As filed with the Securities and Exchange Commission on August 7, 1998
Registration No. 333-53691
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549-1004
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AMENDMENT NO. 1 TO
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
2211 South 47th Street Avnet, Inc.
Phoenix, Arizona 85034 2211 South 47th Street
(602) 643-2000 Phoenix, Arizona 85034
---------------- (602) 643-2000
(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.
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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.
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SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED AUGUST 7, 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.
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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.
TABLE OF CONTENTS
Page No.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE..............................3
THE COMPANY..................................................................4
RATIO OF EARNINGS TO FIXED CHARGES...........................................4
SELECTED FINANCIAL DATA......................................................5
USE OF PROCEEDS..............................................................8
DESCRIPTION OF DEBT SECURITIES...............................................8
PLAN OF DISTRIBUTION........................................................16
LEGAL MATTERS...............................................................19
EXPERTS.....................................................................19
2
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, February 6, 1998, and July 30,
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., 2211 South 47th Street, Phoenix, Arizona 85034
(telephone (602) 643- 2000).
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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, with operations in the United States, Canada, Mexico,
Europe, Asia, Australia, New Zealand and South Africa. 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 integrated materials 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:
Year ended
- --------------------------------------------------------------------------------
June 26, June 27, June 28, June 30, July 1,
1998 (1) 1997 1996 1995 1994(2)
-------- ---- ---- ---- -------
6.5 10.3 10.7 8.7 7.9
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(1) Income before income taxes for the year ended June 26, 1998, includes (a)
the gain on the sale of Channel Master amounting to $33.8 million pre-tax,
(b) costs relating to the divestiture of Avnet Industrial, the closure of
the Company's corporate headquarters in Great Neck, New York, and the loss
on the sale of Company-owned real estate, amounting to $13.3 million
pre-tax in the aggregate, and (c) incremental special charges associated
principally with the reorganization of the Company's Electronic Marketing
Group amounting to $35.4 million pre-tax. Had such one-time items
(amounting to $14.9 million pre-tax, net) not been included, the ratio of
earnings to fixed charges for the year ended June 26, 1998, would have been
6.8 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 pre-tax which are
principally attributable to 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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SELECTED FINANCIAL DATA
The selected financial data set forth below have been derived from the
consolidated financial statements of the Company. Reference is hereby made to
such financial statements and accompanying notes that are included in the
documents incorporated by reference in this Prospectus.
Year ended
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July 1, June 30, June 28, June 27, June 26,
1994(1) 1995 1996 1997 1998(2)(3)(4)
------- ---- ---- ---- -------------
(in millions except earnings per share)
Income Statement Data:
Sales...................................... $3,547.7 $4,300.0 $5,207.8 $5,390.6 $5,916.3
Cost of sales.............................. 2,851.6 3,483.6 4,238.7 4,428.8 4,935.9
------- ------- ------- ------- -------
Gross profit............................... 696.1 816.4 969.1 961.8 980.4
Operating expenses......................... 531.3 554.9 620.1 634.1 709.2
------- ------- ------- ------- -------
Operating income........................... 164.8 261.5 349.0 327.7 271.2
Interest expense........................... (14.8) (23.2) (25.9) (26.1) (40.0)
Other income, net.......................... 4.8 5.1 2.0 11.8 2.3
Gain on sale of Channel Master ............ -- -- -- -- 33.8
------ ------- ----- ------ ------
Income before income taxes and
cumulative effect of accounting
change.................................. 154.8 243.4 325.1 313.4 267.3
Income taxes............................... 66.7 103.1 136.8 130.6 115.9
------ ------- ------- ------- -----
Income before cumulative effect
of accounting change.................... 88.1 140.3 188.3 182.8 151.4
Cumulative effect of change in
method of accounting for
income taxes............................ (2.8) -- -- -- --
------ ------ ------ ------- ------
Net income................................. $ 85.3 $140.3 $188.3 $182.8 $151.4
====== ===== ===== ===== =====
Earnings per share(5):
Basic................................... $2.10 (6) $3.44 $4.34 $4.29 $3.85
==== ==== ==== ==== ====
Diluted................................. $2.09 (6) $3.32 $4.31 $4.25 $3.80
==== ==== ==== ==== ====
Shares used to compute earnings per share:
Basic................................... 40.6 40.7 43.3 42.6 39.4
==== ==== ==== ==== ====
Diluted................................. 40.8 43.4 (7) 43.7 43.0 39.8
==== ==== ==== ==== ====
(Footnotes appear on next page)
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July 1, June 30, June 28, June 27, June 26,
1994 1995 1996 1997 1998
---- ---- ---- ---- ----
(in millions)
Balance Sheet Data:
Working capital.......................... $ 888.0 $1,057.1 $1,293.9 $1,319.0 $1,461.3
Total assets............................. 1,787.7 2,125.6 2,521.7 2,594.1 2,733.7
Long-term debt........................... 303.1 419.0 497.2 514.4 810.7
Shareholders' equity..................... 1,108.5 1,239.4 1,505.2 1,502.2 1,315.9
____________
(1) Includes in operating expenses restructuring and integration charges of
$22.7 million pre-tax and $13.5 million after-tax, which are principally
attributable to the acquisition of Hall-Mark Electronics Corporation.
