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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
F O R M 8-K
Current Report
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) August 20, 1998
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A V N E T, I N C.
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(Exact name of registrant as specified in its charter)
New York
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(State or other jurisdiction of incorporation)
1-4224 11-1890605
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(Commission File Number) (I.R.S. Employer Identification No.)
2211 South 47th Street, Phoenix, Arizona 85034
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(Address of principal executive offices) (Zip Code)
(602) 643-2000
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(Registrant's telephone number, including area code)
Not Applicable
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(Former name or former address, if changed since last report)
Item 5. Other Events
On August 20, 1998, the Registrant sold $200,000,000 aggregate principal
amount of 6.45% Notes Due August 15, 2003 (the "Notes"), in an underwritten
public offering pursuant to the Registrant's Registration Statement on Form S-3,
Registration No. 333-53691 (the "Registration Statement").
Item 7. Financial Statement and Exhibits.
(c) Exhibits:
The exhibits listed below relate to the Registration Statement and are
filed herewith for incorporation by reference in such Registration Statement:
Exhibit Number Description of Exhibit
-------------- ----------------------
1 Pricing Agreement dated August 20, 1998, between the
Registrant and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, relating to the Notes (included in Exhibit 4
below as Exhibit C thereto).
4 Officers' Certificate dated August 20, 1998, providing
for the Notes, including (a) the form of the Notes, and
(b) the Pricing Agreement referred to in Exhibit 1 above.
5 Opinion of David R. Birk with respect to the legality of the
Notes.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
AVNET, INC.
Date: August 20, 1998 By: /s/Raymond Sadowski
-------------------
Raymond Sadowski
Senior Vice President and
Chief Financial Officer
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EXHIBIT INDEX
Exhibit Number Description of Exhibit
- -------------- ----------------------
1 Pricing Agreement dated August 20,
1998, between the Registrant and
Merrill Lynch, Pierce, Fenner & Smith
Incorporated, relating to the
Registrant's 6.45% Notes Due August
15, 2003 (the "Notes") (included in
Exhibit 4 below as Exhibit C
thereto).
4 Officers' Certificate dated August
20, 1998, providing for the Notes,
including (a) the form of the Notes,
and (b) the Pricing Agreement
referred to in Exhibit 1 above.
5 Opinion of David R. Birk with respect
to the legality of the Notes.
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EXHIBIT 4
AVNET, INC.
OFFICERS' CERTIFICATE PURSUANT TO
SECTION 301 OF THE INDENTURE IDENTIFIED BELOW
The undersigned officers of Avnet, Inc. (the "Company"), acting pursuant to
Section 301 of the Indenture identified below and to the authorization contained
in resolutions (the "Resolutions") of the Finance Committee of the Board of
Directors of the Company (the "Committee") duly adopted on August 20, 1998,
which resolutions are attached hereto as Annex A, do hereby certify that there
was established in such resolutions of the Committee a series of the Company's
debt securities having the terms hereinafter set forth and designated by the
Committee as "6.45% Notes Due August 15, 2003" (the "Notes") to be issued under
an indenture dated as of February 1, 1994 (the "Indenture"), between the Company
and The First National Bank of Chicago, as trustee (the "Trustee"), which debt
securities have been registered for sale with the Securities and Exchange
Commission pursuant to a Registration Statement on Form S-3 (Registration No.
333-53691) under the Securities Act of 1933, as amended. The terms set forth
below are qualified in their entirety by reference to the terms relating to the
Notes that are contained in (i) the form of Note attached to the Resolutions as
Exhibit A thereto and (ii) the Preliminary Prospectus Supplement dated August
17, 1998, constituting part of the abovementioned Registration Statement (the
"Preliminary Prospectus Supplement"), all of which terms have been authorized,
adopted and approved by the Committee. In the event of any conflict or
discrepancy between the terms contained in this Officers' Certificate, or the
Preliminary Prospectus Supplement, or both, and the terms contained in the form
of Note, the
terms contained in the form of Note shall control. Capitalized terms used herein
and not otherwise defined herein shall have the meanings set forth in the
Indenture.
