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EXHIBIT 4.2
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AVNET, INC.
OFFICERS' CERTIFICATE PURSUANT TO
SECTION 301 OF THE INDENTURE IDENTIFIED BELOW
The undersigned officers of Avnet, Inc. (the "Company"), acting
pursuant to Section 301 of the Indenture identified below and to the
authorization contained in resolutions (the "Resolutions") of the Chief
Financial Officer of the Company duly adopted on October 12, 2000, which
resolutions are attached hereto as Annex A, do hereby certify that there was
established in the resolutions two series of the Company's debt securities
having the terms hereinafter set forth and designated by the Committee as
Floating Rate Notes due October 17, 2001 (the "Floating Rate Notes") and 8.20%
Notes due October 17, 2003 (the "Fixed Rate Notes" and, together with the
Floating Rate Notes, the "Notes") to be issued under an indenture dated as of
October 1, 2000 (the "Indenture"), between the Company and Bank One Trust
Company, N.A., as trustee (the "Trustee"), which debt securities have been
registered for sale with the Securities and Exchange Commission pursuant to a
Registration Statement on Form S-3 (Registration No. 333-39530) under the
Securities Act of 1933, as amended. The terms set forth below are qualified in
their entirety by reference to the terms relating to the Notes that are
contained in (i) the forms of the Notes attached to the Resolutions as Exhibits
A and B thereto and (ii) the final Prospectus Supplement dated October 12, 2000,
constituting part of the abovementioned Registration Statement (the "Prospectus
Supplement"), all of which terms have been authorized, adopted and approved by
the Committee. In the event of any conflict or discrepancy between the terms
contained in either or both of this Officers' Certificate and/or the Prospectus
Supplement and the terms contained in the form of either Note, the terms
contained in the
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form of Note shall control. Capitalized terms used herein and not otherwise
defined herein shall have the meanings set forth in the Indenture.
It is contemplated that all of the Notes will be originally issued at
one time.
* * *
The terms of the Floating Notes Rate as authorized, adopted and
approved by the Chief Financial Officer of the Company pursuant to Section 301
of the Indenture are as follows:
1. Title of the Securities: Floating Rate Notes due October 17, 2001.
2. Any limit upon the aggregate principal amount of the Floating Rate
Notes that may be authenticated and delivered under the Indenture (except for
Floating Rate Notes authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Floating Rate Notes pursuant to the
Indenture): $325,000,000.
3. Date on which the principal of the Floating Rate Notes shall be
payable: October 17, 2001.
4. A. The method by which interest rates on the Floating Rate Notes
shall be determined, and the Interest Payment Dates on which such
interest shall be payable: The interest rate on the Floating Rate Notes
for each Interest Period (as defined below) will be effective as of the
first day of such Interest Period, will be determined on the Interest
Determination Date (as defined below) for such Interest Period, and
will be a per annum rate equal to three-month U.S. dollar LIBOR plus
.875%, subject to the applicable maximum lawful rate. "Interest Period"
means each successive period from and including an Interest Payment
Date with respect to the Floating Rate Notes to but excluding the next
Interest Payment Date or the maturity date, as the case may be;
provided that if such Interest
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Payment Date would not be a Business Day, then such Interest Payment
Date and the first day of the next succeeding Interest Period will be
the next succeeding Business Day, except that if such Business Day is
in the next succeeding calendar month, such Interest Payment Date and
the first day of the next succeeding Interest Period will be the
immediately preceding Business Day.
LIBOR will be determined on the basis of the offered rates for
deposits in U.S. dollars for a three-month period commencing on the
second London Banking Day (as defined below) immediately following that
Interest Determination Date that appears on Telerate Page 3750 (as
defined below) as of approximately 11:00 a.m., London time, on that
Interest Determination Date. If such rate does not appear on Telerate
Page 3750 on such Interest Determination Date, LIBOR will be determined
on the basis of the rates at which deposits in U.S. dollars for a
three-month period commencing on the second London Banking Day
immediately following that Interest Determination Date, and in a
principal amount equal to an amount of not less than U.S. $1 million
that is representative for a single transaction in such market at such
time, are offered to prime banks in the London interbank market by four
major banks in the London interbank market selected by the Calculation
Agent (as defined below), after consultation with Avnet, at
approximately 11:00 a.m., London time, on that Interest Determination
Date.
The Calculation Agent will request the principal London office
of each of such banks to provide a quotation of its rate. If at least
two such quotations are provided, LIBOR in respect of that Interest
Determination Date will be the arithmetic mean of such quotations. If
fewer than two quotations are provided, LIBOR in respect of that
Interest Determination
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Date will be the arithmetic mean of the rates quoted by three major
money center banks in The City of New York selected by the Calculation
Agent (after consultation with the Company) at approximately 11:00
a.m., New York City time, on that Interest Determination Date for loans
in U.S. dollars to leading European banks for a three-month period
commencing on the second London Banking Day immediately following that
Interest Determination Date, and in a principal amount equal to an
amount of not less than U.S. $1 million that is representative for a
single transaction in such market at such time; provided that if the
banks so selected by the Calculation Agent are not quoting rates as
described in this sentence, LIBOR for the applicable period will be the
same as LIBOR for the immediately preceding Interest Period on such
Interest Determination Date.
As used above:
- "Business Day" means any day which is not a Saturday
or Sunday and which is not a legal holiday or a day
on which banking institutions in The City of New York
are authorized or obligated by law or executive order
to be closed that is also a London Banking Day.
- "Calculation Agent" means Bank One Trust Company,
N.A., the trustee named in the Indenture, or such
other entity as may be selected from time to time by
the Company to perform the functions of the
Calculation Agent described herein.
- The "Interest Determination Date" for an Interest
Period is two London Banking Days preceding the first
day of such Interest Period.
- "Interest Payment Dates: January 17, April 17, July
17 and October 17, 2001.
- "London Banking Day" means a day on which dealings in
deposits in U.S.
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dollars are transacted in the London interbank
market.
- "Telerate Page 3750" means the display designated as
"Page 3750" on the Dow Jones Markets Limited (or such
other page as may replace Page 3750 on that service
or such other service or services as may be nominated
by the British Bankers' Association as the
information vendor for the purpose of displaying
London interbank offered rates for U.S. dollar
deposits).
All percentages resulting from any calculations of any
interest rate for the Floating Rate Notes will be rounded, if
necessary, to the nearest one hundred-thousandth of a percentage point,
with five one-millionths of a percentage point rounded upward, and all
dollar amounts used in or resulting from such calculation will be
rounded to the nearest cent (with one-half cent being rounded upward).
The Calculation Agent will, upon the request of the Holder of
any Floating Rate Note, provide the interest rate then in effect. All
calculations made by the Calculation Agent in the absence of manifest
error shall be conclusive for all purposes and binding on the Company
and the holders of the Floating Rate Notes.
B. The date from which such interest shall accrue: Each
Floating Rate Note will bear interest from October 17, 2000, or from
the most recent Interest Payment Date to which interest on such
Floating Rate Note or a predecessor Floating Rate Note has been paid or
duly provided for.
C. Interest Payment Dates: Interest on the Floating Rate Notes
will be payable in arrears on January 17, April 17, July 17 and October
17, 2001.
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D. Regular Record Date for the interest payable on the
Floating Rate Notes on any Interest Payment Date: The date 15 calendar
days prior to such Interest Payment Date, whether or not such date
shall be a Business Day.
E. Basis upon which interest will be calculated: A 360-day
year and the actual number of days in the applicable Interest Period.
5. Place or places where, subject to the provisions of Section 1002 of
the Indenture, the principal of and interest on the Floating Rate Notes shall be
payable, where Floating Rate Notes may be surrendered for registration of
transfer or for exchange, and where notices and demands to or upon the Company
in respect of the Floating Rate Notes and the Indenture may be served: At the
following office or agency of the Trustee: Bank One Trust Company, N.A., 14 Wall
Street, 8th Floor, New York, New York 10005, Attention: Corporate Trust
Administration.
6. Provisions for redemption of the Floating Rate Notes, in whole or in
part, at the option of the Company: The Floating Rate Notes will not be
redeemable or repayable prior to their Stated Maturity.
7. Provisions for mandatory redemption, repayment or purchase of the
Floating Rate Notes: The Company has no obligation to redeem or purchase the
Floating Rate Notes pursuant to any sinking fund or analogous provisions or at
the option of a Holder.
8. Denominations in which Floating Rate Notes are issuable: The Notes
are issuable only in book-entry form in denominations of $1,000 and integral
multiples of $1,000.
9. If other than the Trustee, the identity of each Security Registrar
and/or Paying Agent with respect to the Floating Rate Notes: Not applicable.
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10. If other than the total principal amount thereof, the portion of
the principal amount of the Floating Rate Notes that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502 of
the Indenture or the method by which such portion shall be determined: Not
applicable.
11. If other than the Dollar, the Currency or Currencies in which
payment of the principal of or interest on the Floating Rate Notes shall be made
or in which the Floating Rate Notes shall be denominated: Not applicable.
12. Whether the amount of payments of principal of or interest on the
Floating Rate Notes may be determined with reference to an index, formula or
other method, and the manner in which such amounts shall be determined: See
clause 4.A. above.
13. Whether the principal of or interest on the Floating Rate Notes is
to be payable, at the election of the Company or a Holder thereof, in one or
more Currencies other than that in which the Floating Rate Notes are denominated
or stated to be payable: No.
14. Provisions, if any, granting special rights to the Holders of
Floating Rate Notes upon the occurrence of such events as may be specified:
None.
15. Any deletions from, modifications of or additions to the Events of
Default or covenants (including any deletions from, modifications of or
additions to any of the provisions of Section 1009) or other undertakings of the
Company with respect to the Floating Rate Notes: None.
16. A. Whether the Floating Rate Notes are to be issuable as Registered
Securities, Bearer Securities (with or without coupons) or both:
Registered Securities only.
B. Whether any Floating Rate Notes are to be issuable initially in
temporary global form: No.
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C. Whether any Floating Rate Notes are to be issuable in permanent
global form with or without coupons and, if so, whether beneficial
owners of interests in any such permanent global security may exchange
such interests for Floating Rate Notes in certificated form and of like
tenor of any authorized form and denomination and the circumstances
under which any such exchanges may occur, if other than in the manner
provided in Section 305 of the Indenture: All Floating Rate Notes will
be represented by one or more fully registered permanent global
securities as described in the Prospectus Supplement under the caption
"Description of the Notes -- Depositary." Except as described in the
sixth paragraph under the said caption, beneficial owners of interests
in such global securities may not exchange such interests for any form
of certificate evidencing Floating Rate Notes. In the event that such a
right of exchange should arise, the manner of such exchange shall be as
provided in Section 305 of the Indenture.