(2) Includes the second quarter gain on the sale of Channel Master amounting to
$33.8 million pre-tax, offset somewhat in operating expenses by costs
relating to the 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. At the time the special charges were
recorded, they represented primarily a non-cash writedown to reflect the
expected value to be received upon the disposition of Avnet Industrial and
the Company-owned real estate (the cash component of the charge is
approximately $2.5 million). The Company has subsequently disposed of Avnet
Industrial for an amount approximating the written down value, and is still
in the process of disposing of the Company-owned real estate, the written
down value of which is still believed to approximate its market value,
based upon real estate appraisals. The disposition of Avnet Industrial and
of the Company-owned real estate will not have a material impact on the
Company's future results of operations, liquidity and sources and uses of
capital resources. The net effect of these items is to increase income
before income taxes, net income, and diluted earnings per share by
approximately $20.5 million, $8.7 million, and $0.21 per share for the
second quarter, respectively.
(3) Includes the fourth quarter impact of incremental special charges
associated principally with the reorganization of the Company's Electronic
Marketing Group, amounting to $35.4 million pre-tax, $21.2 million
after-tax and $0.57 per share on a diluted basis for the fourth quarter.
Approximately $25.7 million of the pre-tax charge is included in operating
expenses, and $9.7 million is included in cost of sales. These charges
include severance, real property lease termination costs, inventory
reserves required related to supplier terminations, the writedown of
goodwill and other items. The writedown of goodwill relates to a small
underperforming operating unit, the ultimate disposition of which will not
have a material impact on the Company's future results of operations. Of
the special charges of $35.4 million pre-tax, approximately $17.1 million
will not require an outflow of cash and $18.3 million will require the use
of cash ($9.5 million of the $18.3 million has been paid as of the end of
fiscal 1998). The balance of cash is expected to be paid by the end of
fiscal 1999, except for amounts associated with long-term real property
lease terminations and contractual commitments, the amounts of which
6
are not material. Management expects that the Company's future results of
operations will benefit from the expected cost savings resulting from the
reorganization, and that the impact on liquidity and sources and uses of
capital resources will not be material.
(4) Diluted earnings per share for fiscal 1998 in total exceeded by $0.04 the
sum of the applicable amounts for each of the quarters of fiscal 1998 due
to the effect of the Company's stock repurchase program and the special
items recorded during the fiscal year.
(5) In December 1997, the Company adopted the provisions of SFAS No. 128,
"Earnings per Share," which requires the presentation of both Basic and
Diluted earnings per common share. Consistent with the requirements of SFAS
No. 128, net earnings per common share and weighted average common shares
outstanding have been restated to conform with the provisions of SFAS No.
128 for all periods presented.
(6) Basic and diluted earnings per share before cumulative effect of accounting
change were $2.17 and $2.16, respectively. The impact on basic and diluted
earnings per share of the cumulative effect of a change in method of
accounting for income taxes was $(0.07) in both cases.
(7) In computing diluted earnings per share for 1995, the 6% Convertible
Subordinated Debentures (which were converted into common stock in the
first quarter of fiscal 1996) were considered common equivalent shares.
7
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,
10
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).
11
"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.
12
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
13
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
14
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.
15
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
16
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.
17
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.
18
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.
19
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
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.*
- --------
*Previously filed with this Registration Statement.
II-1
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 filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered
II-2
herein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(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-3
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 amendment to
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Phoenix, State of Arizona, on August 7, 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 amendment
to Registration Statement has been signed on August 7, 1998 by the following
persons in the capacities indicated:
Signature Title
- --------- -----
*
- ---------- Chairman of the Board, Chief
Roy Vallee Executive Officer and Director
*
- ------------ Director
Eleanor Baum
*
- ----------------- Director
Gerald J. Berkman
II-4
Signature Title
- --------- -----
*
- ------------------- Director
J. Veronica Biggins
*
- ------------------- Director
Joseph F. Caligiuri
*
- ------------- Director
Ehud Houminer
*
- ------------------ Director
Salvatore J. Nuzzo
*
- ---------------- Director
Frederic Salerno
*
- ---------- Director
David Shaw
*
- -------------- Director
Keith Williams
II-5
Signature Title
- --------- -----
*
- ----------------- Director
Frederick S. Wood
/s/Raymond Sadowski Senior Vice President and
- ------------------- Chief Financial Officer
Raymond Sadowski
*
- ------------ Controller and
John F. Cole Chief Accounting Officer
- ------------------------------
* By: /s/Raymond Sadowski
-------------------
Raymond Sadowski
Attorney-in-Fact
II-6
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*
- --------
*Previously filed with this Registration Statement.
EXHIBIT 1
August 1998
AVNET, INC.
DEBT SECURITIES
STANDARD UNDERWRITING AGREEMENT PROVISIONS
------------------------------------------
1. Introductory. Avnet, Inc., a New York corporation (the "Company"),
proposes to issue and sell from time to time certain of its debt securities
registered under the registration statement referred to in Section 3(a)
("Securities"). The Securities will be issued under an indenture, dated as of
February 1, 1994 (such indenture as amended or supplemented is herein referred
to as the "Indenture"), between the Company and The First National Bank of
Chicago, as Trustee, in one or more series, which series may vary as to interest
rates, maturities, redemption provisions, selling prices and other terms, with
all such terms for any particular series of the Securities being determined at
the time of sale. Particular series of the Securities will be sold pursuant to a
Pricing Agreement referred to in Section 2, for resale in accordance with terms
of offering determined at the time of sale.