It is contemplated that all of the Notes will be originally issued at one
time.
The terms of the Notes as authorized, adopted and approved by the Committee
pursuant to Section 301 of the Indenture are as follows:
1. Title of the Notes: 6.45% Notes Due August 15, 2003.
2. Limit, if any, upon the aggregate principal amount of Notes which may be
authenticated and delivered under the Indenture (except for Notes authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Notes): $200,000,000.
3. Date or dates on which the principal of the Notes is payable (maturity
date): August 15, 2003.
4. With respect to interest on the Notes.
A. The rate thereof: The Notes will bear interest at a rate of 6.45%
per annum.
B. The date from which such interest shall accrue: Each Note will bear
interest from August 25, 1998, or from the most recent Interest Payment
Date to which interest on such Note or a predecessor Note has been paid or
duly provided for.
C. Interest Payment Dates: Interest on the Notes will be payable on
the 15th day of each February and August beginning February 15, 1999.
D. Regular Record Date for the interest payable on the Notes on any
Interest Payment Date: The Regular Record Dates with respect to the Notes
shall be the 1st day of each February and August, as the case may be, prior
to each Interest Payment Date, whether or not such date shall be a Business
Day.
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5. Place or places where, subject to the provisions of Section 1002 of the
Indenture, the principal of and interest on the Notes shall be payable, and
where Notes may be surrendered for registration of transfer or for exchange, and
notices and demands to or upon the Company in respect of the Notes may be
served: At the following office or agency of the Trustee: First Chicago Trust
Company of New York, 14 Wall Street, 8th Floor, New York, New York 10005,
Attention: Corporate Trust Administration.
6. Provisions for redemption of the Notes, in whole or in part, at the
option of the Company: The Notes will not be redeemable or repayable prior to
their Stated Maturity.
7. Provisions for mandatory redemption or purchase of the Notes: The
Company has no obligation to redeem or purchase the Notes pursuant to any
sinking fund or analogous provisions or at the option of the Holders.
8. Denominations in which Notes are issuable: The Notes are issuable only
in book-entry form in denominations of $1,000 and integral multiples of $1,000.
9. If other than the principal amount thereof, the portion of the principal
amount of the Notes which shall be payable upon declaration of acceleration of
the Stated Maturity pursuant to Section 502 of the Indenture: Not applicable.
10. Paying Agent, Transfer Agent and Registrar with respect to the Notes:
The First National Bank of Chicago.
11. Currency in which interest or principal is payable if other than U.S.
currency: Not applicable.
-3-
12. Currency in which interest or principal is payable at the election of
the Company or any Holder thereof, if other than that in which the Notes are
stated to be payable: Not applicable.
13. Basis for determining the equivalent price in U.S. currency for voting
rights purposes if the Notes are denominated in more than one currency: Not
applicable.
14. Manner in which principal and interest payments may be determined if
according to an index, formula or other method: Not applicable.
15. A. Whether the Notes are issuable as Registered Securities, Bearer
Securities or both: Registered Securities only.
B. Whether the Notes are to be issuable in temporary or permanent
global form: All Notes will be represented by one or more fully registered
permanent global securities as described in the Preliminary Prospectus
Supplement under the caption "Description of the Notes -- Depository."
Except as described in the last paragraph under the said caption,
beneficial owners of interests in such global securities may not exchange
such interests for any form of certificate evidencing Notes. In the event
that such a right of exchange should arise, the manner of such exchange
shall be as provided in Section 305 of the Indenture.
16. The applicability of Section 403 of the Indenture (regarding discharge
and defeasance of Notes) to the Notes: The Notes are subject to the defeasance
and discharge provisions of Section 403 (including, without limitation, Section
403(c)(2)) of the Indenture.
17. Any other terms of or provisions applicable to the Notes and the sale
thereof:
A. Form of Notes: The form of permanent global Note shall be
substantially in the form of Exhibit A to the Resolutions.
