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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO RULE 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): May 6, 1999
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AVNET, INC.
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(Exact name of Registrant as Specified in its Charter)
New York 1-4224 11-1890605
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(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
2211 South 47th Street 85034
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(Address of Principal Executive Offices) (Zip Code)
Registrant's Telephone Number, Including Area Code: (602) 643-2000
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Not Applicable
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(Former Name or Former Address if Changed Since Last Report)
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Item 5. Other Events
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Exhibit 3(i)(a) to this Report is the Certificate of Amendment of the
Certificate of Incorporation of Avnet, Inc. filed with the New York Department
of State on February 11, 1999.
Exhibit 3(i)(b) to this Report is the Restated Certificate of
Incorporation of Avnet, Inc. filed with the New York Department of State on
February 22, 1999.
Exhibit 10 to this Report is the Avnet 1997 Stock Option Plan as
amended and restated on January 29, 1999.
Item 7. Financial Statements and Exhibits.
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(a) Inapplicable
(b) Inapplicable
(c) Exhibits:
Exhibit 3(i)(a) to this Report is the Certificate of Amendment of the
Certificate of Incorporation of Avnet, Inc. filed with the New York
Department of State on February 11, 1999.
Exhibit 3(i)(b) to this Report is the Restated Certificate of
Incorporation of Avnet, Inc. filed with the New York Department of
State on February 22, 1999.
Exhibit 10 to this Report is the Avnet 1997 Stock Option Plan as
amended and restated on January 29, 1999.
SIGNATURE
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Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
AVNET, INC.
(Registrant)
Date: May 6, 1999 By: /s/ Raymond Sadowski
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Raymond Sadowski
Senior Vice President and
Chief Financial Officer
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EXHIBIT INDEX
Exhibit Number Description of Exhibit
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Exhibit 3(i)(a) Certificate of Amendment of the Certificate of
Incorporation of Avnet, Inc. filed with the New York
Department of State on February 11, 1999.
Exhibit 3(i)(b) Restated Certificate of Incorporation of Avnet, Inc.
filed with the New York Department of State on
February 22, 1999.
Exhibit 10 Avnet 1997 Stock Option Plan as amended and restated
on January 29, 1999.
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Exhibit 3(i)(a)
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
AVNET, INC.
UNDER SECTION 805 OF THE
BUSINESS CORPORATION LAW
It is hereby certified that:
FIRST: The name of the corporation is AVNET, INC. The corporation was
formed under the name of AVNET ELECTRONIC SUPPLY CO., INC.
SECOND: The certificate of incorporation of the corporation was filed by
the Department of State on July 22, 1995.
THIRD: Pursuant to Section 502(e) of the Business Corporation Law, Article
III of the certificate of incorporation of the corporation, relating to the
aggregate number of shares which the corporation is authorized to issue, the par
value thereof, and the classes into which such shares are divided, is hereby
amended to decrease to zero the 500,000 shares of $1.00 Cumulative Convertible
Preferred Stock, the 465,501 shares of $3.00 Cumulative Convertible Preferred
Stock, Series B, and the 653,062 shares of $2.50 Cumulative Convertible
Preferred Stock, Series C, initially authorized in the said Article III. None of
the authorized shares of such series of Preferred Stock are outstanding, and
none will be issued subject to the certificate of incorporation. Accordingly, as
provided in the certificate of incorporation, the previously authorized shares
of such series of
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Preferred Stock shall revert to the status of authorized but unissued shares of
Preferred Stock of the corporation.
FOURTH: Article IV of the certificate of incorporation, relating to the
office of the corporation in the State of New York and the designation of the
Secretary of State as agent of the corporation upon whom process against it may
be served, is hereby amended (1) to designate New York County as the county
within New York in which the office of the corporation is located, (2) to
designate Corporation Service Company as the corporation's registered agent,
and to specify the address of the said registered agent, and (3) to change the
post office address to which the Secretary of State shall mail a copy of any
process against the corporation served upon the Secretary of State.
FIFTH: In order to effect the amendment described in section THIRD above,
Sections(A), (B) and (C) of Article III of the certificate of incorporation,
setting forth all matters with respect to the abovementioned series of
Preferred Stock, are hereby eliminated as provided in Section 502(e) of the
Business Corporation Law, so that section THIRD shall read in its entirety as
follows:
"III. The aggregate number of shares which the Corporation shall have the
authority to issue shall be one hundred twenty-three million (123,000,000)
shares. Three million (3,000,000) shares shall be Preferred Stock of the
par value of one dollar ($1.00) per share, issuable in series, and one
hundred twenty million (120,000,000) shares shall be Common Stock of the
par value of one dollar ($1.00) per share. All shares of Preferred Stock
shall be issued in series and shall be entitled to preference in the
distribution of dividends or assets or both. The Board of Directors of the
Corporation, before issuance, shall have the authority to establish and
designate series of the Preferred Stock and to fix the variations in the
relative rights, preferences and limitations of shares of the Preferred
Stock as between such shares and shares of the Common Stock and as between
shares of different series of the Preferred Stock."
SIXTH: In order to effect the amendment described in section FOURTH above,
Article IV of the certificate of incorporation is hereby amended and restated
to read in its entirety as follows:
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"IV. The office of the corporation is located in the County of New York,
and the address to which the Secretary of State shall mail a copy of
process in any action or proceeding against the corporation which may be
served upon him is c/o Corporation Service Company, 80 State Street,
Albany, New York 12207-2543. The name and address within the State of New
York of the registered agent of the corporation is as follows: Corporation
Service Company, 80 State Street, Albany, New York 12207-2543. Said
registered agent is to be the agent of the corporation upon whom process
against the corporation may be served."
SEVENTH: The foregoing amendment to Article III of the certificate of
incorporation was authorized by the vote at a meeting of the corporation's
Board of Directors, as provided in paragraphs (c) and (e) of Section 502 of the
Business Corporation Law and the corporation's certificate of incorporation.
