As filed with the Securities and Exchange Commission on May 27, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549-1004
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AVNET, INC.
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(Exact name of registrant as specified in its charter)
New York 11-1890605
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
David R. Birk, Esq.
Senior Vice President and General Counsel
80 Cutter Mill Road Avnet, Inc.
Great Neck, New York 11021 80 Cutter Mill Road
(516) 466-7000 Great Neck, New York 11021
----------------------------- (516) 466-7000
(Address, including zip code, ---------------------------------------
and telephone number, including (Name, address, including zip code, and
area code, of registrant's telephone number, including area
principal executive offices) code, of agent for service)
COPIES TO:
Bernard Cedarbaum, Esq. Valerie Ford Jacob, Esq.
Carter, Ledyard & Milburn Fried, Frank, Harris, Shriver & Jacobson
2 Wall Street One New York Plaza, 25th Floor
New York, New York 10005 New York, New York 10004-1980
(212) 732-3200 (212) 859-8000
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement, as determined
by market conditions and other factors.
If the only securities being registered on this Form are to be offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
Pursuant to Rule 429(b), the prospectus constituting Part I of this
Registration Statement, as such prospectus may hereafter be amended or
supplemented, is a combined prospectus which also relates to the registrant's
Registration Statement on Form S-3, Registration No. 33-51835.
CALCULATION OF REGISTRATION FEE
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Title of each class of Amount to be Proposed maximum Proposed maximum Amount of
securities to be registered registered offering price per unit aggregate offering price registration fee
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Debt Securities .............. $400,000,000 100% (1)(2) $400,000,000(2) $118,000.00
Debt Securities............... 100,000,000(3) 100% (1)(2) 100,000,000(2) -0- (4)
----------- ----------- ------------
Total...................... $500,000,000(1)(5) 100% (1)(2) $500,000,000(2) $118,000.00
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(1) If any Debt Securities are issued at an original issue discount, the
amount to be registered shall be increased so as to result in an aggregate
offering price of all Debt Securities equal to $500,000,000, and the proposed
maximum offering price per security will be correspondingly decreased.
(2) Estimated solely for the purpose of calculating the registration fee.
Excludes accrued interest, if any, from the date of issuance.
(3) Pursuant to Rule 429(b), this $100,000,000 principal amount of Debt
Securities is being carried forward from the registrant's Registration Statement
on Form S-3, Registration No. 33-51835.
(4) A registration fee associated with these Debt Securities, in the amount
of $34,482.76, was previously paid by the registrant with its Registration
Statement on Form S-3, Registration No. 33-51835. Accordingly, since the
registration fee for these Debt Securities as currently computed would be
$29,500.00, no registration fee is currently payable with respect to these Debt
Securities.
(5) If any Debt Securities are issued in a principal amount denominated in
a foreign currency, the amount to be registered shall be such amount as shall
result in an aggregate principal amount equivalent to $500,000,000 at the time
of the initial offerings.
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The registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED MAY 27, 1998
PROSPECTUS
Avnet, Inc.
Debt Securities
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Avnet, Inc., a New York corporation (the "Company"), may offer, from time
to time, debt securities consisting of debentures, notes and/or other unsecured
evidences of indebtedness (the "Debt Securities") at an aggregate principal
amount not to exceed $500,000,000 or, if the principal of the Debt Securities is
payable in a foreign or composite currency, the equivalent thereof at the time
of the initial offerings. The Debt Securities may be offered as separate series
and may be offered in amounts, at prices and on terms to be determined at the
time of sale. When a particular series of Debt Securities (the "Offered Debt
Securities") are offered, a supplement to this Prospectus (a "Prospectus
Supplement") will be delivered with this Prospectus setting forth the terms of
such Offered Debt Securities, including, if applicable, the specific
designation, aggregate principal amount, denominations, currency, purchase
price, maturity, rate (which may be fixed or variable) and time of payment of
interest, redemption terms, and any listing on a securities exchange of the
Offered Debt Securities.
The Debt Securities may be issued in registered or bearer form or both.
In addition, all or a portion of the Debt Securities of a series may be issued
in temporary or permanent global form. Debt Securities in bearer form will be
offered only to non-United States persons and to offices located outside the
United States of certain United States financial institutions.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The Offered Debt Securities may be sold directly by the Company, or
indirectly through agents designated from time to time or through underwriters
or dealers, or through a combination of such methods. See "Plan of
Distribution." If any agents of the Company or any underwriters or dealers are
involved in the sale of the Offered Debt Securities, the names of such agents,
underwriters or dealers and any applicable commissions or discounts will also be
set forth in the Prospectus Supplement. The net proceeds to the Company from
such sale will be set forth in the Prospectus Supplement.
The date of this Prospectus is _____________ __ , 1998.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549, and at the following regional
offices of the Commission: New York Regional Office, 7 World Trade Center, 13th
Floor, New York, New York 10048; and Chicago Regional Office, Suite 1500,
Citicorp Center, 500 West Madison Street, Chicago, Illinois 60661-2511. Copies
of such materials can be obtained at prescribed rates from the Public Reference
Section of the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549. Information on the operation of the Public Reference
Section may be obtained by calling the Commission at 1-800-SEC-0330. Such
material can also be obtained on the Commission's Web site at
http://www.sec.gov, and can be inspected at the offices of the New York Stock
Exchange, Inc., 20 Broad Street, New York, New York 10005, and the Pacific Stock
Exchange, Inc., 301 Pine Street, San Francisco, California 94104 or 618 South
Spring Street, Los Angeles, California 90014, on which exchanges the common
stock of the Company is listed.
This Prospectus constitutes a part of a Registration Statement on Form S-3
(which, together with all amendments and exhibits thereto, is referred to herein
as the "Registration Statement") filed by the Company with the Commission under
the Securities Act of 1933, as amended (the "Securities Act"). This Prospectus
omits certain of the information contained in the Registration Statement, and
reference is hereby made to the Registration Statement for further information
with respect to the Company and the Debt Securities offered hereby. Any
statement contained herein concerning the provisions of any contract or other
document is not necessarily complete, and is qualified in its entirety by
reference to the copy of such contract or other document filed as an exhibit to
the Registration Statement or otherwise filed with the Commission. The
Registration Statement may be inspected without charge at the office of the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549, and copies thereof may be obtained from the Commission at prescribed
rates.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission (File No.
1-4224) are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended June 27, 1997;
2. The Company's definitive proxy statement dated October 10,
1997, for the annual meeting of the shareholders of the Company held
on November 19, 1997;
3. The Company's Quarterly Reports on Form 10-Q for the quarterly
periods ended September 26, 1997, December 26, 1997, and March 27,
1998; and
4. The Company's Current Reports on Form 8-K bearing cover dates
of September 23, 1997, September 25, 1997, and February 6, 1998.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act prior to the termination of the offering
of the Debt Securities shall be deemed to be incorporated by reference in this
Prospectus and to be a part hereof from the date of filing of such documents.
Any statement contained herein or in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained in any subsequently filed
document deemed to be incorporated herein or contained in the accompanying
Prospectus Supplement modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of the Registration Statement or this
Prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, on the written or oral request of any such person,
a copy of any or all of the documents incorporated herein by reference (other
than exhibits to such documents, unless such exhibits are specifically
incorporated by reference into the documents that this Prospectus incorporates).
Requests for such copies should be directed to Raymond Sadowski, Senior Vice
President, Avnet, Inc., 80 Cutter Mill Road, Great Neck, New York 11021
(telephone (516) 466- 7000).
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THE COMPANY
The Company is one of the world's largest distributors of electronic and
electromechanical components and computer products sold principally to
industrial customers and to some commercial and military customers. The
Company's principal suppliers are Intel, Motorola, National Semiconductor, Texas
Instruments, Advanced Micro Devices, Harris Corporation, AMP, Inc., ITT Cannon,
Bendix Corporation, Digital Equipment Corporation, Hewlett Packard, IBM, Connor
Peripherals and Seagate Technology. Its primary customers are original equipment
manufacturers. Electronic components are shipped either as received from the
Company's suppliers or with assembly or other value added. The Company also
provides inventory management services with respect to the electronic components
it sells.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of the Company's earnings to fixed
charges, on a consolidated basis, for the periods indicated:
Nine months Year ended
ended -------------------------------------------------------------
March 27, June 27, June 28, June 30, July 1, June 30,
1998(1) 1997 1996 1995 1994(2) 1993
------- ---- ---- ---- ------- ----
8.1 10.3 10.7 8.7 7.9 8.7
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(1) Income before income taxes for the nine months ended March 27, 1998,
includes the gain on the sale of Channel Master ($33.8 million), offset
somewhat by costs relating to the anticipated divestiture of Avnet
Industrial, the closure of the Company's corporate headquarters in Great
Neck, New York, and the anticipated loss on the sale of Company-owned real
estate, amounting to $13.3 million in the aggregate. Had such one-time
items (amounting to $20.5 million, net) not been included, the ratio of
earnings to fixed charges for the nine months ended March 27, 1998, would
have been 7.5 on a pro forma basis.
(2) Income before income taxes for the year ended July 1, 1994, includes
restructuring and integration charges of $22.7 million in connection with
the acquisition of Hall-Mark Electronics Corporation. Had such one-time
charges not been included, the ratio of earnings to fixed charges for the
year ended July 1, 1994, would have been 8.9 on a pro forma basis.
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USE OF PROCEEDS
Except as may be set forth in a Prospectus Supplement, the Company intends
to use the net proceeds from the sale of the Debt Securities for general
corporate purposes, which may include repayment of debt, capital expenditures,
possible acquisitions, repurchases of the Company's common stock, and working
capital. Pending such use, the net proceeds may be temporarily invested in
short-term securities.
Depending on market conditions, the financial needs of the Company and
other factors, the Company may, from time to time, undertake additional
financings. The amount and timing of such financings, if any, cannot be
determined at this time.
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities
offered by any Prospectus Supplement (the "Offered Debt Securities") and the
extent, if any, to which such general provisions may apply to the Offered Debt
Securities will be described in the Prospectus Supplement relating to such
Offered Debt Securities.
The Debt Securities are 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 is an exhibit incorporated by
reference in the Registration Statement. The following summary of certain
general provisions of the Indenture and the Debt Securities does not purport to
be complete and is subject to, and is qualified in its entirety by reference to,
the provisions of the Indenture, including the definitions therein of certain
terms. Whenever particular provisions in the Indenture are referred to herein,
such provisions are incorporated by reference herein. Unless otherwise defined
herein, all capitalized terms in this section have the same meanings given to
such terms in the Indenture.
General
The aggregate principal amount of Debt Securities which can be issued under
the Indenture is unlimited. The Debt Securities to which this Prospectus relates
will be issued from time to time in one or more series in amounts the proceeds
of which will aggregate up to $500,000,000 and will be offered to the public on
terms determined by market conditions at the time of sale. The Debt Securities
will be unsecured and will rank pari passu with all other unsecured and
unsubordinated indebtedness of the Company. The Indenture does not limit the
amount of other indebtedness or securities, other than certain secured
indebtedness as described below, that may be issued by the Company.
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Debt Securities of a series may be issued in registered form ("Registered
Securities") or bearer form ("Bearer Securities") or both as specified in the
terms of the series. Debt Securities in bearer form will be offered only to
non-United States persons and to offices located outside the United States of
certain United States financial institutions. Debt Securities of a series may be
issued in whole or in part in the form of one or more global securities ("Global
Securities") registered in the name of a depository or its nominee and, in such
case, beneficial interests in the Global Securities will be shown on, and
transfers thereof will be effected only through, records maintained by the
designated depository and its participants.