D. Depository for the Notes: The Depository Trust Company.
17. The date as of which any Bearer Securities of the series and any
temporary global Security representing Outstanding Securities of the series
shall be dated if other than the date of original issuance of the first Security
of the series to be issued: Not applicable.
18. A. The Person to whom any interest on any Registered Security
of the series shall be payable, if other than the Person in whose name
such Security (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such interest: Not
applicable.
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B. The manner in which, or the Person to whom, any interest on any
Bearer Security of the series shall be payable, if otherwise than upon
presentation and surrender of the coupons appertaining thereto as they
severally mature: Not Applicable
C. The extent to which, or the manner in which, any interest
payable on a temporary global Security on an Interest Payment Date will
be paid if other than in the manner provided in Section 304: Not
Applicable
19. The applicability of Sections 1402 and/or 1403 of the Indenture to
the Floating Rate Notes and any provisions in modification of, in addition to or
in lieu of any of the provisions of Article Fourteen: The defeasance and
discharge provisions of Sections 1402 and 1403 are fully applicable to the
Floating Rate Notes. There are no provisions in modification of, in addition to
or in lieu of any of the provisions of Article XIV of the Indenture.
20. Whether the Floating Rate Notes are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Floating Rate
Note) only upon receipt of certain certificates or other documents or
satisfaction of other conditions: No.
21. Whether, under what circumstances and the Currency in which, the
Company will pay additional amounts as contemplated by Section 1004 of the
Indenture on the Floating Rate Notes to any Holder who is not a United States
person (including any modification to the definition of such term) in respect of
any tax, assessment or governmental charge: No.
22. The designation of the initial Exchange Rate Agent: Not applicable.
23. If the Floating Rate Notes are to be convertible into or
exchangeable for any securities of any Person (including the Company), the terms
and conditions upon which such Securities will be so convertible or
exchangeable: Not applicable.
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24. Whether the Floating Rate Notes are to be subordinated or
unsubordinated indebtedness of the Company: The Floating Rate Notes are to be
unsubordinated indebtedness of the Company.
25. Any other terms of or provisions applicable to the Floating Rate
Notes and the sale thereof:
A. Form of Floating Rate Notes: The form of permanent global
Floating Rate Note shall be substantially in the form of Exhibit A to
the Resolutions.
B. Manner of Sale: The Company has engaged Merrill Lynch, Pierce,
Fenner & Smith Incorporated as lead underwriter for the purpose of
selling the Floating Rate Notes in an underwritten public offering in
the United States, all as more fully set forth in the Standard
Underwriting Agreement Provisions attached to the Resolutions as
Exhibit C thereto and the Pricing Agreement attached to the Resolutions
as Exhibit D thereto.
C. Issue price to the public of the Floating Rate Notes: 100% of
principal amount.
D. Underwriters' commission or discount as a percentage of the
principal amount of Floating Rate Notes to be issued: .15% of principal
amount.
E. Additional Floating Rate Notes: The Company will have the
ability, without the consent of the Holders of the Floating Rate Notes,
to reopen the series and issue additional Floating Rate Notes.
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* * *
The terms of the Fixed Rate Notes as authorized, adopted and approved
by the Chief Financial Officer of the Company pursuant to Section 301 of the
Indenture are as follows:
1. Title of the Securities: 8.20% Notes due October 17, 2003.
2. Any limit upon the aggregate principal amount of the Notes that may
be authenticated and delivered under the Indenture (except for Fixed Rate Notes
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Fixed Rate Notes pursuant to the Indenture):
$200,000,000.
3. Date on which the principal of the Fixed Rate Notes shall be
payable: October 17, 2003.
4. A. The rate at which the Fixed Rate Notes shall bear interest: The
Fixed Rate Notes will bear interest at a rate of 8.20% per annum.
B. The date from which such interest shall accrue: Each Fixed Rate
Note will bear interest from October 17, 2000, or from the most recent
Interest Payment Date to which interest on such Fixed Rate Note or a
predecessor Fixed Rate Note has been paid or duly provided for.
C. Interest Payment Dates: Interest on the Fixed Rate Notes will be
payable semi-annually on the 17th day of each April and October
beginning April 17, 2001.
D. Regular Record Date for the interest payable on the Fixed Rate
Notes on any Interest Payment Date: The date 15 calendar days prior to
such Interest Payment Date, whether or not such date shall be a
Business Day.
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E. Basis upon which interest will be calculated: A 360-day year of
twelve 30-day months.
5. Place or places where, subject to the provisions of Section 1002 of
the Indenture, the principal of and interest on the Fixed Rate Notes shall be
payable, where Fixed Rate Notes may be surrendered for registration of transfer
or for exchange, and where notices and demands to or upon the Company in respect
of the Fixed Rate Notes and the Indenture may be served: At the following office
or agency of the Trustee: Bank One Trust Company, N.A., 14 Wall Street, 8th
Floor, New York, New York 10005, Attention: Corporate Trust Administration.
6. Provisions for redemption of the Fixed Rate Notes, in whole or in
part, at the option of the Company: The Fixed Rate Notes will not be redeemable
or repayable prior to their Stated Maturity.
7. Provisions for mandatory redemption, repayment or purchase of the
Fixed Rate Notes: The Company has no obligation to redeem or purchase the Fixed
Rate Notes pursuant to any sinking fund or analogous provisions or at the option
of a Holder.
8. Denominations in which Fixed Rate Notes are issuable: The Fixed Rate
Notes are issuable only in book-entry form in denominations of $1,000 and
integral multiples of $1,000.
9. If other than the Trustee, the identity of each Security Registrar
and/or Paying Agent with respect to the Fixed Rate Notes: Not applicable.
10. If other than the total principal amount thereof, the portion of
the principal amount of the Fixed Rate Notes that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502 of
the Indenture or the method by which such portion shall be determined: Not
applicable.
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11. If other than the Dollar, the Currency or Currencies in which
payment of the principal of or interest on the Fixed Rate Notes shall be made or
in which the Fixed Rate Notes shall be denominated: Not applicable.
12. Whether the amount of payments of principal of or interest on the
Fixed Rate Notes may be determined with reference to an index, formula or other
method: No.
13. Whether the principal of or interest on the Notes is to be payable,
at the election of the Company or a Holder thereof, in one or more Currencies
other than that in which the Fixed Rate Notes are denominated or stated to be
payable: No.
14. Provisions, if any, granting special rights to the Holders of Fixed
Rate Notes upon the occurrence of such events as may be specified: None.
15. Any deletions from, modifications of or additions to the Events of
Default or covenants (including any deletions from, modifications of or
additions to any of the provisions of Section 1009) or other undertakings of the
Company with respect to the Fixed Rate Notes: None.
16. A. Whether the Fixed Rate Notes are to be issuable as Registered
Securities, Bearer Securities (with or without coupons) or both:
Registered Securities only.
B. Whether any Fixed Rate Notes are to be issuable initially in
temporary global form: No.
C. Whether any Fixed Rate Notes are to be issuable in permanent
global form with or without coupons and, if so, whether beneficial
owners of interests in any such permanent global security may exchange
such interests for Fixed Rate Notes in certificated form and of like
tenor of any authorized form and denomination and the circumstances
under which any such exchanges may occur, if other than in the manner
provided in Section 305 of
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the Indenture: All Fixed Rate Notes will be represented by one or more
fully registered permanent global securities as described in the
Prospectus Supplement under the caption "Description of the Notes --
Depositary." Except as described in the sixth paragraph under the said
caption, beneficial owners of interests in such global securities may
not exchange such interests for any form of certificate evidencing
Fixed Rate Notes. In the event that such a right of exchange should
arise, the manner of such exchange shall be as provided in Section 305
of the Indenture.
D. Depository for the Fixed Rate Notes: The Depository Trust
Company.
17. The date as of which any Bearer Securities of the series and any
temporary global Security representing Outstanding Securities of the series
shall be dated if other than the date of original issuance of the first Security
of the series to be issued: Not applicable.
18. A. The Person to whom any interest on any Registered Security of
the series shall be payable, if other than the Person in whose name
such Security (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such interest: Not
applicable.
B. The manner in which, or the Person to whom, any interest on any
Bearer Security of the series shall be payable, if otherwise than upon
presentation and surrender of the coupons appertaining thereto as they
severally mature: Not Applicable
C. The extent to which, or the manner in which, any interest
payable on a temporary global Security on an Interest Payment Date will
be paid if other than in the manner provided in Section 304: Not
Applicable
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19. The applicability of Sections 1402 and/or 1403 of the Indenture to
the Fixed Rate Notes and any provisions in modification of, in addition to or in
lieu of any of the provisions of Article Fourteen: The defeasance and discharge
provisions of Sections 1402 and 1403 are fully applicable to the Fixed Rate
Notes. There are no provisions in modification of, in addition to or in lieu of
any of the provisions of Article XIV of the Indenture.
20. Whether the Fixed Rate Notes are to be issuable in definitive form
(whether upon original issue or upon exchange of a temporary Fixed Rate Note)
only upon receipt of certain certificates or other documents or satisfaction of
other conditions: No.
21. Whether, under what circumstances and the Currency in which, the
Company will pay additional amounts as contemplated by Section 1004 of the
Indenture on the Fixed Rate Notes to any Holder who is not a United States
person (including any modification to the definition of such term) in respect of
any tax, assessment or governmental charge: No.
22. The designation of the initial Exchange Rate Agent: Not applicable.
23. If the Fixed Rate Notes are to be convertible into or exchangeable
for any securities of any Person (including the Company), the terms and
conditions upon which such Securities will be so convertible or exchangeable:
Not applicable.
24. Whether the Fixed Rate Notes are to be subordinated or
unsubordinated indebtedness of the Company: The Fixed Rate Notes are to be
unsubordinated indebtedness of the Company.
25. Any other terms of or provisions applicable to the Fixed Rate Notes
and the sale thereof:
A. Form of Fixed Rate Notes: The form of permanent global Fixed
Rate Note shall be substantially in the form of Exhibit B to the
Resolutions.
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B. Manner of Sale: The Company has engaged Merrill Lynch, Pierce,
Fenner & Smith Incorporated as lead underwriter for the purpose of
selling the Fixed Rate Notes in an underwritten public offering in the
United States, all as more fully set forth in the Standard Underwriting
Agreement Provisions attached to the Resolutions as Exhibit C thereto
and the Pricing Agreement attached to the Resolutions as Exhibit D
thereto.
C. Issue price to the public of the Notes: 99.796% of principal
amount.
D. Underwriters' commission or discount as a percentage of the
principal amount of Notes to be issued: .45% of principal amount.
E. Additional Fixed Rate Notes: The Company will have the ability,
without the consent of the Holders of the Fixed Rate Notes, to reopen
the series and issue additional Fixed Rate Notes.
[Signature Page follows.]
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IN WITNESS WHEREOF the undersigned have executed this Officers'
Certificate on behalf of the Company as of this 13th day of October , 2000.