-4-
B. Form of Sale: The Company has engaged Merrill Lynch & Co. as
underwriter for the purpose of selling the Notes in an underwritten public
offering in the United States, all as more fully set forth in the Standard
Underwriting Agreement Provisions attached to the Resolutions as Exhibit B
thereto and the Pricing Agreement attached to the Resolutions as Exhibit C
thereto.
C. Issue price to the public of the Notes: 99.919% of principal
amount.
D. Underwriters' commission or discount as a percentage of the
principal amount of Notes to be issued: 0.60 % of principal amount.
[Signature Page Follows]
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IN WITNESS WHEREOF the undersigned have executed this Officers' Certificate
on behalf of the Company as of this 20th day of August, 1998.
/s/Raymond Sadowski
-------------------
Raymond Sadowski
Senior Vice President
and Chief Financial Officer
(CORPORATE SEAL)
ATTEST:
/s/Arthur J. Levy /s/David R. Birk
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Name: Arthur J. Levy Name: David R. Birk
Title: Assistant Secretary Title: Senior Vice President,
General Counsel and Secretary
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ANNEX A
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RESOLUTIONS
ADOPTED AT THE MEETING OF THE
FINANCE COMMITTEE OF THE
BOARD OF DIRECTORS OF
AVNET, INC.
HELD ON AUGUST 20, 1998
WHEREAS, at a meeting of the Board of Directors of Avnet, Inc. (the
"Company") held on May 26, 1998, the Board authorized the issuance and sale by
the Company from time to time of unsecured debt securities (the "Debt
Securities") in an aggregate principal amount not to exceed $500,000,000;
WHEREAS, at the aforementioned meeting, the Board of Directors also granted
to the Finance Committee (the "Finance Committee") of the Board of Directors the
power and authority to authorize and approve the terms and provisions of and
other matters (including the appointment of trustees, agents and other
fiduciaries) relating to any issuances and sales of any series of Debt
Securities;
WHEREAS, on May 27, 1998, the Company filed with the Securities and
Exchange Commission (the "Commission") a Registration Statement on Form S-3
(Registration No. 333- 53691) (the "Registration Statement") to effect the
registration under the Securities Act of 1933, as amended (the "Securities
Act"), of Debt Securities having a maximum aggregate principal amount of
$500,000,000;
WHEREAS, on August 11, 1998, the Registration Statement became effective
under the Securities Act and the Indenture described below relating to the Debt
Securities was qualified under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act");
WHEREAS, the Registration Statement, at the time it became effective,
included a Prospectus (the "Preliminary Prospectus") relating to Debt Securities
having a maximum aggregate principal amount of $500,000,000; and
WHEREAS, on August 17, 1998, a final form of the Prospectus and a
preliminary Prospectus Supplement (the "Preliminary Prospectus Supplement")
relating to $200,000,000 principal amount of Debt Securities to be offered as
____% Notes Due _________, 2003 of the Company was filed with the Commission
pursuant to Rule 424(b)(5) under the Securities Act and distributed to potential
investors;
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NOW, THEREFORE, BE IT RESOLVED, that the actions taken by the officers and
directors of the Company in (i) executing on behalf of the Company and filing
with the Commission the Registration Statement (including the form of Prospectus
contained therein), and (ii) preparing and distributing the abovementioned final
Prospectus and Preliminary Prospectus Supplement, are hereby in all respects
ratified, confirmed, approved and adopted; and further
RESOLVED, that the proper officers of the Company are hereby authorized,
empowered and directed to file with the Commission pursuant to Rule 424(b) under
the Securities Act a final Prospectus Supplement substantially in the form of
the Preliminary Prospectus Supplement, with such changes as the proper officers
of the Company shall deem appropriate on the advice of counsel; and further
RESOLVED, that the proper officers of the Company are hereby authorized,
empowered and directed to prepare and execute on behalf of the Company and to
file with the Commission any post-effective amendment to the Registration
Statement (including an amended Prospectus or Prospectus Supplement) that may
from time to time be required under the Securities Act or the rules and