The firm or firms which agree to purchase the Securities are hereinafter
referred to as the "Underwriters" of such Securities, and the representative or
representatives of the Underwriters, if any, specified in a Pricing Agreement
referred to in Section 2 are hereinafter referred to as the "Representatives";
provided, however, that if the Pricing Agreement does not specify any
representative of the Underwriters, the term "Representatives," as used herein
(other than in the second sentence of Section 2), shall mean the Underwriters.
2. Purchase and Offering of Securities. The obligation of the Underwriters
to purchase the Securities will be evidenced by an exchange of written
communications ("Pricing Agreement") at the time the Company determines to sell
the Securities. The Pricing Agreement will incorporate by reference these
Standard Underwriting Agreement Provisions (these "Provisions"), except as
otherwise provided therein, and will specify (1) the firm or firms which will be
Underwriters, (2) the names of any Representatives, (3) the principal amount of
Securities to be purchased by each Underwriter and the purchase price to be paid
by the Underwriters, (4) the terms of the Securities not already specified in
the Indenture, (5) the time and date on which delivery of the Securities will be
made to the Representatives for the accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase
price in New York Clearing House funds (such time and date, or such other time
and date not later than seven full business days thereafter as the
Representatives and the Company
agree to as to time and date for payment and delivery, being herein and in the
Pricing Agreement referred to as the "Closing Date") and (6) the place of
delivery and payment.
The obligations of the Underwriters to purchase the Securities will be
several and not joint. The Securities delivered to the Underwriters on the
Closing Date will be in definitive fully registered form, in such denominations
and registered in such names as the Representatives may request.
Certificates for the Securities shall be registered in such names and in
such denominations as the Representatives may request not less than two full
business days in advance of the Closing Date.
3. Representations and Warranties of the Company: The Company represents
and warrants to each of the Underwriters as of the date of execution of any
Pricing Agreement (the "Representation Date") and as of any Closing Date that:
(a) the Company is permitted to use Form S-3 under the Securities Act
of 1933, as amended (the "Act"), and has filed with the Securities and
Exchange Commission (the "Commission") a registration statement on such
Form, which has become effective, for the registration under the Act of the
Securities. Such registration statement, as amended at the Representation
Date, meets the requirements set forth in Rule 415(a)(1)(x) under the Act
and complies in all other material respects with said Rule. Such
registration statement, including the exhibits thereto, as amended at the
Representation Date, is hereinafter called the "Registration Statement" and
the prospectus included in the Registration Statement, as supplemented to
reflect the terms of any series of the Securities and the plan of
distribution thereof, in the form furnished to the Underwriters for use in
connection with the offering of the Securities, is hereinafter called the
"Prospectus." Any reference herein to the Registration Statement or the
Prospectus shall be deemed to include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under
the Securities Exchange Act of 1934 (the "Exchange Act") on or before the
Representation Date or the date of the Prospectus, as the case may be, and
any reference herein to the terms "amend," "amendment" or "supplement" with
respect to the Registration Statement or the Prospectus shall be deemed to
include the filing of any document under the Exchange Act after the
Representation Date or the date of the Prospectus, as the case may be,
deemed to be incorporated therein by reference;
(b) (i) the Registration Statement, the Prospectus and the Indenture
comply in all material respects with the applicable requirements of the
Act, the Trust Indenture Act of 1939 (the "Trust Indenture Act") and the
Exchange Act and the respective rules thereunder, and (ii) neither the
Registration Statement nor the Prospectus contains any untrue statement of
a material fact or omits to state any
2
material fact required to be stated therein or necessary in order to make
the statements therein not misleading; provided, however, that the Company
makes no warranty or representation with respect to any statement contained
in the Registration Statement or the Prospectus in reliance upon and in
conformity with information furnished in writing by or on behalf of any
Underwriter through the Representatives to the Company expressly for use in
the Registration Statement or the Prospectus;
(c) all of the issued and outstanding shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid, non-assessable and free of statutory and contractual preemptive
rights; the Company and each of its subsidiaries (the "Subsidiaries") have
been duly incorporated and are validly existing as corporations in good
standing under the laws of their respective jurisdictions of incorporation,
with full power and authority to own their respective properties and
conduct their respective businesses as described in the Registration
Statement and the Prospectus; the Company has full power and authority to
execute and deliver the Pricing Agreement (including these Provisions) and
the Indenture and to issue and sell the Securities as herein contemplated;
(d) the Company and each of its Subsidiaries are duly qualified or
licensed by, and are in good standing in, each jurisdiction in which they
conduct their respective businesses and in which the failure, individually
