As filed with the Securities and Exchange Commission on February 8, 2000
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549-1004
----------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AVNET, INC.
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(Exact name of registrant as specified in its charter)
New York 11-1890605
---------------------------- ----------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
David R. Birk, Esq.
Senior Vice President and General Counsel
2211 South 47th Street Avnet, Inc.
Phoenix, Arizona 85034 2211 South 47th Street
(480) 643-2000 Phoenix, Arizona 85034
----------------------------- (480) 643-2000
(Address, including zip code, ---------------------------------------
and telephone number, including (Name, address, including zip code, and
area code, of registrant's telephone number, including area
principal executive offices) code, of agent for service)
COPIES TO:
Stephen V. Burger, Esq. Valerie Ford Jacob, Esq.
Carter, Ledyard & Milburn Fried, Frank, Harris, Shriver & Jacobson
2 Wall Street One New York Plaza, 25th Floor
New York, New York 10005 New York, New York 10004-1980
(212) 732-3200 (212) 859-8000
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement, as determined
by market conditions and other factors.
If the only securities being registered on this Form are to be offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. |X|
<PAGE>
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |X| Registration No.
333-53691.
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Title of each class of Amount to be Proposed maximum Proposed maximum Amount of
securities to be registered registered offering price per unit aggregate offering price registration fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities .............. $60,000,000(1) 100% (2)(3) $60,000,000(3) $15,840.00
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) If any Debt Securities are issued in a principal amount denominated in
a foreign currency, the amount to be registered shall be such amount as shall
result in an aggregate principal amount equivalent to $60,000,000 at the time of
the initial offerings.
(2) If any Debt Securities are issued at an original issue discount, the
amount to be registered shall be increased so as to result in an aggregate
offering price of all Debt Securities equal to $60,000,000, and the proposed
maximum offering price per security will be correspondingly decreased.
(3) Estimated solely for the purpose of calculating the registration fee.
Excludes accrued interest, if any, from the date of issuance.
----------------------------
This Registration Statement shall become effective upon filing with the
Commission, as provided in Rule 462(b).
================================================================================
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<PAGE>
Note: This Registration Statement is being filed pursuant to Rule 462(b). The
contents of the registrant's Registration Statement on Form S-3, Registration
No. 333-53691 are incorporated herein by reference.
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The expenses in connection with the registration of the securities being
offered hereby, and by the registrant's Registration Statement on Form S-3,
Registration No. 333-53691, are estimated to be:
Securities and Exchange Commission
registration fee................................. $104,340
Rating agency fees....................................... 195,000
Legal fees............................................... 75,000
Accounting fees.......................................... 25,000
Printing and engraving expenses.......................... 25,000
Blue sky fees and expenses............................... 5,000
Trustee's fees and expenses.............................. 3,000
Miscellaneous............................................ 17,660
--------
Total........................................... $450,000
========
Item 15. Indemnification of Directors and Officers.
Section 54 of the registrant's By-laws provides as follows:
"Indemnification"
"A. The Corporation shall indemnify, and advance the expenses of, any
director, officer or employee to the full extent permitted by the New York
Business Corporation Law as the same now exists or may hereafter be
amended.
"B. The indemnification and advancement of expenses granted pursuant
to this Section 54 shall not be exclusive or limiting of any other rights
to which any person seeking indemnification or advancement of expenses may
be entitled when authorized by (i) a resolution or shareholders, (ii) a
resolution of directors or (iii) an agreement providing for such
indemnification; provided that no indemnification may be made to or on
behalf of any such person if a judgment or other final adjudication adverse
to such person establishes that his acts were committed in bad faith or
were the result of active and deliberate dishonesty and were material to
the cause of action so adjudicated, or that he personally gained in fact a
financial profit or other advantage to which he was not legally entitled.
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<PAGE>
"C. No amendment, modification or rescission of these By-laws shall be
effective to limit any person's right to indemnification with respect to
any alleged cause of action that accrues or other incident or matter that
occurs prior to the date on which such modification, amendment or
rescission is adopted."
Section 721 of the New York Business Corporation Law (the "B.C.L.")
provides that no indemnification may be made to or on behalf of any director or
officer of the Registrant if "a judgment or other final adjudication adverse to
the director or officer establishes that his acts were committed in bad faith or
were the result of active and deliberate dishonesty and were material to the
cause of action so adjudicated, or that he personally gained in fact a financial
profit or other advantage to which he was not legally entitled." Section 54B of
the Registrant's By-laws includes the foregoing statutory language.
The rights granted under Section 54 of the By-laws are in addition to, and
are not exclusive of, any other rights to indemnification and expenses to which
any director or officer may otherwise be entitled. Under the B.C.L., a New York
corporation may indemnify any director or officer who is made or threatened to
be made a party to an action by or in the right of such corporation against
"amounts paid in settlement and reasonable expenses, including attorneys' fees,"
actually and necessarily incurred by him in connection with the defense or
settlement of such action, or in connection with an appeal therein, if such
director or officer acted, in good faith, for a purpose which he reasonably
believed to be in the best interests of the corporation, except that no
indemnification shall be made in respect of (1) a threatened action, or a
pending action which is settled or otherwise disposed of, or (2) any claim,
issue or matter as to which such director or officer shall have been adjudged
liable to the corporation, unless and only to the extent that a court determines
that the director or officer is fairly and reasonably entitled to indemnity
(B.C.L. Section 722(c)). A corporation may also indemnify directors and officers
who are parties to other actions or proceedings (including actions or
proceedings by or in the right of any other corporation or other enterprise
which the director or officer served at the request of the corporation) against
"judgments, fines, amounts paid in settlement and reason able expenses,
including attorneys' fees," actually or necessarily incurred as a result of such
actions or proceedings, or any appeal therein, provided the director or officer
acted, in good faith, for a purpose which he reasonably believed to be in the
best interests of the corporation (or in the case of service to another
corporation or other enterprise at the request of such corporation, not opposed
to the best interests of such corporation) and, in criminal cases, that he also
had no reasonable cause to believe that his conduct was unlawful (B.C.L. Section
722(a)). Any indemnification under Section 722 may be made only if authorized in
the specific case by disinterested directors, or by the board of directors upon
the opinion in writing of independent legal counsel that indemnification is
proper, or by the shareholders (B.C.L. Section 723(b)), but even without such
authorization, a court may order indemnification in certain circumstances
(B.C.L. Section 724). Further, any director or officer who is "successful, on
the merits or otherwise," in the defense of an action or proceeding is entitled
to indemnification as a matter of right (B.C.L. Section 723(a)).