regulations promulgated thereunder, together with any and all exhibits thereto
and other documents necessary or appropriate in connection therewith; and
further
RESOLVED, that the proper officers of the Company are hereby authorized,
empowered and directed to prepare, execute, deliver and file on behalf of the
Company such applications, undertakings, agreements, certificates, instruments
and other documents and to do on behalf of the Company such other acts and
things as they may from time to time determine are necessary or appropriate in
order to comply with requirements of the Securities Act and the Trust Indenture
Act and the respective rules and regulations promulgated thereunder which are
applicable to the issuance and sale of the Debt Securities; and further
RESOLVED, that there is hereby established an issue of Debt Securities of
the Company to be designated as hereinafter provided, which Debt Securities
shall be issued under the Indenture dated as of February 1, 1994 (the
"Indenture") between the Company and The First National Bank of Chicago, as
Trustee, and shall constitute general, unsecured and unsubordinated obligations
of the Company (such Debt Securities being hereinafter referred to as the
"Notes"); and further
RESOLVED, that the designation and terms of the Notes shall be as set forth
below and are adopted pursuant to Section 301 of the Indenture, and such
designation and terms shall be deemed to constitute, and are hereby expressly
made, a part of the Indenture (all capitalized terms used but not defined below
shall have the same meanings as in the Indenture):
1. Title of the Notes: 6.45% Notes Due August 15, 2003.
2. Limit, if any, upon the aggregate principal amount of Notes which may be
authenticated and delivered under the Indenture (except for Notes authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Notes): $200,000,000.
-8-
3. Date or dates on which the principal of the Notes is payable (maturity
date): August 15, 2003.
4. With respect to interest on the Notes.
A. The rate thereof: The Notes will bear interest at a rate of 6.45%
per annum.
B. The date from which such interest shall accrue: Each Note will bear
interest from August 25, 1998, or from the most recent Interest Payment
Date to which interest on such Note or a predecessor Note has been paid or
duly provided for.
C. Interest Payment Dates: Interest on the Notes will be payable on
the 15th day of each February and August beginning February 15, 1999.
D. Regular Record Date for the interest payable on the Notes on any
Interest Payment Date: The Regular Record Dates with respect to the Notes
shall be the first day of each February and August, as the case may be,
prior to each Interest Payment Date, whether or not such date shall be a
Business Day.
5. Place or places where, subject to the provisions of Section 1002 of the
Indenture, the principal of and interest on the Notes shall be payable, and
where Notes may be surrendered for registration of transfer or for exchange, and
notices and demands to or upon the Company in respect of the Notes may be
served: At the following office or agency of the Trustee: First Chicago Trust
Company of New York, 14 Wall Street, 8th Floor, New York, New York 10005,
Attention: Corporate Trust Administration.
6. Provisions for redemption of the Notes, in whole or in part, at the
option of the Company: The Notes will not be redeemable or repayable prior to
their Stated Maturity.
7. Provisions for mandatory redemption or purchase of the Notes: The
Company has no obligation to redeem or purchase the Notes pursuant to any
sinking fund or analogous provisions or at the option of the Holders.
8. Denominations in which Notes are issuable: The Notes are issuable only
in book-entry form in denominations of $1,000 and integral multiples of $1,000.
9. If other than the principal amount thereof, the portion of the principal
amount of the Notes which shall be payable upon declaration of acceleration of
the Stated Maturity pursuant to Section 502 of the Indenture: Not applicable.
10. Paying Agent, Transfer Agent and Registrar with respect to the Notes:
The First National Bank of Chicago.
-9-
11. Currency in which interest or principal is payable if other than U.S.
currency: Not applicable.
12. Currency in which interest or principal is payable at the election of
the Company or any Holder thereof, if other than that in which the Notes are
stated to be payable: Not applicable.
13. Basis for determining the equivalent price in U.S. currency for voting
rights purposes if the Notes are denominated in more than one currency: Not
applicable.