or in the aggregate, to be so licensed or qualified could have a material
adverse effect on the operations, business or condition of the Company and
its Subsidiaries taken as a whole, and with respect to the Company, the
jurisdictions listed on Schedule A hereto constitute a complete list of
such jurisdictions; and the Company and each of its Subsidiaries are in
compliance in all material respects with the laws, orders, rules,
regulations and directives issued or administered by such jurisdictions;
(e) neither the Company nor any of its Subsidiaries is in breach of,
or in default under (nor has any event occurred which with notice, lapse of
time, or both would constitute a breach of, or default under), its
respective charter or by-laws or in the performance or observance of any
obligation, agreement, covenant or condition contained in any material
indenture, mortgage, deed of trust, bank loan or credit agreement or other
agreement or instrument to which the Company or any of its Subsidiaries is
a party or by which any of them is bound, and the execution, delivery and
performance of the Pricing Agreement (including these Provisions) and the
Indenture, and the issuance of the Securities and consummation of the
transactions contemplated hereby and thereby, will not conflict with, or
result in any breach of or constitute a default under (nor constitute any
event which with notice, lapse of time, or both would constitute a breach
of, or default under), any provisions of the charter or by-laws of the
Company or any of its Subsidiaries or under any provision of any material
license, indenture, mortgage, deed of trust, bank loan or credit agreement
or other agreement or instrument to which the Company or any of its
3
Subsidiaries is a party or by which any of them or their respective
properties may be bound or affected, or under any federal, state, local or
foreign law, regulation or rule or any decree, judgment or order
specifically binding on the Company or any of its Subsidiaries;
(f) the Indenture has been duly authorized, executed and delivered by
the Company and is a legal, valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, and by general principles of equity;
(g) the Securities have been duly authorized by the Company and when
executed and delivered by the Company will constitute legal, valid and
binding obligations of the Company enforceable against the Company in
accordance with their terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally, and by general principles of
equity;
(h) the Pricing Agreement has been duly authorized, executed and
delivered by the Company;
(i) the Securities and the Indenture conform in all material respects
to the description thereof contained in the Registration Statement and
Prospectus;
(j) no approval, authorization, consent or order of or filing with any
national, state or local governmental or regulatory commission, board,
body, authority or agency is required in connection with the issuance and
sale of the Securities as contemplated hereby other than registration of
the Securities under the Act, qualification of the Indenture under the
Trust Indenture Act and any necessary qualification under the securities or
blue sky laws of the various jurisdictions in which the Securities are
being offered by the Underwriters;
(k) the accountants whose reports on the consolidated financial
statements of the Company and its Subsidiaries are filed with the
Commission as part of the Registration Statement and Prospectus are
independent public accountants as required by the Act and the applicable
published rules and regulations thereunder;
(l) each of the Company and its Subsidiaries (i) has all necessary
licenses, authorizations, consents and approvals which are material to its
business, (ii) has made all filings required under any federal, state,
local or foreign law, regulation or rule, the failure to make which would
have a material adverse effect on the operations, business, prospects or
financial condition of the Company and its Subsidiaries taken as a whole (a
"Material Adverse Effect"), and (iii) has obtained
4
all necessary authorizations, consents and approvals from other persons
which are material to its business; neither the Company nor any of its
Subsidiaries is in violation of, or in default under, any such license,
authorization, consent or approval or any federal, state, local or foreign
law, regulation or rule or any decree, order or judgment applicable to the
Company or any of its Subsidiaries the effect of which violation or
default, singly or in the aggregate, would have a Material Adverse Effect;
(m) all legal or governmental proceedings, contracts or documents of a
character required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement have
been so described or filed as required;
(n) there are no actions, suits or proceedings pending or threatened
against the Company or any of its Subsidiaries or any of their respective
properties, at law or in equity, before or by any federal, state, local or
foreign governmental or regulatory commission, board, body, authority or
agency which, singly or in the aggregate, have a reasonable likelihood of
resulting in judgments, decrees or orders having a Material Adverse Effect;
(o) the audited financial statements included in the Registration
Statement and the Prospectus present fairly the consolidated financial
position of the Company and its Subsidiaries as of the dates indicated and
the consolidated results of operations and cash flows of the Company and
its Subsidiaries for the periods specified; such financial statements have
been prepared in conformity with generally accepted accounting principles
applied on a consistent basis during the periods involved;
(p) subsequent to the respective dates as of which information is
given in the Registration Statement and Prospectus, and except as may be