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<PAGE>
A New York corporation may generally purchase insurance, consistent with
the limitations of New York insurance law and regulatory supervision, to
indemnify the corporation for any obligation which it incurs as a result of the
indemnification of directors and officers under the provisions of the B.C.L., so
long as no final adjudication has established that the directors' or officers'
acts of active and deliberate dishonesty were material to the cause of action so
adjudicated or that the directors or officers personally gained in fact a
financial profit or other advantage (B.C.L. Section 726).
The registrant's directors and officers are currently covered as insureds
under directors' and officers' liability insurance. Such insurance, subject to
annual renewal and certain rights of the insurer to terminate, provides an
aggregate maximum of $50,000,000 of coverage for directors and officers of the
Registrant and its subsidiaries against claims made during the policy period
relating to certain civil liabilities, including liabilities under the
Securities Act of 1933 (the "Securities Act").
Item 16. Exhibits.
Exhibit
No.
---
1 Form of Standard Underwriting Agreement Provisions.
4 Indenture dated as of February 1, 1994, between the registrant and The
First National Bank of Chicago, as Trustee, filed as Exhibit 4 to the
registrant's Current Report on Form 8-K (Commission File No. 1-4224)
bearing cover date of March 8, 1994, and incorporated herein by
reference.
5 Opinion of David R. Birk, Esq. with respect to the legality of the
securities being registered hereunder.
12 Statement of computation of ratios of earnings to fixed charges.
23(a) Consent of Arthur Andersen LLP.
23(b) Consent of David R. Birk, Esq. (included in Exhibit 5).
24 Powers of Attorney.
25 Form T-1 Statement of Eligibility of The First National Bank of
Chicago under the Trust Indenture Act of 1939, filed as Exhibit 25 to
the registrant's Registration Statement on Form S-3, Registration No.
333-53691, and incorporated herein by reference.
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<PAGE>
Item 17. Undertakings.
(1) The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by section 10(a)(3) of the
Securities Act;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most
recent post-effective amendment hereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement. (Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the change in
volume represents no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement.); and
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that paragraphs (i) and (ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 (the "Exchange Act") that are incorporated by reference in this
Registration Statement;
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered herein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(2) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
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<PAGE>
(3) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions referred to in Item 15 above, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of registrant in the successful defense of any action, suit
or proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
(4) The undersigned registrant hereby undertakes that:
(a) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective; and
(b) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3, and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Phoenix, State of Arizona, on February 8, 2000.
AVNET, INC.
By: /s/ Raymond Sadowski
--------------------
Raymond Sadowski
Senior Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on February 8, 2000, by the following
persons in the capacities indicated:
Signature Title
--------- -----
/s/ Roy Vallee
- ---------------------
Roy Vallee Chairman of the Board, Chief
Executive Officer and Director
*
- --------------------- Director
Eleanor Baum
*
- --------------------- Director
J. Veronica Biggins
*
- ---------------------
Joseph F. Caligiuri Director
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<PAGE>
Signature Title
--------- -----
*
- --------------------- Director
Lawrence W. Clarkson
*
- --------------------- Director
Ehud Houminer
*
- --------------------- Director
James A. Lawrence
*
- --------------------- Director
Salvatore J. Nuzzo
*
- --------------------- Director
Frederic Salerno
*
- --------------------- Director
Frederick S. Wood
/s/ Raymond Sadowski Senior Vice President and
- --------------------- Chief Financial Officer
Raymond Sadowski
/s/ John F. Cole
- --------------------- Controller and
John F. Cole Chief Accounting Officer
- ----------------------
* By: /s/ Raymond Sadowski
- --------------------------
Raymond Sadowski
Attorney-in-Fact
II-7
<PAGE>
EXHIBIT INDEX
Exhibit
No.
---
1 Form of Standard Underwriting Agreement Provisions.
4 Indenture dated as of February 1, 1994, between the registrant and The
First National Bank of Chicago, as Trustee, filed as Exhibit 4 to the
registrant's Current Report on Form 8-K (Commission File No. 1-4224)
bearing cover date of March 8, 1994, and incorporated herein by
reference.
5 Opinion of David R. Birk, Esq. with respect to the legality of the
securities being registered hereunder.
12 Statement of computation of ratios of earnings to fixed charges.
23(a) Consent of Arthur Andersen LLP.
23(b) Consent of David R. Birk, Esq. (included in Exhibit 5).
24 Powers of Attorney.
25 Form T-1 Statement of Eligibility of The First National Bank of
Chicago under the Trust Indenture Act of 1939, filed as Exhibit 25 to
the registrant's Registration Statement on Form S-3, Registration No.
333-53691, and incorporated herein by reference.
EXHIBIT 1
<PAGE>
February 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 debt securities
registered under the registration statement referred to in Section 3(a)
("Securities"). The Securities will be issued under an indenture, dated as of
February 1, 1994 (such indenture as amended or supplemented is herein referred
to as the "Indenture"), between the Company and Bank One Trust Company, National
Association (as successor in interest to The First National Bank of Chicago), as
Trustee, in one or more series, which series may vary as to interest rates,
maturities, redemption provisions, selling prices and other terms, with all such
terms for any particular series of the Securities being determined at the time
of sale. Particular series of the Securities will be sold pursuant to a Pricing
Agreement referred to in Section 2, for resale in accordance with terms of
offering determined at the time of sale.
The firm or firms which agree to purchase the Securities are hereinafter
referred to as the "Underwriters" of such Securities, and the representative or
representatives of the Underwriters, if any, specified in a Pricing Agreement
referred to in Section 2 are hereinafter referred to as the "Representatives";
provided, however, that if the Pricing Agreement does not specify any
representative of the Underwriters, the term "Representatives," as used herein
(other than in the second sentence of Section 2), shall mean the Underwriters.
2. Purchase and Offering of Securities. The obligation of the Underwriters
to purchase the Securities will be evidenced by an exchange of written
communications ("Pricing Agreement") at the time the Company determines to sell
the Securities. The Pricing Agreement will incorporate by reference these
Standard Underwriting Agreement Provisions (these "Provisions"), except as
otherwise provided therein, and will specify (1) the firm or firms which will be
Underwriters, (2) the names of any Representatives, (3) the principal amount of
Securities to be purchased by each Underwriter and the purchase price to be paid
by the Underwriters, (4) the terms of the Securities
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<PAGE>
not already specified in the Indenture, (5) the time and date on which delivery
of the Securities will be made to the Representatives for the accounts of the
several Underwriters against payment by the several Underwriters through the
Representatives of the purchase price in New York Clearing House funds (such
time and date, or such other time and date not later than seven full business
days thereafter as the Representatives and the Company agree to as to time and
date for payment and delivery, being herein and in the Pricing Agreement
referred to as the "Closing Date") and (6) the place of delivery and payment.
