EXHIBIT 4.2
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AVNET, INC.
OFFICERS' CERTIFICATE PURSUANT TO
SECTION 301 OF THE INDENTURE IDENTIFIED BELOW
The undersigned officers of Avnet, Inc. (the "Company"), acting pursuant to
Section 301 of the Indenture dated as of October 1, 2000 (the "Indenture"),
between the Company and Bank One Trust Company, N.A., as trustee (the
"Trustee"), and pursuant to the authorization contained in resolutions of the
Chief Financial Officer of the Company duly adopted on October 12, 2000, and
October 27, 2000 (the "Resolutions"), do hereby certify that there was
established in the Resolutions a series of the Company's debt securities
designated as 8.20% Notes due October 17, 2003 (the "Notes"), which have been
issued and are to be issued under the Indenture and which have been registered
for sale with the Securities and Exchange Commission pursuant to a Registration
Statement on Form S-3 (Registration No. 333-39530) under the Securities Act of
1933, as amended.
An aggregate principal amount of $200,000,000 of Notes were initially
issued on October 17, 2000. An additional $50,000,000 aggregate principal amount
of Notes will be issued on or about October 31, 2000.
The terms of the Notes, as authorized, adopted and approved by the Chief
Financial Officer of the Company pursuant to Section 301 of the Indenture, are
set forth in the Resolutions, which are attached hereto as Annex A-1 and Annex
A-2.
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IN WITNESS WHEREOF the undersigned have executed this Officers' Certificate
on behalf of the Company as of this 27th day of October, 2000.
/s/ Raymond Sadowski
--------------------
Raymond Sadowski
Senior Vice President
and Chief Financial Officer
(CORPORATE SEAL)
/s/ David R. Birk
-----------------
David R. Birk
Senior Vice President,
General Counsel and Secretary
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ANNEX A-1
RESOLUTIONS
ADOPTED BY THE CHIEF FINANCIAL OFFICER OF
AVNET, INC.
ON OCTOBER 12, 2000
WHEREAS, at a meeting of the Board of Directors of Avnet, Inc. (the
"Company") held on March 24, 2000, the Board authorized the issuance and sale by
the Company from time to time of up to $500,000,000 in gross proceeds to the
Company of various securities (the "Securities"), including unsecured debt
securities ("Debt Securities"); and
WHEREAS, at the aforementioned meeting, the Board of Directors granted to
the Finance Committee of the Board of Directors (the "Finance Committee")
authority to exercise all of the powers and authority of the Board of Directors
in connection with issuances and sales of Securities, and authorized the
Committee in its sole discretion to delegate to the Chief Financial Officer of
the Company the authority to exercise any or all of the Committee's powers and
authority; and
WHEREAS, on June 16, 2000, the Company filed with the Securities and
Exchange Commission (the "Commission") a Registration Statement on Form S-3,
Registration No. 333-39530 (the "Registration Statement"), to effect the
registration under the Securities Act of 1933, as amended (the "Securities
Act"), of up to $500,000,000 in gross proceeds to the Company of various
securities, including Debt Securities; and
WHEREAS, at a meeting of the Board of Directors of the Company held on
September 20, 2000, the Board authorized the issuance of an additional
$1,000,000,000 of Securities under the Registration Statement; and
WHEREAS, on September 29, 2000, the Company filed an Amendment No. 1 to the
Registration Statement to effect the registration under the Securities Act of up
to $1,500,000,000 in gross proceeds to the Company of various securities; and
WHEREAS, on September 29, 2000, at 9:30 a.m., Eastern time, the
Registration Statement became effective under the Securities Act and the
Indenture described below relating to the Debt Securities was qualified under
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"); and
WHEREAS, at a meeting of the Finance Committee held on September 29, 2000,
the Chief Financial Officer of the Company was authorized, empowered and
directed on behalf of the Company, and to the full extent that the Finance
Committee could so act, to establish pricing and all other terms (including to
the full extent as set forth in Section 301 of the Indenture evidenced to the
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Finance Committee) for up to $750 million aggregate principal amount (or, with
respect to all or any portion thereof, in the discretion of the Chief Financial
Officer, the equivalent amount denominated in Euros) of unsecured senior
indebtedness of which (a) not more than $500 million aggregate principal amount
(or the Euro equivalent) shall have a term of up to but not exceeding 5 years at
a rate of interest not exceeding 8.4% per annum for 3-year senior indebtedness
and/or in the discretion of the Chief Financial Officer at a rate of interest
not exceeding 8.5% for 5-year senior indebtedness and (b) all or any portion of