otherwise stated in the Registration Statement or Prospectus, there has not
been (A) any material and unfavorable change, financial or otherwise, in
the business, properties, prospects, regulatory environment, results of
operations or condition (financial or otherwise), present or prospective,
of the Company and its Subsidiaries taken as a whole, (B) any transaction,
which is material and unfavorable to the Company and its Subsidiaries taken
as a whole, contemplated or entered into by the Company or any of its
Subsidiaries or (C) any obligation, contingent or otherwise, directly or
indirectly, incurred by the Company or any of its Subsidiaries which is
material and unfavorable to the Company and its Subsidiaries taken as a
whole;
(q) no Subsidiary is a "significant subsidiary" as that term is
defined in Item 1-02(w) of Regulation S-X promulgated under the Act;
(r) the Company and each of the Subsidiaries have filed all material
federal and state income and franchise tax returns (or obtained extensions
with respect
5
to the filing of such returns) and have paid all taxes shown thereon as
currently due, and the Company has no knowledge of any material tax
deficiency which has been or might be asserted against the Company or any
of the Subsidiaries; all material tax liabilities are adequately provided
for on the books of the Company and each of the Subsidiaries;
(s) the Company and its Subsidiaries own or possess, or can acquire on
reasonable terms, adequate material patents, patent rights, licenses,
trademarks, inventions, service marks, trade names, copyrights and know-how
(including trade secrets and other proprietary or confidential information,
systems or procedures, whether patented or unpatented) (collectively,
"intellectual property") necessary to conduct the business now or proposed
to be operated by them as described in the Registration Statement and in
the Prospectus, and neither the Company nor any of its Subsidiaries has
received any notice of infringement of or conflict with (or knows of any
such infringement of or conflict with) asserted rights of others with
respect to any of such intellectual property which, if such assertion of
infringement or conflict were sustained, would result, singly or in the
aggregate, in any Material Adverse Effect;
(t) neither the Company nor any agent acting on its behalf has taken
or will take any action that might cause the Pricing Agreement or sale of
the Securities to violate Regulation T, U or X of the Board of Governors of
the Federal Reserve System, in each case as in effect, or as the same may
hereafter be in effect, on the Closing Date;
(u) except as described in the Registration Statement and the
Prospectus, (i) the operations of the Company and its Subsidiaries are in
compliance in all material respects with all applicable environmental laws,
(ii) the Company and its Subsidiaries have obtained all material
environmental, health and safety permits, licenses and approvals necessary
for its operation, all such permits, licenses and approvals are in effect
and the Company and its Subsidiaries are in compliance in all material
respects with the terms and conditions thereof, (iii) with respect to any
property currently or formerly owned, leased or operated by the Company or
any of its Subsidiaries, (a) neither the Company nor any such Subsidiary is
subject to any judicial or administrative proceeding or any order from or
agreement with any governmental authority (collectively, "Proceedings"),
and (b) the Company does not have knowledge of any pending or threatened
investigation by any governmental authority (collectively,
"Investigations") relating to any violation or alleged violation of any
environmental law, any release or threatened release of a hazardous
material into the environment, or any remedial action that may be necessary
in connection with any such violation or release, except for such
Proceedings or Investigations which, whether individually or in the
aggregate, could not be expected to have a Material Adverse Effect, (iv)
neither the Company nor any such Subsidiary has filed
6
any notice under any environmental law indicating past or present
treatment, storage, disposal or release of a hazardous material into the
environment in a manner that is not in compliance with, or which could
result in liability under, applicable environmental laws, except where such
non-compliance or liability, whether individually or in the aggregate,
could not be expected to have a Material Adverse Effect, (v) neither the
Company nor any such Subsidiary has received notice of a claim that it may
be subject to liability (a "Notice") as a result of a release or threatened
release of hazardous material, except for such Notice which, whether
individually or in the aggregate, could not be expected to have a Material
Adverse Effect, and (vi) there are no events, circumstances or conditions
that might reasonably be expected to form the basis of an order for
clean-up or remediation, or an action, suit or proceeding by any private
party or governmental body or agency, against or materially affecting the
Company or any of its subsidiaries relating to chemicals, pollutants,
contaminants, wastes, toxic substances, petroleum or petroleum products or
any environmental law, and to the best of the Company's knowledge, there is
no reasonable basis for any such order, action, suit or proceeding with
respect to any environmental law which could be expected to have a Material
Adverse Effect;
(v) the Company is not an "investment company" or an affiliated person
of, or "promoter" or "principal underwriter" for, an "investment company,"
as such terms are defined in the Investment Company Act of 1940, as
amended, and the rules and regulations thereunder; and
(w) to the best knowledge of the Company, no labor problem exists with
employees of the Company or any of its Subsidiaries or is imminent that
could have a Material Adverse Effect.