The obligations of the Underwriters to purchase the Securities will be
several and not joint. The Securities delivered to the Underwriters on the
Closing Date will be in definitive fully registered form, in such denominations
and registered in such names as the Representatives may request.
Certificates for the Securities shall be registered in such names and in
such denominations as the Representatives may request not less than two full
business days in advance of the Closing Date.
3. Representations and Warranties of the Company: The Company represents
and warrants to each of the Underwriters as of the date of execution of any
Pricing Agreement (the "Representation Date") and as of any Closing Date that:
(a) the Company is permitted to use Form S-3 under the Securities Act
of 1933, as amended (the "Act"), and has filed with the Securities and
Exchange Commission (the "Commission") two registration statements on such
Form (Registration Nos. 333-53691 and 333-_____), which have become
effective, for the registration under the Act of the Securities. Such
registration statements, as amended at the Representation Date, meet the
requirements set forth in Rule 415(a)(1)(x) under the Act and comply in all
other material respects with said Rule. Such registration statements,
including the exhibits thereto, as amended at the Representation Date, are
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,
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<PAGE>
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 makes no
warranty or representation with respect to any statement contained in the
Registration Statement or the Prospectus in reliance upon and in conformity
with information furnished in writing by or on behalf of any Underwriter
through the Representatives to the Company expressly for use in the
Registration Statement or the Prospectus;
(c) all of the issued and outstanding shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid, non-assessable and free of statutory and contractual preemptive
rights; the Company and each of its subsidiaries (the "Subsidiaries") have
been duly incorporated and are validly existing as corporations in good
standing under the laws of their respective jurisdictions of incorporation,
with full power and authority to own their respective properties and
conduct their respective businesses as described in the Registration
Statement and the Prospectus; the Company has full power and authority to
execute and deliver the Pricing Agreement (including these Provisions) and
the Indenture and to issue and sell the Securities as herein contemplated;
(d) the Company and each of its Subsidiaries are duly qualified or
licensed by, and are in good standing in, each jurisdiction in which they
conduct their respective businesses and in which the failure, individually
or in the aggregate, to be so licensed or qualified could have a material
adverse effect on the operations, business or condition of the Company and
its Subsidiaries taken as a whole, and with respect to the Company, the
jurisdictions listed on Schedule A hereto constitute a complete list of
such jurisdictions; and the Company and each of its Subsidiaries are in
compliance in all material respects with the laws, orders, rules,
regulations and directives issued or administered by such jurisdictions;
(e) neither the Company nor any of its Subsidiaries is in breach of,
or in default under (nor has any event occurred which with notice, lapse of
time, or both would constitute a breach of, or default under), its
respective charter or by-laws or in the performance or observance of any
obligation, agreement, covenant or condition contained in any material
indenture, mortgage, deed of trust, bank loan or credit agreement or other
agreement or instrument to which the Company or any of its Subsidiaries is
a party or by which any of them is bound, and the execution, delivery and
performance of the Pricing Agreement (including these Provisions) and the
Indenture, and the issuance of the Securities and consummation of the
transactions contemplated hereby and thereby, will not conflict with, or
result in any breach of or constitute a default under (nor constitute any
event which with notice, lapse of time, or both would constitute a breach
of, or default under), any provisions of the charter or by-laws of the
Company or any of its Subsidiaries or under any provision of any material
license, indenture, mortgage, deed of trust, bank loan or credit agreement
or other agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which any of them or their respective
properties may be bound or affected, or under any
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<PAGE>
federal, state, local or foreign law, regulation or rule or any decree,
judgment or order specifically binding on the Company or any of its
Subsidiaries;
(f) the Indenture has been duly authorized, executed and delivered by
the Company and is a legal, valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, and by general principles of equity;
(g) the Securities have been duly authorized by the Company and when
executed and delivered by the Company will constitute legal, valid and
binding obligations of the Company enforceable against the Company in
accordance with their terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally, and by general principles of
equity;
(h) the Pricing Agreement has been duly authorized, executed and
delivered by the Company;
(i) the Securities and the Indenture conform in all material respects
to the description thereof contained in the Registration Statement and
Prospectus;
(j) no approval, authorization, consent or order of or filing with any
national, state or local governmental or regulatory commission, board,
body, authority or agency is required in connection with the issuance and
sale of the Securities as contemplated hereby other than registration of
the Securities under the Act, qualification of the Indenture under the
Trust Indenture Act and any necessary qualification under the securities or
blue sky laws of the various jurisdictions in which the Securities are
being offered by the Underwriters;
(k) the accountants whose reports on the consolidated financial
statements of the Company and its Subsidiaries are filed with the
Commission as part of the Registration Statement and Prospectus are
independent public accountants as required by the Act and the applicable
published rules and regulations thereunder;
(l) each of the Company and its Subsidiaries (i) has all necessary
licenses, authorizations, consents and approvals which are material to its
business, (ii) has made all filings required under any federal, state,
local or foreign law, regulation or rule, the failure to make which would
have a material adverse effect on the operations, business, prospects or
financial condition of the Company and its Subsidiaries taken as a whole (a
"Material Adverse Effect"), and (iii) has obtained all necessary
authorizations, consents and approvals from other persons which are
material to its business; neither the Company nor any of its Subsidiaries
is in violation of, or in default under, any such license, authorization,
consent or approval or any federal, state, local or foreign law, regulation
or rule or any decree, order or judgment applicable to the Company or any
of its Subsidiaries the effect of which violation or default, singly or in
the aggregate, would have a Material Adverse Effect;
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<PAGE>
(m) all legal or governmental proceedings, contracts or documents of a
character required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement have
been so described or filed as required;
(n) there are no actions, suits or proceedings pending or threatened
against the Company or any of its Subsidiaries or any of their respective
properties, at law or in equity, before or by any federal, state, local or
foreign governmental or regulatory commission, board, body, authority or
agency which, singly or in the aggregate, have a reasonable likelihood of
resulting in judgments, decrees or orders having a Material Adverse Effect;
(o) the audited financial statements included in the Registration
Statement and the Prospectus present fairly the consolidated financial
position of the Company and its Subsidiaries as of the dates indicated and
the consolidated results of operations and cash flows of the Company and
its Subsidiaries for the periods specified; such financial statements have
been prepared in conformity with generally accepted accounting principles
applied on a consistent basis during the periods involved;
(p) subsequent to the respective dates as of which information is
given in the Registration Statement and Prospectus, and except as may be
otherwise stated in the Registration Statement or Prospectus, there has not
been (A) any material and unfavorable change, financial or otherwise, in
the business, properties, prospects, regulatory environment, results of
operations or condition (financial or otherwise), present or prospective,
of the Company and its Subsidiaries taken as a whole, (B) any transaction,
which is material and unfavorable to the Company and its Subsidiaries taken
as a whole, contemplated or entered into by the Company or any of its