Reference is made to the Prospectus Supplement relating to the particular
series of Offered Debt Securities offered thereby for the following terms of
such Offered Debt Securities:
o The designation, aggregate principal amount and authorized
denominations;
o The issue price expressed as a percentage of the aggregate principal
amount;
o The date or dates of maturity;
o The interest rate per annum (fixed or floating) or the method by which
such interest rate will be determined;
o The dates interest will commence accruing and, if applicable, be paid
and, for Registered Securities, the record dates for interest
payments;
o Where principal and interest, if any, will be paid;
o Any optional or mandatory sinking fund provisions;
o The dates and redemption prices relating to any optional or mandatory
redemption provisions and other terms and provisions of any optional
or mandatory redemptions;
o The denominations of Registered Securities if other than denominations
of $1,000 and any multiple thereof, and the denominations of Bearer
Securities if other than denominations of $5,000;
o The portion of the principal amount payable on declaration of
acceleration of maturity or provable in bankruptcy, if other than the
principal amount;
o Any Events of Default, if not set forth in the Indenture;
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o The currency or currencies, including composite currencies, of payment
of the principal (and premium, if any) and interest (if any), if other
than the currency of the United States of America;
o If the principal (and premium, if any) or interest, if any, are to be
payable, at the election of the Company or any Holder thereof, in coin
or currency other than that in which the Offered Debt Securities of
the series are stated to be payable, the period or periods within
which, and the terms and condition on which, such election may be
made;
o If such securities are to be denominated in a currency or currencies,
including composite currencies, other than the currency of the United
States of America, the equivalent price in the currency of the United
States of America for purposes of determining the voting rights of
Holders of such Offered Debt Securities as Outstanding Securities
under the Indenture;
o If the amount of payments of principal (and premium, if any), or
portions thereof, or interest may be determined with reference to an
index, formula or other method, the manner of determining such
amounts;
o Whether the Offered Debt Securities will be issuable in registered or
bearer form or both, any restrictions applicable to the offer, sale or
delivery of the Offered Debt Securities in bearer form, and whether
the Offered Debt Securities in bearer form will be exchangeable (and
the terms on which such exchange may be made) for Offered Debt
Securities in registered form;
o Whether Offered Debt Securities will be issued in whole or in part in
the form of one or more Global Securities and, if so, the method of
transferring beneficial interest in such Global Security or Global
Securities;
o The application, if any, of certain provisions of the Indenture
relating to defeasance and discharge, and related conditions;
o Any additional restrictive covenants or other material terms relating
thereto which may not be inconsistent with the Indenture; and
o Any applicable federal income tax consequences.
Unless otherwise indicated in the Prospectus Supplement relating thereto,
principal (and premium, if any) will be payable, and the Registered Securities
will be transferable, at the corporate trust office of the Trustee in New York,
New York. Unless other arrangements are made, interest, if any, will be paid by
checks mailed to the Holders of Registered Securities at their registered
addresses. To the extent set forth in the Prospectus Supplement relating
thereto,
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Bearer Securities and the coupons appertaining thereto will be payable, against
surrender thereof, subject to any applicable laws and regulations, at the
offices of such paying agencies outside the United States as the Company may
appoint from time to time. No service charge will be made for any transfer or
exchange of the Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
One or more series of the Debt Securities may be issued as discounted Debt
Securities (bearing no interest or interest at a rate which at the time of
issuance is below market rates) to be sold at a substantial discount below their
stated principal amount. Federal income tax consequences and other special
considerations applicable to any such discounted Debt Securities will be
described in the Prospectus Supplement relating thereto.
The Company will comply with Section 14(e) of the Exchange Act, and any
tender offer rules of the Commission under the Exchange Act which may then be
applicable, in connection with any obligation of the Company to purchase Offered
Debt Securities at the option of the holders thereof. Any such obligation
applicable to a series of Debt Securities will be described in the Prospectus
Supplement or Prospectus Supplements relating thereto.
The Company may at any time purchase Debt Securities at any price in the
open market or otherwise. Debt Securities so purchased by the Company may, at
its sole option, be held, resold or surrendered to the Trustee for cancellation.
Certain Definitions
"Attributable Debt" means, as to any particular lease, the greater of (i)
the fair market value of the property subject to the lease (as determined by the
Company's Board of Directors), or (ii) the total net amount of rent required to
be paid during the remaining term of the lease, discounted by the weighted
average effective interest cost per annum of the outstanding Debt Securities of
all series, compounded semi-annually.
"Consolidated Net Assets" means total assets after deducting therefrom all
current liabilities as set forth in the most recent balance sheet of the Company
and its consolidated Subsidiaries and computed in accordance with generally
accepted accounting principles.
"Funded Debt" means (i) all indebtedness for money borrowed having a
maturity of more than twelve months from the date as of which the determination
is made or having a maturity of twelve months or less but by its terms being
renewable or extendible beyond twelve months from such date at the option of the
borrower, and (ii) rental obligations payable more than twelve months from such
date under leases which are capitalized in accordance with generally accepted
accounting principles (such rental obligations to be included as Funded Debt at
the amount so capitalized and to be included as an asset for the purposes of the
definition of Consolidated Net Assets).
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"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Principal Property" means any manufacturing or processing plant or
warehouse owned at the date hereof or hereafter acquired by the Company or any
Restricted Subsidiary of the Company which is located within the United States
and the gross book value (including related land and improvements thereon and
all machinery and equipment included therein without deduction of any
depreciation reserves) of which on the date as of which the determination is
being made exceeds 2% of Consolidated Net Assets, other than (i) any such
manufacturing or processing plant or warehouse or any portion thereof (together
with the land on which it is erected and fixtures comprising a part thereof)
which is financed by industrial development bonds which are tax exempt pursuant
to Section 103 of the Internal Revenue Code (or which receive similar tax
treatment under any subsequent amendments thereto or any successor laws thereof
or under any other similar statute of the United States), (ii) any property
which in the opinion of the Company's Board of Directors is not of material
importance to the total business conducted by the Company as an entirety, or
(iii) any portion of a particular property which is similarly found not to be of
material importance to the use or operation of such property.
"Restricted Subsidiary" means a Subsidiary of the Company (i) substantially
all the property of which is located, or substantially all the business of which
is carried on, within the United States, and (ii) which owns a Principal
Property.
"Subsidiary" means any corporation more than 50% of the outstanding Voting
Stock of which at the time of determination is owned, directly or indirectly, by
the Company and/or by one or more other Subsidiaries.
"Voting Stock" means capital stock of a corporation of the class or classes
having general voting power under ordinary circumstances to elect at least a
majority of the Board of Directors, managers or trustees of such corporation
(irrespective of whether or not at the time stock of any other class or classes
shall have or might have voting power upon the occurrence of any contingency).
Highly Leveraged Transactions
Unless otherwise described in a Prospectus Supplement relating to any
Offered Debt Securities, there are no covenants or provisions contained in the
Indenture which may afford the holders of Offered Debt Securities direct
protection in the event of a highly leveraged transaction involving the Company.
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Restrictions on Secured Debt
The Company covenants in the Indenture, for the benefit of each series of
Debt Securities other than any series which specifically provides otherwise,
that if the Company or any Restricted Subsidiary shall after the date of the
Indenture incur or guarantee any loans, notes, bonds, debentures or other
similar evidences of indebtedness for money borrowed ("Debt") secured by a
mortgage, pledge or lien ("Mortgage") on any Principal Property of the Company
or any Restricted Subsidiary, or on any share of stock or Debt of any Restricted
Subsidiary, the Company will secure or cause such Restricted Subsidiary to
secure the Debt Securities equally and ratably with (or, at the Company's
option, prior to) such secured Debt, unless the aggregate amount of all such
secured Debt (plus all Attributable Debt which is not excluded as described
below under the caption " -- Restrictions on Sale and Leaseback Financings")
would not exceed 10% of Consolidated Net Assets.
This restriction will not apply to, and there will be excluded from secured
Debt in any computation of the above restriction, Debt secured by (a) Mortgages
on property of, or on any shares of stock of or Debt of, any corporation
existing at the time such corporation becomes a Restricted Subsidiary, (b)
Mortgages in favor of the Company or a Restricted Subsidiary, (c) Mortgages in
favor of governmental bodies to secure progress, advance or other payments, (d)
Mortgages on property, shares of stock or Debt existing at the time of
acquisition thereof (including acquisition through merger or consolidation) and
purchase money and construction or improvement Mortgages which are entered into
within 180 days after the acquisition of such property, shares or Debt or, in
the case of real property, within 180 days after the later of (1) the completion
of construction on, substantial repair to, alteration or development of, or
substantial improvement to, such property, or (2) the commencement of commercial
operations on such property, (e) mechanics' and similar liens arising in the
ordinary course of business in respect of obligations not due or being contested
in good faith, (f) Mortgages arising from deposits with, or the giving of any
form of security to, any governmental agency required as a condition to the
transaction of business or to the exercise of any privilege, franchise or
license, (g) Mortgages for taxes, assessments or government charges or levies
which are not then due or, if delinquent, are being contested in good faith, (h)
Mortgages (including judgment liens) arising from legal proceedings being
contested in good faith, (i) Mortgages existing at the date of the Indenture and
(j) any extension, renewal or refunding of any Mortgage referred to in the
foregoing clauses (a) through (i) inclusive.
Restrictions on Sale and Leaseback Financings
The Company covenants in the Indenture, for the benefit of each series of
Debt Securities other than any series which specifically provides otherwise,
that the Company will not itself, and will not permit any Restricted Subsidiary
to, enter into any sale and leaseback transaction involving any Principal
Property, unless after giving effect thereto the aggregate amount of all
Attributable Debt with respect to all such transactions, plus all secured Debt
which is not
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excluded as described above under the caption " -- Restrictions on Secured
Debt," would not exceed 10% of Consolidated Net Assets.
This restriction will not apply to, and there will be excluded from
Attributable Debt in any computation of the above restriction, any sale and
leaseback transaction if (a) the lease is for a period, including renewal
rights, of not in excess of three years, (b) the sale or transfer of the
Principal Property is made within 180 days after its acquisition or within 180
days after the later of (1) the completion of construction on, substantial
repair to, alteration or development of, or substantial improvement to, such
property, or (2) the commencement of commercial operations thereon, (c) the
transaction is between the Company and a Restricted Subsidiary, or between
Restricted Subsidiaries, (d) the Company or a Restricted Subsidiary would be
entitled to incur a Mortgage on such Principal Property securing Debt in an
amount equal to the Attributable Debt with respect to such transaction without
equally or ratably securing the Securities, or (e) the Company or a Restricted
Subsidiary, within 180 days after the sale or transfer is completed, applies to
the retirement of Funded Debt of the Company or a Restricted Subsidiary ranking
on a parity with or senior to the Debt Securities, or to the purchase of other
property which will constitute a Principal Property having a fair market value
at least equal to the fair market value of the Principal Property leased, an
amount equal to the greater of the net proceeds of the sale of the Principal
Property or the fair market value (as determined by the Company's Board of
Directors) of the Principal Property leased at the time of entering into such
arrangement (as determined by the Board of Directors).
Restrictions on Mergers and Consolidations
The Company covenants in the Indenture that it will not merge or sell,
convey, transfer or lease all or substantially all of its assets unless (i) the
successor Person is the Company or another Person organized under the laws of
the United States (including any state thereof and the District of Columbia)
which assumes the Company's obligations in the Debt Securities and under the
Indenture, and (ii) after giving effect to such transaction, the Company or the
successor Person would not be in default under the Indenture.
Events of Default
The Indenture defines "Events of Default" with respect to the Debt
Securities of any series as being one of the following events: (i) default in
the payment of any installment of interest on that series for 30 days after
becoming due; (ii) default in the payment of principal on that series when due;
(iii) default in the deposit of any sinking fund payment on that series when
due; (iv) default in the performance of any other covenant in the Debt
Securities of that series or the Indenture (other than a covenant included in
the Indenture solely for the benefit of any series of Debt Securities other than
that series) for 90 days after notice; (v) certain events of bankruptcy,
insolvency or reorganization; and (vi) any other Event of Default provided with
respect to Debt Securities of that series. If an Event of Default shall occur
and be continuing with respect to the Debt Securities of any series, either the
Trustee or the holders of at least 25% in principal amount
-11-
of the Debt Securities then outstanding of that series may declare the principal
amount of the Debt Securities of such series (or, in the case of Debt Securities
sold at an original issue discount, the amount specified in the terms thereof)
and the accrued interest thereon, if any, to be due and payable. Under certain
conditions, such a declaration may be rescinded.
The Indenture provides that the Trustee shall, within 90 days after the
occurrence of a default known to it, give the affected holders of Debt
Securities notice of all uncured defaults known to it (the term "default" to
mean the events specified above without grace periods); provided that, except in
the case of default in the payment of principal of or interest on any Debt
Security, the Trustee shall be protected in withholding such notice if it in
good faith determines that the withholding of such notice is in the interest of
the affected holders of Debt Securities.