4. Certain Covenants of the Company: The Company hereby agrees:
(a) to furnish such information as may be reasonably required by and
otherwise to cooperate with, the Representatives in qualifying the
Securities for offering and sale under the securities or blue sky laws of
such states as the Representatives may designate (including the provisions
of Florida blue sky law, if requested, relating to issuers doing business
with Cuba) and to maintain such qualifications in effect as long as
required for the distribution of the Securities, provided that the Company
shall not be required to qualify as a foreign corporation or a dealer or to
consent to the service of process under the laws of any such state (except
service of process with respect to the offering and sale of the Securities)
or to take any action which would or could subject the Company to taxation
in any state where it is not now so subject; and to promptly advise the
Representatives of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities for sale
in any jurisdiction or the initiation or threatening of any proceeding for
such purpose;
7
(b) to make available to the Representatives in New York City, as soon
as practicable after the Registration Statement becomes effective, and
thereafter from time to time to furnish to the Underwriters, as many copies
of the Prospectus (or of the Prospectus as amended or supplemented if the
Company shall have made any amendments or supplements thereto after the
effective date of the Registration Statement) as the Underwriters may
reasonably request for the purposes contemplated by the Act;
(c) that the Company will use its best efforts to cause any amendment
of the Registration Statement to become effective promptly. The Company
will not file any amendment to the Registration Statement or amendment or
supplement to the Prospectus relating to any series of the Securities to
which the Underwriters of such series shall object in writing after a
reasonable opportunity to review the same. Subject to the foregoing
sentence, the Company will cause each Prospectus supplement relating to the
Securities to be filed with the Commission pursuant to the applicable
paragraph of Rule 424 within the time period prescribed and will provide
evidence satisfactory to the Underwriters of such timely filing. The
Company will promptly advise the Underwriters of any series of Securities
(A) when any Prospectus supplement relating to such series shall have been
filed with the Commission pursuant to Rule 424, (B) when, prior to
termination of the offering of such series, any amendment to the
Registration Statement shall have been filed with the Commission or become
effective, (C) of any request by the Commission for any amendment of the
Registration Statement or supplement to the Prospectus or for any
additional information, (D) of the receipt by the Company of any
notification of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the use of any
Prospectus or Prospectus supplement or, if the Company has knowledge, of
the institution or threat of any proceeding for that purpose and (E) of the
receipt by the Company of any notification with respect to the suspension
of the qualification of the Securities for sale in any jurisdiction or, if
the Company has knowledge, of the initiation or threat of any proceeding
for such purpose. The Company will make every reasonable effort to prevent
the issuance of any such stop order or of any order suspending or
preventing any such use and, if issued, to obtain as soon as possible the
withdrawal thereof;
(d) to furnish to the Representatives and, upon request, to each of
the other Underwriters for a period of three years from the date of each
Pricing Agreement (i) copies of any reports or other communications which
the Company shall send to its shareholders or shall from time to time
publish or publicly disseminate, (ii) copies of all annual, quarterly and
current reports filed with the Commission on Forms 10- K, 10-Q and 8-K, or
such other similar form as may be designated by the Commission, and (iii)
such other information as the Representatives may reasonably request
regarding the Company or its Subsidiaries;
8
(e) to advise the Underwriters of a series of Securities promptly of
the happening of any event known to the Company within the time during
which a prospectus relating to such series is required to be delivered
under the Act which, in the judgment of the Company, would require the
making of any change in the Prospectus then being used, or in the
information incorporated therein by reference, so that the Prospectus would
not include an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading, and, during such
time, to prepare and furnish, at the Company's expense, to the Underwriters
promptly such amendments or supplements to such Prospectus as may be
necessary to reflect any such change and to furnish to the Representatives
a copy of such proposed amendment or supplement before filing any such
amendment or supplement with the Commission;
(f) that, as soon as practicable after the date of each Pricing
Agreement, the Company will make generally available to its Security
holders an earnings statement that satisfies the provisions of Section
11(a) of the Act and Rule 158 under the Act;
(g) to apply the net proceeds from the sale of the Securities in the
manner set forth under the caption "Use of Proceeds" in the Prospectus;
(h) to pay all expenses, fees and taxes (other than any transfer taxes
and fees and disbursements of counsel for the Underwriters except as set
forth under Section 5 hereof and (iii) and (iv) below) in connection with
(i) the preparation and filing of the Registration Statement, each
preliminary prospectus, the Prospectus, and any amendments or supplements
thereto, and the printing and furnishing of copies of each thereof to the
Underwriters and to dealers (including costs of mailing and shipment), (ii)
the preparation, issuance, execution, authentication and delivery of the
Securities, (iii) the printing of the Pricing Agreement (including these
Provisions), an Agreement Among Underwriters, any dealer agreements, any
Powers of Attorney, the Indenture and the reproduction and/or printing and
furnishing of copies of each thereof to the Underwriters and to dealers
(including costs of mailing and shipment), (iv) the qualification of the
Securities for offering and sale under state laws and the determination of
their eligibility for investment under state law as aforesaid (including
the legal fees and filing fees and other disbursements of counsel for the
Underwriters) and the printing and furnishing of copies of any blue sky
surveys or legal investment surveys to the Underwriters and to dealers, (v)
any listing of the Securities on any securities exchange and any
registration thereof under the Exchange Act, (vi) any fees payable to
investment rating agencies with respect to the Securities, (vii) any filing
for review of the public offering of the Securities by the National
Association of Securities Dealers, Inc. (the "NASD"), and (viii) the
performance of the Company's other obligations hereunder; and
9
(i) that the Company will not, without the consent of the
Representatives, offer or sell, or publicly announce its intention to offer
or sell, (i) any debt securities pursuant to a public offering or (ii) any
unsecured debt securities pursuant to a private placement which
contemplates the purchasers of such debt securities receiving customary
registration rights, in each case during the period beginning on the date
of the Pricing Agreement and ending the 90th day following the date of the
Pricing Agreement. The Company has not taken, and will not take, directly
or indirectly, any action which might reasonably be expected to cause or
result in the stabilization or manipulation of the price of any security to
facilitate the sale or resale of the Securities.
5. Reimbursement of Underwriters' Expenses: If the Securities of a series
to which the attached Pricing Agreement relates are not delivered for any reason
other than (a) a termination of the obligations of the several Underwriters in
accordance with clause (a)(iii), (a)(iv) or (a)(v) of Section 9 hereof, or (b) a
default by one or more of the Underwriters in its or their respective
obligations hereunder, the Company shall reimburse the Underwriters for all of
their out-of-pocket expenses, including the fees and disbursements of their
counsel.