14. Manner in which principal and interest payments may be determined if
according to an index, formula or other method: Not applicable.
15. A. Whether the Notes are issuable as Registered Securities, Bearer
Securities or both: Registered Securities only.
B. Whether the Notes are to be issuable in temporary or permanent
global form: All Notes will be represented by one or more fully registered
permanent global securities as described in the Preliminary Prospectus
Supplement under the caption "Description of the Notes -- Depository."
Except as described in the last paragraph under the said caption,
beneficial owners of interests in such global securities may not exchange
such interests for any form of certificate evidencing Notes. In the event
that such a right of exchange should arise, the manner of such exchange
shall be as provided in Section 305 of the Indenture.
16. The applicability of Section 403 of the Indenture (regarding discharge
and defeasance of Notes) to the Notes: The Notes are subject to the defeasance
and discharge provisions of Section 403 (including, without limitation, Section
403(c)(2)) of the Indenture.
17. Any other terms of or provisions applicable to the Notes and the sale
thereof:
A. Form of Notes: The form of permanent global Note shall be
substantially in the form presented to this meeting and attached hereto as
Exhibit A.
B. Form of Sale: The Company has engaged Merrill Lynch & Co. as
underwriter for the purpose of selling the Notes in an underwritten public
offering in the United States, all as more fully set forth in the Standard
Underwriting Agreement Provisions presented to this meeting and attached
hereto as Exhibit B and the Pricing Agreement presented to this meeting and
attached hereto as Exhibit C.
C. Issue price to the public of the Notes: 99.919% of principal
amount.
D. Underwriters' commission or discount as a percentage of the
principal amount of Notes to be issued: 0.60% of principal amount; and
further
-10-
RESOLVED, that the Chairman of the Board, Chief Executive Officer or any
Senior Vice President of the Company is hereby authorized, empowered and
directed to execute the Notes on behalf of the Company under its corporate seal
attested by the Secretary or an Assistant Secretary of the Company (it being
understood that the signatures of any such officers, as well as the corporate
seal of the Company, may be in facsimile), in substantially the form approved as
hereinabove provided, with such changes therein as the officer executing the
same shall approve (including, but not limited to, the insertion therein of the
numbers, denominations, CUSIP number, numbers of registered holders and other
pertinent information omitted from the form of the Notes attached hereto as
Exhibit A), such approval to be conclusively evidenced by the signature of said
officer thereon, and to deliver the Notes to the Trustee for authentication and
further delivery to or upon the written order of the Company; and further
RESOLVED, that the proper officers of the Company are hereby authorized,
empowered and directed to cause the Company to perform the terms of the Notes
and to consummate the transactions contemplated thereby, including, but not
limited to, the payment by the Company of the principal of and interest on the
Notes; and further
RESOLVED, that the proper officers of the Company are hereby authorized,
empowered and directed, for and on behalf of the Company, to execute and deliver
such other agreements, certificates, instruments and documents and to do such
other acts and things as they may from time to time determine are necessary or
appropriate in order to effectuate the purposes of any of the foregoing
resolutions; and further
RESOLVED, that all acts and things done by any of the officers of the
Company prior to the date hereof that are within the authority conferred by any
of the foregoing resolutions are hereby ratified, confirmed, approved and
adopted.
-11-
EXHIBIT A
FORM OF NOTE
This Security is issued in global form and is registered in the name of The
Depository Trust Company, a New York corporation (the "Depositary" or "DTC") or
a nominee of the Depositary. This Security is not exchangeable for Securities
registered in the name of a Person other than the Depositary or its nominee
except in the limited circumstances described in the Indenture, and no transfer
of this Security (other than a transfer of this Security as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary) may be registered except in
the limited circumstances described in the Indenture.