EIGHTH: The foregoing amendment to Article IV of the certificate of
incorporation was authorized by the vote at a meeting of the corporation's
Board of Directors pursuant to Section 803(b) of the Business Corporation Law.
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IN WITNESS WHEREOF, the undersigned has subscribed this certificate on
this 2nd day of February, 1999.
/s/ David R. Birk
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David R. Birk
Senior Vice President and Secretary
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Exhibit 3(i)(b)
RESTATED
CERTIFICATE OF INCORPORATION
OF
AVNET, INC.
UNDER SECTION 807 OF THE
BUSINESS CORPORATION LAW
A. The name of the corporation is AVNET, INC. The name under which the
corporation was formed is AVNET ELECTRONIC SUPPLY CO., INC.
B. The certificate of incorporation of the corporation was filed by the
Department of State on July 22, 1955.
C. The text of the said certificate of incorporation, as amended
heretofore, is hereby restated without further amendment or change to read in
full as follows:
* * *
I. The name of the corporation shall be AVNET, INC.
II. The purposes for which the corporation is formed are:
A. To design, patent, manufacture, buy, sell, export and import,
and generally deal in, either as principal, agent, commission merchant, factor,
broker or attorney in fact, every and all kinds of electrical devices, radios,
television instruments, missiles, rockets, aircraft and mechanical devices and
machines, as well as components thereof, other goods, wares, merchandise,
commodities and personal property, and to make and enter into all manner and
kinds of contracts, agreements and obligations by, or with any person or
persons, corporation or
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association in connection with such business, or any part thereof, and
incidental thereto, as may be lawfully done or entered into by corporations
organized under Article 2 of the Stock Corporation Law.
B. To construct, purchase, lease or otherwise acquire, equip, maintain and
operate laboratories and factories for the development of processes, the
improvement of products, experimental and research work, in connection with any
product.
C. To acquire and pay for in cash, stock or bonds of this corporation or
otherwise, the good will, rights, assets and property, and to undertake or
assume the whole or any part of the obligations or liabilities of any person,
firm, association or corporation.
D. To acquire, hold, use, sell, assign, lease, grant licenses in respect
of, mortgage or otherwise dispose of letters patent of the United States or any
foreign country, patent rights, inventions, improvements and processes,
copyrights, trademarks and trade names, relating to or useful in connection with
any business of this corporation.
E. To acquire by purchase, subscription or otherwise, and to receive, hold,
own, guarantee, sell, assign, exchange, transfer, mortgage, pledge or otherwise
dispose of or deal in and with any of the shares of the capital stock, or any
voting trust certificates in respect of the shares of capital stock, scrip,
warrants, rights, bonds, debentures, notes, trust receipts, and other
securities, obligations, choses in action and evidences of indebtedness or
interest issued or created by any corporations, joint stock companies,
syndicates, associations, partnerships, firms, trusts or persons, public or
private, or by the government of the United States of America, or by any foreign
government, or by any state, territory, province, municipality or other
political subdivision or by any governmental agency, and as owner thereof, to
possess and exercise all the rights, powers and
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privileges of ownership, including the right to execute consents and vote
thereon, and to do any and all acts and things necessary or advisable for the
preservation, protection, improvement and enhancement in value thereof.
F.(a) To borrow or raise moneys for any of the purposes of the corporation,
and, from time to time, without limit as to amount, to draw, make, accept,
endorse, execute and issue promissory notes, drafts, bills of exchange,
warrants, bonds, debentures and other negotiable or non-negotiable instruments
and evidences of indebtedness, and to secure the payment of any thereof and of
the interest thereon by mortgage upon or pledge, conveyance or assignment in
trust of the whole or any part of the property of the corporation, whether at
the time owned or thereafter acquired, and to sell, pledge or otherwise dispose
of such bonds or other obligations of the corporation for its corporate
purposes.
(b) To make any guarantee respecting dividends, shares of stock, bonds,
debentures, contracts or other obligations to the extent that such power may be
exercised by corporations organized under the Stock Corporation Law.
G. To loan to any person, firm, partnership or corporation any of its
surplus funds, either with or without security.
H. To purchase, hold, sell and transfer the shares of its capital stock;
provided it shall not use its funds or property for the purchase of its own
shares of capital stock when such use would cause any impairment of its capital
except as otherwise permitted by law, and provided further, that shares of its
own capital stock belonging to it and shall not be voted upon directly or
indirectly.
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I. To have one or more offices, to carry on all or any of its operations
and business and without restriction or limit as to amount to purchase or
otherwise acquire, hold, own, mortgage, sell, convey or otherwise dispose of,
real and personal property of every class and description in any of the states,
districts, territories or colonies of the United States, and in any and all
foreign countries, subject to the laws of such state, district, territory,
colony or country.
J. To enter into, make, perform and carry out contracts of every kind,
which may be necessary for or incidental to the business of the corporation,
with any person, firm, corporation, private, public or municipal, body politic,
under the government of the United States, or any territory, district,
protectorate, dependency or insular or other possession or acquisition of the
United States, or any foreign government, so far as, and to the extent that,
the same may be done and performed by a corporation organized under the Stock
Corporation Law.
K. To do any and all things necessary, suitable, convenient, or proper for,
or in connection with, or incidental to, the accomplishment of any of the
purposes or the attainment of any one or more of the objects herein enumerated,
or designed directly or indirectly to promote the interests of the corporation,
or to enhance the value of any of its properties; and in general to do any and
all things and exercise any and all powers which it may now or hereafter be
lawful for the corporation to do or to exercise under any of the laws of the
State of New York that may now or hereafter be applicable to the corporation.
L. The purposes and powers specified in the foregoing clauses are to be
construed both as purposes and powers and shall, except where otherwise
expressed, be in no wise limited, or restricted, by reference to, or inference
from, the terms of any other clause in this
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Certificate of Incorporation, but the purposes and powers specified in each of
the foregoing clauses of this Article shall be regarded as independent purposes
and powers.