/s/ Raymond Sadowski
--------------------------------------
Raymond Sadowski
Senior Vice President
and Chief Financial Officer
(CORPORATE SEAL)
/s/ David R. Birk
--------------------------------------
David R. Birk
Senior Vice President,
General Counsel and Secretary
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ANNEX A
RESOLUTIONS
ADOPTED BY THE CHIEF FINANCIAL OFFICER OF
AVNET, INC.
ON OCTOBER 12, 2000
WHEREAS, at a meeting of the Board of Directors of Avnet, Inc. (the
"Company") held on March 24, 2000, the Board authorized the issuance and sale by
the Company from time to time of up to $500,000,000 in gross proceeds to the
Company of various securities (the "Securities"), including unsecured debt
securities ("Debt Securities"); and
WHEREAS, at the aforementioned meeting, the Board of Directors granted
to the Finance Committee of the Board of Directors (the "Finance Committee")
authority to exercise all of the powers and authority of the Board of Directors
in connection with issuances and sales of Securities, and authorized the
Committee in its sole discretion to delegate to the Chief Financial Officer of
the Company the authority to exercise any or all of the Committee's powers and
authority; and
WHEREAS, on June 16, 2000, the Company filed with the Securities and
Exchange Commission (the "Commission") a Registration Statement on Form S-3,
Registration No. 333-39530 (the "Registration Statement"), to effect the
registration under the Securities Act of 1933, as amended (the "Securities
Act"), of up to $500,000,000 in gross proceeds to the Company of various
securities, including Debt Securities; and
WHEREAS, at a meeting of the Board of Directors of the Company held on
September 20, 2000, the Board authorized the issuance of an additional
$1,000,000,000 of Securities under the Registration Statement; and
WHEREAS, on September 29, 2000, the Company filed an Amendment No. 1 to
the Registration Statement to effect the registration under the Securities Act
of up to $1,500,000,000 in gross proceeds to the Company of various securities;
and
WHEREAS, on September 29, 2000, at 9:30 a.m., Eastern time, the
Registration Statement became effective under the Securities Act and the
Indenture described below relating to the Debt Securities was qualified under
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"); and
WHEREAS, at a meeting of the Finance Committee held on September 29,
2000, the Chief Financial Officer of the Company was authorized, empowered and
directed on behalf of the Company, and to the full extent that the Finance
Committee could so act, to establish pricing and all other terms (including to
the full extent as set forth in Section 301 of the Indenture evidenced to the
Finance Committee) for up to $750 million aggregate principal amount (or, with
respect to all or any
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portion thereof, in the discretion of the Chief Financial Officer, the
equivalent amount denominated in Euros) of unsecured senior indebtedness of
which (a) not more than $500 million aggregate principal amount (or the Euro
equivalent) shall have a term of up to but not exceeding 5 years at a rate of
interest not exceeding 8.4% per annum for 3-year senior indebtedness and/or in
the discretion of the Chief Financial Officer at a rate of interest not
exceeding 8.5% for 5-year senior indebtedness and (b) all or any portion of the
balance of the said $750 million aggregate principal amount (or the Euro
equivalent) as referred to above in this resolution shall be 1-year floating
rate notes at a rate of interest not exceeding LIBOR plus 100 basis points; and
the Chief Financial Officer, the General Counsel and other proper officers of
the Company were authorized, empowered and directed, to the full extent of the
power and authority of the Finance Committee, to negotiate, enter into, execute
and deliver on behalf of the Company all agreements (including the Pricing
Agreement) and other documents necessary to consummate the financing
contemplated; and
WHEREAS, on October 5, 2000, a prospectus dated September 29, 2000 (the
"Prospectus"), and a preliminary prospectus supplement dated October 4, 2000
(the "Preliminary Prospectus Supplement"), relating to Debt Securities to be
offered as ___% Notes due 200_ of the Company were filed with the Commission
pursuant to Rule 424(b)(5) under the Securities Act and first distributed to
potential investors; and
WHEREAS, on October 12, 2000, the Chief Financial Officer of the
Company, pursuant to authority given to him by the Finance Committee,
established the terms of $525,000,000 aggregate principal amount of Debt
Securities in two series and caused to be executed and delivered on behalf of
the Company the Pricing Agreement referred to in the two paragraphs 25B below;
and
WHEREAS, on October 13, 2000, a final prospectus supplement dated
October 12, 2000 (the "Prospectus Supplement"), relating to $525,000,000
aggregate principal amount of Debt Securities offered as $325,000,000 of
Floating Rate Notes due 2001 and $200,000,000 of 8.20% Notes due 2003 of the
Company, was filed with the Commission pursuant to Rule 424(b)(2) under the
Securities Act and first distributed to investors;
NOW, THEREFORE, BE IT RESOLVED, that the actions taken by the officers
of the Company in preparing, filing and distributing the Preliminary Prospectus
Supplement and the Prospectus Supplement are hereby in all respects ratified,
confirmed, approved and adopted; and further
RESOLVED, that there is hereby established an issue of two series of
Debt Securities of the Company to be designated as hereinafter provided, which
Debt Securities shall be issued under the Indenture dated as of October 1, 2000
(the "Indenture") between the Company and Bank One Trust Company, N.A., as
Trustee, and shall constitute general, unsecured and unsubordinated obligations
of the Company (such Debt Securities being hereinafter referred to collectively
as the "Notes"); and further
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RESOLVED, that the designation and terms of each series of Notes shall
be as set forth below and are adopted pursuant to Section 301 of the Indenture,
and such designation and terms shall be deemed to constitute, and are hereby
expressly made, a part of the Indenture (all capitalized terms used but not
defined below shall have the same meanings as in the Indenture):
1. Title of the Securities: Floating Rate Notes due October 17, 2001
(the "Floating Rate Notes").
2. Any limit upon the aggregate principal amount of the Floating Rate
Notes that may be authenticated and delivered under the Indenture (except for
Floating Rate Notes authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Floating Rate Notes pursuant to the
Indenture): $325,000,000.
3. Date on which the principal of the Floating Rate Notes shall be
payable: October 17, 2001.
4. A. The method by which interest rates on the Floating Rate Notes
shall be determined, and the Interest Payment Dates on which such
interest shall be payable: The interest rate on the Floating Rate Notes
for each Interest Period (as defined below) will be effective as of the
first day of such Interest Period, will be determined on the Interest
Determination Date (as defined below) for such Interest Period, and
will be a per annum rate equal to three-month U.S. dollar LIBOR plus
.875%, subject to the applicable maximum lawful rate. "Interest Period"
means each successive period from and including an Interest Payment
Date with respect to the Floating Rate Notes to but excluding the next
Interest Payment Date or the maturity date, as the case may be;
provided that if such Interest Payment Date would not be a Business
Day, then such Interest Payment Date and the first day of the next
succeeding Interest Period will be the next succeeding Business Day,
except that if such Business Day is in the next succeeding calendar
month, such Interest Payment Date and the first day of the next
succeeding Interest Period will be the immediately preceding Business
Day.
LIBOR will be determined on the basis of the offered rates for
deposits in U.S. dollars for a three-month period commencing on the
second London Banking Day (as defined below) immediately following that
Interest Determination Date that appears on Telerate Page 3750 (as
defined below) as of approximately 11:00 a.m., London time, on that
Interest Determination Date. If such rate does not appear on Telerate
Page 3750 on such Interest Determination Date, LIBOR will be determined
on the basis of the rates at which deposits in U.S. dollars for a
three-month period commencing on the second London Banking Day
immediately following that Interest Determination Date, and in a
principal amount equal to an amount of not less than U.S. $1 million
that is representative for a single transaction in such market at such
time, are offered to prime banks in the London interbank market by four
major banks in the London interbank market selected by the Calculation
Agent (as defined below), after consultation with Avnet, at
approximately 11:00 a.m., London time, on that Interest Determination
Date.
3
<PAGE> 22
The Calculation Agent will request the principal London office
of each of such banks to provide a quotation of its rate. If at least
two such quotations are provided, LIBOR in respect of that Interest
Determination Date will be the arithmetic mean of such quotations. If
fewer than two quotations are provided, LIBOR in respect of that
Interest Determination Date will be the arithmetic mean of the rates
quoted by three major money center banks in The City of New York
selected by the Calculation Agent (after consultation with the Company)
at approximately 11:00 a.m., New York City time, on that Interest
Determination Date for loans in U.S. dollars to leading European banks
for a three-month period commencing on the second London Banking Day
immediately following that Interest Determination Date, and in a
principal amount equal to an amount of not less than U.S. $1 million
that is representative for a single transaction in such market at such
time; provided that if the banks so selected by the Calculation Agent
are not quoting rates as described in this sentence, LIBOR for the
applicable period will be the same as LIBOR for the immediately
preceding Interest Period on such Interest Determination Date.
As used above:
- "Business Day" means any day which is not a Saturday
or Sunday and which is not a legal holiday or a day
on which banking institutions in The City of New York
are authorized or obligated by law or executive order
to be closed that is also a London Banking Day.
- "Calculation Agent" means Bank One Trust Company,
N.A., the trustee named in the Indenture, or such
other entity as may be selected from time to time by
the Company to perform the functions of the
Calculation Agent described herein.
- The "Interest Determination Date" for an Interest
Period is two London Banking Days preceding the first
day of such Interest Period.
- "Interest Payment Dates: January 17, April 17, July
17 and October 17, 2001.
- "London Banking Day" means a day on which dealings in
deposits in U.S. dollars are transacted in the London
interbank market.
- "Telerate Page 3750" means the display designated as
"Page 3750" on the Dow Jones Markets Limited (or such
other page as may replace Page 3750 on that service
or such other service or services as may be nominated
by the British Bankers' Association as the
information vendor for the purpose of displaying
London interbank offered rates for U.S. dollar
deposits).
All percentages resulting from any calculations of any
interest rate for the Floating Rate Notes will be rounded, if
necessary, to the nearest one hundred-thousandth of a percentage point,
with five one-millionths of a percentage point rounded upward, and all
4
<PAGE> 23
dollar amounts used in or resulting from such calculation will be
rounded to the nearest cent (with one-half cent being rounded upward).
The Calculation Agent will, upon the request of the Holder of any
Floating Rate Note, provide the interest rate then in effect. All
calculations made by the Calculation Agent in the absence of manifest
error shall be conclusive for all purposes and binding on the Company
and the holders of the Floating Rate Notes.
B. The date from which such interest shall accrue: Each Floating
Rate Note will bear interest from October 17, 2000, or from the most
recent Interest Payment Date to which interest on such Floating Rate
Note or a predecessor Floating Rate Note has been paid or duly provided
for.
C. Interest Payment Dates: Interest on the Floating Rate Notes will
be payable in arrears on January 17, April 17, July 17 and October 17,
2001.
D. Regular Record Date for the interest payable on the Floating
Rate Notes on any Interest Payment Date: The date 15 calendar days
prior to such Interest Payment Date, whether or not such date shall be
a Business Day.