Subsidiaries or (C) any obligation, contingent or otherwise, directly or
indirectly, incurred by the Company or any of its Subsidiaries which is
material and unfavorable to the Company and its Subsidiaries taken as a
whole;
(q) no Subsidiary is a "significant subsidiary" as that term is
defined in Item 1-02(w) of Regulation S-X promulgated under the Act;
(r) the Company and each of the Subsidiaries have filed all material
federal and state income and franchise tax returns (or obtained extensions
with respect to the filing of such returns) and have paid all taxes shown
thereon as currently due, and the Company has no knowledge of any material
tax deficiency which has been or might be asserted against the Company or
any of the Subsidiaries; all material tax liabilities are adequately
provided for on the books of the Company and each of the Subsidiaries;
(s) the Company and its Subsidiaries own or possess, or can acquire on
reasonable terms, adequate material patents, patent rights, licenses,
trademarks, inventions, service marks, trade names, copyrights and know-how
(including trade secrets and other proprietary or confidential information,
systems or procedures, whether patented or unpatented) (collectively,
"intellectual property") necessary to conduct the business now or
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<PAGE>
proposed to be operated by them as described in the Registration Statement
and in the Prospectus, and neither the Company nor any of its Subsidiaries
has received any notice of infringement of or conflict with (or knows of
any such infringement of or conflict with) asserted rights of others with
respect to any of such intellectual property which, if such assertion of
infringement or conflict were sustained, would result, singly or in the
aggregate, in any Material Adverse Effect;
(t) neither the Company nor any agent acting on its behalf has taken
or will take any action that might cause the Pricing Agreement or sale of
the Securities to violate Regulation T, U or X of the Board of Governors of
the Federal Reserve System, in each case as in effect, or as the same may
hereafter be in effect, on the Closing Date;
(u) except as described in the Registration Statement and the
Prospectus, (i) the operations of the Company and its Subsidiaries are in
compliance in all material respects with all applicable environmental laws,
(ii) the Company and its Subsidiaries have obtained all material
environmental, health and safety permits, licenses and approvals necessary
for its operation, all such permits, licenses and approvals are in effect
and the Company and its Subsidiaries are in compliance in all material
respects with the terms and conditions thereof, (iii) with respect to any
property currently or formerly owned, leased or operated by the Company or
any of its Subsidiaries, (a) neither the Company nor any such Subsidiary is
subject to any judicial or administrative proceeding or any order from or
agreement with any governmental authority (collectively, "Proceedings"),
and (b) the Company does not have knowledge of any pending or threatened
investigation by any governmental authority (collectively,
"Investigations") relating to any violation or alleged violation of any
environmental law, any release or threatened release of a hazardous
material into the environment, or any remedial action that may be necessary
in connection with any such violation or release, except for such
Proceedings or Investigations which, whether individually or in the
aggregate, could not be expected to have a Material Adverse Effect, (iv)
neither the Company nor any such Subsidiary has filed any notice under any
environmental law indicating past or present treatment, storage, disposal
or release of a hazardous material into the environment in a manner that is
not in compliance with, or which could result in liability under,
applicable environmental laws, except where such non-compliance or
liability, whether individually or in the aggregate, could not be expected
to have a Material Adverse Effect, (v) neither the Company nor any such
Subsidiary has received notice of a claim that it may be subject to
liability (a "Notice") as a result of a release or threatened release of
hazardous material, except for such Notice which, whether individually or
in the aggregate, could not be expected to have a Material Adverse Effect,
and (vi) there are no events, circumstances or conditions that might
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or materially affecting the Company or
any of its subsidiaries relating to chemicals, pollutants, contaminants,
wastes, toxic substances, petroleum or petroleum products or any
environmental law, and to the best of the Company's knowledge, there is no
reasonable basis for any such order, action, suit or
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<PAGE>
proceeding with respect to any environmental law which could be expected to
have a Material Adverse Effect;
(v) the Company is not an "investment company" or an affiliated person
of, or "promoter" or "principal underwriter" for, an "investment company,"
as such terms are defined in the Investment Company Act of 1940, as
amended, and the rules and regulations thereunder; and
(w) to the best knowledge of the Company, no labor problem exists with
employees of the Company or any of its Subsidiaries or is imminent that
could have a Material Adverse Effect.
4. Certain Covenants of the Company: The Company hereby agrees:
(a) to furnish such information as may be reasonably required by and
otherwise to cooperate with, the Representatives in qualifying the
Securities for offering and sale under the securities or blue sky laws of
such states as the Representatives may designate (including the provisions
of Florida blue sky law, if requested, relating to issuers doing business
with Cuba) and to maintain such qualifications in effect as long as
required for the distribution of the Securities, provided that the Company
shall not be required to qualify as a foreign corporation or a dealer or to
consent to the service of process under the laws of any such state (except
service of process with respect to the offering and sale of the Securities)
or to take any action which would or could subject the Company to taxation
in any state where it is not now so subject; and to promptly advise the
Representatives of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities for sale
in any jurisdiction or the initiation or threatening of any proceeding for
such purpose;
(b) to make available to the Representatives in New York City, as soon
as practicable after the Registration Statement becomes effective, and
thereafter from time to time to furnish to the Underwriters, as many copies
of the Prospectus (or of the Prospectus as amended or supplemented if the
Company shall have made any amendments or supplements thereto after the
effective date of the Registration Statement) as the Underwriters may
reasonably request for the purposes contemplated by the Act;
(c) that the Company will use its best efforts to cause any amendment
of the Registration Statement to become effective promptly. The Company
will not file any amendment to the Registration Statement or amendment or
supplement to the Prospectus relating to any series of the Securities to
which the Underwriters of such series shall object in writing after a
reasonable opportunity to review the same. Subject to the foregoing
sentence, the Company will cause each Prospectus supplement relating to the
Securities to be filed with the Commission pursuant to the applicable
paragraph of Rule 424 within the time period prescribed and will provide
evidence satisfactory to the Underwriters of such timely filing. The
Company will promptly advise the Underwriters of any series of
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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, and, during such
time, to prepare and furnish, at the Company's expense, to the Underwriters
promptly such amendments or supplements to such Prospectus as may be
necessary to reflect any such change and to furnish to the Representatives
a copy of such proposed amendment or supplement before filing any such
amendment or supplement with the Commission;
(f) that, as soon as practicable after the date of each Pricing
Agreement, the Company will make generally available to its Security
holders an earnings statement that satisfies the provisions of Section
11(a) of the Act and Rule 158 under the Act;
(g) to apply the net proceeds from the sale of the Securities in the
manner set forth under the caption "Use of Proceeds" in the Prospectus;
(h) to pay all expenses, fees and taxes (other than any transfer taxes
and fees and disbursements of counsel for the Underwriters except as set
forth under Section 5 hereof and
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<PAGE>
(iii) and (iv) below) in connection with (i) the preparation and filing of
the Registration Statement, each preliminary prospectus, the Prospectus,
and any amendments or supplements thereto, and the printing and furnishing
of copies of each thereof to the Underwriters and to dealers (including
costs of mailing and shipment), (ii) the preparation, issuance, execution,
authentication and delivery of the Securities, (iii) the printing of the
Pricing Agreement (including these Provisions), an Agreement Among