The Company will be required to furnish to the Trustee annually a statement
by certain officers of the Company certifying that there are no defaults or
specifying any default.
The holders of a majority in principal amount of the outstanding Debt
Securities of any series will have the right, subject to certain limitations, to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee with respect to the Debt Securities of such series, and to waive certain
defaults with respect thereto. The Indenture provides that in case an Event of
Default shall occur and be continuing, the Trustee shall exercise such of its
rights and powers under the Indenture, and use the same degree of care and skill
in exercising the same, as a prudent Person would exercise or use under the
circumstances in the conduct of such Person's own affairs. Subject to such
provisions, the Trustee will be under no obligation to exercise any of its
rights or powers under the Indenture at the request of any of the holders of
Debt Securities unless they shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred by the Trustee in compliance with such request.
Modification of the Indenture
With certain exceptions, the Indenture may be modified or amended with the
consent of the holders of not less than a majority in principal amount of the
outstanding Debt Securities of each series affected by the modification;
provided that no such modification or amendment may be made, without the consent
of the holder of each Debt Security affected, which would (i) reduce the
principal amount of or the interest on any Debt Security, or change the stated
maturity of the principal of, or any installment of interest on, any Debt
Security or the other terms of payment thereof, or (ii) reduce the above-stated
percentage of Debt Securities, the consent of the holders of which is required
to modify or amend the Indenture, or the percentage of Debt Securities of any
series, the consent of the holders of which is required to waive certain past
defaults.
-12-
Defeasance and Discharge
The Indenture provides that the Company may elect, with respect to the Debt
Securities of any series, to terminate (and be deemed to have satisfied) any and
all of its obligations in respect of such Debt Securities (except for certain
obligations to register the transfer or exchange of Debt Securities, to replace
stolen, lost or mutilated Debt Securities, to maintain paying agencies and hold
monies for payment in trust and, if so specified with respect to the Debt
Securities of a certain series, to pay the principal of (and premium, if any)
and interest, if any, on such specified Debt Securities) on the 91st day after
the deposit with the Trustee, in trust, of money and/or U.S. Government
Obligations (as defined) which, through the payment of interest thereon and
principal thereof in accordance with their terms, will provide money in an
amount sufficient to pay any installment of principal of (and premium, if any),
and interest, if any, on, and any mandatory sinking fund payments in respect of,
such Debt Securities on the stated maturity of such payments in accordance with
the terms of the Indenture and such Debt Securities. Such a trust may be
established only if, among other things, the Company has delivered to the
Trustee an Opinion of Counsel (who may be counsel to the Company) to the effect
that, based upon applicable Federal income tax law or a ruling published by the
United States Internal Revenue Service, such a defeasance and discharge will not
be deemed, or result in, a taxable event with respect to holders of such Debt
Securities. If so specified with respect to the Debt Securities of a series,
such a trust may be established only if establishment of the trust would not
cause the Debt Securities of any such series listed on any nationally recognized
securities exchange to be de-listed as a result thereof.
Concerning the Trustee
The First National Bank of Chicago is the Trustee under the Indenture and
has been appointed by the Company as initial Security Registrar with regard to
the Debt Securities. The Company currently does, and from time to time in the
future may, maintain lines of credit and have customary banking relationships
with the Trustee. The Trustee may serve as trustee for other debt securities
issued by the Company from time to time.
PLAN OF DISTRIBUTION
The Company may sell Offered Debt Securities to or through one or more
underwriters or dealers, directly to institutional investors or other
purchasers, through agents, or through a combination of such or other methods.
The distribution of the Offered Debt Securities may be effected from time to
time in one or more transactions at a fixed price or prices, which may be
changed, or at market prices prevailing at the time of sale, at prices related
to such prevailing market prices or at negotiated prices.
If underwriters are used in the sale, the Offered Debt Securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more
-13-
transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of sale. The Offered Debt
Securities may be offered to the public either through underwriting syndicates
represented by one or more managing underwriters or directly by one or more
firms acting as underwriters. The underwriter or underwriters with respect to a
particular underwritten offering of Offered Debt Securities will be named in the
Prospectus Supplement relating to such offering and, if an underwriting
syndicate is used, the managing underwriter or underwriters will be set forth on
the cover of such Prospectus Supplement. Unless otherwise set forth in the
Prospectus Supplement, the obligations of the underwriters to purchase the
Offered Debt Securities will be subject to certain conditions precedent and the
underwriters will be obligated to purchase all the Offered Debt Securities if
any are purchased.
The Offered Debt Securities may be sold directly by the Company or through
agents designated by the Company from time to time. Any agent involved in the
offer or sale of the Offered Debt Securities in respect of which this Prospectus
is delivered will be named, and any commissions payable by the Company to such
agent will be set forth, in the Prospectus Supplement relating thereto. Unless
otherwise indicated in the Prospectus Supplement, any such agent will be acting
on a best efforts basis for the period of its appointment.
In connection with the sale of Offered Debt Securities, underwriters or
agents may receive compensation from the Company or from purchasers of Offered
Debt Securities for whom they may act as agents in the form of discounts,
concessions or commissions. Underwriters may sell Offered Debt Securities to or
through dealers, and such dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters and/or commissions
from the purchasers for whom they may act as agents. Underwriters, dealers and
agents that participate in the distribution of Offered Debt Securities may be
deemed to be underwriters, and any discounts or commissions received by them
from the Company and any profit on the resale of Offered Debt Securities by them
may be deemed to be underwriting discounts and commissions, under the Securities
Act. Any such underwriter or agent will be identified, and any such compensation
received from the Company will be described, in the related Prospectus
Supplement.
If so indicated in the related Prospectus Supplement, the Company will
authorize underwriters or other persons acting as the Company's agents to
solicit offers by certain institutions to purchase Offered Debt Securities from
the Company at the public offering price set forth in the Prospectus Supplement
pursuant to contracts providing for payment and delivery on a future date.
Institutions with which such contracts may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and other institutions, but in all cases
such institutions must be approved by the Company. The obligations of any
purchaser under any such contract will be subject to the condition that the
purchase of the Offered Debt Securities shall not at the time of delivery be
prohibited under the laws of the jurisdiction to which such purchaser is
subject. The underwriters and such other agents will not have any responsibility
in respect of the validity or performance of such contracts.
-14-
Under agreements which may be entered into by the Company, underwriters and
agents who participate in the distribution of Offered Debt Securities may be
entitled to indemnification by the Company against certain civil liabilities,
including liabilities under the Securities Act, or to contribution by the
Company with respect to payments they may be required to make in respect
thereof.
Certain of the underwriters or agents and their affiliates may engage in
transactions with and perform services for the Company or its affiliates in the
ordinary course of their respective businesses.
If underwriters or dealers are used in the sale, until the distribution of
the Offered Debt Securities is completed, rules of the Securities and Exchange
Commission may limit the ability of any such underwriters and certain selling
group members, if any, to bid for and purchase the Offered Debt Securities. As
an exception to these rules, representatives of any underwriters are permitted
to engage in certain transactions that stabilize the price of the Offered Debt
Securities. Such transactions may consist of bids or purchases for the purpose
of pegging, fixing or maintaining the price of the Offered Debt Securities.
If the underwriters create a short position in the Offered Debt Securities
in connection with the offerings, i.e., if they sell more Offered Debt
Securities than are set forth on the cover page of the Prospectus Supplement,
the representatives of the underwriters may reduce that short position by
purchasing Offered Debt Securities in the open market. The representatives of
the underwriters may also elect to reduce any short position by exercising all
or part of any over allotment option, if any, described in the Prospectus
Supplement.
In general, purchases of a security for the purpose of stabilization or to
reduce a short position could cause the price of the security to be higher than
it might be in the absence of such purchases. Neither the Company nor any
underwriter or agent makes any representation or prediction as to the direction
or magnitude of any effect that the transactions described above may have on the
price of the Offered Debt Securities. In addition, neither the Company nor any
underwriter or agent makes any representation that the representatives of any
underwriters will engage in such transactions or that such transactions, once
commenced, will not be discontinued without notice.
The representatives of the underwriters may also impose a penalty bid on
certain underwriters and selling group members, if any. This means that if the
representatives of the underwriters purchase Offered Debt Securities in the open
market to reduce the underwriters' short position or to stabilize the price of
the Offered Debt Securities, they may reclaim the amount of the selling
concession from the underwriters and selling group members who sold those
Offered Debt Securities as part of the offering. The imposition of a penalty bid
might also have an effect on the price of the Offered Debt Securities to the
extent that it discourages resales of the Offered Debt Securities.
-15-
The Debt Securities may or may not be listed on a national securities
exchange or traded in the over-the-counter market. No assurances can be given as
to the liquidity of the trading market for any of such securities.
LEGAL MATTERS
The validity of the Offered Debt Securities will be passed upon for the
Company by David R. Birk, Senior Vice President and General Counsel of the
Company. Mr. Birk beneficially owns 17,794 shares of the Company's common stock,
including 14,375 shares issuable upon exercise of employee stock options.
Certain legal matters with respect to the Offered Debt Securities will be passed
upon for the underwriters, dealers or agents, if any, by Fried, Frank, Harris,
Shriver & Jacobson (a partnership including professional corporations), One New
York Plaza, New York, New York 10004, unless otherwise specified in the
Prospectus Supplement.
EXPERTS
The consolidated financial statements and schedule incorporated by
reference in this Prospectus and elsewhere in the Registration Statement have
been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their report with respect thereto, and are incorporated by
reference herein in reliance upon the authority of said firm as experts in
giving said report.
-16-
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The expenses in connection with the registration of the securities being
offered hereby are estimated to be:
Securities and Exchange Commission
registration fee....................................... $118,000
Rating agency fees......................................... 180,000
Legal fees................................................. 50,000
Accounting fees............................................ 50,000
Printing and engraving expenses............................ 15,000
Blue sky fees and expenses................................. 10,000
Trustee's fees and expenses................................ 2,500
Miscellaneous.............................................. 14,500
--------
Total............................................. $440,000
Item 15. Indemnification of Directors and Officers.
Section 53 of the registrant's By-laws provides as follows:
"Indemnification"
"A. The Corporation shall indemnify, and advance the expenses of,
any director, officer or employee to the full extent permitted by the
New York Business Corporation Law as the same now exists or may
hereafter be amended.
"B. The indemnification and advancement of expenses granted
pursuant to this Section 53 shall not be exclusive or limiting of any
other rights to which any person seeking indemnification or
advancement of expenses may be entitled when authorized by (i) a
resolution or shareholders, (ii) a resolution of directors or (iii) an
agreement providing for such indemnification; provided that no
indemnification may be made to or on behalf of any such person if a
judgment or other final adjudication adverse to such person
establishes that his acts were committed in bad faith or were the
result of active and deliberate dishonesty and were material to the
cause of action so adjudicated, or that he personally gained in fact a
financial profit or other advantage to which he was not legally
entitled.
II-1
"C. No amendment, modification or rescission of these By-laws
shall be effective to limit any person's right to indemnification with
respect to any alleged cause of action that accrues or other incident
or matter that occurs prior to the date on which such modification,
amendment or rescission is adopted."
Section 721 of the New York Business Corporation Law (the "B.C.L.")
provides that no indemnification may be made to or on behalf of any director or
officer of the Registrant if "a judgment or other final adjudication adverse to
the director or officer establishes that his acts were committed in bad faith or
were the result of active and deliberate dishonesty and were material to the
cause of action so adjudicated, or that he personally gained in fact a financial
profit or other advantage to which he was not legally entitled." Section 53B of
the Registrant's By-laws includes the foregoing statutory language.