6. Conditions of Underwriters' Obligations: The several obligations of the
Underwriters to purchase and pay for the Securities are subject to the accuracy
of the representations and warranties on the part of the Company herein on the
Representation Date and at the Closing Date (including those contained in the
Pricing Agreement), to the accuracy of the statements of officers of the Company
made pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following conditions:
(a) The Company shall furnish to the Representatives at the Closing
Date an opinion of 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
(excluding documents incorporated by reference) was not sent or given to
such person at or prior to the written confirmation of sale of such
Securities as required by the Act, and (ii) the untrue statement or
omission has been corrected in the final Prospectus.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section 7,
as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto) including the Rule 430A Information and the Rule
434 Information deemed to be a part thereof, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with the Furnished Information,
which the Underwriters agree to identify by letter to the Company dated
each Closing Date.
16
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it
in respect of which indemnity may be sought hereunder, but failure to so
notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. In
the case of parties indemnified pursuant to Section 7(a) above, counsel to
the indemnified parties shall be selected by the Representatives, and, in
the case of parties indemnified pursuant to Section 7(b) above, counsel to
the indemnified parties shall be selected by the Company. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except
with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions
in the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to the
entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever in respect of which indemnification or contribution
could be sought under this Section 7 or Section 8 hereof (whether or not
the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional
release of each indemnified party from all liability arising out of such
litigation, investigation, proceeding or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act
by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 7(a)(ii) effected without
its written consent if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall have received notice of the terms of
such settlement at least 30 days prior to such settlement being entered
into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement. Notwithstanding the immediately preceding sentence, if at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, an
indemnifying party shall not be liable for any settlement of the nature
contemplated by Section 7(a)(ii) effected without its consent if such
indemnifying party (i) reimburses such indemnified party in accordance with
17
such request to the extent it considers such request to be reasonable and
(ii) provides written notice to the indemnified party substantiating the
unpaid balance as unreasonable, in each case prior to the date of such
settlement.
8. Contribution. If the indemnification provided for in Section 7 hereof is
for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Underwriters, on the other hand, from the offering of the
Securities pursuant to the applicable Pricing Agreement, or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company, on the one
hand, and the Underwriters, on the other hand, in connection with the statements
or omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the offering to the
Securities pursuant to the applicable Pricing Agreement shall be deemed to be in
the same respective proportions as the total net proceeds from the offering of
such Securities (before deducting expenses) received by the Company and the
total underwriting discount received by the Underwriters, in each case as set
forth on the cover of the Prospectus, or, if Rule 434 is used, the corresponding
location on the term sheet, bear to the aggregate initial public offering price
of such Securities as set forth on such cover.
The relative fault of the Company, on the one hand, and the Underwriters,
on the other hand, shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 8 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 8. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 8 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding
18
by any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue or alleged untrue statement or omission or
alleged omission.
Notwithstanding the provisions of this Section 8, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of any such untrue or alleged untrue statement or
omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 8 are several in
proportion to the number or aggregate principal amount, as the case may be, of
Securities set forth opposite their respective names in the applicable Pricing
Agreement, and not joint.
9. Termination.
(a) The Representatives may terminate the applicable Pricing
Agreement, by notice to the Company, at any time at or prior to the Closing
Date, if (i) there has been, since the Representation Date or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) any of the ratings accorded any of the
Company's debt securities shall have been downgraded, or placed under
surveillance or review, other than with positive implications, by any
"nationally recognized statistical rating organization," as that term is
defined by the Commission in Rule 15c3-1(c)(2)(vi)(F)(ii) under the
Exchange Act, or (iii) there has occurred any material adverse change in
the financial markets in the United States or, if the Securities are
denominated or payable in, or indexed to, one or more foreign or composite
currencies, in the applicable international financial markets, or any
outbreak of hostilities or escalation thereof or other calamity or crisis
or any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the
Representatives, impracticable to market the Securities or
19
to enforce contracts for the sale of the Securities, or (iv) trading in any
securities of the Company has been suspended or materially limited by the
Commission or the New York Stock Exchange, or trading generally on the New
York Stock Exchange or the American Stock Exchange or in the Nasdaq
National Market has been suspended or materially limited, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices
have been required, by either of said exchanges or by such system or by
order of the Commission, the NASD or any other governmental authority, or
(v) a banking moratorium has been declared by either Federal or New York
authorities or, if the Securities include debt securities denominated or
payable in, or indexed to, one or more foreign or composite currencies, by
the relevant authorities in the related foreign country or countries.
(b) If these Provisions or the applicable Pricing Agreement is
terminated pursuant to this Section 9, such termination shall be without
liability of any party to any other party except as provided in Section 5
hereof, and provided further that Sections 3, 7, 8 and 9 shall survive such
termination and remain in full force and effect.
10. Notices: Except as otherwise herein provided, all statements, requests,
notices and agreements shall be in writing and, if to the Underwriters, at their
addresses furnished to the Company in the Pricing Agreement for the purpose of
communications hereunder and, if to the Company, shall be sufficient in all
respects if delivered or telefaxed to the Company at the offices of the Company
at 2211 South 47th Street, Phoenix, Arizona 85034, Attention: Mr. Raymond
Sadowski (fax no. (602) 643-7929).