the balance of the said $750 million aggregate principal amount (or the Euro
equivalent) as referred to above in this resolution shall be 1-year floating
rate notes at a rate of interest not exceeding LIBOR plus 100 basis points; and
the Chief Financial Officer, the General Counsel and other proper officers of
the Company were authorized, empowered and directed, to the full extent of the
power and authority of the Finance Committee, to negotiate, enter into, execute
and deliver on behalf of the Company all agreements (including the Pricing
Agreement) and other documents necessary to consummate the financing
contemplated; and
WHEREAS, on October 5, 2000, a prospectus dated September 29, 2000 (the
"Prospectus"), and a preliminary prospectus supplement dated October 4, 2000
(the "Preliminary Prospectus Supplement"), relating to Debt Securities to be
offered as ___% Notes due 200_ of the Company were filed with the Commission
pursuant to Rule 424(b)(5) under the Securities Act and first distributed to
potential investors; and
WHEREAS, on October 12, 2000, the Chief Financial Officer of the Company,
pursuant to authority given to him by the Finance Committee, established the
terms of $525,000,000 aggregate principal amount of Debt Securities in two
series and caused to be executed and delivered on behalf of the Company the
Pricing Agreement referred to in the two paragraphs 25B below; and
WHEREAS, on October 13, 2000, a final prospectus supplement dated October
12, 2000 (the "Prospectus Supplement"), relating to $525,000,000 aggregate
principal amount of Debt Securities offered as $325,000,000 of Floating Rate
Notes due 2001 and $200,000,000 of 8.20% Notes due 2003 of the Company, was
filed with the Commission pursuant to Rule 424(b)(2) under the Securities Act
and first distributed to investors;
NOW, THEREFORE, BE IT RESOLVED, that the actions taken by the officers of
the Company in preparing, filing and distributing the Preliminary Prospectus
Supplement and the Prospectus Supplement are hereby in all respects ratified,
confirmed, approved and adopted; and further
RESOLVED, that there is hereby established an issue of two series of Debt
Securities of the Company to be designated as hereinafter provided, which Debt
Securities shall be issued under the Indenture dated as of October 1, 2000 (the
"Indenture") between the Company and Bank One Trust Company, N.A., as Trustee,
and shall constitute general, unsecured and unsubordinated obligations of the
Company (such Debt Securities being hereinafter referred to collectively as the
"Notes"); and further
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RESOLVED, that the designation and terms of each series of Notes shall be
as set forth below and are adopted pursuant to Section 301 of the Indenture, and
such designation and terms shall be deemed to constitute, and are hereby
expressly made, a part of the Indenture (all capitalized terms used but not
defined below shall have the same meanings as in the Indenture):
[The designation and terms of the Floating Rate Notes due October 17, 2001
are omitted.]
* * *
1. Title of the Securities: 8.20% Notes due October 17, 2003 (the "Fixed
Rate Notes").
2. Any limit upon the aggregate principal amount of the Fixed Rate Notes
that may be authenticated and delivered under the Indenture (except for Fixed
Rate Notes authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Fixed Rate Notes pursuant to the Indenture):
$200,000,000.
3. Date on which the principal of the Fixed Rate Notes shall be payable:
October 17, 2003.
4. A. The rate at which the Fixed Rate Notes shall bear interest: The
Fixed Rate Notes will bear interest at a rate of 8.20% per annum.
B. The date from which such interest shall accrue: Each Fixed Rate
Note will bear interest from October 17, 2000, or from the most recent
Interest Payment Date to which interest on such Fixed Rate Note or a
predecessor Fixed Rate Note has been paid or duly provided for.
C. Interest Payment Dates: Interest on the Fixed Rate Notes will be
payable semi-annually on the 17th day of each April and October beginning
April 17, 2001.
D. Regular Record Date for the interest payable on the Fixed Rate
Notes on any Interest Payment Date: The date 15 calendar days prior to such
Interest Payment Date, whether or not such date shall be a Business Day.
E. Basis upon which interest will be calculated: A 360-day year of
twelve 30-day months.
5. Place or places where, subject to the provisions of Section 1002 of the
Indenture, the principal of and interest on the Fixed Rate Notes shall be
payable, where Fixed Rate Notes may be surrendered for registration of transfer
or for exchange, and where notices and demands to or upon the Company in respect
of the Fixed Rate Notes and the Indenture may be served: At the following office
or agency of the Trustee: Bank One Trust Company, N.A., 14 Wall Street, 8th
Floor, New York, New York 10005, Attention: Corporate Trust Administration.