Unless this certificate is presented by an authorized representative of DTC
to Avnet, Inc. or its agent for registration of transfer, exchange, or payment,
and any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
AVNET, INC
6.45% Notes due 2003
CUSIP No. 053807AE3
No. 1 $200,000,000
AVNET, INC., a corporation duly organized and existing under the laws of
the State of New York (herein called the "Company," which term includes any
successor Person under the Indenture referred to on the reverse hereof), for
value received, hereby promises to pay to CEDE & CO. or registered assigns the
principal sum of TWO HUNDRED MILLION DOLLARS on August 15, 2003, and to pay
interest thereon from August 25, 1998 or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually in
arrears on February 15 and August 15 in each year, commencing February 15, 1999,
at the rate of 6.45% per annum until the principal hereof is paid or made
available for payment. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be August 1 or February 1 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Except as otherwise provided in the Indenture, any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record
A-1
Date and may either be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the offices or agencies of the Company maintained for
that purpose in the Borough of Manhattan, the City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debt; provided, however, that at
the option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register.
In the case where any Interest Payment Date or the maturity date of this
Security does not fall on a Business Day, payment of interest or principal
otherwise payable on such day need not be made on such day, but may be made on
the next succeeding Business Day with the same form and effect as if made on
such Interest Payment Date or the maturity date of this Security.
Reference is hereby made to the further provisions of this Security set
forth on the reverse side hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature of an authorized
signatory, this Security shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
A-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: August , 1998
------------------
AVNET, INC.
By__________________
Name:
Title:
Attest:
_________________________
A-3
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:___________________________
Authorized Officer
A-4
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities") issued and to be issued in one or more
series under an Indenture, dated as of February 1, 1994 (herein called the
"Indenture"), between the Company and The First National Bank of Chicago, as
Trustee (herein called the "Trustee," which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof, limited in aggregate principal amount to
$200,000,000. The Securities of this series are issuable as only Registered
Securities, without coupons, in denominations of $1,000 and any integral
multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor
of any authorized denominations, as requested by the Holder surrendering the
same, upon surrender of the Security or Securities to be exchanged at any office
or agency described below where Registered Securities of this series may be
presented for registration of transfer.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Security upon compliance with certain conditions set forth
therein.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Upon payment (i) of the amount of principal so declared due and
payable and (ii) of interest on any overdue principal and overdue interest (in
each case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and interest, if any, on the Securities of this series shall
terminate.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding (with each series
voting as a separate class in certain cases specified in the Indenture) on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notification of such consent or waiver is made upon this
Security.
As set forth in, and subject to, the provisions of the Indenture, no Holder
of any Security of this series will have any right to institute any proceeding
with respect to the Indenture or for any remedy thereunder, unless such Holder
shall have previously given to the Trustee written
A-5
notice of a continuing Event of Default with respect to this series, the Holders
of not less than 25% in principal amount of the Outstanding Securities of this
series shall have made written request, and offered reasonable indemnity, to the
Trustee to institute such proceeding as trustee, and the Trustee shall not have
received from the Holders of a majority in principal amount of the Outstanding
Securities of this series a direction inconsistent with such request and shall
have failed to institute such proceeding within 60 days; provided, however, that
such limitations do not apply to a suit instituted by the Holder hereof for the
enforcement of payment of the principal of (and premium, if any) and interest on
this Security on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provisions of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of (and premium, if any)
and interest on such Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form, without
coupons, in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to the
conflicts of laws provisions thereof.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
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EXHIBIT B
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
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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 material fact required to be
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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
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
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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 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;
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(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 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;
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(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 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
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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;
(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
B-7
Commission of any stop order suspending the effectiveness of the
Registration Statement or the use of any Prospectus or Prospectus
supplement or, if the Company has knowledge, of the institution or threat
of any proceeding for that purpose and (E) of the receipt by the Company of
any notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or, if the Company has knowledge,
of the initiation or threat of any proceeding for such purpose. The Company
will make every reasonable effort to prevent the issuance of any such stop
order or of any order suspending or preventing any such use and, if issued,
to obtain as soon as possible the withdrawal thereof;
(d) to furnish to the Representatives and, upon request, to each of
the other Underwriters for a period of three years from the date of each
Pricing Agreement (i) copies of any reports or other communications which
the Company shall send to its shareholders or shall from time to time
publish or publicly disseminate, (ii) copies of all annual, quarterly and
current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or
such other similar form as may be designated by the Commission, and (iii)
such other information as the Representatives may reasonably request
regarding the Company or its Subsidiaries;
(e) to advise the Underwriters 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
B-8
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
(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 Carter, Ledyard & Milburn, 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
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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;
(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
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come to the attention of such 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 David R. Birk, 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 Arizona, California, Massachusetts, North
Carolina and Texas (in rendering this opinion, such counsel may state
that he is relying exclusively on certificates and other documents of
public officials of such jurisdictions);
B-11
(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 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
B-12
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.