III. The aggregate number of shares which the Corporation shall have the
authority to issue shall be one hundred twenty-three million (123,000,000)
shares. Three million (3,000,000) shares shall be Preferred Stock of the par
value of one dollar ($1.00) per share, issuable in series, and one hundred
twenty million (120,000,000) shares shall be Common Stock of the par value of
one dollar ($1.00) per share. All shares of Preferred Stock shall be issued in
series and shall be entitled to preference in the distribution of dividends or
assets or both. The Board of Directors of the Corporation, before issuance,
shall have the authority to establish and designate series of the Preferred
Stock and to fix the variations in the relative rights, preferences and
limitations of shares of the Preferred Stock as between such shares and shares
of the Common Stock and as between shares of different series of the Preferred
Stock.
IV. The office of the corporation is located in the County of New York,
and the address to which the Secretary of State shall mail a copy of process in
any action or proceeding against the corporation which may be served upon him
is c/o Corporation Service Company, 80 State Street, Albany, New York
12207-2543. The name and address within the State of New York of the registered
agent of the corporation is as follows: Corporation Service Company, 80 State
Street, Albany, New York 12207-2543. Said registered agent is to be the agent
of the corporation upon whom process against the corporation may be served.
V. Its duration is to be perpetual.
VI. The number of directors of the Corporation shall be fixed from time to
time by the Board of Directors as provided in the By-Laws then in effect, but
shall not be less than three. Only
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one of said directors shall be required to be a stockholder and only one shall
be required to be a citizen of the United States and a resident of the State of
New York.
VII. Shares of stock in other corporations held by this corporation shall
be voted by such officer or officers of this corporation as the Board of
Directors, by a majority vote, shall designate for such purpose or by a proxy
duly authorized by a like vote of the Board.
VIII. It is hereby provided, pursuant to Section 74 of the Stock
Corporation Law, that this corporation shall have power to issue the whole or
any part of the shares of its capital stock as partly paid stock subject to
calls thereon until the whole thereof shall have been paid in.
IX. No contract or other transaction between the corporation and any
other corporation shall be affected or invalidated by the fact that any one or
more of the directors of this corporation is or are interested in, or is a
director or officer, or are directors or officers of such other corporation,
and any director or directors, individually or jointly, may be a party or
parties to, or may be interested in, any contract or transaction of this
corporation or in which this corporation is interested; and no contract, act
or transaction of this corporation with any person or persons, firm or
corporations, shall be affected or invalidated by the fact that any director or
directors of this corporation is a party, or are parties to or interested in
such contract, act or transaction, or in any way connected with such person or
persons, firm, association or corporation, and each and every person who may
become a director of this corporation is hereby relieved from any liability
that might otherwise exist from contracting with the corporation for the
benefit of himself or any firm or association or corporation in which he may be
in anywise interested.
X. No holder of stock shall be entitled as of right, to purchase or
subscribe for any part of unissued stock, or any treasury stock, or any
additional stock to be issued by reason of any
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increase of the authorized capital stock of the Company, or any bonds,
certificates of indebtedness, debentures or other securities convertible into
stock of the corporation, but any such unissued stock or such additional
authorized issue of new stock, or of other securities convertible into stock
may be issued and disposed of pursuant to resolution of the Board of Directors
to such persons, firms, corporations or associations and upon such terms as may
be deemed advisable by the Board of Directors in the exercise of their
discretion and in accordance with the Stock Corporation Law.
XI. No director of the Corporation shall be personally liable to the
Corporation or its shareholders for damages for any breach of duty as a
director, provided that nothing contained in this Article XI shall eliminate or
limit the liability of any director if a judgment or other final adjudication
adverse to him establishes that his acts or omissions were in bad faith or
involved intentional misconduct or a knowing violation of law or that he
personally gained in fact a financial profit or other advantage to which he was
not legally entitled or that his acts violated Section 719 of the New York
Business Corporation Law. Notwithstanding the foregoing, nothing in this Article
XI shall eliminate or limit the liability of a director for any act or omission
occurring prior to the date of filing of the Certificate of Amendment to the
Restated Certificate of Incorporation of the Corporation that includes this
Article XI.
XII. The Board of Directors of this corporation may issue options for the
purchase of any of its authorized shares of stock issued or unissued, for such
consideration, value, or benefit, and upon such terms and conditions, as may be
fixed by the Board of Directors, subject to the requirements of Section 69 and
12 of the Stock Corporation Law and any other applicable provisions of law, but
no such shares of stock having par value shall be issued for money in an amount
less than the par value of such shares.
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XIII. All corporate powers, including the sale, mortgage, hypothecation and
pledge of all or any part of the corporate property, shall be exercised by the
Board of Directors, except as otherwise expressly provided by law.
XIV. Any one or more or all of the directors may be removed, either with
or without cause, at any time by the vote of the stockholders holding a
majority of the stock of the corporation, at any special or regular meeting and
thereupon the terms of each director or directors who shall have been removed
shall forthwith terminate and there shall be a vacancy or vacancies in the
Board of Directors to be filled as provided in the By-Laws.
XV. Subject always to By-Laws made by the stockholders, the Board of
Directors may make By-Laws and from time to time may alter, amend or repeal
any By-Laws, but any By-Laws made by the Board of Directors may be altered or
repealed by a majority vote of the stockholders.
XVI. The Secretary of State is designated as the agent of the corporation
upon whom process in any action or proceeding against the corporation may be
served.
* * *
D. The foregoing restatement of the certificate of incorporation was
authorized by the vote at a meeting of the Board of Directors of the
corporation.
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IN WITNESS WHEREOF, the undersigned has subscribed this certificate this
2nd day of February, 1999.