Underwriters, any dealer agreements, any Powers of Attorney, the Indenture
and the reproduction and/or printing and furnishing of copies of each
thereof to the Underwriters and to dealers (including costs of mailing and
shipment), (iv) the qualification of the Securities for offering and sale
under state laws and the determination of their eligibility for investment
under state law as aforesaid (including the legal fees and filing fees and
other disbursements of counsel for the Underwriters) and the printing and
furnishing of copies of any blue sky surveys or legal investment surveys to
the Underwriters and to dealers, (v) any listing of the Securities on any
securities exchange and any registration thereof under the Exchange Act,
(vi) any fees payable to investment rating agencies with respect to the
Securities, (vii) any filing for review of the public offering of the
Securities by the National Association of Securities Dealers, Inc. (the
"NASD"), and (viii) the performance of the Company's other obligations
hereunder; and
(i) that the Company will not, without the consent of the
Representatives, offer or sell, or publicly announce its intention to offer
or sell, (i) any debt securities pursuant to a public offering or (ii) any
unsecured debt securities pursuant to a private placement which
contemplates the purchasers of such debt securities receiving customary
registration rights, in each case during the period beginning on the date
of the Pricing Agreement and ending the 90th day following the date of the
Pricing Agreement. The Company has not taken, and will not take, directly
or indirectly, any action which might reasonably be expected to cause or
result in the stabilization or manipulation of the price of any security to
facilitate the sale or resale of the Securities.
5. Reimbursement of Underwriters' Expenses: If the Securities of a series
to which the attached Pricing Agreement relates are not delivered for any reason
other than (a) a termination of the obligations of the several Underwriters in
accordance with clause (a)(iii), (a)(iv) or (a)(v) of Section 9 hereof, or (b) a
default by one or more of the Underwriters in its or their respective
obligations hereunder, the Company shall reimburse the Underwriters for all of
their out-of-pocket expenses, including the fees and disbursements of their
counsel.
6. Conditions of Underwriters' Obligations: The several obligations of the
Underwriters to purchase and pay for the Securities are subject to the accuracy
of the representations and warranties on the part of the Company herein on the
Representation Date and at the Closing Date (including those contained in the
Pricing Agreement), to the accuracy of the statements of officers of the Company
made pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following conditions:
(a) The Company shall furnish to the Representatives at the Closing
Date an opinion of Carter, Ledyard & Milburn, counsel for the Company, or
other counsel to the
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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 obligations of the Company enforceable
against the Company in accordance with their terms, except insofar as
the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally,
and by general principles of equity;
(iv) the Securities and the Indenture conform in all material
respects to the summary descriptions thereof contained in the
Registration Statement and Prospectus;
(v) the Registration Statement and the Prospectus (except as to
the financial statements and schedules and other financial and
statistical data contained or incorporated by reference therein and
the Trustee's Statement of Eligibility on Form T-1, as to which such
counsel need express no opinion) comply as to form in all material
respects with the requirements of the Act;
(vi) the Registration Statement has become effective under the
Act and, to the best of such counsel's knowledge, no stop order
proceedings with respect thereto are pending or threatened under the
Act;
(vii) no approval, authorization, consent or order of or filing
with any United States Federal or New York State governmental or
regulatory commission, board, body, authority or agency is required in
connection with the issue or sale of the Securities by the Company as
contemplated hereby, other than registration of the Securities under
the Act and qualification of the Indenture under the Trust Indenture
Act (except such counsel need express no opinion as to any necessary
qualification under the state securities or blue sky laws of the
various jurisdictions in which the Securities are being offered by the
Underwriters);
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<PAGE>
(viii) the Indenture has been duly qualified under the Trust
Indenture Act.
In addition, such counsel shall state that it has participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants of the Company and
representatives of the Underwriters, at which the contents of the Registration
Statement and Prospectus were discussed and, although such counsel has not
independently verified, is not passing upon and does not assume responsibility
for, the accuracy, completeness or fairness of the statements contained in the
Registration Statement or Prospectus (except as and to the extent stated in
subparagraph (iv) above), no facts have come to the attention of such 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 dates
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
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jurisdiction of incorporation with full corporate power and authority
to own its respective properties and to conduct its respective
business (in rendering this opinion with respect to jurisdictions
other than the State of New York, such counsel may state that he is
relying exclusively on certificates and other documents of public
officials of such jurisdictions);
(iv) the Company is duly qualified to transact business as a
foreign corporation in Arizona, California, Massachusetts, North
Carolina and Texas (in rendering this opinion, such counsel may state
that he is relying exclusively on certificates and other documents of
public officials of such jurisdictions);
(v) to the best of such counsel's knowledge, neither the Company
nor any of its Subsidiaries is in breach of, or in default under (nor
has any event occurred which with notice, lapse of time, or both would
constitute a breach of, or default under), any "material contract"
(within the meaning of Item 601(b)(10) of Regulation S-K promulgated
under the Exchange Act) to which the Company or any of its
Subsidiaries is a party or by which any of them or their respective
properties may be bound or affected, or under any United States
Federal or New York State law, regulation or rule, or under any
decree, judgment or order applicable to the Company or any of its
Subsidiaries;
(vi) the execution, delivery and performance of the Pricing
Agreement and the Indenture and the issuance of the Securities by the
Company and the consummation by the Company of the transactions
contemplated hereby and thereby do not and will not conflict with, or
result in any breach of, or constitute a default under (nor constitute
any event which with notice, lapse of time, or both would constitute a
breach of or default under), any provisions of the charter or by-laws
of the Company or any of its Subsidiaries or under any provision of
any material license, indenture, mortgage, deed of trust, bank loan,
credit agreement or other agreement or instrument to which the Company
or any of its Subsidiaries is a party or by which any of them or their
respective properties may be bound or affected, or under any law,
regulation or rule or any decree, judgment or order applicable to the
Company or any of its Subsidiaries;
(vii) to the best of such counsel's knowledge, there are no
contracts, licenses, agreements, leases or documents of a character
which are required to be filed as exhibits to the Registration
Statement or to be summarized or described in the Prospectus which
have not been so filed, summarized or described;
(viii) to the best of such counsel's knowledge, there are no
actions, suits or proceedings pending or threatened against the
Company or any of its Subsidiaries or any of their respective
properties, at law or in equity or before or by any commission, board,
body, authority or agency which are required to be described in the
Prospectus but are not so described;
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<PAGE>
(ix) the documents incorporated by reference in the Registration
Statement and Prospectus, when they were filed (or, if an amendment
with respect to any such document was filed when such amendment was
filed), complied as to form in all material respects with the
requirements of the Exchange Act and the rules thereunder (except as
to the financial statements and schedules and other financial data
contained or incorporated by reference therein as to which such
counsel need express no opinion);
(c) The Representatives shall have received from the Company's
independent public accountants letters dated, respectively, as of the
Representation Date and the Closing Date, and addressed to the Underwriters
in the forms theretofore approved by the Representatives.