(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
B-13
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; 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
B-14
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.
(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
B-15
or proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever in respect of which indemnification or contribution
could be sought under this Section 7 or Section 8 hereof (whether or not
the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional
release of each indemnified party from all liability arising out of such
litigation, investigation, proceeding or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act
by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 7(a)(ii) effected without
its written consent if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall have received notice of the terms of
such settlement at least 30 days prior to such settlement being entered
into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement. Notwithstanding the immediately preceding sentence, if at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, an
indemnifying party shall not be liable for any settlement of the nature
contemplated by Section 7(a)(ii) effected without its consent if such
indemnifying party (i) reimburses such indemnified party in accordance with
such request to the extent it considers such request to be reasonable and
(ii) provides written notice to the indemnified party substantiating the
unpaid balance as unreasonable, in each case prior to the date of such
settlement.
8. Contribution. If the indemnification provided for in Section 7 hereof is
for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Underwriters, on the other hand, from the offering of the
Securities pursuant to the applicable Pricing Agreement, or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the 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
B-16
Prospectus, or, if Rule 434 is used, the corresponding location on the term
sheet, bear to the aggregate initial public offering price of such Securities as
set forth on such cover.
The relative fault of the Company, on the one hand, and the Underwriters,
on the other hand, shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 8 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 8. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 8 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 8, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of any such untrue or alleged untrue statement or
omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act shall
have the same rights 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.
B-17
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 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 2211 South 47th Street, Phoenix, Arizona 85034, Attention: Mr. Raymond
Sadowski (fax no. (602) 643-7929).
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
B-18
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.
B-19
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
B-20
AVNET, INC.
DEBT SECURITIES
PRICING AGREEMENT
-----------------
, 199
Avnet, Inc.
2211 South 47th Street
Phoenix, Arizona 85034
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 I 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 same day funds.
B-21
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.
A global certificate representing all of the Securities will be made
available for inspection 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 I hereto in connection with this financing and any action
under this agreement by any of us will be binding upon all the Underwriters.
This Pricing Agreement may be executed in one or more counterparts, all of
which counterparts shall constitute one and the same instrument.
B-22
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_____________________________
Name:
Title:
The foregoing Pricing Agreement
is hereby confirmed as of the
date first above written
AVNET, INC.
By__________________________
Name:
Title:
B-23
EXHIBIT C
AVNET, INC.
DEBT SECURITIES
PRICING AGREEMENT
-----------------
August 20, 1998
Avnet, Inc.
2211 South 47th Street
Phoenix, Arizona 85034
Attention: David R. Birk
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, $200,000,000 aggregate principal amount of 6.45% Notes Due
2003 (the "Securities") in the respective principal amounts set forth opposite
the names of the Underwriters on Schedule I hereto.
The price at which the Securities shall be purchased from the Company by
the Underwriters shall be 99.319% of the principal amount thereof. The
Securities will be offered as set forth in the Prospectus Supplement relating
thereto.
The Securities will have the following terms:
Title: 6.45% Notes due August 15, 2003
Interest Rate: 6.45% per annum
Interest Payment Dates: The 15th day of each February and August commencing
February 15, 1999
Maturity: August 15, 2003
Other Provisions: as set forth in the Prospectus Supplement relating to the
Securities
C-1
Closing: 9:00 A.M. on August 25, 1998, at the offices of Fried, Frank, Harris,
Shriver & Jacobson, One New York Plaza, New York, New York 10004 in
same day funds.