The rights granted under Section 53 of the By-laws are in addition to, and
are not exclusive of, any other rights to indemnification and expenses to which
any director or officer may otherwise be entitled. Under the B.C.L., a New York
corporation may indemnify any director or officer who is made or threatened to
be made a party to an action by or in the right of such corporation against
"amounts paid in settlement and reasonable expenses, including attorneys' fees,"
actually and necessarily incurred by him in connection with the defense or
settlement of such action, or in connection with an appeal therein, if such
director or officer acted, in good faith, for a purpose which he reasonably
believed to be in the best interests of the corporation, except that no
indemnification shall be made in respect of (1) a threatened action, or a
pending action which is settled or otherwise disposed of, or (2) any claim,
issue or matter as to which such director or officer shall have been adjudged
liable to the corporation, unless and only to the extent that a court determines
that the director or officer is fairly and reasonably entitled to indemnity
(B.C.L. Section 722(c)). A corporation may also indemnify directors and officers
who are parties to other actions or proceedings (including actions or
proceedings by or in the right of any other corporation or other enterprise
which the director or officer served at the request of the corporation) against
"judgments, fines, amounts paid in settlement and reason able expenses,
including attorneys' fees," actually or necessarily incurred as a result of such
actions or proceedings, or any appeal therein, provided the director or officer
acted, in good faith, for a purpose which he reasonably believed to be in the
best interests of the corporation (or in the case of service to another
corporation or other enterprise at the request of such corporation, not opposed
to the best interests of such corporation) and, in criminal cases, that he also
had no reasonable cause to believe that his conduct was unlawful (B.C.L. Section
722(a)). Any indemnification under Section 722 may be made only if authorized in
the specific case by disinterested directors, or by the board of directors upon
the opinion in writing of independent legal counsel that indemnification is
proper, or by the shareholders (B.C.L. Section 723(b)), but even without such
authorization, a court may order indemnification in certain circumstances
(B.C.L. Section 724). Further, any director or officer who is "successful, on
the merits or otherwise," in the defense of an action or proceeding is entitled
to indemnification as a matter of right (B.C.L. Section 723(a)).
II-2
A New York corporation may generally purchase insurance, consistent with
the limitations of New York insurance law and regulatory supervision, to
indemnify the corporation for any obligation which it incurs as a result of the
indemnification of directors and officers under the provisions of the B.C.L., so
long as no final adjudication has established that the directors' or officers'
acts of active and deliberate dishonesty were material to the cause of action so
adjudicated or that the directors or officers personally gained in fact a
financial profit or other advantage (B.C.L. Section 726).
The registrant's directors and officers are currently covered as insureds
under directors' and officers' liability insurance. Such insurance, subject to
annual renewal and certain rights of the insurer to terminate, provides an
aggregate maximum of $50,000,000 of coverage for directors and officers of the
Registrant and its subsidiaries against claims made during the policy period
relating to certain civil liabilities, including liabilities under the
Securities Act of 1933 (the "Securities Act").
Item 16. Exhibits.
Exhibit
No.
---
1 Form of Standard Underwriting Agreement Provisions.
4 Indenture dated as of February 1, 1994, between the registrant and The
First National Bank of Chicago, as Trustee, filed as Exhibit 4 to the
registrant's Current Report on Form 8-K (Commission File No. 1-4224)
bearing cover date of March 8, 1994, and incorporated herein by
reference.
5 Opinion of David R. Birk, Esq. with respect to the legality of the
securities being registered hereunder.
12 Statement of computation of ratios of earnings to fixed charges.
23(a) Consent of Arthur Andersen LLP.
23(b) Consent of David R. Birk, Esq. (included in Exhibit 5).
24 Powers of Attorney.
25 Form T-1 Statement of Eligibility of The First National Bank of
Chicago under the Trust Indenture Act of 1939.
II-3
Item 17. Undertakings.
(1) The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by section 10(a)(3) of the
Securities Act;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most
recent post-effective amendment hereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement. (Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the change in
volume represents no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement.); and
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that paragraphs (i) and (ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 (the "Exchange Act") that are incorporated by reference in this
Registration Statement;
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered herein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(2) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
II-4
(3) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions referred to in Item 15 above, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of registrant in the successful defense of any action, suit
or proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
(4) The undersigned registrant hereby undertakes that:
(a) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective; and
(b) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3, and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Great Neck, State of New York, on May 27, 1998.
AVNET, INC.
By:/s/Raymond Sadowski
-------------------
Raymond Sadowski
Senior Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on May 27, 1998, by the following persons
in the capacities indicated:
Signature Title
- --------- -----
*
- ----------- Chairman of the Board, Chief
Leon Machiz Executive Officer and Director
* Director
- ------------
Eleanor Baum
* Director
- -----------------
Gerald J. Berkman
II-6
Signature Title
- --------- -----
*
- ------------------- Director
J. Veronica Biggins
*
- ------------------- Director
Joseph F. Caligiuri
*
- ------------- Director
Ehud Houminer
*
- ------------------ Director
Salvatore J. Nuzzo
*
- ---------------- Director
Frederic Salerno
*
- ---------- Director
David Shaw
*
- ---------- Director
Roy Vallee
*
- -------------- Director
Keith Williams
II-7
Signature Title
- --------- -----
*
- ----------------- Director
Frederick S. Wood
/s/Raymond Sadowski
- ------------------- Senior Vice President and
Raymond Sadowski Chief Financial Officer
/s/John F. Cole
- --------------- Controller and
John F. Cole Chief Accounting Officer
_________________
* By:/s/Raymond Sadowski
-------------------
Raymond Sadowski
Attorney-in-Fact
II-8
EXHIBIT INDEX
Exhibit
No.
---
1 Form of Standard Underwriting Agreement Provisions
4 Indenture dated as of February 1, 1994, between the
registrant and The First National Bank of Chicago, as
Trustee, filed as Exhibit 4 to the registrant's Current
Report on Form 8-K (Commission File No. 1-4224)
bearing cover date of March 8, 1994, and incorporated
herein by reference
5 Opinion of David R. Birk, Esq. with respect to the
legality of the securities being registered hereunder
12 Statement of computation of ratios of earnings to fixed
charges
23(a) Consent of Arthur Andersen LLP
23(b) Consent of David R. Birk, Esq. (included in Exhibit 5)
24 Powers of Attorney
25 Form T-1 Statement of Eligibility of The First National
Bank of Chicago under the Trust Indenture Act of 1939
EXHIBIT 1
May 1998
AVNET, INC.
DEBT SECURITIES
STANDARD UNDERWRITING AGREEMENT PROVISIONS
1. Introductory. Avnet, Inc., a New York corporation (the "Company"),
proposes to issue and sell from time to time certain of its debt securities
registered under the registration statement referred to in Section 3(a)
("Securities"). The Securities will be issued under an indenture, dated as of
February 1, 1994 (such indenture as amended or supplemented is herein referred
to as the "Indenture"), between the Company and The First National Bank of
Chicago, as Trustee, in one or more series, which series may vary as to interest
rates, maturities, redemption provisions, selling prices and other terms, with
all such terms for any particular series of the Securities being determined at
the time of sale. Particular series of the Securities will be sold pursuant to a
Pricing Agreement referred to in Section 2, for resale in accordance with terms
of offering determined at the time of sale.
The firm or firms which agree to purchase the Securities are hereinafter
referred to as the "Underwriters" of such Securities, and the representative or
representatives of the Underwriters, if any, specified in a Pricing Agreement
referred to in Section 2 are hereinafter referred to as the "Representatives";
provided, however, that if the Pricing Agreement does not specify any
representative of the Underwriters, the term "Representatives," as used herein
(other than in the second sentence of Section 2), shall mean the Underwriters.
2. Purchase and Offering of Securities. The obligation of the Underwriters
to purchase the Securities will be evidenced by an exchange of written
communications ("Pricing Agreement") at the time the Company determines to sell
the Securities. The Pricing Agreement will incorporate by reference these
Standard Underwriting Agreement Provisions (these "Provisions"), except as
otherwise provided therein, and will specify (1) the firm or firms which will be
Underwriters, (2) the names of any Representatives, (3) the principal amount of
Securities to be purchased by each Underwriter and the purchase price to be paid
by the Underwriters, (4) the terms of the Securities not already specified in
the Indenture, (5) the time and date on which delivery of the Securities will be
made to the Representatives for the accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase
price in New York Clearing House funds (such time and date, or such other time
and date not later than seven full business days thereafter as the
Representatives and the Company
agree to as to time and date for payment and delivery, being herein and in the
Pricing Agreement referred to as the "Closing Date") and (6) the place of
delivery and payment.
The obligations of the Underwriters to purchase the Securities will be
several and not joint. The Securities delivered to the Underwriters on the
Closing Date will be in definitive fully registered form, in such denominations
and registered in such names as the Representatives may request.
Certificates for the Securities shall be registered in such names and in
such denominations as the Representatives may request not less than two full
business days in advance of the Closing Date.
3. Representations and Warranties of the Company: The Company represents
and warrants to each of the Underwriters as of the date of execution of any
Pricing Agreement (the "Representation Date") and as of any Closing Date that:
(a) the Company is permitted to use Form S-3 under the Securities
Act of 1933, as amended (the "Act"), and has filed with the Securities
and Exchange Commission (the "Commission") a registration statement on
such Form, which has become effective, for the registration under the
Act of the Securities. Such registration statement, as amended at the
Representation Date, meets the requirements set forth in Rule
415(a)(1)(x) under the Act and complies in all other material respects
with said Rule. Such registration statement, including the exhibits
thereto, as amended at the Representation Date, is hereinafter called
the "Registration Statement" and the prospectus included in the
Registration Statement, as supplemented to reflect the terms of any
series of the Securities and the plan of distribution thereof, in the
form furnished to the Underwriters for use in connection with the
offering of the Securities, is hereinafter called the "Prospectus."