(d) The Representatives shall have received at the Closing Date the
favorable opinion of counsel for the Underwriters, dated the Closing Date,
in form and substance reasonably satisfactory to the Representatives.
(e) Prior to the Closing Date (i) the Registration Statement and all
amendments thereto, or modifications thereof, if any, shall not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading and (ii) the Prospectus and all amendments or
supplements thereto, or modifications thereof, if any, shall not contain an
untrue statement of material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements therein,
in the light of the circumstances under which they are made, not
misleading.
(f) Between the Representation Date and the Closing Date, (i) there
has been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business, and (ii) no transaction
which is material and unfavorable to the Company shall have been entered
into by the Company or any of its Subsidiaries.
(g) The Company will, at the Closing Date, deliver to the
Representatives a certificate of two of its executive officers to the
effect that the representations and warranties of the Company set forth in
Section 3 of this Agreement and the conditions set forth in subsections (e)
and subsection (f) of this Section 6 have been met and are true and correct
as of such date.
(h) The Company shall have furnished to the Representatives such other
documents and certificates as to the accuracy and completeness of any
statement in the Registration Statement and the Prospectus as of the
Closing Date as the Representatives may reasonably request.
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<PAGE>
(i) The Company shall perform such of its obligations under these
Provisions and the Pricing Agreement as are to be performed by the terms
hereof and thereof at or before the Closing Date.
(j) No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or threatened.
(k) At the Closing Date, counsel for the Underwriters shall have been
furnished with such information, certificates and documents as they may
reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as contemplated herein and related
proceedings, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all opinions and certificates mentioned above or
elsewhere in this Agreement shall be reasonably satisfactory in form and
substance to the Representatives and counsel for the Underwriters.
7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the
information deemed to be part of the Registration Statement pursuant
to Rule 430A(b) under the Act (the "Rule 430A Information") or Rule
434 under the Act (the "Rule 434 Information"), if applicable, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 7(d) below) any such
settlement is effected with the written consent of the Company; and
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(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 7(c) hereof, the fees and disbursements
of counsel chosen by the Representatives), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that the indemnity provided in this Section 7(a) shall
not apply to any loss, liability, claim, damage or expense to the extent
arising out of any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter
through the Representatives expressly for use in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the
Rule 434 Information deemed to be a part thereof, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) (the "Furnished Information"); and provided, further, that with
respect to any untrue statement or omission or alleged untrue statement or
omission made in any preliminary prospectus, the indemnity provided in this
Section 7(a) shall not inure to the benefit of any Underwriter from whom
the person asserting any such losses, claims, damages, liabilities or
expenses purchased the Securities concerned to the extent that (i) any such
loss, claim, damage, liability or expense of such Underwriter and its
affiliates results from the fact that a copy of the final Prospectus
(excluding documents incorporated by reference) was not sent or given to
such person at or prior to the written confirmation of sale of such
Securities as required by the Act, and (ii) the untrue statement or
omission has been corrected in the final Prospectus.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section 7,
as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto) including the Rule 430A Information and the Rule
434 Information deemed to be a part thereof, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with the Furnished Information,
which the Underwriters agree to identify by letter to the Company dated
each Closing Date.
(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
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case of parties indemnified pursuant to Section 7(a) above, counsel to the
indemnified parties shall be selected by the Representatives, and, in the
case of parties indemnified pursuant to Section 7(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party
may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except
with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions
in the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to the
entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever in respect of which indemnification or contribution
could be sought under this Section 7 or Section 8 hereof (whether or not
the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional
release of each indemnified party from all liability arising out of such
litigation, investigation, proceeding or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act
by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 7(a)(ii) effected without
its written consent if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall have received notice of the terms of
such settlement at least 30 days prior to such settlement being entered
into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement. Notwithstanding the immediately preceding sentence, if at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, an
indemnifying party shall not be liable for any settlement of the nature
contemplated by Section 7(a)(ii) effected without its consent if such
indemnifying party (i) reimburses such indemnified party in accordance with
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
-16-
<PAGE>
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 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
-17-
<PAGE>
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 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
-18-
<PAGE>
Company, shall be sufficient in all respects if delivered or telefaxed to the
Company at the offices of the Company at 2211 South 47th Street, Phoenix,
Arizona 85034, Attention: Mr. Raymond Sadowski (fax no. (602) 643-7929).
11. Construction: These Provisions and the Pricing Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York. The section headings in these Provisions have been inserted as a matter of
convenience of reference and are not a part of these Provisions.
12. Parties at Interest: The agreements set forth herein and in the Pricing
Agreement have been and are made solely for the benefit of the Underwriters and
the Company and the controlling persons, directors and officers referred to in
Sections 7 and 8 hereof, and their respective successors, assigns, executors and
administrators. No other person, partnership, association or corporation
(including a purchaser, as such purchaser, from any of the Underwriters) shall
acquire or have any right under or by virtue of these Provisions or the Pricing
Agreement.
-19-
<PAGE>
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
-20-
<PAGE>
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 Statements on Form S-3 (Nos. 333-53691 and 333-_____) 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.
-21-
<PAGE>
Name[s] and Address[es] of Representative[s]:
The provisions contained in the Standard Underwriting Agreement Provisions,
a copy of which has been filed as Exhibit 1 to Registration No. 333-_____, 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:
-22-
EXHIBIT 5
<PAGE>
AVNET
Corporate Services Group
February 4, 2000
Board of Directors
Avnet, Inc.
2211 South 47th Street
Phoenix, Arizona 85034
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
I refer to the Registration Statement on Form S-3 (the "Registration
Statement") to be filed by Avnet, Inc. (the "Company") with the Securities and
Exchange Commission in connection with the registration under the Securities Act
of 1933, as amended, of up to $360,000,000 aggregate principal amount of the
Company's debt securities to be issued from time to time in one or more public
offerings (the "Debt Securities").