E. Basis upon which interest will be calculated: A 360-day year and
the actual number of days in the applicable Interest Period.
5. Place or places where, subject to the provisions of Section 1002 of
the Indenture, the principal of and interest on the Floating Rate Notes shall be
payable, where Floating Rate Notes may be surrendered for registration of
transfer or for exchange, and where notices and demands to or upon the Company
in respect of the Floating Rate Notes and the Indenture may be served: At the
following office or agency of the Trustee: Bank One Trust Company, N.A., 14 Wall
Street, 8th Floor, New York, New York 10005, Attention: Corporate Trust
Administration.
6. Provisions for redemption of the Floating Rate Notes, in whole or in
part, at the option of the Company: The Floating Rate Notes will not be
redeemable or repayable prior to their Stated Maturity.
7. Provisions for mandatory redemption, repayment or purchase of the
Floating Rate Notes: The Company has no obligation to redeem or purchase the
Floating Rate Notes pursuant to any sinking fund or analogous provisions or at
the option of a Holder.
8. Denominations in which Floating Rate Notes are issuable: The Notes
are issuable only in book-entry form in denominations of $1,000 and integral
multiples of $1,000.
9. If other than the Trustee, the identity of each Security Registrar
and/or Paying Agent with respect to the Floating Rate Notes: Not applicable.
5
<PAGE> 24
10. If other than the total principal amount thereof, the portion of
the principal amount of the Floating Rate Notes that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502 of
the Indenture or the method by which such portion shall be determined: Not
applicable.
11. If other than the Dollar, the Currency or Currencies in which
payment of the principal of or interest on the Floating Rate Notes shall be made
or in which the Floating Rate Notes shall be denominated: Not applicable.
12. Whether the amount of payments of principal of or interest on the
Floating Rate Notes may be determined with reference to an index, formula or
other method, and the manner in which such amounts shall be determined: See
clause 4.A. above. 13. Whether the principal of or interest on the Floating Rate
Notes is to be payable, at the election of the Company or a Holder thereof, in
one or more Currencies other than that in which the Floating Rate Notes are
denominated or stated to be payable: No.
14. Provisions, if any, granting special rights to the Holders of
Floating Rate Notes upon the occurrence of such events as may be specified:
None.
15. Any deletions from, modifications of or additions to the Events of
Default or covenants (including any deletions from, modifications of or
additions to any of the provisions of Section 1009) or other undertakings of the
Company with respect to the Floating Rate Notes: None.
16. A. Whether the Floating Rate Notes are to be issuable as Registered
Securities, Bearer Securities (with or without coupons) or both:
Registered Securities only.
B. Whether any Floating Rate Notes are to be issuable initially in
temporary global form: No.
C. Whether any Floating Rate Notes are to be issuable in permanent
global form with or without coupons and, if so, whether beneficial
owners of interests in any such permanent global security may exchange
such interests for Floating Rate Notes in certificated form and of like
tenor of any authorized form and denomination and the circumstances
under which any such exchanges may occur, if other than in the manner
provided in Section 305 of the Indenture: All Floating Rate Notes will
be represented by one or more fully registered permanent global
securities as described in the Prospectus Supplement under the caption
"Description of the Notes -- Depositary." Except as described in the
sixth paragraph under the said caption, beneficial owners of interests
in such global securities may not exchange such interests for any form
of certificate evidencing Floating Rate Notes. In the event that such a
right of exchange should arise, the manner of such exchange shall be as
provided in Section 305 of the Indenture.
D. Depository for the Notes: The Depository Trust Company.
6
<PAGE> 25
17. The date as of which any Bearer Securities of the series and any
temporary global Security representing Outstanding Securities of the series
shall be dated if other than the date of original issuance of the first Security
of the series to be issued: Not applicable.
18. A. The Person to whom any interest on any Registered Security of
the series shall be payable, if other than the Person in whose name
such Security (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such interest: Not
applicable.
B. The manner in which, or the Person to whom, any interest on any
Bearer Security of the series shall be payable, if otherwise than upon
presentation and surrender of the coupons appertaining thereto as they
severally mature: Not Applicable
C. The extent to which, or the manner in which, any interest
payable on a temporary global Security on an Interest Payment Date will
be paid if other than in the manner provided in Section 304: Not
Applicable
19. The applicability of Sections 1402 and/or 1403 of the Indenture to
the Floating Rate Notes and any provisions in modification of, in addition to or
in lieu of any of the provisions of Article Fourteen: The defeasance and
discharge provisions of Sections 1402 and 1403 are fully applicable to the
Floating Rate Notes. There are no provisions in modification of, in addition to
or in lieu of any of the provisions of Article XIV of the Indenture.
20. Whether the Floating Rate Notes are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Floating Rate
Note) only upon receipt of certain certificates or other documents or
satisfaction of other conditions: No.
21. Whether, under what circumstances and the Currency in which, the
Company will pay additional amounts as contemplated by Section 1004 of the
Indenture on the Floating Rate Notes to any Holder who is not a United States
person (including any modification to the definition of such term) in respect of
any tax, assessment or governmental charge: No.
22. The designation of the initial Exchange Rate Agent: Not applicable.
23. If the Floating Rate Notes are to be convertible into or
exchangeable for any securities of any Person (including the Company), the terms
and conditions upon which such Securities will be so convertible or
exchangeable: Not applicable.
24. Whether the Floating Rate Notes are to be subordinated or
unsubordinated indebtedness of the Company: The Floating Rate Notes are to be
unsubordinated indebtedness of the Company.
25. Any other terms of or provisions applicable to the Floating Rate
Notes and the sale thereof:
7
<PAGE> 26
A. Form of Floating Rate Notes: The form of permanent global
Floating Rate Note shall be substantially in the form of Exhibit A
attached hereto.
B. Manner of Sale: The Company has engaged Merrill Lynch, Pierce,
Fenner & Smith Incorporated as lead underwriter for the purpose of
selling the Floating Rate Notes in an underwritten public offering in
the United States, all as more fully set forth in the Standard
Underwriting Agreement Provisions attached hereto as Exhibit C and the
Pricing Agreement attached hereto as Exhibit D.
C. Issue price to the public of the Floating Rate Notes: 100% of
principal amount.
D. Underwriters' commission or discount as a percentage of the
principal amount of Floating Rate Notes to be issued: .15% of principal
amount.
E. Additional Floating Rate Notes: The Company will have the
ability, without the consent of the Holders of the Floating Rate Notes,
to reopen the series and issue additional Floating Rate Note.
* * *
1. Title of the Securities: 8.20% Notes due October 17, 2003 (the
"Fixed Rate Notes").
2. Any limit upon the aggregate principal amount of the Fixed Rate
Notes that may be authenticated and delivered under the Indenture (except for
Fixed Rate Notes authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Fixed Rate Notes pursuant to the
Indenture): $200,000,000.
3. Date on which the principal of the Fixed Rate Notes shall be
payable: October 17, 2003.
4. A. The rate at which the Fixed Rate Notes shall bear interest: The
Fixed Rate Notes will bear interest at a rate of 8.20% per annum.
B. The date from which such interest shall accrue: Each Fixed Rate
Note will bear interest from October 17, 2000, or from the most recent
Interest Payment Date to which interest on such Fixed Rate Note or a
predecessor Fixed Rate Note has been paid or duly provided for.
C. Interest Payment Dates: Interest on the Fixed Rate Notes will be
payable semi-annually on the 17th day of each April and October
beginning April 17, 2001.
D. Regular Record Date for the interest payable on the Fixed Rate
Notes on any Interest Payment Date: The date 15 calendar days prior to
such Interest Payment Date, whether or not such date shall be a
Business Day.
8
<PAGE> 27
E. Basis upon which interest will be calculated: A 360-day year of
twelve 30-day months.
5. Place or places where, subject to the provisions of Section 1002 of
the Indenture, the principal of and interest on the Fixed Rate Notes shall be
payable, where Fixed Rate Notes may be surrendered for registration of transfer
or for exchange, and where notices and demands to or upon the Company in respect
of the Fixed Rate Notes and the Indenture may be served: At the following office
or agency of the Trustee: Bank One Trust Company, N.A., 14 Wall Street, 8th
Floor, New York, New York 10005, Attention: Corporate Trust Administration.
6. Provisions for redemption of the Fixed Rate Notes, in whole or in
part, at the option of the Company: The Fixed Rate Notes will not be redeemable
or repayable prior to their Stated Maturity.
7. Provisions for mandatory redemption, repayment or purchase of the
Fixed Rate Notes: The Company has no obligation to redeem or purchase the Fixed
Rate Notes pursuant to any sinking fund or analogous provisions or at the option
of a Holder.
8. Denominations in which Fixed Rate Notes are issuable: The Fixed Rate
Notes are issuable only in book-entry form in denominations of $1,000 and
integral multiples of $1,000.
9. If other than the Trustee, the identity of each Security Registrar
and/or Paying Agent with respect to the Fixed Rate Notes: Not applicable.
10. If other than the total principal amount thereof, the portion of
the principal amount of the Fixed Rate Notes that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502 of
the Indenture or the method by which such portion shall be determined: Not
applicable.
11. If other than the Dollar, the Currency or Currencies in which
payment of the principal of or interest on the Fixed Rate Notes shall be made or
in which the Fixed Rate Notes shall be denominated: Not applicable.
12. Whether the amount of payments of principal of or interest on the
Fixed Rate Notes may be determined with reference to an index, formula or other
method: No.
13. Whether the principal of or interest on the Notes is to be payable,
at the election of the Company or a Holder thereof, in one or more Currencies
other than that in which the Fixed Rate Notes are denominated or stated to be
payable: No.
14. Provisions, if any, granting special rights to the Holders of Fixed
Rate Notes upon the occurrence of such events as may be specified: None.
9
<PAGE> 28
15. Any deletions from, modifications of or additions to the Events of
Default or covenants (including any deletions from, modifications of or
additions to any of the provisions of Section 1009) or other undertakings of the
Company with respect to the Fixed Rate Notes: None.
16. A. Whether the Fixed Rate Notes are to be issuable as Registered
Securities, Bearer Securities (with or without coupons) or both:
Registered Securities only.
B. Whether any Fixed Rate Notes are to be issuable initially in
temporary global form: No.
C. Whether any Fixed Rate Notes are to be issuable in permanent
global form with or without coupons and, if so, whether beneficial
owners of interests in any such permanent global security may exchange
such interests for Fixed Rate Notes in certificated form and of like
tenor of any authorized form and denomination and the circumstances
under which any such exchanges may occur, if other than in the manner
provided in Section 305 of the Indenture: All Fixed Rate Notes will be
represented by one or more fully registered permanent global securities
as described in the Prospectus Supplement under the caption
"Description of the Notes -- Depositary." Except as described in the
sixth paragraph under the said caption, beneficial owners of interests
in such global securities may not exchange such interests for any form
of certificate evidencing Fixed Rate Notes. In the event that such a
right of exchange should arise, the manner of such exchange shall be as
provided in Section 305 of the Indenture.
