlement effected with the consent of such holders) to which Purchaser, such
director or officer or controlling person may become subject under the
Securities Act, common law or otherwise, insofar as such losses, claims, damages
or liabilities or expenses
9
(including all such losses, claims, damages, liabilities and expenses arising
out of any actions or proceedings, whether commenced or threatened), arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact in or omission or alleged omission to state a material fact
required to be stated in such registration statement, or any preliminary, final
or summary prospectus contained therein, or any amendment or supplement thereto,
or necessary to make the statements therein not misleading, to the extent, but
only to the extent, such statement or alleged statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to Purchaser by or on behalf of such holder expressly for use in such
registration statement or preliminary, final or summary prospectus, amendment or
supplement (including such information provided to Purchaser pursuant to the
second sentence of the last paragraph of Section 3 of this Agreement); provided,
however, that no such holder shall be liable to any such person under this
Section 5(b) for any amounts in excess of the dollar amount of the proceeds to
be received by such holder from the sale of such holder=s Registrable Securities
pursuant to such registration. Such indemnification and reimbursement of
expenses shall remain in full force and effect regardless of any investigation
made by or on behalf of Purchaser or any of its directors, officers or
controlling persons or any of such other holders of Registrable Securities or
their respective directors, officers, partners and controlling persons and shall
survive the transfer of such Registrable Securities by such holder. Each holder
of Registrable Securities also agrees to indemnify and hold harmless any
underwriters of the Registrable Securities, their officers and directors and
each person who controls such underwriters on substantially the same basis as
that of the indemnification of Purchaser provided in this Section 5(b).
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified party
hereunder of written notice of the commencement of any action or proceeding with
respect to which a claim for indemnification may be made pursuant to this
Section 5, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party, give written notice to the latter of the
commencement of such action; provided, however, that the failure of any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of any obligations other than under Section 5(a) or 5(b)
hereof. In case any such action is brought against an indemnified party, the
indemnifying party shall be entitled to participate in and to assume the defense
thereof, jointly with any other indemnifying party similarly notified, to the
extent that it may wish, with counsel reasonably satisfactory to such
indemnified party, and after such notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof unless the indemnifying party has failed to assume the defense
of such claim and to employ counsel reasonably satisfactory to such indemnified
person. An indemnifying party who elects not to assume the defense of a claim
shall not be liable for the fees and expenses of more than one counsel in any
single jurisdiction for all parties indemnified by such indemnifying party with
respect to such claim, or with respect to claims separate but similar or related
in the same jurisdiction arising out of the same general allegations. No
indemnifying party shall consent to entry of any judgment or
10
enter into any settlement with respect to a claim without the consent of the
indemnified party, which consent shall not be unreasonably withheld, or unless
such judgment or settlement includes as an unconditional term thereof the giving
by the claimant or plaintiff to such indemnified party of a release from all
liability in respect of such claim. No indemnified party shall consent to entry
of any judgment or enter into any settlement of any action the defense of which
has been assumed by an indemnifying party without the consent of such
indemnifying party, which consent shall not be unreasonably withheld.
(d) Contribution.
(i) If for any reason the indemnification provided for in Section 5(a)
or Section 5(b) is unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, claims, damages or liabilities
specifically covered by the indemnification provisions set forth in Section
5(a) or Section 5(b), then the indemnifying party shall contribute to the
amount paid or payable by the indemnified party as a result of such losses,
claims, damages, liabilities or expenses in such proportion as is
appropriate to reflect the relative fault of the indemnifying party and the
indemnified party as well as any other relevant equitable considerations.
The relative fault of such indemnifying party and indemnified party shall
be determined by reference to, among other things, whether any action in
question, including any untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact, has been
made by, or relates to information supplied by, such indemnifying party or
indemnified party, and the parties relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount
paid or payable by a party as a result of the losses, claims, damages,
liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in Section 5(c), any legal or other
fees or expenses reasonably incurred by such party. In no event shall a
holder be required to contribute an amount greater then the dollar amount
of the proceeds received by much holder with respect to the sale of any
Registrable Securities.