/s/ David R. Birk
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David R. Birk
Senior Vice President and Secretary
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Exhibit 10
AVNET, INC.
1997 STOCK OPTION PLAN
(as Amended and Restated on January 29, 1999)
ARTICLE I
PURPOSE OF THE PLAN
The 1997 Stock Option Plan (the "Plan") is intended to advance the
interests of the Company by assisting Avnet and its Subsidiaries in attracting
high caliber persons to serve as Eligible Employees and Non-Employee Directors,
and in inducing such persons to remain as Eligible Employees and Non-Employee
Directors, by virtue of the additional incentive to promote the Company's
success which results from the possession of options to purchase shares of
Avnet's Common Stock.
ARTICLE II
DEFINITIONS
The following words and phrases used herein shall, unless the context
otherwise indicates, have the following meanings:
1. "Avnet" shall mean Avnet, Inc.
2. "Board of Directors" and "Director" shall mean, respectively, the Board
of Directors of Avnet and any member thereof.
3. "Committee" shall mean a committee charged with administering this
Plan, which Committee shall be appointed by the Board of Directors, shall
consist of three or more Non-Employee Directors, none of whom is eligible to be
granted Options or Stock Appreciation Rights by the Committee under this Plan,
shall have authority to grant Options and Stock Appreciation Rights hereunder to
Eligible Employees on such terms and subject to such conditions (not
inconsistent with the terms of this Plan) as such Committee shall determine, and
shall have full authority to construe this Plan, to prescribe and amend rules
and regulations relating hereto, and to make all other determinations in the
administration hereof.
4. "Company" shall mean Avnet and all its Subsidiaries.
5. "Eligible Employees" shall mean any regular full-time employee of Avnet
or of any of its Subsidiaries (including any Director who is also such a regular
full-time employee), and may include, in appropriate circumstances relating to
the granting of Options and Stock Appreciation Rights hereunder, any person who
is under consideration for employment by the Company and any person employed by
a business which is then to be acquired by Avnet. The term "Eligible
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Employees" shall also include any person employed or retained by Avnet or any of
its Subsidiaries to render services as a consultant or advisor other than
services in connection with the offer or sale of securities in a capital-raising
transaction.
6. "Fair Market Value" when used with respect to a particular date, shall
mean the average of the high and low sale prices (as reported for New York Stock
Exchange Composite Transactions) at which shares of the Stock shall have been
sold on such date or, if such date is a date for which no trading is so
reported, on the next preceding date for which trading is so reported.
7. "Non-Employee Director" shall mean a Director who is not an Eligible
Employee.
8. "Option" shall mean any option granted or held pursuant to the
provisions of this Plan.
9. "Option Agreement" shall mean the agreement evidencing any Option
hereunder, including any addendum thereto relating to Stock Appreciation Rights,
which agreement may be in any form prescribed or accepted by the Committee
therefor (in the case of an Option Agreement with an Eligible Employee), or in
any form prescribed or accepted by the Board of Directors (in the case of an
Option Agreement with a Non-Employee Director).
10. "Optionee" shall mean any person who at the time in question holds any
Option which then remains unexercised in whole or in part, has not been
surrendered for complete termination and has not expired or terminated, and
shall include any Successor Optionee.
11. "Plan" shall mean this stock option plan.
12. "Stock" shall, subject to the anti-dilution provisions set forth in
Article VIII hereof, mean the Common Stock of Avnet, as presently constituted.
13. "Stock Appreciation Right" or "SAR" shall mean any right granted under
this Plan which entitles an Optionee to receive (a) shares of Stock having a
Fair Market Value at the date of exercise of such SAR, or (b) cash in the amount
of such Fair Market Value, or (c) a combination of shares of Stock and cash
equal in the aggregate to such Fair Market Value, equivalent to all or part of
the difference between the aggregate exercise price of the portion of the
related Option which is being surrendered for termination and the Fair Market
Value at such date of the shares of Stock for which such SAR is being exercised.
An SAR may be granted by the Committee with respect to any Option simultaneously
or previously granted under this Plan to an Eligible Employee, and an SAR may be
granted by the Board of Directors with respect to any Option simultaneously or
previously granted under this Plan to a Non-Employee Director; and, when
granted, may be granted by the Committee or the Board of Directors upon such
terms and subject to such conditions as the Committee or the Board of Directors
may in its discretion prescribe or approve; provided that an SAR shall only be
exercisable by the Optionee to whom such SAR was initially granted, shall only
be exercisable during the period when Optionee is an Eligible Employee or a
Non-Employee Director and shall not be exercisable by a Successor Optionee.
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14. "Subsidiary" shall mean any corporation 80% of the total combined
voting power of all classes of capital stock of which shall at the time in
question be owned by Avnet and/or any of its subsidiaries.
15. "Successor Optionee" shall mean any person whom, under the provisions
of Article V hereof, shall have acquired the right to exercise any Option by
will or the laws of descent and distribution.
ARTICLE III
SHARES RESERVED FOR THE PLAN
1. Subject to the anti-dilution provisions set forth in Article VIII
hereof, the maximum number of shares of Stock which may be delivered by Avnet
pursuant to the exercise of Options and/or Stock Appreciation Rights shall be
1,000,000. At no time shall there be outstanding Options for the purchase of
more than 1,000,000 shares of Stock (subject to said anti-dilution provisions)
less the aggregate of the number of shares of Stock previously delivered
pursuant to the exercise of Options and the number of shares of Stock previously
covered by Options terminated upon surrender in connection with the exercise of
Stock Appreciation Rights.
2. The shares of Stock subjected to Options and Stock Appreciation Rights
may, in the discretion of the Committee and with the consent of the Board of
Directors (in the case of Options and Stock Appreciation Rights granted to
Eligible Employees), or in the discretion of the Board of Directors (in the case
of Options and Stock Appreciation Rights granted to Non-Employee Directors),
consist of authorized but unissued shares of Stock and/or shares of Stock held
in the treasury of Avnet.