D. Depository for the Fixed Rate Notes: The Depository Trust
Company.
17. The date as of which any Bearer Securities of the series and any
temporary global Security representing Outstanding Securities of the series
shall be dated if other than the date of original issuance of the first Security
of the series to be issued: Not applicable.
18. A. The Person to whom any interest on any Registered Security of
the series shall be payable, if other than the Person in whose name
such Security (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such interest: Not
applicable.
B. The manner in which, or the Person to whom, any interest on any
Bearer Security of the series shall be payable, if otherwise than upon
presentation and surrender of the coupons appertaining thereto as they
severally mature: Not Applicable
C. The extent to which, or the manner in which, any interest
payable on a temporary global Security on an Interest Payment Date will
be paid if other than in the manner provided in Section 304: Not
Applicable
19. The applicability of Sections 1402 and/or 1403 of the Indenture to
the Fixed Rate Notes and any provisions in modification of, in addition to or in
lieu of any of the provisions of Article
10
<PAGE> 29
Fourteen: The defeasance and discharge provisions of Sections 1402 and 1403 are
fully applicable to the Fixed Rate Notes. There are no provisions in
modification of, in addition to or in lieu of any of the provisions of Article
XIV of the Indenture.
20. Whether the Fixed Rate Notes are to be issuable in definitive form
(whether upon original issue or upon exchange of a temporary Fixed Rate Note)
only upon receipt of certain certificates or other documents or satisfaction of
other conditions: No.
21. Whether, under what circumstances and the Currency in which, the
Company will pay additional amounts as contemplated by Section 1004 on the Fixed
Rate Notes to any Holder who is not a United States person (including any
modification to the definition of such term) in respect of any tax, assessment
or governmental charge: No.
22. The designation of the initial Exchange Rate Agent: Not applicable.
23. If the Fixed Rate Notes are to be convertible into or exchangeable
for any securities of any Person (including the Company), the terms and
conditions upon which such Securities will be so convertible or exchangeable:
Not applicable.
24. Whether the Fixed Rate Notes are to be subordinated or
unsubordinated indebtedness of the Company: The Fixed Rate Notes are to be
unsubordinated indebtedness of the Company.
25. Any other terms of or provisions applicable to the Fixed Rate Notes
and the sale thereof:
A. Form of Fixed Rate Notes: The form of permanent global Fixed
Rate Note shall be substantially in the form of Exhibit B attached
hereto.
B. Manner of Sale: The Company has engaged Merrill Lynch, Pierce,
Fenner & Smith Incorporated as lead underwriter for the purpose of
selling the Fixed Rate Notes in an underwritten public offering in the
United States, all as more fully set forth in the Standard Underwriting
Agreement Provisions attached hereto as Exhibit C and the Pricing
Agreement attached hereto as Exhibit D.
C. Issue price to the public of the Notes: 99.796% of principal
amount.
D. Underwriters' commission or discount as a percentage of the
principal amount of Notes to be issued: .45% of principal amount;
E. Additional Fixed Rate Notes: The Company will have the ability,
without the consent of the Holders of the Fixed Rate Notes, to reopen
the series and issue additional Fixed Rate Notes.
and further
11
<PAGE> 30
RESOLVED, that the proper officers of the Company are hereby
authorized, empowered and directed to execute and deliver an Officers'
Certificate pursuant to Section 301 of the Indenture with respect to the Notes,
as well as such other agreements, certificates, instruments and documents and to
do such other acts and things as they may from time to time determine are
necessary or appropriate in order to effectuate the purposes of any of the
foregoing resolutions; and further
RESOLVED, that all acts and things done by any of the officers of the
Company prior to the date hereof that are within the authority conferred by any
of the foregoing resolutions are hereby ratified, confirmed, approved and
adopted.
12
<PAGE> 31
EXHIBIT A
FORM OF FLOATING RATE NOTE
This Security is issued in global form and is registered in the name of
The Depository Trust Company, a New York corporation (the "Depositary" or "DTC")
or a nominee of the Depositary. This Security is not exchangeable for Securities
registered in the name of a Person other than the Depositary or its nominee
except in the limited circumstances described in the Indenture, and no transfer
of this Security (other than a transfer of this Security as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary) may be registered except in
the limited circumstances described in the Indenture.
Unless this certificate is presented by an authorized representative of
DTC to Avnet, Inc. or its agent for registration of transfer, exchange, or
payment, and any certificate issued is registered in the name of Cede & Co. or
in such other name as is requested by an authorized representative of DTC (and
any payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
AVNET, INC
Floating Rate Notes due 2001
CUSIP No. 053807 AH 6
No. 1 $325,000,000
AVNET, INC., a corporation duly organized and existing under the laws
of the State of New York (herein called the "Company," which term includes any
successor Person under the Indenture referred to on the reverse hereof), for
value received, hereby promises to pay to CEDE & CO. or registered assigns the
principal sum of THREE HUNDRED TWENTY FIVE MILLION DOLLARS on October 17, 2001,
and to pay interest thereon from October 17, 2000 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
quarterly in arrears on January 17, April 17, July 17 and October 17, 2001, at
the annual rate equal to three-month LIBOR, reset quarterly, plus .875% (87.5
basis points) until the principal hereof is paid or made available for payment.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the fifteenth (15th) calendar day (whether or not a
Business Day) next preceding such Interest Payment Date. Except as otherwise
provided in the Indenture, any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or
A-1
<PAGE> 32
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the offices or agencies of the Company maintained for
that purpose in the Borough of Manhattan, the City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debt; provided, however, that at
the option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register.
In the case where the maturity date of this Security does not fall on a
Business Day, payment of interest or principal otherwise payable on such day
need not be made on such day, but may be made on the next succeeding Business
Day with the same force and effect as if made on the maturity date of this
Security. In the case where any Interest Payment Date does not fall on a
Business Day, payment of interest otherwise payable on such day shall be payable
as provided on the reverse hereof.
Reference is hereby made to the further provisions of this Security set
forth on the reverse side hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature of an
authorized signatory, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
A-2
<PAGE> 33
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: October 17, 2000
AVNET, INC.
By: /s/ Raymond Sadowski
-----------------------------
Rymond Sadowski
Senior Vice President and
Chief Financial Officer
Attest:
/s/ David R. Birk
------------------------------------
David R. Birk
Secretary
A-3
<PAGE> 34
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
BANK ONE TRUST COMPANY,
NATIONAL ASSOCIATION, as Trustee
By:
------------------------------
Name:
----------------------
Title:
---------------------
A-4
<PAGE> 35
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities") issued and to be issued in one or more
series under an Indenture, dated as of October 1, 2000 (herein called the
"Indenture"), between the Company and Bank One Trust Company, N. A., as Trustee
(herein called the "Trustee," which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof, initially limited in aggregate principal amount
to $325,000,000. The Securities of this series are issuable as only Registered
Securities, without coupons, in denominations of $1,000 and any integral
multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor
of any authorized denominations, as requested by the Holder surrendering the
same, upon surrender of the Security or Securities to be exchanged at any office
or agency described below where Registered Securities of this series may be
presented for registration of transfer.
Interest will be payable quarterly in arrears on January 17, April 17,
July 17 and October 17, 2001 (each, an "Interest Payment Date") to the persons
in whose names the Security is registered at the close of business on the date
fifteen calendar days prior to applicable Interest Payment Date. Interest
payable at maturity will be payable to the person to whom principal shall be
payable. The "Interest Period" is each successive period from and including an
Interest Payment Date with respect to such note to but excluding the next
Interest Payment Date or the maturity date, as the case may be; provided,
however, if such Interest Payment Date would not be a Business Day, then such
Interest Payment Date and the first day of the next succeeding Interest Period
will be the next succeeding Business Day, except that if such Business Day is in
the next succeeding calendar month, such Interest Payment Date and the first day
of the next succeeding Interest Period will be the immediately preceding
Business Day. The "Interest Determination Date" for an Interest Period is two
London Banking Days (as defined below) preceding the first day of such Interest
Period.
The interest rate for any Interest Period will be effective as of the
first day of such Interest Period. The interest rate for each Interest Period
will be determined on the Interest Determination Date for such Interest Period
and will be a per annum rate equal to three-month U.S. dollar LIBOR (determined
as set forth below) plus .875% (87.5 basis points), subject to the applicable
maximum lawful rate. Interest will be computed on the basis of a 360-day year
and the actual number of days in the applicable Interest Period.
LIBOR will be determined on the basis of the offered rates for deposits
in U.S. dollars for a three-month period commencing on the second London Banking
Day immediately following that Interest Determination Date that appears on
Telerate Page 3750 (as defined below) as of approximately 11:00 a.m., London
time, on that Interest Determination Date. If such rate does not appear on
Telerate Page 3750 on such Interest Determination Date, LIBOR will be determined
on the basis of the rates at which deposits in U.S. dollars for a three-month
period commencing on the
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<PAGE> 36
second London Banking Day immediately following that Interest Determination Date
and in a principal amount equal to an amount of not less than U.S. $1 million
that is representative for a single transaction in such market at such time, are
offered to prime banks in the London interbank market by four major banks in the
London interbank market selected by the Calculation Agent (as defined below),
after consultation with the Company, at approximately 11:00 a.m., London time,
on that Interest Determination Date.
The Calculation Agent will request the principal London office of each
of such banks to provide a quotation of its rate. If at least two such
quotations are provided, LIBOR in respect of that Interest Determination Date
will be the arithmetic mean of such quotations. If fewer than two quotations are
provided, LIBOR in respect of that Interest Determination Date will be the
arithmetic mean of the rates quoted by three major money center banks in The
City of New York selected by the Calculation Agent (after consultation with the
Company) at approximately 11:00 a.m., New York City time, on that Interest
Determination Date for loans in U.S. dollars to leading European banks for a
three-month period commencing on the second London Banking Day immediately
following that Interest Determination Date and in a principal amount equal to an
amount of not less than U.S. $1 million that is representative for a single
transaction in such market at such time; provided, however, that if the banks
selected as discussed above by the Calculation Agent are not quoting rates as
discussed in this sentence, LIBOR for the applicable period will be the same as
LIBOR for the immediately preceding Interest Period on such Interest
Determination Date. The interest rate on this Security may not be higher than
the maximum rate permitted by New York law as that rate may be periodically
modified by United States law of general application.
As used herein:
"Business Day" means any day which is not a Saturday or Sunday and
which is not a legal holiday or a day on which banking institutions in
The City of New York are authorized or obligated by law or executive
order to be closed that is also a London Banking Day.