Any reference herein to the Registration Statement or the Prospectus
shall be deemed to include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934 (the "Exchange Act") on or before the
Representation Date or the date of the Prospectus, as the case may be,
and any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the Registration Statement or the
Prospectus shall be deemed to include the filing of any document under
the Exchange Act after the Representation Date or the date of the
Prospectus, as the case may be, deemed to be incorporated therein by
reference;
(b) (i) the Registration Statement, the Prospectus and the
Indenture comply in all material respects with the applicable
requirements of the Act, the Trust Indenture Act of 1939 (the "Trust
Indenture Act") and the Exchange Act and the respective rules
thereunder, and (ii) neither the Registration Statement nor the
Prospectus contains any untrue statement of a material fact or omits
to state any
2
material fact required to be stated therein or necessary in order to
make the statements therein not misleading; provided, however, that
the Company makes no warranty or representation with respect to any
statement contained in the Registration Statement or the Prospectus in
reliance upon and in conformity with information furnished in writing
by or on behalf of any Underwriter through the Representatives to the
Company expressly for use in the Registration Statement or the
Prospectus;
(c) all of the issued and outstanding shares of capital stock of
the Company have been duly and validly authorized and issued and are
fully paid, non-assessable and free of statutory and contractual
preemptive rights; the Company and each of its subsidiaries (the
"Subsidiaries") have been duly incorporated and are validly existing
as corporations in good standing under the laws of their respective
jurisdictions of incorporation, with full power and authority to own
their respective properties and conduct their respective businesses as
described in the Registration Statement and the Prospectus; the
Company has full power and authority to execute and deliver the
Pricing Agreement (including these Provisions) and the Indenture and
to issue and sell the Securities as herein contemplated;
(d) the Company and each of its Subsidiaries are duly qualified
or licensed by, and are in good standing in, each jurisdiction in
which they conduct their respective businesses and in which the
failure, individually or in the aggregate, to be so licensed or
qualified could have a material adverse effect on the operations,
business or condition of the Company and its Subsidiaries taken as a
whole, and with respect to the Company, the jurisdictions listed on
Schedule A hereto constitute a complete list of such jurisdictions;
and the Company and each of its Subsidiaries are in compliance in all
material respects with the laws, orders, rules, regulations and
directives issued or administered by such jurisdictions;
(e) neither the Company nor any of its Subsidiaries is in breach
of, or in default under (nor has any event occurred which with notice,
lapse of time, or both would constitute a breach of, or default
under), its respective charter or by-laws or in the performance or
observance of any obligation, agreement, covenant or condition
contained in any material indenture, mortgage, deed of trust, bank
loan or credit agreement or other agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which any of them
is bound, and the execution, delivery and performance of the Pricing
Agreement (including these Provisions) and the Indenture, and the
issuance of the Securities and consummation of the transactions
contemplated hereby and thereby, will not conflict with, or result in
any breach of or constitute a default under (nor constitute any event
which with notice, lapse of time, or both would constitute a breach
of, or default under), any provisions of the charter or by-laws of the
Company or any of its Subsidiaries or under any provision of any
material license, indenture, mortgage, deed of trust, bank loan or
credit agreement or other agreement or instrument to which the Company
or any of its
3
Subsidiaries is a party or by which any of them or their respective
properties may be bound or affected, or under any federal, state,
local or foreign law, regulation or rule or any decree, judgment or
order specifically binding on the Company or any of its Subsidiaries;
(f) the Indenture has been duly authorized, executed and
delivered by the Company and is a legal, valid and binding agreement
of the Company enforceable against the Company in accordance with its
terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally, and by general principles of
equity;
(g) the Securities have been duly authorized by the Company and
when executed and delivered by the Company will constitute legal,
valid and binding obligations of the Company enforceable against the
Company in accordance with their terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally, and
by general principles of equity;
(h) the Pricing Agreement has been duly authorized, executed and
delivered by the Company;
(i) the Securities and the Indenture conform in all material
respects to the description thereof contained in the Registration
Statement and Prospectus;
(j) no approval, authorization, consent or order of or filing
with any national, state or local governmental or regulatory
commission, board, body, authority or agency is required in connection
with the issuance and sale of the Securities as contemplated hereby
other than registration of the Securities under the Act, qualification
of the Indenture under the Trust Indenture Act and any necessary
qualification under the securities or blue sky laws of the various
jurisdictions in which the Securities are being offered by the
Underwriters;
(k) the accountants whose reports on the consolidated financial
statements of the Company and its Subsidiaries are filed with the
Commission as part of the Registration Statement and Prospectus are
independent public accountants as required by the Act and the
applicable published rules and regulations thereunder;
(l) each of the Company and its Subsidiaries (i) has all
necessary licenses, authorizations, consents and approvals which are
material to its business, (ii) has made all filings required under any
federal, state, local or foreign law, regulation or rule, the failure
to make which would have a material adverse effect on the operations,
business, prospects or financial condition of the Company and its
Subsidiaries taken as a whole (a "Material Adverse Effect"), and (iii)
has obtained
4
all necessary authorizations, consents and approvals from other
persons which are material to its business; neither the Company nor
any of its Subsidiaries is in violation of, or in default under, any
such license, authorization, consent or approval or any federal,
state, local or foreign law, regulation or rule or any decree, order
or judgment applicable to the Company or any of its Subsidiaries the
effect of which violation or default, singly or in the aggregate,
would have a Material Adverse Effect;
(m) all legal or governmental proceedings, contracts or documents
of a character required to be described in the Registration Statement
or the Prospectus or to be filed as an exhibit to the Registration
Statement have been so described or filed as required;
(n) there are no actions, suits or proceedings pending or
threatened against the Company or any of its Subsidiaries or any of
their respective properties, at law or in equity, before or by any
federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency which, singly or in the
aggregate, have a reasonable likelihood of resulting in judgments,
decrees or orders having a Material Adverse Effect;
(o) the audited financial statements included in the Registration
Statement and the Prospectus present fairly the consolidated financial
position of the Company and its Subsidiaries as of the dates indicated
and the consolidated results of operations and cash flows of the
Company and its Subsidiaries for the periods specified; such financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis during the periods
involved;
(p) subsequent to the respective dates as of which information is
given in the Registration Statement and Prospectus, and except as may
be otherwise stated in the Registration Statement or Prospectus, there
has not been (A) any material and unfavorable change, financial or
otherwise, in the business, properties, prospects, regulatory
environment, results of operations or condition (financial or
otherwise), present or prospective, of the Company and its
Subsidiaries taken as a whole, (B) any transaction, which is material
and unfavorable to the Company and its Subsidiaries taken as a whole,
contemplated or entered into by the Company or any of its Subsidiaries
or (C) any obligation, contingent or otherwise, directly or
indirectly, incurred by the Company or any of its Subsidiaries which
is material and unfavorable to the Company and its Subsidiaries taken
as a whole;
(q) no Subsidiary is a "significant subsidiary" as that term is
defined in Item 1-02(w) of Regulation S-X promulgated under the Act;
(r) the Company and each of the Subsidiaries have filed all
material federal and state income and franchise tax returns (or
obtained extensions with respect
5
to the filing of such returns) and have paid all taxes shown thereon
as currently due, and the Company has no knowledge of any material tax
deficiency which has been or might be asserted against the Company or
any of the Subsidiaries; all material tax liabilities are adequately
provided for on the books of the Company and each of the Subsidiaries;
(s) the Company and its Subsidiaries own or possess, or can
acquire on reasonable terms, adequate material patents, patent rights,
licenses, trademarks, inventions, service marks, trade names,
copyrights and know-how (including trade secrets and other proprietary
or confidential information, systems or procedures, whether patented
or unpatented) (collectively, "intellectual property") necessary to
conduct the business now or proposed to be operated by them as
described in the Registration Statement and in the Prospectus, and
neither the Company nor any of its Subsidiaries has received any
notice of infringement of or conflict with (or knows of any such
infringement of or conflict with) asserted rights of others with
respect to any of such intellectual property which, if such assertion
of infringement or conflict were sustained, would result, singly or in
the aggregate, in any Material Adverse Effect;
(t) neither the Company nor any agent acting on its behalf has
taken or will take any action that might cause the Pricing Agreement
or sale of the Securities to violate Regulation T, U or X of the Board
of Governors of the Federal Reserve System, in each case as in effect,
or as the same may hereafter be in effect, on the Closing Date;
(u) except as described in the Registration Statement and the
Prospectus, (i) the operations of the Company and its Subsidiaries are
in compliance in all material respects with all applicable
environmental laws, (ii) the Company and its Subsidiaries have
obtained all material environmental, health and safety permits,
licenses and approvals necessary for its operation, all such permits,
licenses and approvals are in effect and the Company and its
Subsidiaries are in compliance in all material respects with the terms
and conditions thereof, (iii) with respect to any property currently
or formerly owned, leased or operated by the Company or any of its
Subsidiaries, (a) neither the Company nor any such Subsidiary is
subject to any judicial or administrative proceeding or any order from
or agreement with any governmental authority (collectively,
"Proceedings"), and (b) the Company does not have knowledge of any
pending or threatened investigation by any governmental authority
(collectively, "Investigations") relating to any violation or alleged
violation of any environmental law, any release or threatened release
of a hazardous material into the environment, or any remedial action
that may be necessary in connection with any such violation or
release, except for such Proceedings or Investigations which, whether
individually or in the aggregate, could not be expected to have a
Material Adverse Effect, (iv) neither the Company nor any such
Subsidiary has filed
6
any notice under any environmental law indicating past or present
treatment, storage, disposal or release of a hazardous material into
the environment in a manner that is not in compliance with, or which
could result in liability under, applicable environmental laws, except
where such non-compliance or liability, whether individually or in the
aggregate, could not be expected to have a Material Adverse Effect,
(v) neither the Company nor any such Subsidiary has received notice of
a claim that it may be subject to liability (a "Notice") as a result
of a release or threatened release of hazardous material, except for
such Notice which, whether individually or in the aggregate, could not
be expected to have a Material Adverse Effect, and (vi) there are no
events, circumstances or conditions that might reasonably be expected
to form the basis of an order for clean-up or remediation, or an
action, suit or proceeding by any private party or governmental body
or agency, against or materially affecting the Company or any of its
subsidiaries relating to chemicals, pollutants, contaminants, wastes,
toxic substances, petroleum or petroleum products or any environmental
law, and to the best of the Company's knowledge, there is no
reasonable basis for any such order, action, suit or proceeding with
respect to any environmental law which could be expected to have a
Material Adverse Effect;
(v) the Company is not an "investment company" or an affiliated
person of, or "promoter" or "principal underwriter" for, an
"investment company," as such terms are defined in the Investment
Company Act of 1940, as amended, and the rules and regulations
thereunder; and
(w) to the best knowledge of the Company, no labor problem exists
with employees of the Company or any of its Subsidiaries or is
imminent that could have a Material Adverse Effect.
4. Certain Covenants of the Company: The Company hereby agrees:
(a) to furnish such information as may be reasonably required by
and otherwise to cooperate with, the Representatives in qualifying the
Securities for offering and sale under the securities or blue sky laws
of such states as the Representatives may designate (including the
provisions of Florida blue sky law, if requested, relating to issuers
doing business with Cuba) and to maintain such qualifications in
effect as long as required for the distribution of the Securities,
provided that the Company shall not be required to qualify as a
foreign corporation or a dealer or to consent to the service of
process under the laws of any such state (except service of process
with respect to the offering and sale of the Securities) or to take
any action which would or could subject the Company to taxation in any
state where it is not now so subject; and to promptly advise the
Representatives of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose;
7
(b) to make available to the Representatives in New York City, as
soon as practicable after the Registration Statement becomes
effective, and thereafter from time to time to furnish to the
Underwriters, as many copies of the Prospectus (or of the Prospectus
as amended or supplemented if the Company shall have made any
amendments or supplements thereto after the effective date of the
Registration Statement) as the Underwriters may reasonably request for
the purposes contemplated by the Act;
(c) that the Company will use its best efforts to cause any
amendment of the Registration Statement to become effective promptly.
The Company will not file any amendment to the Registration Statement
or amendment or supplement to the Prospectus relating to any series of
the Securities to which the Underwriters of such series shall object
in writing after a reasonable opportunity to review the same. Subject
to the foregoing sentence, the Company will cause each Prospectus
supplement relating to the Securities to be filed with the Commission
pursuant to the applicable paragraph of Rule 424 within the time
period prescribed and will provide evidence satisfactory to the
Underwriters of such timely filing. The Company will promptly advise
the Underwriters of any series of Securities (A) when any Prospectus
supplement relating to such series shall have been filed with the
Commission pursuant to Rule 424, (B) when, prior to termination of the
offering of such series, any amendment to the Registration Statement
shall have been filed with the Commission or become effective, (C) of
any request by the Commission for any amendment of the Registration
Statement or supplement to the Prospectus or for any additional
information, (D) of the receipt by the Company of any notification of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the use of any
Prospectus or Prospectus supplement or, if the Company has knowledge,
of the institution or threat of any proceeding for that purpose and
(E) of the receipt by the Company of any notification with respect to
the suspension of the qualification of the Securities for sale in any
jurisdiction or, if the Company has knowledge, of the initiation or
threat of any proceeding for such purpose. The Company will make every
reasonable effort to prevent the issuance of any such stop order or of
any order suspending or preventing any such use and, if issued, to
obtain as soon as possible the withdrawal thereof;
(d) to furnish to the Representatives and, upon request, to each
of the other Underwriters for a period of three years from the date of
each Pricing Agreement (i) copies of any reports or other
communications which the Company shall send to its shareholders or
shall from time to time publish or publicly disseminate, (ii) copies
of all annual, quarterly and current reports filed with the Commission
on Forms 10- K, 10-Q and 8-K, or such other similar form as may be
designated by the Commission, and (iii) such other information as the
Representatives may reasonably request regarding the Company or its
Subsidiaries;
8
(e) to advise the Underwriters of a series of Securities promptly
of the happening of any event known to the Company within the time
during which a prospectus relating to such series is required to be
delivered under the Act which, in the judgment of the Company, would
require the making of any change in the Prospectus then being used, or
in the information incorporated therein by reference, so that the
Prospectus would not include an untrue statement of a material fact or
omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they are made, not
misleading, and, during such time, to prepare and furnish, at the
Company's expense, to the Underwriters promptly such amendments or
supplements to such Prospectus as may be necessary to reflect any such
change and to furnish to the Representatives a copy of such proposed
amendment or supplement before filing any such amendment or supplement
with the Commission;
(f) that, as soon as practicable after the date of each Pricing
Agreement, the Company will make generally available to its Security
holders an earnings statement that satisfies the provisions of Section
11(a) of the Act and Rule 158 under the Act;
(g) to apply the net proceeds from the sale of the Securities in
the manner set forth under the caption "Use of Proceeds" in the
Prospectus;
(h) to pay all expenses, fees and taxes (other than any transfer
taxes and fees and disbursements of counsel for the Underwriters
except as set forth under Section 5 hereof and (iii) and (iv) below)
in connection with (i) the preparation and filing of the Registration
Statement, each preliminary prospectus, the Prospectus, and any
amendments or supplements thereto, and the printing and furnishing of
copies of each thereof to the Underwriters and to dealers (including
costs of mailing and shipment), (ii) the preparation, issuance,
execution, authentication and delivery of the Securities, (iii) the
printing of the Pricing Agreement (including these Provisions), an
Agreement Among Underwriters, any dealer agreements, any Powers of
Attorney, the Indenture and the reproduction and/or printing and
furnishing of copies of each thereof to the Underwriters and to
dealers (including costs of mailing and shipment), (iv) the
qualification of the Securities for offering and sale under state laws
and the determination of their eligibility for investment under state
law as aforesaid (including the legal fees and filing fees and other
disbursements of counsel for the Underwriters) and the printing and
furnishing of copies of any blue sky surveys or legal investment
surveys to the Underwriters and to dealers, (v) any listing of the
Securities on any securities exchange and any registration thereof
under the Exchange Act, (vi) any fees payable to investment rating
agencies with respect to the Securities, (vii) any filing for review
of the public offering of the Securities by the National Association
of Securities Dealers, Inc. (the "NASD"), and (viii) the performance
of the Company's other obligations hereunder; and
9
(i) that the Company will not, without the consent of the
Representatives, offer or sell, or publicly announce its intention to
offer or sell, (i) any debt securities pursuant to a public offering
or (ii) any unsecured debt securities pursuant to a private placement
which contemplates the purchasers of such debt securities receiving
customary registration rights, in each case during the period
beginning on the date of the Pricing Agreement and ending the 90th day
following the date of the Pricing Agreement. The Company has not
taken, and will not take, directly or indirectly, any action which
might reasonably be expected to cause or result in the stabilization
or manipulation of the price of any security to facilitate the sale or
resale of the Securities.