3. If any Option shall be surrendered and terminated or for any other
reason shall terminate or expire, whether in whole or in part (except for
terminations in connection with exercises of Stock Appreciation Rights), the
shares of Stock covered by such Option immediately prior to such termination or
expiration shall thereupon be added to the shares of Stock otherwise available
for subjection to Options and Stock Appreciation Rights hereunder.
ARTICLE IV
ADMINISTRATION OF THE PLAN
1. This Plan shall be administered by the Committee with respect to
Options and SARs granted to Eligible Employees, and shall be administered by the
Board of Directors with respect to Options and SARs granted to Non-Employee
Directors. The Committee and the Board of Directors each shall have full power
to construe and interpret the Plan in connection with their respective
administration of the Plan, and to establish and amend rules and regulations for
such respective administration.
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2. In addition to paragraph 1 of this Article IV (and without limiting the
generality thereof), the Committee shall have plenary authority (subject to the
provisions of Articles II, III, V and VI hereof) in its discretion to determine
the time or times at which Options and/or Stock Appreciation Rights shall be
granted to Eligible Employees, the Eligible Employees to whom Options and/or
Stock Appreciation Rights shall be granted and the number of shares of Stock to
be covered by each such Option and/or Stock Appreciation Right. The granting of
Options and/or Stock Appreciation Rights by the Committee shall be entirely
discretionary; the terms and conditions (not inconsistent with this Plan)
prescribed or approved for any Option Agreement with an Eligible Employee shall
similarly be within the discretion of the Committee; and nothing in this Plan
shall be deemed to give any Eligible Employee any right to receive Options
and/or Stock Appreciation Rights.
2a. In addition to paragraph 1 of this Article IV (and without limiting
the generality thereof), the Board of Directors shall have plenary authority
(subject to the provisions of Articles II, III, V and VI hereof) in its
discretion to determine the time or times at which Options and/or Stock
Appreciation Rights shall be granted to Non-Employee Directors, the Non-Employee
Directors to whom Options and/or Stock Appreciation Rights shall be granted and
the number of shares of Stock to be covered by each such Option and/or Stock
Appreciation Right; provided that the members of the Committee shall abstain
from participating in any action taken by the Board of Directors with respect to
Options and/or Stock Appreciation Rights granted or to be granted to any such
members. "The granting of Options and/or Stock Appreciation Rights by the Board
of Directors shall be entirely discretionary; the terms and conditions (not
inconsistent with this Plan) prescribed or approved for any Option Agreement
with a Non-Employee Director shall similarly be within the discretion of the
Board of Directors; and nothing in this Plan shall be deemed to give any
Non-Employee Director any right to receive Options and/or Stock Appreciation
Rights."
3. The Committee is also specifically authorized, in the event of a public
solicitation, by any person, firm or corporation other than Avnet, of tenders of
50% or more of the then outstanding Stock (known conventionally as a "tender
offer"), to accelerate exercisability of any or all Options and any or all of
the related Stock Appreciation Rights held by Optionees then employed as an
Eligible Employee, so that such Options and Stock Appreciation Rights will
immediately become exercisable in full; provided that such accelerated
exercisability shall continue in effect only until expiration, termination or
withdrawal of such "tender offer," whereupon such Options and related Stock
Appreciation Rights will be (and continue thereafter to be) exercisable only to
the extent that they would have been exercisable if no such acceleration of
exercisability had been authorized.
3a. The Board of Directors is also specifically authorized, in the event
of a tender offer, by any person, firm or corporation other than Avnet, for 50%
or more of the then outstanding Stock, to accelerate exercisability of any or
all Options and any or all of the related Stock Appreciation Rights held by
Optionees then serving as Non-Employee Directors, so that such Options and/or
Stock Appreciation Rights will immediately become exercisable in full; provided
that such accelerated exercisability shall continue in effect only until
expiration, termination or withdrawal of such "tender offer," whereupon such
Options and related Stock Appreciation Rights will be (and
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continue thereafter to be) exercisable only to the extent they would have been
exercisable if no such acceleration of exercisability had been authorized.
4. A majority of the members of the Committee (but not less than two)
shall constitute a quorum, and all acts, decisions or determinations of the
Committee shall be by majority vote of such of its members as shall be present
at a meeting duly held at which a quorum is so present. Any act, decision, or
determination of the Committee reduced to writing and signed by a majority of
its members (but not less than two) shall be fully effective as if it had been
made, taken or done by vote of such majority at a meeting duly called and held.
5. The Committee shall deliver a report to the Board of Directors with
reasonable promptness following the taking of any action(s) in the
administration of this Plan, which report shall set forth in full the action(s)
so taken. The Committee shall also file such other reports and make such other
information available as may from time to time be prescribed by the Board of
Directors.
ARTICLE V
AWARD AND MODIFICATION OF OPTIONS
1. Options may be granted by the Committee to Eligible Employees, and may
be granted by the Board of Directors to Non-Employee Directors, from time to
time in their discretion prior to November 19, 2007 or the earlier termination
of the Plan as provided in Article IX.
2. During the period when any Option granted by the Committee to an
Eligible Employee is outstanding, the Committee may, for such consideration (if
any) as may be deemed adequate by it and with the prior consent of the Optionee,
modify the terms of such Option, including the purchase price, with respect to
the unexercised portion thereof. During the period when any Option granted by
the Board of Directors to a Non-Employee Director is outstanding, the Board of
Directors may, for such consideration (if any) as may be deemed adequate by it
and with the prior consent of the Optionee, modify the terms of the Option,
including the purchase price, with respect to the unexercised portion thereof.