"Calculation Agent" means Bank One Trust Company, NA, the trustee named
in the indenture, or such other entity as may be selected from time to
time by the Company to perform the functions of the Calculation Agent
described herein.
"London Banking Day" means a day on which dealings in deposits in U.S.
dollars are transacted in the London interbank market.
"Telerate Page 3750" means the display designated as "Page 3750" on the
Dow Jones Markets Limited (or such other page as may replace Page 3750
on that service or such other service or services as may be nominated
by the British Bankers' Association as the information vendor for the
purpose of displaying London interbank offered rates for U.S. dollar
deposits).
All percentages resulting from any calculations of any interest rate
will be rounded, if necessary, to the nearest one hundred-thousandth of a
percentage point, with five one-millionths of a
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<PAGE> 37
percentage point rounded upward, and all dollar amounts used in or resulting
from such calculation will be rounded to the nearest cent (with one-half cent
being rounded upward).
The Calculation Agent will, upon the request of any Holder, provide the
interest rate then in effect. All calculations made by the Calculation Agent in
the absence of manifest error shall be conclusive for all purposes and binding
on Avnet and the holders of the floating rate notes.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Security upon compliance with certain conditions set
forth therein.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Upon payment (i) of the amount of principal so declared due and
payable and (ii) of interest on any overdue principal and overdue interest (in
each case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and interest, if any, on the Securities of this series shall
terminate.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding (with each series
voting as a separate class in certain cases specified in the Indenture) on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notification of such consent or waiver is made upon this
Security.
As set forth in, and subject to, the provisions of the Indenture, no
Holder of any Security of this series will have any right to institute any
proceeding with respect to the Indenture or for any remedy thereunder, unless
such Holder shall have previously given to the Trustee written notice of a
continuing Event of Default with respect to this series, the Holders of not less
than 25% in principal amount of the Outstanding Securities of this series shall
have made written request, and offered reasonable indemnity, to the Trustee to
institute such proceeding as trustee, and the Trustee shall not have received
from the Holders of a majority in principal amount of the Outstanding Securities
of this series a direction inconsistent with such request and shall have failed
to institute such proceeding within 60 days; provided, however, that such
limitations do not apply to a suit instituted by the Holder hereof for the
enforcement of payment of the principal of (and premium, if any) and interest on
this Security on or after the respective due dates expressed herein.
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<PAGE> 38
No reference herein to the Indenture and no provisions of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of (and
premium, if any) and interest on such Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form,
without coupons, in denominations of $1,000 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to the
conflicts of laws provisions thereof.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
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<PAGE> 39
EXHIBIT B
FORM OF FIXED RATE NOTE
This Security is issued in global form and is registered in the name of
The Depository Trust Company, a New York corporation (the "Depositary" or "DTC")
or a nominee of the Depositary. This Security is not exchangeable for Securities
registered in the name of a Person other than the Depositary or its nominee
except in the limited circumstances described in the Indenture, and no transfer
of this Security (other than a transfer of this Security as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary) may be registered except in
the limited circumstances described in the Indenture.
Unless this certificate is presented by an authorized representative of
DTC to Avnet, Inc. or its agent for registration of transfer, exchange, or
payment, and any certificate issued is registered in the name of Cede & Co. or
in such other name as is requested by an authorized representative of DTC (and
any payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
AVNET, INC
8.20% Notes due 2003
CUSIP No. 053807 AG 8
No. 1 $200,000,000
AVNET, INC., a corporation duly organized and existing under the laws
of the State of New York (herein called the "Company," which term includes any
successor Person under the Indenture referred to on the reverse hereof), for
value received, hereby promises to pay to CEDE & CO. or registered assigns the
principal sum of TWO HUNDRED MILLION DOLLARS on October 17, 2003, and to pay
interest thereon from October 17, 2000 or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually in
arrears on April 17 and October 17 in each year, commencing April 17, 2001, at
the rate of 8.20% per annum until the principal hereof is paid or made available
for payment. The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the date 15 calendar days prior to such Interest
Payment Date (whether or not a Business Day). Except as otherwise provided in
the Indenture, any such interest not so punctually paid or duly provided for
will forthwith cease to be payable to the Holder on such Regular Record Date and
may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice
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<PAGE> 40
whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the offices or agencies of the Company maintained for
that purpose in the Borough of Manhattan, the City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debt; provided, however, that at
the option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register.
In the case where any Interest Payment Date or the maturity date of
this Security does not fall on a Business Day, payment of interest or principal
otherwise payable on such day need not be made on such day, but may be made on
the next succeeding Business Day with the same force and effect as if made on
such Interest Payment Date or the maturity date of this Security.
Reference is hereby made to the further provisions of this Security set
forth on the reverse side hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature of an
authorized signatory, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
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<PAGE> 41
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: October 17, 2000
AVNET, INC.
By: s/ Raymond Sadowski
-----------------------------
Raymond Sadowski
Senior Vice President and
Chief Financial Officer
Attest:
/s/ David R. Birk
-------------------------------
David R. Birk, Secretary
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<PAGE> 42
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
BANK ONE TRUST COMPANY, N.A.,
as Trustee
By:__________________________________
Name:
Title:
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<PAGE> 43
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities") issued and to be issued in one or more
series under an Indenture, dated as of October 1, 2000 (herein called the
"Indenture"), between the Company and Bank One Trust Company, N.A., as Trustee
(herein called the "Trustee," which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof, initially limited in aggregate principal amount
to $200,000,000. The Securities of this series are issuable as only Registered
Securities, without coupons, in denominations of $1,000 and any integral
multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor
of any authorized denominations, as requested by the Holder surrendering the
same, upon surrender of the Security or Securities to be exchanged at any office
or agency described below where Registered Securities of this series may be
presented for registration of transfer.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Security upon compliance with certain conditions set
forth therein.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Upon payment (i) of the amount of principal so declared due and
payable and (ii) of interest on any overdue principal and overdue interest (in
each case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and interest, if any, on the Securities of this series shall
terminate.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding (with each series
voting as a separate class in certain cases specified in the Indenture, or with
all series voting as one class, in certain other cases specified in the
Indenture),on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notification of such consent or waiver is made upon this
Security.
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<PAGE> 44
As set forth in, and subject to, the provisions of the Indenture, no
Holder of any Security of this series will have any right to institute any
proceeding with respect to the Indenture or for any remedy thereunder, unless
such Holder shall have previously given to the Trustee written notice of a
continuing Event of Default with respect to this series, the Holders of not less
than 25% in principal amount of the Outstanding Securities of this series shall
have made written request, and offered reasonable indemnity, to the Trustee to
institute such proceeding as trustee, and the Trustee shall not have received
from the Holders of a majority in principal amount of the Outstanding Securities
of this series a direction inconsistent with such request and shall have failed
to institute such proceeding within 60 days; provided, however, that such
limitations do not apply to a suit instituted by the Holder hereof for the
enforcement of payment of the principal of (and premium, if any) and interest on
this Security on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provisions of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of (and
premium, if any) and interest on such Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form,
without coupons, in denominations of $1,000 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to the
conflicts of laws provisions thereof.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
B-6
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EXHIBIT C
October 2000
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 senior or
subordinated debt securities, warrants to purchase such debt securities (senior
or subordinated debt securities and warrants to purchase such debt securities
are referred to herein as "Securities") or units consisting of one or more
Securities registered under the registration statement referred to in Section
3(a). The Securities will be issued under an indenture, dated as of October 1,
2000 (such indenture as amended or supplemented is herein referred to as the
"Indenture"), between the Company and Bank One Trust Company, N.A., as Trustee,
in one or more series, which series may vary as to interest rates, maturities,
redemption provisions, conversion 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 any Securities will be evidenced by an exchange of
written communications ("Pricing Agreement") at the time the Company determines
to sell 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 (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.
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<PAGE> 46
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.
The Underwriters, through the representatives, will pay to the Company
the purchase price for the Securities, less the commission of the Underwriters,
on the Closing Date, by wire transfer of same-day funds to an account to be
specified by the Company not less than two full business days in advance of the
Closing Date.
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 (Registration No. 333-39530), which has become
effective, for the registration under the Act of various securities of
the Company, including the Securities. Such registration statement, as
amended at the Representation Date, meets the requirements set forth in
Rule 415(a)(1)(x) under the Act and complies in all other material
respects with said Rule. Such registration statement, including the
exhibits thereto, as amended at the Representation Date, is hereinafter
called the "Registration Statement," and the prospectus included in the
Registration Statement, as supplemented to reflect the terms of any
series of the Securities and the plan of distribution thereof, in the
form furnished to the Underwriters for use in connection with the
offering of the Securities, is hereinafter called the "Prospectus." Any
reference herein to the Registration Statement or the Prospectus shall
be deemed to include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Securities
Exchange Act of 1934 (the "Exchange Act") on or before the
Representation Date or the date of the Prospectus, as the case may be,
and any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the Registration Statement or the
Prospectus shall be deemed to include the filing of any document under
the Exchange Act after the Representation Date or the date of the
Prospectus, as the case may be, deemed to be incorporated therein by
reference;
(b) (i) the Registration Statement, the Prospectus and the
Indenture comply in all material respects with the applicable
requirements of the Act, the Trust Indenture Act of 1939 (the "Trust
Indenture Act") and the Exchange Act and the respective rules
thereunder, and (ii) neither the Registration Statement nor the
Prospectus contains any untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; provided, however,
that the Company
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<PAGE> 47
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 Material 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 ("Subsidiary" meaning any subsidiary
of the Company, and "Material Subsidiary" meaning a Subsidiary which
would be a "significant subsidiary" as that term is defined in Item
1-02(w) of Regulation S-X promulgated under the Act, if "5 percent"
were substituted in each place in which "10 percent" appears in such
definition, and "Non-Material Subsidiary" meaning a Subsidiary which is
not a Material Subsidiary);
(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, prospects or financial condition of the Company and its
Subsidiaries taken as a whole (a "Material Adverse Effect"), 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 with the laws, orders,
rules, regulations and directives issued or administered by such
jurisdictions, except where the failure to so comply with such laws,
orders, rules, regulations and directives, whether individually or in
the aggregate, could not be expected to have a Material Adverse Effect;
(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), (i) its respective charter or by-laws or (ii) in the
performance or observance of any obligation, agreement, covenant or
condition contained in any 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, except for, in the case of clause (i) above, breaches and
defaults of Non-Material Subsidiaries which, individually or in the
aggregate, could not be expected to have a Material Adverse Effect, and
except for, in the case of clause (ii) above, breaches and defaults
which, individually or in the aggregate, could not be expected to have
a Material
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<PAGE> 48
Adverse Effect, and the execution, delivery and performance of the
Pricing Agreement (including these Provisions) and the Indenture, and
the issuance of the Securities and any Underlying Securities (as
hereinafter defined) 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 provision of (x) the charter or by-laws of the Company or
any of its Subsidiaries or (y) any license, indenture, mortgage, deed
of trust, bank loan or credit agreement or other agreement or
instrument to which the Company or any of its Subsidiaries is a party
or by which any of them or their respective properties may be bound or
affected, or (z) 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, except for, in the case of clause
(x) above, conflicts, breaches and defaults of Non-Material
Subsidiaries which, individually or in the aggregate, could not be
expected to have a Material Adverse Effect, and except for, in the case
of clauses (y) and (z) above, conflicts, breaches and defaults which,
individually or in the aggregate, could not be expected to have a
Material Adverse Effect;
(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) If the Securities being sold pursuant to the applicable
Pricing Agreement are convertible into or exchangeable or exercisable
for any equity securities ("Underlying Equity Securities"), such
Underlying Equity Securities have been, or as of the date of such
Pricing Agreement will have been, duly authorized, reserved for
issuance and will, when issued upon the conversion of Securities into,
or the exchange or exercise of Securities for, such Underlying Equity
Securities, be duly issued, fully paid and non-assessable, will not be
subject to any preemptive rights of any security holder of the Company
and no holder thereof will be subject to personal liability by reason
of being such a holder. If the Securities being sold pursuant to the
applicable Pricing Agreement are convertible into or exchangeable or
exercisable for any debt securities ("Underlying Debt Securities" and
together with Underlying Equity Securities, "Underlying Securities"),
such Underlying Debt Securities have been, or as of the date of such
Pricing Agreement will have been, duly authorized for issuance upon the
conversion of Securities into, or the exchange or exercise of
Securities for,
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such Underlying Debt Securities. Such Underlying Debt Securities, when
issued and authenticated in the manner provided for in the applicable
indenture and delivered in accordance with the terms thereof, will
constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, except
as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium, or other similar laws relating to or
affecting creditors rights generally or by general equitable
principles. Any indenture under which Underlying Debt Securities will
be issued has been, or prior to the date of the applicable Pricing
Agreement will have been, duly authorized, executed and delivered by
the Company and constitutes or will constitute a valid and legally
binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium, or other similar
laws relating to or affecting creditors rights generally or by general
equitable principles.