5. Reimbursement of Underwriters' Expenses: If the Securities of a series
to which the attached Pricing Agreement relates are not delivered for any reason
other than (a) a termination of the obligations of the several Underwriters in
accordance with clause (a)(iii), (a)(iv) or (a)(v) of Section 9 hereof, or (b) a
default by one or more of the Underwriters in its or their respective
obligations hereunder, the Company shall reimburse the Underwriters for all of
their out-of-pocket expenses, including the fees and disbursements of their
counsel.
6. Conditions of Underwriters' Obligations: The several obligations of the
Underwriters to purchase and pay for the Securities are subject to the accuracy
of the representations and warranties on the part of the Company herein on the
Representation Date and at the Closing Date (including those contained in the
Pricing Agreement), to the accuracy of the statements of officers of the Company
made pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following conditions:
(a) The Company shall furnish to the Representatives at the
Closing Date an opinion of 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 enforceable against the Company
in accordance with its terms, except insofar as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors'
rights generally, and by general principles of equity;
10
(iii) the Securities have been duly authorized by the
Company and, when executed and authenticated in accordance with
the terms of the Indenture and delivered to and paid for by the
Underwriters, will be legal, valid and binding obligations of the
Company enforceable against the Company in accordance with their
terms, except insofar as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally, and by general principles
of equity;
(iv) the Securities and the Indenture conform in all
material respects to the summary descriptions thereof contained
in the Registration Statement and Prospectus;
(v) the Registration Statement and the Prospectus (except as
to the financial statements and schedules and other financial and
statistical data contained or incorporated by reference therein
and the Trustee's Statement of Eligibility on Form T-1, as to
which such counsel need express no opinion) comply as to form in
all material respects with the requirements of the Act;
(vi) the Registration Statement has become effective under
the Act and, to the best of such counsel's knowledge, no stop
order proceedings with respect thereto are pending or threatened
under the Act;
(vii) no approval, authorization, consent or order of or
filing with any United States Federal or New York State
governmental or regulatory commission, board, body, authority or
agency is required in connection with the issue or sale of the
Securities by the Company as contemplated hereby, other than
registration of the Securities under the Act and qualification of
the Indenture under the Trust Indenture Act (except such counsel
need express no opinion as to any necessary qualification under
the state securities or blue sky laws of the various
jurisdictions in which the Securities are being offered by the
Underwriters);
(viii) the Indenture has been duly qualified under the Trust
Indenture Act.
In addition, such counsel shall state that it has participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants of the Company and
representatives of the Underwriters, at which the contents of the Registration
Statement and Prospectus were discussed and, although such counsel has not
independently verified, is not passing upon and does not assume responsibility
for, the accuracy, completeness or fairness of the statements contained in the
Registration Statement or Prospectus (except as and to the extent stated in
subparagraph (iv) above), no facts have come to the attention of such
11
counsel, in the course of such participation, that causes it to believe that the
Registration Statement, or any post-effective amendment thereto, as of the date
it was declared effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the Prospectus or any
supplement thereto, at the date of such Prospectus or such supplement and at all
times up to and including the Closing Date, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (it being understood that such counsel need express no opinion with
respect to the financial statements and schedules and other financial and
statistical data included in the Registration Statement or Prospectus or with
respect to the Trustee's Statement of Eligibility on Form T-1).
In rendering such opinion, counsel may state that such opinion is limited
to United States Federal and New York law.
(b) The Company shall furnish to the Representatives at the
Closing Date an opinion of 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 the jurisdictions listed on Schedule A
hereto, other than the
12
State of New York (in rendering this opinion, such counsel may
state that he is relying exclusively on certificates and other
documents of public officials of such jurisdictions);
(v) to the best of such counsel's knowledge, neither the
Company nor any of its Subsidiaries is in breach of, or in
default under (nor has any event occurred which with notice,
lapse of time, or both would constitute a breach of, or default
under), any "material contract" (within the meaning of Item
601(b)(10) of Regulation S-K promulgated under the Exchange Act)
to which the Company or any of its Subsidiaries is a party or by
which any of them or their respective properties may be bound or
affected, or under any United States Federal or New York State
law, regulation or rule, or under any decree, judgment or order
applicable to the Company or any of its Subsidiaries;
(vi) the execution, delivery and performance of the Pricing
Agreement and the Indenture and the issuance of the Securities by
the Company and the consummation by the Company of the
transactions contemplated hereby and thereby do not and will not
conflict with, or result in any breach of, or constitute a
default under (nor constitute any event which with notice, lapse
of time, or both would constitute a breach of or default under),
any provisions of the charter or by-laws of the Company or any of
its Subsidiaries or under any provision of any material license,
indenture, mortgage, deed of trust, bank loan, credit agreement
or other agreement or instrument to which the Company or any of
its Subsidiaries is a party or by which any of them or their
respective properties may be bound or affected, or under any law,
regulation or rule or any decree, judgment or order applicable to
the Company or any of its Subsidiaries;
(vii) to the best of such counsel's knowledge, there are no
contracts, licenses, agreements, leases or documents of a
character which are required to be filed as exhibits to the
Registration Statement or to be summarized or described in the
Prospectus which have not been so filed, summarized or described;
(viii) to the best of such counsel's knowledge, there are no
actions, suits or proceedings pending or threatened against the
Company or any of its Subsidiaries or any of their respective
properties, at law or in equity or before or by any commission,
board, body, authority or agency which are required to be
described in the Prospectus but are not so described;
(ix) the documents incorporated by reference in the
Registration Statement and Prospectus, when they were filed (or,
if an amendment with
13
respect to any such document was filed when such amendment was
filed), complied as to form in all material respects with the
requirements of the Exchange Act and the rules thereunder (except
as to the financial statements and schedules and other financial
data contained or incorporated by reference therein as to which
such counsel need express no opinion);
(c) The Representatives shall have received from the Company's
independent public accountants letters dated, respectively, as of the
Representation Date and the Closing Date, and addressed to the
Underwriters in the forms theretofore approved by the Representatives.
(d) The Representatives shall have received at the Closing Date
the favorable opinion of counsel for the Underwriters, dated the
Closing Date, in form and substance reasonably satisfactory to the
Representatives.
(e) Prior to the Closing Date (i) the Registration Statement and
all amendments thereto, or modifications thereof, if any, shall not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to
make the statements therein not misleading and (ii) the Prospectus and
all amendments or supplements thereto, or modifications thereof, if
any, shall not contain an untrue statement of material fact or omit to
state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
(f) Between the Representation Date and the Closing Date, (i)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business,
and (ii) no transaction which is material and unfavorable to the
Company shall have been entered into by the Company or any of its
Subsidiaries.
(g) The Company will, at the Closing Date, deliver to the
Representatives a certificate of two of its executive officers to the
effect that the representations and warranties of the Company set
forth in Section 3 of this Agreement and the conditions set forth in
subsections (e) and subsection (f) of this Section 6 have been met and
are true and correct as of such date.
(h) The Company shall have furnished to the Representatives such
other documents and certificates as to the accuracy and completeness
of any statement in the Registration Statement and the Prospectus as
of the Closing Date as the Representatives may reasonably request.
14
(i) The Company shall perform such of its obligations under these
Provisions and the Pricing Agreement as are to be performed by the
terms hereof and thereof at or before the Closing Date.
(j) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or threatened.
(k) At the Closing Date, counsel for the Underwriters shall have
been furnished with such information, certificates and documents as
they may reasonably require for the purpose of enabling them to pass
upon the issuance and sale of the Securities as contemplated herein
and related proceedings, or in order to evidence the accuracy of any
of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all opinions and certificates
mentioned above or elsewhere in this Agreement shall be reasonably
satisfactory in form and substance to the Representatives and counsel
for the Underwriters.
7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the
information deemed to be part of the Registration Statement pursuant
to Rule 430A(b) under the Act (the "Rule 430A Information") or Rule
434 under the Act (the "Rule 434 Information"), if applicable, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission;
15
provided that (subject to Section 7(d) below) any such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 7(c) hereof, the fees and disbursements
of counsel chosen by the Representatives), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that the indemnity provided in this Section 7(a)
shall not apply to any loss, liability, claim, damage or expense to
the extent arising out of any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Company by or on behalf of
any Underwriter through the Representatives expressly for use in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information deemed to be a part
thereof, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) (the "Furnished
Information"); and provided, further, that with respect to any untrue
statement or omission or alleged untrue statement or omission made in
any preliminary prospectus, the indemnity provided in this Section
7(a) shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages, liabilities or
expenses purchased the Securities concerned to the extent that (i) any
such loss, claim, damage, liability or expense of such Underwriter and
its affiliates results from the fact that a copy of the final
Prospectus was not sent or given to such person at or prior to the
written confirmation of sale of such Securities as required by the
Act, and (ii) the untrue statement or omission has been corrected in
the final Prospectus.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed
the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of
this Section 7, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto)
including the Rule 430A Information and the Rule 434 Information
deemed to be a part thereof, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto)
in reliance upon and in conformity with the Furnished Information,
which the Underwriters agree to identify by letter to the Company
dated each Closing Date.
16
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the
extent it is not materially prejudiced as a result thereof and in any
event shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. In the case of
parties indemnified pursuant to Section 7(a) above, counsel to the
indemnified parties shall be selected by the Representatives, and, in
the case of parties indemnified pursuant to Section 7(b) above,
counsel to the indemnified parties shall be selected by the Company.
An indemnifying party may participate at its own expense in the
defense of any such action; provided, however, that counsel to the
indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no
event shall the indemnifying parties be liable for fees and expenses
of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 7
or Section 8 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, such indemnifying party agrees that it shall be
liable for any settlement of the nature contemplated by Section
7(a)(ii) effected without its written consent if (i) such settlement
is entered into more than 45 days after receipt by such indemnifying
party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days
prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
Notwithstanding the immediately preceding sentence, if at any time an
indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, an
indemnifying party shall not be liable for any settlement of the
nature contemplated by Section 7(a)(ii) effected without its consent
if such indemnifying party (i) reimburses such indemnified party in
accordance with
17
such request to the extent it considers such request to be reasonable
and (ii) provides written notice to the indemnified party
substantiating the unpaid balance as unreasonable, in each case prior
to the date of such settlement.
8. Contribution. If the indemnification provided for in Section 7 hereof is
for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Underwriters, on the other hand, from the offering of the
Securities pursuant to the applicable Pricing Agreement, or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company, on the one
hand, and the Underwriters, on the other hand, in connection with the statements
or omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the offering to the
Securities pursuant to the applicable Pricing Agreement shall be deemed to be in
the same respective proportions as the total net proceeds from the offering of
such Securities (before deducting expenses) received by the Company and the
total underwriting discount received by the Underwriters, in each case as set
forth on the cover of the Prospectus, or, if Rule 434 is used, the corresponding
location on the term sheet, bear to the aggregate initial public offering price
of such Securities as set forth on such cover.