I have examined and am familiar with originals, or copies the authenticity
of which has been established to my satisfaction, of such documents and
instruments as I have deemed necessary to express the opinions hereinafter set
forth. Based upon the foregoing, it is my opinion that the Debt Securities, when
issued or delivered in the manner provided for in the Indenture and the form of
Standard Underwriting Agreement Provisions filed as exhibits to the Registration
Statement, will be legally issued and the binding obligations of the Company
under the laws of the State of New York, which laws govern the Indenture
providing for the Debt Securities.
I consent to the use of this opinion as Exhibit 5 to the Registration
Statement and to the reference to me under the caption "Legal Matters" in the
prospectus constituting Part I thereof.
Very truly yours,
/s/David R. Birk
David R. Birk
Senior Vice President and
General Counsel
DRB/sc
2211 South 47th Street o Phoenix, AZ 85034
T. 480-643-2000 F. 480-643-7199
EXHIBIT 12
<PAGE>
<TABLE>
<CAPTION>
Avnet, Inc.
Computation of Ratios of Earnings to Fixed Charges
Fiscal year ended Fiscal quarter ended
-------------------------------------------------------------------- --------------------
June 30, June 28, June 27, June 26, July 2, Oct. 2, Oct. 1,
1995 1996 1997 1998(1) 1999(2) 1998(3) 1999(4)
---- ---- ---- ------- ------- ------- -------
(Dollar amounts in thousands)
<S> <C> <C> <C> <C> <C> <C> <C>
Income before
income taxes.................. $243,374 $325,039 $313,419 $267,346 $375,291 $28,671 $39,390
Add fixed charges............... 31,473 33,441 33,766 48,982 61,768 15,472 12,188
-------- ------- -------- ------- -------
Income as adjusted.............. $274,847 $358,480 $347,185 $316,328 $437,059 $44,143 $51,578
======= ======= ======= ======= ======= ====== ======
Fixed charges:
Interest on indebtedness...... $23,175 $25,916 $26,076 $39,988 $52,096 $13,148 $9,866
Amortization of
debt expense................ 324 149 165 252 449 37 127
Rents:
Portion of rents
representative of the
interest factor ........... 7,974 7,376 7,525 8,742 9,223 2,287 2,195
------ ------ ------ ------- ------- ------- -------
Total fixed charges............. $31,473 $33,441 $33,766 $48,982 $61,768 $15,472 $12,188
====== ====== ====== ====== ====== ====== ======
Ratio of earnings to
fixed charges.................. 8.7 10.7 10.3 6.5 7.1 2.9 4.2
=== ==== ==== === === === ===
</TABLE>
Notes:
- -----
(1) Income before income taxes for the fiscal year ended June 26, 1998,
includes (a) the gain on the sale of Channel Master amounting to $33.8
million, (b) costs relating to the divestiture of Avnet Industrial, the
closure of Avnet's corporate headquarters in Great Neck, New York, and
the loss on the sale of Avnet-owned real estate, amounting to $13.3
million in the aggregate, and (c) incremental special charges
associated principally with the reorganization of Avnet's Electronic
Marketing group amounting to $35.4 million. Had such one-time items
(amounting to $14.9 million pre-tax, net) not been included, the ratio
of earnings to fixed charges for the year ended June 26, 1998, would
have been 6.8 on a pro forma basis.
(2) Income before income taxes for the fiscal year ended July 2, 1999,
includes (a) incremental special charges associated primarily with the
reorganization of the European portion of Avnet's Electronics Marketing
group, amounting to $26.5 million, and (b) the net gain from the sale
of Allied Electronics amounting to $252.3 million, offset in part by
charges of $42.8 million recorded in connection with the intended
disposition of the Avnet Setron catalog operation in Germany. Had such
one-time items (amounting to $183.0 million pre-tax, net) not been
included, the ratio of earnings to fixed charges for the year ended
July 2, 1999, would have been 4.1 on a pro forma basis.
<PAGE>
(3) Income before income taxes for the fiscal quarter ended October 2,
1998, includes incremental special charges associated primarily with
the reorganization of the European portion of Avnet's Electronics
Marketing group, amounting to $26.5 million. Had such one-time charges
not been included, the ratio of earnings to fixed charges for the
quarter ended October 2, 1998, would have been 4.6 on a pro forma
basis.
(4) Income before income taxes for the fiscal quarter ended October 1,
1999, includes incremental special charges associated primarily with
the final phase of the reorganization of the European portion of
Avnet's Electronics Marketing group, amounting to $6.1 million. Had
such one-time charges not been included, the ratio of earnings to fixed
charges for the quarter ended October 1, 1999, would have been 4.7 on a
pro forma basis.
EXHIBIT 23(a)
<PAGE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to (1) the
incorporation by reference in this Registration Statement on Form S-3 of our
report dated August 4, 1999, included in Avnet, Inc.'s Annual Report on Form
10-K for the year ended July 2, 1999; (2) the incorporation by reference in this
Registration Statement on Form S-3 of our report dated August 25, 1999, on the
consolidated financial statements of Marshall Industries, which report is
included in Avnet, Inc.'s Current Report on Form 8-K bearing cover date of
October 20, 1999; and (3) all references to our firm included in this
Registration Statement.
/s/ ARTHUR ANDERSEN LLP
Phoenix, Arizona
February 4, 2000
EXHIBIT 24
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The undersigned does hereby make, constitute and appoint David R. Birk and
Raymond Sadowski, and each of them, his attorneys-in-fact and agents with full
power of substitution, to execute for him and in his behalf in any and all
capacities a Registration Statement under the Securities Act of 1933, any
amendments to such Registration Statement (including post-effective amendments),
and any other documents incidental thereto, relating to up to $360,000,000 of
debt securities of Avnet, Inc. which may be offered and sold from time to time,
and to file the same, with all exhibits thereto and all other required
documents, with the Securities and Exchange Commission. The undersigned further
grants unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection with the said filings, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents and/or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 25th day of January, 2000.
/s/Roy Vallee
-------------
Roy Vallee
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The undersigned does hereby make, constitute and appoint David R. Birk and
Raymond Sadowski, and each of them, her attorneys-in-fact and agents with full
power of substitution, to execute for her and in her behalf in any and all
capacities a Registration Statement under the Securities Act of 1933, any
amendments to such Registration Statement (including post-effective amendments),
and any other documents incidental thereto, relating to up to $360,000,000 of
debt securities of Avnet, Inc. which may be offered and sold from time to time,
and to file the same, with all exhibits thereto and all other required
documents, with the Securities and Exchange Commission. The undersigned further
grants unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection with the said filings, as fully to all intents and
purposes as she might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents and/or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 25th day of January, 2000.