3. The purchase price per share of Stock upon the exercise of each Option
shall be no less than 85% of the Fair Market Value of the Stock at the date of
the granting thereof; provided, however, (i) that the purchase price per share
of Stock shall in no event be less than the par value per share of the Stock and
(ii) options whose purchase price per share on exercise is less than 100% of the
Fair Market Value at the date of the granting thereof may be granted only in
lieu of a reasonable amount of cash compensation.
4. Subject to the specific authority bestowed upon the Committee in
Article IV, paragraph 3 hereof, and to the specific authority bestowed upon the
Board of Directors in Article IV, paragraph 3a hereof, (i) no Option shall be
exercisable to any extent until the first anniversary of the date of the
granting thereof, (ii) thereafter, each Option shall be exercisable with respect
to 25% of the total
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number of shares of Stock subject thereto and (iii) upon each succeeding
anniversary date of the date of grant, each Option will become exercisable on a
cumulative basis with respect to an additional 25% of the shares subject
thereto. To the extent that any Option shall have become exercisable as provided
in the preceding sentence, such Option may thereafter be exercised by the
Optionee in whole at any time or in part from time to time prior to the
surrender for termination, expiration or other termination of such Option. Each
Option shall expire and cease to be exercisable after the day prior to the tenth
anniversary of the date of granting thereof.
5. The aggregate number of shares of Stock under any Option or Options
granted hereunder to any Optionee in any calendar year may not exceed 150,000.
6. No Option shall be assignable or transferable by an Optionee except in
the event of the death of such Optionee, nor shall any Option be exercisable
during the lifetime of the Optionee except by such Optionee. Subject to the
provisions of paragraph 8 below, in the event of death, while in the employ of
the Company or while a Director, of any Optionee to whom an Option was
originally granted, such option shall remain exercisable (unless such Option
shall sooner be surrendered or expire) for one year after the date of death of
such original Optionee, but only (a) by the person or persons to whom the right
to exercise such Option shall have passed by will or the laws of descent and
distribution, and (b) if and to the extent that such Option shall have been
exercisable by such original Optionee at such date of death.
7. In the event that any Eligible Employee shall cease to be employed by
the Company for any reason other than death, disability, retirement or other
reasons determined by the Committee in its sole discretion, each outstanding
Option theretofore granted to such Eligible Employee shall forthwith upon such
cessation of employment terminate and cease to be exercisable. Subject to the
provisions of paragraph 8 below, in the event that any Eligible Employee shall
cease to be employed by the Company due to disability, retirement or other
reasons determined by the Committee in its sole discretion, each outstanding
Option theretofore granted to such Eligible Employee shall remain exercisable
for three months after the date of such cessation of employment, but may be
exercised only (a) by such Eligible Employee or by the person or persons to whom
the right to exercise such Option shall have passed by will or the laws of
descent and distribution, and (b) if and to the extent that such Option was
exercisable by such Eligible Employee at such date of cessation of employment.
At the end of the aforesaid three-month period, such Option (unless it shall
sooner have been surrendered for termination or have expired) shall terminate
and cease to be exercisable.
7a. In the event that any Non-Employee Director shall cease to be a
Director for any reason other than death, disability, the normal expiration of
such Non-Employee Director's term as a Director without re-election, or other
reasons determined by the Board of Directors in its sole discretion, each
outstanding Option theretofore granted to such Non-Employee Director shall
forthwith upon such cessation terminate and cease to be exercisable. Subject to
the provisions of paragraph 8 below, in the event that any Non-Employee Director
shall cease to be a Director due to disability, the normal expiration of such
Non-Employee Director's term as a Director without re-election, or other reasons
determined by the Board of Directors in its sole discretion, each outstanding
Option theretofore granted to such Non-Employee Director shall remain
exercisable for
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such period, up to five years after the date on which the Optionee ceases to be
a Director, as the Board of Directors shall have fixed in the Option Agreement
evidencing such Options, but may be exercised only by such Non-Employee Director
or by the person or persons to whom the right to exercise such Option shall have
passed by will or the laws of descent and distribution. Such Option shall
continue to become exercisable as provided in paragraph 4 of this Article V
after the date on which the Optionee ceases to be a Director. At the end of the
aforesaid period of up to five years, such Option (unless it shall sooner have
been surrendered for termination or have expired) shall terminate and cease to
be exercisable.
8. Notwithstanding the provisions of the second sentence of paragraph 6
and the second sentences of paragraphs 7 and 7a above, (a) no Option shall in
any event be exercisable after the day prior to the tenth anniversary of the
date of the granting thereof, and (b) any Option for which accelerated
exercisability, authorized pursuant to Article IV, paragraph 3 or 3a hereof, was
in effect at the date of the original Optionee's death or at the date of
termination of the Optionee's employment or membership on the Board of Directors
due to disability, retirement, cessation of membership on the Board of Directors
or otherwise as may be determined by the Committee or the Board of Directors in
its sole discretion, as the case may be, shall be subject to the proviso to
Article IV, paragraph 3 or 3a.
ARTICLE VI
STOCK APPRECIATION RIGHTS
1. Stock Appreciation Rights may be granted to Eligible Employees in the
discretion of the Committee and to Non-Employee Directors in the discretion of
the Board of Directors, upon such terms and conditions as the Committee or the
Board of Directors may prescribe. Each SAR shall be granted in connection with
and shall relate to all or part of a specific Option simultaneously or
previously granted under the Plan. In the discretion of the Committee or the
Board of Directors, an SAR may be granted at any time prior to the exercise,
expiration or termination of the Option related thereto, and may be modified at
any time the related Option is modified.
2. Upon exercise of a Stock Appreciation Right, the Optionee shall be
entitled to receive (a) shares of Stock having a Fair Market Value at the date
of exercise, or (b) cash in the amount of such Fair Market Value, or (c) a
combination of shares of Stock and cash equal in the aggregate to such Fair
Market Value, equivalent to all or part of the difference between the aggregate
exercise price of the portion of the related Option which is being surrendered
for termination and the Fair Market Value at such date of the shares of Avnet's
Common Stock for which such SAR is being exercised.