Names and Addresses of Representatives:
Merrill Lynch, Pierce, Fenner & Smith Incorporated
NationsBanc Montgomery Securities LLC
Chase Securities Inc.
First Chicago Capital Markets, Inc.
c/o Merrill Lynch & Co.
World Financial Center
North Tower
New York, New York 10281
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.
A global certificate representing all of the Securities will be made
available for inspection at the office of Fried, Frank, Harris, Shriver &
Jacobson, One New York Plaza, New York, New York, at least 24 hours prior to the
Closing Date.
We represent that we are authorized to act for the several Underwriters
named in Schedule I hereto in connection with this financing and any action
under this agreement by any of us will be binding upon all the Underwriters.
This Pricing Agreement may be executed in one or more counterparts, all of
which counterparts shall constitute one and the same instrument.
C-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,
MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED
NATIONSBANC MONTGOMERY
SECURITIES LLC
CHASE SECURITIES INC.
FIRST CHICAGO CAPITAL MARKETS,
INC.
On behalf of themselves and
as Representatives of the
Several Underwriters
By: MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED
By: /s/ David Rosenberg
-------------------
Name: David Rosenberg
Title: Vice President
The foregoing Pricing Agreement
is hereby confirmed as of the
date first above written
AVNET, INC.
By /s/ David R. Birk
- --------------------
Name: David R. Birk
Title: Senior Vice President & General Counsel
C-3
SCHEDULE I
Underwriter Principal Amount of Notes
- ----------- -------------------------
Merrill Lynch $100,000,000
Pierce, Fenner & Smith Incorporated
NationsBanc Montgomery $50,000,000
Securities LLC
Chase Securities Inc. $25,000,000
First Chicago Capital Markets, Inc. $25,000,000
C-4
EXHIBIT 5
Avnet, Inc.
David R. Birk
Senior Vice President
and
General Counsel
August 20, 1998
Board of Directors
Avnet, Inc.
2211 South 47th Street
Phoenix, Arizona 85034
Re: 6.45% Notes Due August 15, 2003
Registration Statement on Form S-3
Registration No. 333-53691
----------------------------------
Ladies and Gentlemen:
I refer to the above-referenced Registration Statement on Form S-3 (the
"Registration Statement") filed by Avnet, Inc. (the "Company") with the
Securities and Exchange Commission in connection with the registration under the
Securities Act of 1933, as amended, of up to $500,000,000 aggregate principal
amount of the Company's debt securities to be issued from time to time in one or
more public offerings (the "Debt Securities").
It is proposed that $200,000,000 principal amount of Debt Securities will
be issued as 6.45% Notes Due August 15, 2003 (the "Notes"), under the terms of
the Indenture incorporated by reference as Exhibit 4 to the Registration
Statement (the "Indenture") and will be sold pursuant to the terms of a Pricing
Agreement in the form of Exhibit 1 to this Report on Form 8-K (the "Pricing
Agreement").
I have examined the Indenture, the Pricing Agreement and resolutions
adopted by the Board of Directors of the Company and its duly appointed
committees relating to the authorization of the issuance and sale of the Debt
Securities in general and the Notes in particular. I have also examined and am
familiar with originals, or copies the authenticity of which has been
established to my satisfaction, of such other documents and instruments as I
have deemed necessary to express the opinions hereinafter set forth. Based upon
the fore going, it is my opinion that the Notes, when issued or delivered in the
manner provided for in the Pricing Agreement, will be legally issued and the
binding obligations of the Company under the laws of the State of New York,
which laws govern the Indenture.
Board of Directors -2-
I consent to the use of this opinion as Exhibit 5 to the Registration
Statement and to the reference to me under the caption "Legal Matters" in the
prospectus constituting Part I thereof.
Very truly yours,
/s/David R. Birk
David R. Birk
DRB/me