11. Construction: These Provisions and the Pricing Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York. The section headings in these 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. 333-53691) (the "Registration
Statement") filed by the Company, on the basis of the representations,
warranties and agreements contained in this Agreement and in the Company's
Standard Underwriting Agreement Provisions attached hereto (the "Standard
Underwriting Agreement"), and subject to the terms and conditions set forth
herein and therein, the Underwriters named on Schedule I hereto ("Underwriters")
agree to purchase, severally and not jointly, and the Company agrees to sell to
the Underwriters, $ aggregate principal amount of % Due (the "Securities") in
the respective principal amounts set forth opposite the names of the
Underwriters on Schedule A hereto.
The price at which the Securities shall be purchased from the Company by
the Underwriters shall be % of the principal amount thereof [plus accrued
interest from , 199 ]. The Securities will be offered as set forth in the
Prospectus Supplement relating thereto.
The Securities will have the following terms:
Title:
Interest Rate: % per annum
Interest Payment Dates: and
commencing , 199
Maturity:
Other Provisions: as set forth in the Prospectus Supplement relating to the
Securities
Closing: A.M. on , 199 , at , in New York Clearing
House (next day) funds.
Name[s] and Address[es] of Representative[s]:
The provisions contained in the Standard Underwriting Agreement Provisions,
a copy of which has been filed as Exhibit 1 to the Registration Statement, are
incorporated herein by reference.
The Securities will be made available for checking and packaging at the
office of at least 24 hours prior to the Closing Date.
We represent that we are authorized to act for the several Underwriters
named in Schedule A hereto in connection with this financing and any action
under this agreement by any of us will be binding upon all the Underwriters.
This Pricing Agreement may be executed in one or more counterparts, all of
which counterparts shall constitute one and the same instrument.
2
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed duplicate hereof, whereupon it will
become a binding agreement among the Company and the several Underwriters in
accordance with its terms.
Very truly yours,
[NAMES OF REPRESENTATIVES]
On behalf of themselves and
as Representatives of the
Several Underwriters
By_____________________________
By_____________________________
Name:
Title:
The foregoing Pricing Agreement
is hereby confirmed as of the
date first above written
AVNET, INC.
By__________________________
Name:
Title:
3
SCHEDULE I
Principal
Underwriter Amount
----------- ------
-------
Total. . . . . . . . . . . .. . . . . . $_______
EXHIBIT 5
Avnet, Inc.
David R. Birk
Senior Vice President
and
General Counsel
July 31, 1998
Board of Directors
Avnet, Inc.
2211 South 47th Street
Phoenix, Arizona 85034
Re: Registration Statement on Form S-3
Registration No. 333-53691
--------------------------
Ladies and Gentlemen:
I refer to the above-referenced Registration Statement on Form S-3 (the
"Registration Statement") filed by Avnet, Inc. (the "Company") with the
Securities and Exchange Commission in connection with the registration under the
Securities Act of 1933, as amended, of up to $500,000,000 aggregate principal
amount of the Company's debt securities to be issued from time to time in one or
more public offerings (the "Debt Securities").
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 under the laws of the State of
New York, which laws govern the Indenture providing for the Debt Securities.
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
Year ended
------------------------------------------------------------------------
June 26, June 27, June 28, June 30, July 1,
1998(1) 1997 1996 1995 1994(2)
------- ---- ---- ---- -------
(Dollar amounts in thousands)
Income before
income taxes.......................... $267,346 $313,419 $325,039 $243,374 $154,838
Add fixed charges....................... 48,982 33,766 33,441 31,473 22,492
------- -------- ------- ------- -------
Income as adjusted...................... $316,328 $347,185 $358,480 $274,847 $177,330
======= ======= ======= ======= =======
Fixed charges:
Interest on indebtedness.............. $39,988 $26,076 $25,916 $23,175 $14,733
Amortization of
debt expense........................ 252 165 149 324 161
Rents:
Portion of rents representative
of the interest factor ............ 8,742 7,525 7,376 7,974 7,598
------- ------ ------ ------ ------
Total fixed charges..................... $48,982 $33,766 $33,441 $31,473 $22,492
====== ====== ====== ====== ======
Ratio of earnings to
fixed charges.......................... 6.5 10.3 10.7 8.7 7.9
=== ==== ==== === ===
Notes:
- ------
(1) Income before income taxes for the year ended June 26, 1998, includes (a)
the gain on the sale of Channel Master amounting to $33.8 million pre-tax,
(b) costs relating to the divestiture of Avnet Industrial, the closure of
the Company's corporate headquarters in Great Neck, New York, and the loss
on the sale of Company-owned real estate, amounting to $13.3 million
pre-tax in the aggregate, and (c) incremental special charges associated
principally with the reorganization of the Company's Electronic Marketing
Group amounting to $35.4 million pre-tax. Had such one-time items
(amounting to $14.9 million pre-tax, net) not been included, the ratio of
earnings to fixed charges for the year ended June 26, 1998, would have been
6.8 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 pre-tax which are
principally attributable to 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
August 7, 1998