3. Each Stock Appreciation Right granted to an Eligible Employee shall be
exercisable on such dates or during such periods as may be determined by the
Committee, and each Stock Appreciation Right granted to a Non-Employee Director
shall be exercisable on such dates or during such periods as may be determined
by the Board of Directors, provided that no SAR shall be exercisable at a time
when the Option related thereto could not be exercised nor may it be exercised
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with respect to a number of shares in excess of the number for which such Option
could then be exercised.
4. A Stock Appreciation Right may be exercised only upon surrender by the
Optionee, for termination, of the portion of the related Option, which is then
exercisable to purchase the number of shares for which the Stock Appreciation
Right is being exercised. Shares covered by the terminated Option or portion
thereof shall not be available for subjection to other Options under the Plan.
5. The Committee may impose any other conditions upon the exercise of
Stock Appreciation Rights granted to Eligible Employees, and the Board of
Directors may impose any other conditions upon the exercise of Stock
Appreciation Rights granted to Non-Employee Directors, which conditions may
include a condition that any particular SARs or any class of SARs may only be
exercised in accordance with rules adopted by the Committee or the Board of
Directors, as appropriate, from time to time. Such rules may govern the right to
exercise SARs granted prior to the adoption or amendment of such rules as well
as SARs granted thereafter.
6. The Committee or the Board of Directors may at any time amend,
terminate or suspend any Stock Appreciation Right theretofore granted by it
under this Plan, provided that the terms of any SAR after any amendment shall
conform to the provisions of the Plan. Each SAR shall terminate and cease to be
exercisable upon the termination (other than a termination required in
connection with exercise of the SAR) or expiration of the Option related
thereto.
ARTICLE VII
ADDITIONAL TERMS AND PROVISIONS
1. The Committee or the Board of Directors shall, promptly after the
granting of any Option or Stock Appreciation Right or the modification of any
outstanding Option or SAR, cause such Optionee to be notified of such action and
shall cause Avnet to deliver to such Optionee an Option Agreement (which Option
Agreement is to be signed on behalf of Avnet by an officer of Avnet with
appropriate authorization therefor) evidencing the Option so granted or modified
and the terms and conditions thereof and including (when appropriate) an
addendum evidencing the SAR so granted or modified and the terms and conditions
thereof.
2. The date on which the Committee or the Board of Directors approves the
granting of any Option or Stock Appreciation Right, or approves the modification
of any outstanding Option or SAR, shall be deemed the date on which such Option
or SAR is granted or modified, regardless of the date on which the Option
Agreement evidencing the same is executed.
3. To the extent that any Option or Stock Appreciation Right shall have
become exercisable as provided in Article V or Article VI above, such Option or
SAR may be exercised by the Optionee at any time and from time to time by
written notice to Avnet stating the number of shares of Stock with respect to
which such Option or SAR is being exercised, accompanied (as to
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an Option exercise) by payment in full therefor as prescribed below and (as to
an SAR exercise) by an instrument effecting surrender for termination of the
relevant portion of the Option related thereto. As soon as practicable after
receipt of such notice, Avnet shall, without requiring payment of any transfer
or issue tax by the Optionee, deliver to the Optionee, at the principal office
of Avnet (or such other place as Avnet may designate), a certificate or
certificates representing the shares of Stock acquired upon such exercise;
provided, however, that the date for any such delivery may be postponed by Avnet
for such period as it may require, in the exercise of reasonable diligence (a)
to register the shares of Stock so purchased (together with any part or all of
the balance of the shares of Stock which may be delivered pursuant to the
exercise of Options and/or Stock Appreciation Rights) under the Securities Act
of 1933, as amended, and/or to obtain the opinions of counsel referred to in
clauses (B) and (E) of paragraph 7 below, and (b) to comply with the applicable
listing requirements of any national securities exchange or with any other
requirements of law. If any Optionee shall fail to accept delivery of all or any
part of the shares of Stock with respect to which such Option or SAR is being
exercised, upon tender thereof, the right of such Optionee to exercise such
Option and the related SAR, or to exercise such SAR and the related Option, with
respect to such unaccepted shares may, in the discretion of the Committee (in
the case of an Option granted to an Eligible Employee) or the Board of Directors
(in the case of an Option granted to a Non-Employee Director), be terminated.
For purposes of this paragraph 3, payment upon exercise of an Option may be made
(i) by check (certified, if so required by Avnet) in the amount of the aggregate
exercise price of the portion of the Option being exercised, or (ii) in the form
of certificates representing shares of Stock (duly endorsed or accompanied by
appropriate stock powers, in either case with signature guaranteed if so
required by Avnet) having a Fair Market Value, at the date of receipt by Avnet
of such certificates and the notice above mentioned, equal to or in excess of
such aggregate exercise price, or (iii) by a combination of check and
certificates for shares of Stock.
4. Notwithstanding paragraph 3 of this Article VII, upon each exercise of
an Option, the Optionee shall pay to Avnet an amount required to be withheld
under applicable income tax laws in connection with such exercise. An Optionee
whose transactions in Common Stock are subject to the provisions of Section
16(b) of the Securities Exchange Act of 1934 (the "Act") may, in the discretion
of the Committee and subject to any rules as the Committee may adopt (in the
case of an Optionee who was an Eligible Employee on the date of grant), or in
the discretion of the Board of Directors and subject to such rules as the Board
of Directors may adopt (in the case of an Optionee who was a Non-Employee
Director on the date of grant), elect to satisfy such obligation, in whole or in
part, by electing to have Avnet withhold shares of Stock having a Fair Market
Value equal to the amount required to be so withheld (an "election"). The Fair
Market Value of a share of Stock shall be the Fair Market Value on the date that
the amount to be withheld is determined (the "Tax Date"). An Optionee shall pay
Avnet in cash for any fractional share that would otherwise be required to be
withheld. Each election with respect to the exercise of an Option shall be
subject to the following restrictions:
(A) The election must be made on or prior to the Tax Date;
(B) The election shall be irrevocable;
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(C) The election is subject to the disapproval of the Committee (in
the case of an Optionee who was an Eligible Employee on the date of grant) or
the Board of Directors (in the case of an Optionee who was a Non-Employee
Director on the date of grant); and
(D) An election by an Optionee may not be made within six months of
the grant of the Option with respect to which such Election is made; provided,
however, that this restriction shall not apply in the event that the Optionee
shall die or become disabled prior to the expiration of such six-month period.