/s/Eleanor Baum
---------------
Eleanor Baum
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The undersigned does hereby make, constitute and appoint David R. Birk and
Raymond Sadowski, and each of them, her attorneys-in-fact and agents with full
power of substitution, to execute for her and in her behalf in any and all
capacities a Registration Statement under the Securities Act of 1933, any
amendments to such Registration Statement (including post-effective amendments),
and any other documents incidental thereto, relating to up to $360,000,000 of
debt securities of Avnet, Inc. which may be offered and sold from time to time,
and to file the same, with all exhibits thereto and all other required
documents, with the Securities and Exchange Commission. The undersigned further
grants unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection with the said filings, as fully to all intents and
purposes as she might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents and/or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 25th day of January, 2000.
/s/J. Veronica Biggins
----------------------
J. Veronica Biggins
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The undersigned does hereby make, constitute and appoint David R. Birk and
Raymond Sadowski, and each of them, his attorneys-in-fact and agents with full
power of substitution, to execute for him and in his behalf in any and all
capacities a Registration Statement under the Securities Act of 1933, any
amendments to such Registration Statement (including post-effective amendments),
and any other documents incidental thereto, relating to up to $360,000,000 of
debt securities of Avnet, Inc. which may be offered and sold from time to time,
and to file the same, with all exhibits thereto and all other required
documents, with the Securities and Exchange Commission. The undersigned further
grants unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection with the said filings, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents and/or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 25th day of January, 2000.
/s/Joseph F. Caligiuri
----------------------
Joseph F. Caligiuri
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The undersigned does hereby make, constitute and appoint David R. Birk and
Raymond Sadowski, and each of them, his attorneys-in-fact and agents with full
power of substitution, to execute for him and in his behalf in any and all
capacities a Registration Statement under the Securities Act of 1933, any
amendments to such Registration Statement (including post-effective amendments),
and any other documents incidental thereto, relating to up to $360,000,000 of
debt securities of Avnet, Inc. which may be offered and sold from time to time,
and to file the same, with all exhibits thereto and all other required
documents, with the Securities and Exchange Commission. The undersigned further
grants unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection with the said filings, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents and/or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 25th day of January, 2000.
/s/Lawrence W. Clarkson
-----------------------
Lawrence W. Clarkson
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The undersigned does hereby make, constitute and appoint David R. Birk and
Raymond Sadowski, and each of them, his attorneys-in-fact and agents with full
power of substitution, to execute for him and in his behalf in any and all
capacities a Registration Statement under the Securities Act of 1933, any
amendments to such Registration Statement (including post-effective amendments),
and any other documents incidental thereto, relating to up to $360,000,000 of
debt securities of Avnet, Inc. which may be offered and sold from time to time,
and to file the same, with all exhibits thereto and all other required
documents, with the Securities and Exchange Commission. The undersigned further
grants unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection with the said filings, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents and/or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 25th day of January, 2000.
/s/Ehud Houminer
----------------
Ehud Houminer
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The undersigned does hereby make, constitute and appoint David R. Birk and
Raymond Sadowski, and each of them, his attorneys-in-fact and agents with full
power of substitution, to execute for him and in his behalf in any and all
capacities a Registration Statement under the Securities Act of 1933, any
amendments to such Registration Statement (including post-effective amendments),
and any other documents incidental thereto, relating to up to $360,000,000 of
debt securities of Avnet, Inc. which may be offered and sold from time to time,
and to file the same, with all exhibits thereto and all other required
documents, with the Securities and Exchange Commission. The undersigned further
grants unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection with the said filings, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents and/or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 25th day of January, 2000.
/s/James A. Lawrence
--------------------
James A. Lawrence
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The undersigned does hereby make, constitute and appoint David R. Birk and
Raymond Sadowski, and each of them, his attorneys-in-fact and agents with full
power of substitution, to execute for him and in his behalf in any and all
capacities a Registration Statement under the Securities Act of 1933, any
amendments to such Registration Statement (including post-effective amendments),
and any other documents incidental thereto, relating to up to $360,000,000 of
debt securities of Avnet, Inc. which may be offered and sold from time to time,
and to file the same, with all exhibits thereto and all other required
documents, with the Securities and Exchange Commission. The undersigned further
grants unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection with the said filings, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents and/or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 25th day of January, 2000.
/s/Salvatore J. Nuzzo
---------------------
Salvatore J. Nuzzo
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The undersigned does hereby make, constitute and appoint David R. Birk and
Raymond Sadowski, and each of them, his attorneys-in-fact and agents with full
power of substitution, to execute for him and in his behalf in any and all
capacities a Registration Statement under the Securities Act of 1933, any
amendments to such Registration Statement (including post-effective amendments),
and any other documents incidental thereto, relating to up to $360,000,000 of
debt securities of Avnet, Inc. which may be offered and sold from time to time,
and to file the same, with all exhibits thereto and all other required
documents, with the Securities and Exchange Commission. The undersigned further
grants unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection with the said filings, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents and/or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 25th day of January, 2000.
/s/Frederic Salerno
-------------------
Frederic Salerno
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The undersigned does hereby make, constitute and appoint David R. Birk and
Raymond Sadowski, and each of them, his attorneys-in-fact and agents with full
power of substitution, to execute for him and in his behalf in any and all
capacities a Registration Statement under the Securities Act of 1933, any
amendments to such Registration Statement (including post-effective amendments),
and any other documents incidental thereto, relating to up to $360,000,000 of
debt securities of Avnet, Inc. which may be offered and sold from time to time,
and to file the same, with all exhibits thereto and all other required
documents, with the Securities and Exchange Commission. The undersigned further
grants unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection with the said filings, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents and/or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 25th day of January, 2000.
/s/Frederick Wood
-----------------
Frederick Wood
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The undersigned does hereby make, constitute and appoint David R. Birk and
Raymond Sadowski, and each of them, his attorneys-in-fact and agents with full
power of substitution, to execute for him and in his behalf in any and all
capacities a Registration Statement under the Securities Act of 1933, any
amendments to such Registration Statement (including post-effective amendments),
and any other documents incidental thereto, relating to up to $360,000,000 of
debt securities of Avnet, Inc. which may be offered and sold from time to time,
and to file the same, with all exhibits thereto and all other required
documents, with the Securities and Exchange Commission. The undersigned further
grants unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection with the said filings, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents and/or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this power of attorney
this 25th day of January, 2000.
/s/John F. Cole
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John F. Cole