The relative fault of the Company, on the one hand, and the Underwriters,
on the other hand, shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 8 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 8. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 8 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding
18
by any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue or alleged untrue statement or omission or
alleged omission.
Notwithstanding the provisions of this Section 8, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of any such untrue or alleged untrue statement or
omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 8 are several in
proportion to the number or aggregate principal amount, as the case may be, of
Securities set forth opposite their respective names in the applicable Pricing
Agreement, and not joint.
9. Termination.
(a) The Representatives may terminate the applicable Pricing
Agreement, by notice to the Company, at any time at or prior to the
Closing Date, if (i) there has been, since the Representation Date or
since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, or (ii) any
of the ratings accorded any of the Company's debt securities shall
have been downgraded, or placed under surveillance or review, other
than with positive implications, by any "nationally recognized
statistical rating organization," as that term is defined by the
Commission in Rule 15c3-1(c)(2)(vi)(F)(ii) under the Exchange Act, or
(iii) there has occurred any material adverse change in the financial
markets in the United States or, if the Securities are denominated or
payable in, or indexed to, one or more foreign or composite
currencies, in the applicable international financial markets, or any
outbreak of hostilities or escalation thereof or other calamity or
crisis or any change or development involving a prospective change in
national or international political, financial or economic conditions,
in each case the effect of which is such as to make it, in the
judgment of the Representatives, impracticable to market the
Securities or
19
to enforce contracts for the sale of the Securities, or (iv) trading
in any securities of the Company has been suspended or materially
limited by the Commission or the New York Stock Exchange, or trading
generally on the New York Stock Exchange or the American Stock
Exchange or in the Nasdaq National Market has been suspended or
materially limited, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices have been required, by either of
said exchanges or by such system or by order of the Commission, the
NASD or any other governmental authority, or (v) a banking moratorium
has been declared by either Federal or New York authorities or, if the
Securities include debt securities denominated or payable in, or
indexed to, one or more foreign or composite currencies, by the
relevant authorities in the related foreign country or countries.
(b) If these Provisions or the applicable Pricing Agreement is
terminated pursuant to this Section 9, such termination shall be
without liability of any party to any other party except as provided
in Section 5 hereof, and provided further that Sections 3, 7, 8 and 9
shall survive such termination and remain in full force and effect.
10. Notices: Except as otherwise herein provided, all statements, requests,
notices and agreements shall be in writing and, if to the Underwriters, at their
addresses furnished to the Company in the Pricing Agreement for the purpose of
communications hereunder and, if to the Company, shall be sufficient in all
respects if delivered or telefaxed to the Company at the offices of the Company
at 80 Cutter Mill Road, Great Neck, New York 11021, Attention: Mr. Raymond
Sadowski (fax no. (516) 466-0349).
11. Construction: These Provisions and the Pricing Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York. The section headings in these Provisions have been inserted as a matter of
convenience of reference and are not a part of these Provisions.
12. Parties at Interest: The agreements set forth herein and in the Pricing
Agreement have been and are made solely for the benefit of the Underwriters and
the Company and the controlling persons, directors and officers referred to in
Sections 7 and 8 hereof, and their respective successors, assigns, executors and
administrators. No other person, partnership, association or corporation
(including a purchaser, as such purchaser, from any of the Underwriters) shall
acquire or have any right under or by virtue of these Provisions or the Pricing
Agreement.
20
Schedule A
----------
JURISDICTIONS IN WHICH AVNET, INC. IS INCORPORATED OR QUALIFIED
Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Florida,
Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Maryland,
Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nevada, New
Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma,
Oregon, Pennsylvania, Puerto Rico, Rhode Island, Tennessee, Texas, Utah,
Washington, Wisconsin
21
AVNET, INC.
DEBT SECURITIES
PRICING AGREEMENT
-----------------
, 199
Avnet, Inc.
80 Cutter Mill Road
Great Neck, New York 11021
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- ) (the "Registration
Statement") filed by the Company, on the basis of the representations,
warranties and agreements contained in this Agreement and in the Company's
Standard Underwriting Agreement Provisions attached hereto (the "Standard
Underwriting Agreement"), and subject to the terms and conditions set forth
herein and therein, the Underwriters named on Schedule I hereto ("Underwriters")
agree to purchase, severally and not jointly, and the Company agrees to sell to
the Underwriters, $ aggregate principal amount of % Due (the
"Securities") in the respective principal amounts set forth opposite the names
of the Underwriters on Schedule A hereto.
The price at which the Securities shall be purchased from the Company
by the Underwriters shall be % of the principal amount thereof [plus accrued
interest from , 199 ]. The Securities will be offered as set forth
in the Prospectus Supplement relating thereto.
The Securities will have the following terms:
Title:
Interest Rate: % per annum
Interest Payment Dates: and
commencing , 199
Maturity:
Other Provisions: as set forth in the Prospectus Supplement relating to the
Securities
1
Closing: A.M. on , 199 , at , in New York Clearing
House (next day) funds.
Name[s] and Address[es] of Representative[s]:
The provisions contained in the Standard Underwriting Agreement, a copy
of which has been filed as Exhibit 1 to the Registration Statement, are
incorporated herein by reference.
The Securities will be made available for checking and packaging at the
office of at least 24 hours prior to the Closing Date.
We represent that we are authorized to act for the several Underwriters
named in Schedule A hereto in connection with this financing and any action
under this agreement by any of us will be binding upon all the Underwriters.
This Pricing Agreement may be executed in one or more counterparts, all
of which counterparts shall constitute one and the same instrument.
2
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon
it will become a binding agreement among the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
[NAMES OF REPRESENTATIVES]
On behalf of themselves and
as Representatives of the
Several Underwriters
By_____________________________
By_____________________________
Name:
Title:
The foregoing Pricing Agreement
is hereby confirmed as of the
date first above written
AVNET, INC.
By__________________________
Name:
Title:
3
SCHEDULE I
Principal
Underwriter Amount
----------- ------
-------
Total. . . . . . . . . . . . . . . . . . . $_______
EXHIBIT 5
Avnet, Inc.
David R. Birk
Senior Vice President
and
General Counsel
May 26, 1998
Board of Directors
Avnet, Inc.
80 Cutter Mill Road
Great Neck, New York 11021
Re: Registration Statement on Form S-3
----------------------------------
Ladies and Gentlemen:
I refer to the Registration Statement on Form S-3 (the "Registration
Statement") to be 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").
I have examined and am familiar with originals, or copies the authenticity
of which has been established to my satisfaction, of such documents and
instruments as I have deemed necessary to express the opinions hereinafter set
forth. Based upon the foregoing, it is my opinion that the Debt Securities, when
issued or delivered in the manner provided for in the form of Underwriting
Agreement filed as an exhibit to the Registration Statement, will be legally
issued and the binding obligations of the Company.
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
Avnet, Inc. o 80 Cutter Mill Road o Great Neck, NY 11021-3107 o
Telephone (516) 466-7000
EXHIBIT 12
Avnet, Inc.
Computation of Ratios of Earnings to Fixed Charges
Nine months Year ended
ended ------------------------------------------------------------------
March 27, June 27, June 28, June 30, July 1, June 30,
1998(1) 1997 1996 1995 1994(2) 1993
------- ---- ---- ---- ------- ----
(Dollar amounts in thousands)
Income before
income taxes.............................. $237,534 $313,419 $325,039 $243,374 $154,838 $114,183
Add fixed charges........................... 33,641 33,766 33,441 31,473 22,492 14,901
------- -------- ------- ------- ------- -------
Income as adjusted.......................... $271,175 $347,185 $358,480 $274,847 $177,330 $129,084
======= ======= ======= ======= ======= =======
Fixed charges:
Interest on indebtedness.................. $27,182 $26,076 $25,916 $23,175 $14,733 $8,972
Amortization of
debt expense............................ 116 165 149 324 161 66
Rents:
Portion of rents representative
of the interest factor ................ 6,343 7,525 7,376 7,974 7,598 5,863
------ ------ ------ ------ ------ -------
Total fixed charges......................... $33,641 $33,766 $33,441 $31,473 $22,492 $14,901
====== ====== ====== ====== ====== ======
Ratio of earnings to
fixed charges.............................. 8.1 10.3 10.7 8.7 7.9 8.7
=== ==== ==== === === ===
Notes:
- -----
(1) Income before income taxes for the nine months ended March 27, 1998,
includes the gain on the sale of Channel Master ($33.8 million),
offset somewhat by costs relating to the anticipated divestiture of
Avnet Industrial, the closure of the Company's corporate headquarters
in Great Neck, New York, and the anticipated loss on the sale of
Company-owned real estate, amounting to $13.3 million in the
aggregate. Had such one-time items (amounting to $20.5 million, net)
not been included, the ratio of earnings to fixed charges for the nine
months ended March 27, 1998, would have been 7.5 on a pro forma basis.
(2) Income before income taxes for the year ended July 1, 1994, includes
restructuring and integration charges of $22.7 million in connection
with the acquisition of Hall-Mark Electronics Corporation. Had such
one-time charges not been included, the ratio of earnings to fixed
charges for the year ended July 1, 1994, would have been 8.9 on a pro
forma basis.
EXHIBIT 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement of our report dated July 30, 1997,
included in Avnet, Inc.'s Annual Report on Form 10-K for the year ended June 27,
1997, and to all references to our firm included in this Registration Statement.
/s/ ARTHUR ANDERSEN LLP
New York, New York
May 26, 1998
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The undersigned does hereby make, constitute and appoint David R. Birk and
Raymond Sadowski, and each of them, his attorneys-in-fact and agents with full
power of substitution, to execute for him and in his behalf in any and all
capacities a Registration Statement under the Securities Act of 1933, any
amendments to such Registration Statement (including post-effective amendments),
and any other documents incidental thereto, relating to up to $500,000,000 of
debt securities of Avnet, Inc. which may be offered and sold from time to time,
and to file the same, with all exhibits thereto and all other required
documents, with the Securities and Exchange Commission. The undersigned further
grants unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection with the said filings, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents and/or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 26th day of May, 1998.
/s/Leon Machiz
--------------
Leon Machiz
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The undersigned does hereby make, constitute and appoint David R. Birk and
Raymond Sadowski, and each of them, her attorneys-in-fact and agents with full
power of substitution, to execute for her and in her behalf in any and all
capacities a Registration Statement under the Securities Act of 1933, any
amendments to such Registration Statement (including post-effective amendments),
and any other documents incidental thereto, relating to up to $500,000,000 of
debt securities of Avnet, Inc. which may be offered and sold from time to time,
and to file the same, with all exhibits thereto and all other required
documents, with the Securities and Exchange Commission. The undersigned further
grants unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection with the said filings, as fully to all intents and
purposes as she might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents and/or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 26th day of May, 1998.
/s/Eleanor Baum
---------------
Eleanor Baum
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The undersigned does hereby make, constitute and appoint David R. Birk
and Raymond Sadowski, and each of them, his attorneys-in-fact and agents with
full power of substitution, to execute for him and in his behalf in any and all
capacities a Registration Statement under the Securities Act of 1933, any
amendments to such Registration Statement (including post-effective amendments),
and any other documents incidental thereto, relating to up to $500,000,000 of
debt securities of Avnet, Inc. which may be offered and sold from time to time,
and to file the same, with all exhibits thereto and all other required
documents, with the Securities and Exchange Commission. The undersigned further
grants unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection with the said filings, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents and/or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 26th day of May, 1998.
/s/Gerald J. Berkman
--------------------
Gerald J. Berkman
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The undersigned does hereby make, constitute and appoint David R. Birk and
Raymond Sadowski, and each of them, her attorneys-in-fact and agents with full
power of substitution, to execute for her and in her behalf in any and all
capacities a Registration Statement under the Securities Act of 1933, any
amendments to such Registration Statement (including post-effective amendments),
and any other documents incidental thereto, relating to up to $500,000,000 of
debt securities of Avnet, Inc. which may be offered and sold from time to time,
and to file the same, with all exhibits thereto and all other required
documents, with the Securities and Exchange Commission. The undersigned further
grants unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection with the said filings, as fully to all intents and
purposes as she might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents and/or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 26th day of May, 1998.