(i) the Pricing Agreement has been duly authorized, executed
and delivered by the Company;
(j) the Securities, any Underlying Securities and the
Indenture conform in all material respects to the description thereof
contained in the Registration Statement and Prospectus;
(k) 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 and any Underlying
Securities as contemplated hereby other than registration of the
Securities and any Underlying 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 and any Underlying Securities are
being offered by the Underwriters;
(l) 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;
(m) each of the Company and its Subsidiaries (i) has all
necessary licenses, authorizations, consents and approvals, (ii) has
made all filings required under any federal, state, local or foreign
law, regulation or rule, and (iii) has obtained all necessary
authorizations, consents and approvals from other persons, except where
the failure to have, make or obtain such licenses, authorizations,
consents, approvals and filings, individually or in the aggregate,
could not be expected to have a Material Adverse Effect; and neither
the Company nor any of its Subsidiaries is in violation of, or in
default under, any such license,
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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;
(n) 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;
(o) 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;
(p) 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;
(q) 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;
(r) no Subsidiary is a "significant subsidiary" as that term
is defined in Item 1-02(w) of Regulation S-X promulgated under the Act,
except for Avnet Europe NV/SA;
(s) the Company and each of the Subsidiaries have filed all
material federal and state income and franchise tax returns (or
obtained extensions with respect to the filing of such returns) and
have paid all taxes shown thereon as currently due, and the Company has
no knowledge of any material tax deficiency which has been or might be
asserted against the Company or any of the Subsidiaries; all material
tax liabilities are adequately provided for on the books of the Company
and each of the Subsidiaries;
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(t) 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;
(u) 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;
(v) except as described in the Registration Statement and the
Prospectus, (i) the operations of the Company and its Subsidiaries are
in compliance with all applicable environmental laws, except where the
failure to so comply with such laws, individually or in the aggregate,
could not be expected to have a Material Adverse Effect, (ii) the
Company and its Subsidiaries have obtained all 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 with the terms and conditions
thereof, except where the failure to so obtain, keep in effect and
comply with such permits, licenses and approvals, whether individually
or in the aggregate, could not be expected to have a Material Adverse
Effect, (iii) with respect to any property currently or formerly owned,
leased or operated by the Company or any of its Subsidiaries, (a)
neither the Company nor any such Subsidiary is subject to any judicial
or administrative proceeding or any order from or agreement with any
governmental authority (collectively, "Proceedings"), and (b) the
Company does not have knowledge of any pending or threatened
investigation by any governmental authority (collectively,
"Investigations") relating to any violation or alleged violation of any
environmental law, any release or threatened release of a hazardous
material into the environment, or any remedial action that may be
necessary in connection with any such violation or release, except for
such Proceedings or Investigations which, whether individually or in
the aggregate, could not be expected to have a Material Adverse Effect,
(iv) neither the Company nor any such Subsidiary has filed any notice
under any environmental law indicating past or present treatment,
storage, disposal or release of a hazardous material into the
environment in a manner that is not in compliance with, or which could
result in liability under, applicable environmental laws, except where
such non-compliance or liability, whether individually or in the
aggregate, could not be expected to
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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 affecting
the Company or any of its Subsidiaries relating to chemicals,
pollutants, contaminants, wastes, toxic substances, petroleum or
petroleum products or any environmental law, except for events,
circumstances and conditions which, individually or in the aggregate,
could not be expected to have a Material Adverse Effect, 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;
(w) 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
(x) to the best knowledge of the Company, no labor problem
exists with employees of the Company or any of its Subsidiaries or is
imminent that could have a Material Adverse Effect.
4. Certain Covenants of the Company: The Company hereby agrees:
(a) to furnish such information as may be reasonably required
by and otherwise to cooperate with, the Representatives in qualifying
the Securities for offering and sale under the securities or blue sky
laws of such states as the Representatives may designate (including the
provisions of Florida blue sky law, if requested, relating to issuers
doing business with Cuba) and to maintain such qualifications in effect
as long as required for the distribution of the Securities, provided
that the Company shall not be required to qualify as a foreign
corporation or a dealer or to consent to the service of process under
the laws of any such state (except service of process with respect to
the offering and sale of the Securities) or to take any action which
would or could subject the Company to taxation in any state where it is
not now so subject; and to promptly advise the Representatives of the
receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose;
(b) to make available to the Representatives in New York City,
as soon as practicable after the Registration Statement becomes
effective, and thereafter from time to time to furnish to the
Underwriters, as many copies of the Prospectus (or of the Prospectus as
amended or supplemented if the Company shall have made any amendments
or
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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;
(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,
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and, subject to Section 4(c) 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) if the Securities being sold pursuant to the applicable
Pricing Agreement are convertible into or exchangeable or exercisable
for Underlying Securities, to take all actions contemplated by Section
3(h) hereof and, if such Underlying Securities are Underlying Equity
Securities, to reserve and keep available at all times, free of
preemptive or other similar rights, a sufficient number of shares of
Underlying Equity Securities for the purpose of enabling the Company to
satisfy any obligation to issue such Underlying Equity Securities upon
any such conversion, exchange or exercise;
(i) 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 (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
(j) that the Company will not, without the consent of the
Representatives, offer
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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 reasonable 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, assuming due authorization,
execution and delivery by the Trustee, 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;
(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
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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) if any Securities are convertible into, or
exchangeable or exercisable for, Underlying Equity Securities,
the Underlying Equity Securities are duly and validly
authorized, have been duly reserved for issuance upon
conversion, exchange or exercise of the related Securities and
when duly issued upon such conversion, exchange or exercise
will be duly and validly issued, fully paid and
non-assessable;
(v) the Securities, any Underlying Securities and the
Indenture conform in all material respects to the summary
descriptions thereof contained in the Registration Statement
and Prospectus;
(vi) 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;
(vii) 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;
(viii) 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);
(ix) 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
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or Prospectus (except as and to the extent stated in subparagraph (iv)
above), no facts have come to the attention of such counsel, in the
course of such participation, that cause 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, except where the failure to be validly existing, to
be in good standing, and to have such power and authority
could not, individually or in the aggregate, have a Material
Adverse Effect (in rendering this opinion with respect to
jurisdictions other than the State of New York,
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such counsel may state that he is relying exclusively on
certificates and other documents of public officials of such
jurisdictions);
(iv) the Company is duly qualified to transact
business as a foreign corporation in Arizona, California,
Massachusetts, North Carolina and Texas (in rendering this
opinion, such counsel may state that he is relying exclusively
on certificates and other documents of public officials of
such jurisdictions);
(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), (i) its charter or by-laws, (ii) 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, (iii)
any United States Federal or New York State law, regulation or
rule, or (iv) 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, the issuance of the
Securities and any Underlying 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 provision of (x) the charter or by-laws of the Company or
any of its Subsidiaries or (y) any 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 (z) any
law, regulation or rule or any decree, judgment or order
applicable to the Company or any of its Subsidiaries, except
for, in the case of clause (x) above, conflicts, breaches and
defaults of Non-Material Subsidiaries which, individually or
in the aggregate, could not be expected to have a Material
Adverse Effect, and except for, in the case of clauses (y) and
(z) above, conflicts, breaches and defaults which,
individually or in the aggregate, could not be expected to
have a Material Adverse Effect;
(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
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any of their respective properties, at law or in equity or
before or by any commission, board, body, authority or agency
which are required to be described in the Prospectus but are
not so described;
(ix) the documents incorporated by reference in the
Registration Statement and Prospectus, when they were filed
(or, if an amendment with respect to any such document was
filed when such amendment was filed), complied as to form in
all material respects with the requirements of the Exchange
Act and the rules thereunder (except as to the financial
statements and schedules and other financial data contained or
incorporated by reference therein, and the Trustee's Statement
of Eligibility on Form T-1, 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 form and substance reasonably satisfactory to 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,
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.
(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.
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(h) The Company shall have furnished to the Representatives
such other documents and certificates as to the accuracy and
completeness of any statement in the Registration Statement and the
Prospectus as of the Closing Date as the Representatives may reasonably
request.
(i) The Company shall perform such of its obligations under
these Provisions and the Pricing Agreement as are to be performed by
the terms hereof and thereof at or before the Closing Date.
(j) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or threatened.
(k) At the Closing Date, counsel for the Underwriters shall
have been furnished with such information, certificates and documents
as they may reasonably require for the purpose of enabling them to pass
upon the issuance and sale of the Securities as contemplated herein and
related proceedings, or in order to evidence the accuracy of any of 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;
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(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation, or
any investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject
to Section 7(d) below) any such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as
incurred (including, subject to Section 7(c) hereof, the fees
and disbursements of counsel chosen by the Representatives),
reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii)
above;
provided, however, that the indemnity provided in this Section 7(a)
shall not apply to any loss, liability, claim, damage or expense to the
extent arising out of any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Company by or on behalf of
any Underwriter 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; and provided,
further, that the indemnity provided in this Section 7(a) shall be
limited, to the extent it applies to fees and disbursements of counsel,
to reasonable amounts of such fees and disbursements.