5. The Plan shall not confer upon any Optionee any right with respect to
continuance of employment by the Company or continuance of membership on the
Board of Directors, nor shall it interfere in any way with his or her right, or
the Company's right, to terminate his or her employment at any time.
6. No Optionee shall acquire or have any rights as a shareholder of Avnet
by virtue of any Option or any SAR until the certificates representing shares of
Stock issued pursuant to the exercise of such Option or SAR are delivered to
such Optionee in accordance with the terms of the Plan, but the rights as a
shareholder of record as of the date of giving notice of the exercise of such
Option or SAR and making delivery to Avnet of the funds, certificates and/or
other instruments as provided in paragraph 3 above.
7. While it is Avnet's present intention to register under the Securities
Act of 1933, as amended, the shares of Stock which may be delivered pursuant to
the exercise of Options and/or Stock Appreciation Rights granted under the Plan,
nevertheless, any provisions in this Plan to the contrary notwithstanding, Avnet
shall not be obligated to sell or deliver any shares of Stock pursuant to the
exercise of any Option or any SAR unless (A) (i) such shares have at the time of
such exercise been registered under the Securities Act of 1933, as amended, (ii)
no stop order suspending the effectiveness of such registration statement has
been issued and no proceedings therefor have been instituted or threatened under
said Act, and (iii) there is available at the time of such exercise a prospectus
containing certified financial statements and other information meeting the
requirements of Section 10(a)(3) of said Act, or (B) Avnet shall have received
from its counsel an opinion that registration of such shares under said Act is
not required, (C) such shares are at the same time of such exercise, or upon
official notice of issuance will be, listed on each national securities exchange
on which the Stock is then listed, (D) the prior approval of such sale has been
obtained from any State regulatory body having jurisdiction (but nothing herein
contained shall be deemed to require Avnet to register or qualify as a foreign
corporation in any State nor, except as to any matter or transaction relating to
the sale or delivery of such shares, to consent to service of process in any
State), and (E) Avnet shall have received an opinion from its counsel with
respect to compliance with the matters set forth in clauses (A), (C), and (D)
above.
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ARTICLE VIII
ADJUSTMENTS UPON CHANGES IN CAPITALIZATION
1. In the event that the Stock shall be split up, divided or otherwise
reclassified into or exchanged for a greater or lesser number of shares of Stock
or into shares of Common Stock and/or any other securities of Avnet by reason of
recapitalization, reclassification, stock split or reverse split, combination of
shares or other reorganization, the term "Stock" as used herein shall thereafter
mean the number and kind of shares or other securities into which the Stock
shall have been so split up, divided or otherwise reclassified or for which the
Stock shall have been so exchanged; and the remaining number of shares of Stock
which may, in the aggregate, thereafter be delivered pursuant to the exercise of
Options and/or Stock Appreciation Rights (as specified in paragraph 1 of Article
III hereof) and the remaining number of shares of Stock which may thereafter be
delivered pursuant to the exercise of any Options and/or Stock Appreciation
Rights then outstanding shall be correspondingly adjusted. In the event that any
dividend payable in shares of Stock is paid to the holders of outstanding shares
of Stock, the remaining number of shares of Stock which may, in the aggregate,
thereafter be delivered pursuant to the exercise of Options and/or Stock
Appreciation Rights (as specified in paragraph 1 of Article III hereof) and the
remaining number of shares of Stock which may thereafter be delivered pursuant
to the exercise of any Options and/or Stock Appreciation Rights then outstanding
shall be increased by the percentage which the number of shares of Stock so paid
as a dividend bears to the total number of shares of Stock outstanding
immediately prior to the payment of such dividend.
2. In the event that the Stock shall be split up, divided or otherwise
reclassified or exchanged as provided in the preceding paragraph, the purchase
price per share of Stock upon exercise of outstanding Options shall be
correspondingly adjusted.
3. Anything in this Article VIII to the contrary notwithstanding, in the
event that, upon any adjustment made in accordance with paragraph 1 above, the
remaining number of shares of Stock which may thereafter be delivered pursuant
to the exercise of any Option or Stock Appreciation Right then outstanding shall
include a fractional share of Stock, such fractional share of Stock shall be
disregarded for all purposes of the Plan and the Optionee holding such Option or
SAR shall become entitled neither to purchase the same nor to receive cash or
scrip in payment therefor or in lieu thereof.
ARTICLE IX
AMENDMENT OR TERMINATION OF THE PLAN
The Board of Directors may amend the Plan from time to time as the Board
may deem advisable and in the best interests of Avnet and may terminate the Plan
at any time (except as to Options and Stock Appreciation Rights then outstanding
hereunder); provided, however, that unless approved by the affirmative vote of a
majority of the votes cast at a meeting of the shareholders of
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Avnet duly called and held for that purpose, no amendment to the Plan shall be
adopted which shall (a) affect the composition or functioning of the Committee,
(b) increase the aggregate number of shares of Stock which may be delivered
pursuant to the exercise of Options and SARs, (c) decrease the minimum purchase
price per share of Stock (in relation to the Fair Market Value thereof at the
respective dates of grant) upon the exercise of Options, or (d) extend the ten
year maximum period within which an Option is exercisable or to the extent to
which an SAR is exercisable, or the termination date of the Plan.
12