(ii) The parties hereto agree that it would not be just and equitable
if contribution pursuant to this Section 5(d) were determined by pro rata
allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. No person guilty of fraudulent misrepresentations (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(iii) The contribution provided for in this Section 5(d) shall
survive, with respect to a holder of Registrable Securities, the transfer
of Registrable Securities by such holder and with respect to a holder of
11
Registrable Securities or Purchaser shall remain in full force and effect
regardless of any investigation made by or on behalf of any indemnified
party.
(e) Other Indemnification. Indemnification and contribution similar to that
specified in Sections 5(a) through 5(d) hereof (with appropriate modifications)
shall be given by Purchaser and each holder of Registrable Securities with
respect to any required registration or other qualification of such Registrable
Securities under any federal or state law or regulation of a governmental
authority other than the Securities Act.
(f) Payments. The indemnification required by this Section 5 shall be made
by periodic payments of the amount thereof during the course of the
investigation or defense, as and when bills are received or expense, loss,
damage or liability is incurred, subject to refund in the event any such
payments are determined not to have been due and owing hereunder.
6. Underwritten Offerings.
-----------------------
(a) Selection of Underwriters. If any of the Registrable Securities covered
by the Shelf Registration pursuant to Section 2 hereof are to be sold pursuant
to an underwritten offering, the managing underwriter or underwriters thereof
shall be designated by the holders of a majority of the Registrable Securities,
provided that such designated managing underwriter or underwriters is or are
reasonably acceptable to Purchaser.
(b) Due Diligence Investigation. If requested by the managing underwriters
of any underwritten offering of Registrable Securities pursuant to Section 2
hereof, Purchaser shall provide the underwriters of the Registrable Securities
being sold and counsel for such underwriters, and the holders of such
Registrable Securities and counsel for such holders the opportunity to
participate in the preparation of any registration statement relating to such
Registrable Securities, any prospectus included therein or filed with the
Commission, and any amendment or supplement thereto (not including any document
filed by Purchaser pursuant to Section 13 or 14(a) of the Exchange Act and
incorporated by reference in a Shelf Registration); and make available for
inspection by such persons such financial and other information, books and
records of Purchaser and its subsidiaries, and cause the officers, directors and
employees of Purchaser and its subsidiaries, and counsel and independent
certified public accountants of Purchaser and its subsidiaries, to respond to
such inquiries, as shall be reasonably necessary, in the opinion of respective
counsel to such holders and such underwriters, to conduct a reasonable
investigation within the meaning of the Securities Act;
(c) Underwriting Agreement. If requested by the underwriters of any
underwritten offering of Registrable Securities pursuant to Section 2 hereof,
Purchaser shall enter into an underwriting agreement with such underwriters for
such offering, such agreement to be reasonably satisfactory in substance and
form to Purchaser, the underwriters and each holder of Registrable Securities to
be distributed by such underwriters and to contain such
12
representations and warranties by Purchaser and such other terms as are
customarily contained in agreements of that type used by the managing
underwriter or underwriters of such offerings, including, without limitation,
terms with respect to indemnification and contribution, and related expense
reimbursement, to the effect and to the extent provided in Section 5 hereof with
such additional, alternative or modified terms as are customarily provided to
such managing underwriter or underwriters. The holders of the Registrable
Securities which are to be distributed by such underwriters shall be parties to
such underwriting agreement. Such holders of Registrable Securities shall not be
required to make any representations or warranties to or agreements with
Purchaser or the underwriters other than representations, warranties or
agreements regarding such holders, such holders' Registrable Securities and such
holders' intended methods of disposition with respect to the Registrable
Securities.
7. Rule 144.
---------
Purchaser covenants to the holders of Registrable Securities that Purchaser
shall timely file the reports required to be filed by it pursuant to Section 13
of the Exchange Act (as provided in subparagraph (c) (1) of Rule 144 adopted by
the Commission under the Securities Act), and shall take such further action as
any holder of Registrable Securities may reasonably request, all to the extent
required from time to time to enable such holder to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemption provided by Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the Commission. Upon the request of any holder of Registrable Securities,
Purchaser shall deliver to such holder a written statement as to whether it has
complied with the requirements of the said subparagraph (c) (1).