/s/J. Veronica Biggins
----------------------
J. Veronica Biggins
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The undersigned does hereby make, constitute and appoint David R. Birk and
Raymond Sadowski, and each of them, his attorneys-in-fact and agents with full
power of substitution, to execute for him and in his behalf in any and all
capacities a Registration Statement under the Securities Act of 1933, any
amendments to such Registration Statement (including post-effective amendments),
and any other documents incidental thereto, relating to up to $500,000,000 of
debt securities of Avnet, Inc. which may be offered and sold from time to time,
and to file the same, with all exhibits thereto and all other required
documents, with the Securities and Exchange Commission. The undersigned further
grants unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection with the said filings, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents and/or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 26th day of May, 1998.
/s/Joseph F. Caligiuri
----------------------
Joseph F. Caligiuri
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The undersigned does hereby make, constitute and appoint David R. Birk and
Raymond Sadowski, and each of them, his attorneys-in-fact and agents with full
power of substitution, to execute for him and in his behalf in any and all
capacities a Registration Statement under the Securities Act of 1933, any
amendments to such Registration Statement (including post-effective amendments),
and any other documents incidental thereto, relating to up to $500,000,000 of
debt securities of Avnet, Inc. which may be offered and sold from time to time,
and to file the same, with all exhibits thereto and all other required
documents, with the Securities and Exchange Commission. The undersigned further
grants unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection with the said filings, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents and/or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 26th day of May, 1998.
/s/Ehud Houminer
----------------
Ehud Houminer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The undersigned does hereby make, constitute and appoint David R. Birk and
Raymond Sadowski, and each of them, his attorneys-in-fact and agents with full
power of substitution, to execute for him and in his behalf in any and all
capacities a Registration Statement under the Securities Act of 1933, any
amendments to such Registration Statement (including post-effective amendments),
and any other documents incidental thereto, relating to up to $500,000,000 of
debt securities of Avnet, Inc. which may be offered and sold from time to time,
and to file the same, with all exhibits thereto and all other required
documents, with the Securities and Exchange Commission. The undersigned further
grants unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection with the said filings, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents and/or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 26th day of May, 1998.
/s/Salvatore J. Nuzzo
---------------------
Salvatore J. Nuzzo
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The undersigned does hereby make, constitute and appoint David R. Birk and
Raymond Sadowski, and each of them, his attorneys-in-fact and agents with full
power of substitution, to execute for him and in his behalf in any and all
capacities a Registration Statement under the Securities Act of 1933, any
amendments to such Registration Statement (including post-effective amendments),
and any other documents incidental thereto, relating to up to $500,000,000 of
debt securities of Avnet, Inc. which may be offered and sold from time to time,
and to file the same, with all exhibits thereto and all other required
documents, with the Securities and Exchange Commission. The undersigned further
grants unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection with the said filings, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents and/or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 26th day of May, 1998.
/s/Frederic Salerno
-------------------
Frederic Salerno
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The undersigned does hereby make, constitute and appoint David R. Birk and
Raymond Sadowski, and each of them, his attorneys-in-fact and agents with full
power of substitution, to execute for him and in his behalf in any and all
capacities a Registration Statement under the Securities Act of 1933, any
amendments to such Registration Statement (including post-effective amendments),
and any other documents incidental thereto, relating to up to $500,000,000 of
debt securities of Avnet, Inc. which may be offered and sold from time to time,
and to file the same, with all exhibits thereto and all other required
documents, with the Securities and Exchange Commission. The undersigned further
grants unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection with the said filings, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents and/or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 26th day of May, 1998.
/s/David Shaw
-------------
David Shaw
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The undersigned does hereby make, constitute and appoint David R. Birk and
Raymond Sadowski, and each of them, his attorneys-in-fact and agents with full
power of substitution, to execute for him and in his behalf in any and all
capacities a Registration Statement under the Securities Act of 1933, any
amendments to such Registration Statement (including post-effective amendments),
and any other documents incidental thereto, relating to up to $500,000,000 of
debt securities of Avnet, Inc. which may be offered and sold from time to time,
and to file the same, with all exhibits thereto and all other required
documents, with the Securities and Exchange Commission. The undersigned further
grants unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection with the said filings, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents and/or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 26th day of May, 1998.
/s/Roy Vallee
-------------
Roy Vallee
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The undersigned does hereby make, constitute and appoint David R. Birk and
Raymond Sadowski, and each of them, his attorneys-in-fact and agents with full
power of substitution, to execute for him and in his behalf in any and all
capacities a Registration Statement under the Securities Act of 1933, any
amendments to such Registration Statement (including post-effective amendments),
and any other documents incidental thereto, relating to up to $500,000,000 of
debt securities of Avnet, Inc. which may be offered and sold from time to time,
and to file the same, with all exhibits thereto and all other required
documents, with the Securities and Exchange Commission. The undersigned further
grants unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection with the said filings, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents and/or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 26th day of May, 1998.
/s/Keith Williams
-----------------
Keith Williams
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The undersigned does hereby make, constitute and appoint David R. Birk and
Raymond Sadowski, and each of them, his attorneys-in-fact and agents with full
power of substitution, to execute for him and in his behalf in any and all
capacities a Registration Statement under the Securities Act of 1933, any
amendments to such Registration Statement (including post-effective amendments),
and any other documents incidental thereto, relating to up to $500,000,000 of
debt securities of Avnet, Inc. which may be offered and sold from time to time,
and to file the same, with all exhibits thereto and all other required
documents, with the Securities and Exchange Commission. The undersigned further
grants unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection with the said filings, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents and/or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 26th day of May, 1998.
/s/Frederick Wood
-----------------
Frederick Wood
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The undersigned does hereby make, constitute and appoint David R. Birk and
Raymond Sadowski, and each of them, his attorneys-in-fact and agents with full
power of substitution, to execute for him and in his behalf in any and all
capacities a Registration Statement under the Securities Act of 1933, any
amendments to such Registration Statement (including post-effective amendments),
and any other documents incidental thereto, relating to up to $500,000,000 of
debt securities of Avnet, Inc. which may be offered and sold from time to time,
and to file the same, with all exhibits thereto and all other required
documents, with the Securities and Exchange Commission. The undersigned further
grants unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection with the said filings, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents and/or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 26th day of May, 1998.
/s/Raymond Sadowski
-------------------
Raymond Sadowski
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The undersigned does hereby make, constitute and appoint David R. Birk and
Raymond Sadowski, and each of them, his attorneys-in-fact and agents with full
power of substitution, to execute for him and in his behalf in any and all
capacities a Registration Statement under the Securities Act of 1933, any
amendments to such Registration Statement (including post-effective amendments),
and any other documents incidental thereto, relating to up to $500,000,000 of
debt securities of Avnet, Inc. which may be offered and sold from time to time,
and to file the same, with all exhibits thereto and all other required
documents, with the Securities and Exchange Commission. The undersigned further
grants unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection with the said filings, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents and/or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 26th day of May, 1998.
/s/John Cole
------------
John Cole
EXHIBIT 25
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)___
_________________
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
__________________________
Avnet, Inc.
(Exact name of obligors as specified in their trust agreements)
New York 11-1890605
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
80 Cutter Mill Road
Great Neck, New York 11021
(Address of principal executive offices) (Zip Code)
Debt Securities
(Title of Indenture Securities)
Item 1. General Information. Furnish the following information as to the
trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C.; Federal Deposit
Insurance Corporation, Washington, D.C.; The Board of
Governors of the Federal Reserve System, Washington D.C..
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations With the Obligor. If the obligor is an affiliate of the
trustee, describe each such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a part of this
Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of
the Act.
2
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago and State of Illinois, on the 11th day of May, 1998.
The First National Bank of Chicago,
Trustee
By /s/Steven M. Wagner
-------------------
Steven M. Wagner
First Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference to Exhibits bearing
identical numbers in Item 16 of the Form T-1 of The First National Bank of
Chicago, filed as Exhibit 25.1 to the Registration Statement on Form S-3 of
SunAmerica Inc., filed with the Securities and Exchange Commission on October
25, 1996 (Registration No. 333-14201).
3
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
May 11, 1998
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of the indenture between Avnet, Inc. and
The First National Bank of Chicago, as Trustee, the undersigned, in accordance
with Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby
consents that the reports of examinations of the undersigned, made by Federal or
State authorities authorized to make such examinations, may be furnished by such
authorities to the Securities and Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By: /s/Steven M. Wagner
-------------------
Steven M. Wagner
First Vice President
4
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for December 31, 1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
Schedule RC--Balance Sheet
C400
Dollar Amounts in ----
Thousands RCFD BIL MIL THOU
--------- ---- ------------
ASSETS
1. Cash and balances due from depository institutions
(from Schedule RC-A):
a. Noninterest-bearing balances and currency and coin(1)...... 0081 4,267,336 1.a.
b. Interest-bearing balances(2)............................... 0071 6,893,837 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B,
column A).................................................. 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B,
column D)....................................................... 1773 5,691,722 2.b.
3. Federal funds sold and securities purchased under
agreements to resell 1350 6,339,940 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from
Schedule RC-C)............................................. RCFD 2122 25,202,984 4.a.
b. LESS: Allowance for loan and lease losses.................. RCFD 3123 419,121 4.b.
c. LESS: Allocated transfer risk reserve...................... RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c)....................... 2125 24,783,863 4.d.
5. Trading assets (from Schedule RD-D)........................... 3545 6,703,332 5.
6. Premises and fixed assets (including capitalized leases)...... 2145 743,426 6.
7. Other real estate owned (from Schedule RC-M)............ 2150 7,727 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)................................ 2130 134,959 8.
9. Customers' liability to this bank on acceptances outstanding.. 2155 644,340 9.
10. Intangible assets (from Schedule RC-M)........................ 2143 268,501 10.
11. Other assets (from Schedule RC-F)............................. 2160 2,004,432 11.
12. Total assets (sum of items 1 through 11)...................... 2170 58,483,415 12.
_____________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/97 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0303 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Schedule RC-Continued
Dollar Amounts in
Thousands Bil Mil Thou
--------- ------------
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1).......................... RCON 2200 21,756,846 13.a
(1) Noninterest-bearing(1)........................... RCON 6631 9,197,227 13.a.1
(2) Interest-bearing................................. RCON 6636 559,619 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries,
and IBFs (from Schedule RC-E, part II)............... RCFN 2200 14,811,410 13.b.
(1) Noninterest bearing.............................. RCFN 6631 332,801 13.b.1
(2) Interest-bearing................................. RCFN 6636 14,478,609 13.b.2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 4,535,422 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 43,763 15.a
b. Trading Liabilities(from Schedule RC-D)....................... RCFD 3548 6,523,239 15.b
16. Other borrowed money:
a. With a remaining maturity of one year or less............ RCFD 2332 1,360,165 16.a
b. With a remaining maturity of than one year through
three years................................................... A547 576,492 16.b
. c. With a remaining maturity of more than three years .......... A548 703,981 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding. RCFD 2920 644,341 18
19. Subordinated notes and debentures (2)................... RCFD 3200 1,700,000 19
20. Other liabilities (from Schedule RC-G).................. RCFD 2930 1,322,077 20
21. Total liabilities (sum of items 13 through 20).......... RCFD 2948 53,987,736 21
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus........... RCFD 3838 0 23
24. Common stock............................................ RCFD 3230 200,858 24
25. Surplus (exclude all surplus related to preferred stock) RCFD 3839 2,999,001 25
26. a. Undivided profits and capital reserves............... RCFD 3632 1,273,239 26.a.
b. Net unrealized holding gains (losses) on
available-for-sale securities........................ RCFD 8434 24,096 26.b.
27. Cumulative foreign currency translation adjustments..... RCFD 3284 (1,515) 27
28. Total equity capital (sum of items 23 through 27)....... RCFD 3210 4,495,679 28
29. Total liabilities and equity capital (sum of items 21
and 28).......................................................... RCFD 3300 58,483,415 29
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of
the statement below that best describes the most
comprehensive level of auditing work performed
for the bank by independent external auditors as Number
of any date during 1996............................RCFD 6724....[ N/A ] M.1
1 = Independent audit of the bank conducted in 4. = Directors' examination of the bank performed by other
accordance with generally accepted auditing external auditors (may be required by state
standards by a certified public accounting firm chartering authority)
which submits a report on the bank
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing
standards by a certified public accounting firm
may be required by state chartering authority)
_________
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
6