(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,
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made in the Registration Statement (or any amendment thereto) including
the Rule 430A Information and the Rule 434 Information deemed to be a
part thereof, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon
and in conformity with the Furnished Information, which the
Underwriters agree to identify by letter to the Company dated each
Closing Date.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the
extent it is not materially prejudiced as a result thereof and in any
event shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. In the case of
parties indemnified pursuant to Section 7(a) above, counsel to the
indemnified parties shall be selected by the Representatives, and, in
the case of parties indemnified pursuant to Section 7(b) above, counsel
to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of
any such action; provided, however, that counsel to the indemnifying
party shall not (except with the consent of the indemnified party) also
be counsel to the indemnified party. In no event shall the indemnifying
parties be liable for fees and expenses of more than one counsel (in
addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the
same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation 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
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expenses of counsel, an indemnifying party shall not be liable for any
settlement of the nature contemplated by Section 7(a)(ii) effected
without its consent if such indemnifying party (i) reimburses such
indemnified party in accordance with such request to the extent it
considers such request to be reasonable and (ii) provides written
notice to the indemnified party substantiating the unpaid balance as
unreasonable, in each case prior to the date of such settlement.
8. Contribution.
If the indemnification provided for in Section 7 hereof is for
any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party
shall contribute to the aggregate amount of such losses, liabilities,
claims, damages and expenses incurred by such indemnified party, as
incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, from the offering of the Securities
pursuant to the applicable Pricing Agreement, or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the
Company, on the one hand, and the Underwriters, on the other hand, in
connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Company, on the one
hand, and the Underwriters, on the other hand, in connection with the
offering of 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
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<PAGE> 64
allocation which does not take account of the equitable considerations
referred to above in this Section 8. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 8 shall be deemed to
include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue or alleged untrue statement or omission or alleged
omission.
Notwithstanding the provisions of this Section 8, no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by
it and distributed to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of
any such untrue or alleged untrue statement or omission or alleged
omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 8, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act shall have the same rights to
contribution as such Underwriter, and each director of the Company,
each officer of the Company who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act shall have the
same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 8 are
several in proportion to the number or aggregate principal amount, as
the case may be, of Securities set forth opposite their respective
names in the applicable Pricing Agreement, and not joint.
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 credit rating agency recognized by
the Commission as a "nationally recognized statistical rating
organization," 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
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<PAGE> 65
indexed to, one or more foreign or composite currencies, in the
applicable international financial markets, or any outbreak of
hostilities or escalation thereof or other calamity or crisis or any
change or development involving a prospective change in national or
international political, financial or economic conditions, in each case
the effect of which is such as to make it, in the judgment of the
Representatives, impracticable to market the Securities or to enforce
contracts for the sale of the Securities, or (iv) trading in any
securities of the Company has been suspended or materially limited by
the Commission or the New York Stock Exchange, or trading generally on
the New York Stock Exchange or the American Stock Exchange or in the
Nasdaq National Market has been suspended or materially limited, or
minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by either of said exchanges or by
such system or by order of the Commission, the NASD or any other
governmental authority, or (v) a banking moratorium has been declared
by either Federal or New York authorities or, if the Securities include
debt securities denominated or payable in, or indexed to, one or more
foreign or composite currencies, by the relevant authorities in the
related foreign country or countries.
(b) If these Provisions or the applicable Pricing Agreement is
terminated pursuant to this Section 9, such termination shall be
without liability of any party to any other party except as provided in
Section 5 hereof, and provided further that Sections 3, 7, 8 and 9
shall survive such termination and remain in full force and effect.
10. Notices:
Except as otherwise herein provided, all statements, requests,
notices and agreements shall be in writing and, if to the Underwriters,
at their addresses furnished to the Company in the Pricing Agreement
for the purpose of communications hereunder and, if to the Company,
shall be sufficient in all respects if delivered or telefaxed to the
Company at the offices of the Company at 2211 South 47th Street,
Phoenix, Arizona 85034, Attention: Mr. Raymond Sadowski (fax no. (480)
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
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<PAGE> 66
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.
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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.
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<PAGE> 68
AVNET, INC.
DEBT SECURITIES
PRICING AGREEMENT
, 200_
Avnet, Inc.
2211 South 47th Street
Phoenix, Arizona 85034
Attention:
Ladies and Gentlemen:
Referring to the debt securities of Avnet, Inc. (the "Company") covered
by the Registration Statement on Form S-3 (No. 333-39530) filed by the Company,
on the basis of the representations, warranties and agreements contained in this
Agreement and in the Company's Standard Underwriting Agreement Provisions
attached hereto (the "Standard Underwriting Agreement"), and subject to the
terms and conditions set forth herein and therein, the Underwriters named on
Schedule I hereto ("Underwriters") agree to purchase, severally and not jointly,
and the Company agrees to sell to the Underwriters, $ aggregate principal
amount of ___% Due (the "Securities") in the respective principal
amounts set forth opposite the names of the Underwriters on Schedule I hereto.
The price at which the Securities shall be purchased from the Company
by the Underwriters shall be ___% of the principal amount thereof [plus accrued
interest from ________, 200_]. 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 ________________ , 200__.
Maturity:
Other Provisions: as set forth in the Prospectus Supplement relating to the
Securities
Closing: ___________ A.M. on __________ , 200__, at , in same day funds.
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<PAGE> 69
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 1.1 to Registration
Statement No. 333-39530, are incorporated herein by reference.
A global certificate representing all of the Securities will be made
available for inspection at the office of ___________________, at least 24 hours
prior to the Closing Date.
We represent that we are authorized to act for the several Underwriters
named in Schedule I hereto in connection with this financing and any action
under this agreement by any of us will be binding upon all the Underwriters.
This Pricing Agreement may be executed in one or more counterparts, all
of which counterparts shall constitute one and the same instrument.
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:
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<PAGE> 70
EXHIBIT D
AVNET, INC.
DEBT SECURITIES
PRICING AGREEMENT
October 12, 2000
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
BANK OF AMERICA SECURITIES LLC
CHASE SECURITIES INC.
ABN AMRO INCORPORATED
BANC ONE CAPITAL MARKETS, INC.
FLEET SECURITIES, INC.
c/o Merrill Lynch, Pierce, Fenner & Smith Incorporated
World Financial Center
North Tower
New York, New York 10281
Ladies and Gentlemen:
Referring to the debt securities of Avnet, Inc. (the
"Company") covered by the Registration Statement on Form S-3 (No. 333-39530)
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 for Debt Securities attached hereto (the
"Standard Underwriting Agreement"), and subject to the terms and conditions set
forth herein and therein, the Underwriters named on Schedule I hereto
("Underwriters") agree to purchase, severally and not jointly, and the Company
agrees to sell to the Underwriters, $200,000,000 aggregate principal amount of
8.20% Notes Due 2003 (the "Fixed Rate Notes") and $325,000,000 aggregate
principal amount of Floating Rate Notes Due 2001 (the "Floating Rate Notes") in
the respective principal amounts set forth opposite the names of the
underwriters on Schedule I hereto.
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<PAGE> 71
The price at which the Fixed Rate Notes shall be purchased from the
Company by the Underwriters shall be 99.346% of the principal amount thereof
plus accrued interest from October 17, 2000. The price at which the Floating
Rate Notes shall be purchased from the Company by the Underwriters shall be
99.85% of the principal amount thereof plus accrued interest from October 17,
2000. The Securities will be offered as set forth in the Prospectus Supplement
relating thereto. The Securities will have the following terms:
Title: 8.20% Notes due 2003.
Floating Rate Notes due 2001.
Interest Rate: The Fixed Rate Notes will bear interest from
October 17, 2000 at 8.20% per annum.
The Floating Rate Notes will bear interest
from October 17, 2000 at an annual rate
equal to three-month LIBOR, reset quarterly,
plus 87.5 basis points.
Interest Payment Dates: Interest on the Fixed Rate Notes is payable
semi-annually on April 17 and October 17 of
each year commencing April 17, 2001.
Interest on the Floating Rate Notes is
payable quarterly in arrears on January 17,
April 17, July 17 and October 17, 2001.
Maturity: The Fixed Rate Notes will mature on October
17, 2003. The Floating Rate Notes will
mature on October 17, 2001.
Other Provisions: as set forth in the Prospectus Supplement
relating to the Securities
Closing: 12:00 P.M. on October 17, 2000, at the
offices of Fried, Frank, Harris, Shriver &
Jacobson, One New York Plaza, New York, New
York 10004, in same day funds.
Name and Address of Representative:
Merrill Lynch, Pierce, Fenner & Smith Incorporated
World Financial Center
North Tower
New York, New York 10281
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<PAGE> 72
The provisions contained in the Standard Underwriting
Agreement Provisions, a copy of which has been filed as Exhibit 1.1 to
Registration No. 333-39530, are incorporated herein by reference.
Global certificates representing all of the Securities will be
made available for inspection at the offices of Fried, Frank, Harris, Shriver &
Jacobson, One New York Plaza, New York, New York 10004, at least 24 hours prior
to the Closing Date.
We represent that we are authorized to act for the several
Underwriters named in Schedule I hereto in connection with this financing and
any action under this agreement by any of us will be binding upon all the
Underwriters.
This Pricing Agreement may be executed in one or more
counterparts, all of which counterparts shall constitute one and the same
instrument.
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<PAGE> 73
If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to us the enclosed duplicate hereof,
whereupon it will become a binding agreement among the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
on behalf of themselves and
as Representatives of the
Several Underwriters
By /s/ David Faber
----------------------------------
Name: David Faber
Title: Managing Director
The foregoing Pricing Agreement
is hereby confirmed as of the
date first above written
AVNET, INC.
By /s/ Raymond Sadowski
-----------------------------
Name: Raymond Sadowski
Title: Senior Vice President and
Chief Financial Officer
D-4
<PAGE> 74
Schedule 1
<TABLE>
<CAPTION>
Principal Principal
Amount of Amount of
Floating Rate Fixed Rate
Underwriter Notes Notes
----------- ------------- -------------
<S> <C> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated............................................. $121,876,000 $ 75,000,000
Banc of America Securities LLC................................ 56,062,000 34,500,000
Chase Securities Inc.......................................... 56,062,000 34,500,000
ABN AMRO Incorporated......................................... 29,250,000 18,000,000
Banc One Capital Markets, Inc................................. 29,250,000 18,000,000
First Union Securities, Inc................................... 16,250,000 10,000,000
Fleet Securities, Inc......................................... 16,250,000 10,000,000
------------ -------------
Total................................................ $325,000,000 $ 200,000,000
============ =============
</TABLE>
D-5