8. Miscellaneous.
--------------
(a) No Inconsistent Agreements. Purchaser covenants and agrees that it
shall not grant registration rights with respect to any of its securities which
are inconsistent with the registration rights contained in this Agreement
applicable to the parties hereto and their permitted transferees.
(b) Specific Performance. The parties hereto acknowledge that there may be
no adequate remedy at law if any party fails to perform any of its obligations
hereunder, and accordingly agree that each party, in addition to any other
remedy to which it may be entitled at law or in equity, shall be entitled to
compel specific performance of the obligations of any other party under this
Agreement in accordance with the terms and conditions of this Agreement, in any
court of the United States or any State thereof having jurisdiction. Any remedy
under this Section 8(b) is subject to certain equitable defenses and to the
discretion of the court before which any proceedings therefor may be brought.
13
(c) Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, if delivered personally or by courier, when
transmitted by fax, or three days after being deposited in the mail (registered
or certified mail, postage prepaid, return receipt requested) as follows: If to
Purchaser, to Avnet, Inc., 0000 Xxxxx 00xx Xxxxxx, Xxxxxxx, Xxxxxxx 00000,
Attention: General Counsel (fax 000-000-0000), and if to Seller, to SEI
Investments B.V., 2, rue de la Tour xxx Xxxxx, 00000 Xxxxx, Xxxxxx, Attention:
Xxxxx-Xxxxxxxxx Coisne (fax 000-0000-0000), or to such other address or fax
number as any party may have furnished to the others in writing in accordance
herewith.
(d) Parties in Interest. All the terms and provisions of this Agreement
shall be binding upon, shall inure to the benefit of and shall be enforceable by
the respective successors and assigns of the parties hereto; provided that no
party may assign, delegate or otherwise transfer any of its rights or
obligations under this Agreement without the written consent of the other
parties hereto. However, Seller may from time to time transfer any or all of the
Registrable Securities and assign its rights and obligations under this
Agreement to one or more Affiliates of Seller, provided that prior to any such
transfer and assignment, (i) Seller furnishes to Purchaser an opinion of counsel
reasonably satisfactory to Purchaser that such transfer of Registrable
Securities may be effected without registration under the Securities Act, (ii)
Seller furnishes to Purchaser information from which it can reasonably conclude
that the proposed transferee is an Affiliate of Seller, (iii) such Affiliate
agrees in writing to all the terms and conditions of this Agreement and to
status as a holder hereunder, and (iv) Seller and such Affiliate promptly comply
with the last paragraph of Section 3 of this Agreement for purposes of amending
the registration statement and related prospectus covering the Registrable
Securities. Neither this Agreement nor any provision hereof is intended to
confer upon any person other than the parties hereto any rights or remedies
hereunder.
(e) Law Governing. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard the conflicts
of laws rules thereof and by applicable United States federal law.
(f) Headings. The descriptive headings of the several Sections and
paragraphs of this Agreement are inserted for convenience only, do not
constitute a part of this Agreement and shall not affect in any way the meaning
of interpretation of this Agreement.
(g) Entire Agreement; Amendments. This Agreement, together with the Share
Purchase Agreement and other writings referred to herein or delivered pursuant
hereto which form a part hereof or referred to in Section 9.4(a) of the Share
Purchase Agreement contain the entire understanding of the parties with respect
to their respective subject matter. This Agreement and the Share Purchase
Agreement and such other writings supersede all prior agreements and
understandings between the parties with respect to their respective subject
matter. This Agreement may be amended and the observance of any term of this
14
Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively) only by a written instrument duly executed by
Purchaser and the holders of a majority of the Registrable Securities at the
time outstanding.
(h) Counterparts. This Agreement may be executed in two or more separate
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed on the date first written above.
SEI INVESTMENTS B.V.
By: /s/Bruno Fine
------------------------
Name: Bruno Fine
Title: Managing Director
AVNET, INC.
By: /s/Xxxxx X. Xxxx
----------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President and
General Counsel
15