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6. Provisions for redemption of the Fixed Rate Notes, in whole or in part,
at the option of the Company: The Fixed Rate Notes will not be redeemable or
repayable prior to their Stated Maturity.
7. Provisions for mandatory redemption, repayment or purchase of the Fixed
Rate Notes: The Company has no obligation to redeem or purchase the Fixed Rate
Notes pursuant to any sinking fund or analogous provisions or at the option of a
Holder.
8. Denominations in which Fixed Rate Notes are issuable: The Fixed Rate
Notes are issuable only in book-entry form in denominations of $1,000 and
integral multiples of $1,000.
9. If other than the Trustee, the identity of each Security Registrar
and/or Paying Agent with respect to the Fixed Rate Notes: Not applicable.
10. If other than the total principal amount thereof, the portion of the
principal amount of the Fixed Rate Notes that shall be payable upon declaration
of acceleration of the Maturity thereof pursuant to Section 502 of the Indenture
or the method by which such portion shall be determined: Not applicable.
11. If other than the Dollar, the Currency or Currencies in which payment
of the principal of or interest on the Fixed Rate Notes shall be made or in
which the Fixed Rate Notes shall be denominated: Not applicable.
12. Whether the amount of payments of principal of or interest on the Fixed
Rate Notes may be determined with reference to an index, formula or other
method: No.
13. Whether the principal of or interest on the Notes is to be payable, at
the election of the Company or a Holder thereof, in one or more Currencies other
than that in which the Fixed Rate Notes are denominated or stated to be payable:
No.
14. Provisions, if any, granting special rights to the Holders of Fixed
Rate Notes upon the occurrence of such events as may be specified: None.
15. Any deletions from, modifications of or additions to the Events of
Default or covenants (including any deletions from, modifications of or
additions to any of the provisions of Section 1009) or other undertakings of the
Company with respect to the Fixed Rate Notes: None.
16. A. Whether the Fixed Rate Notes are to be issuable as Registered
Securities, Bearer Securities (with or without coupons) or both:
Registered Securities only.
B. Whether any Fixed Rate Notes are to be issuable initially in
temporary global form: No.
C. Whether any Fixed Rate Notes are to be issuable in permanent
global form with or without coupons and, if so, whether beneficial
owners of interests in any such
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permanent global security may exchange such interests for Fixed Rate Notes
in certificated form and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may
occur, if other than in the manner provided in Section 305 of the
Indenture: All Fixed Rate Notes will be represented by one or more fully
registered permanent global securities as described in the Prospectus
Supplement under the caption "Description of the Notes -- Depositary."
Except as described in the sixth paragraph under the said caption,
beneficial owners of interests in such global securities may not exchange
such interests for any form of certificate evidencing Fixed Rate Notes. In
the event that such a right of exchange should arise, the manner of such
exchange shall be as provided in Section 305 of the Indenture.
D. Depository for the Fixed Rate Notes: The Depository Trust
Company.
17. The date as of which any Bearer Securities of the series and any
temporary global Security representing Outstanding Securities of the series
shall be dated if other than the date of original issuance of the first Security
of the series to be issued: Not applicable.
18. A. The Person to whom any interest on any Registered Security of the
series shall be payable, if other than the Person in whose name such
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest: Not applicable.
B. The manner in which, or the Person to whom, any interest on any
Bearer Security of the series shall be payable, if otherwise than upon
presentation and surrender of the coupons appertaining thereto as they
severally mature: Not Applicable
C. The extent to which, or the manner in which, any interest payable
on a temporary global Security on an Interest Payment Date will be paid if
other than in the manner provided in Section 304: Not Applicable
19. The applicability of Sections 1402 and/or 1403 of the Indenture to the
Fixed Rate Notes and any provisions in modification of, in addition to or in
lieu of any of the provisions of Article Fourteen: The defeasance and discharge
provisions of Sections 1402 and 1403 are fully applicable to the Fixed Rate
Notes. There are no provisions in modification of, in addition to or in lieu of
any of the provisions of Article XIV of the Indenture.
20. Whether the Fixed Rate Notes are to be issuable in definitive form
(whether upon original issue or upon exchange of a temporary Fixed Rate Note)
only upon receipt of certain certificates or other documents or satisfaction of
other conditions: No.
21. Whether, under what circumstances and the Currency in which, the
Company will pay additional amounts as contemplated by Section 1004 on the Fixed
Rate Notes to any Holder who is not a United States person (including any
modification to the definition of such term) in respect of any tax, assessment
or governmental charge: No.
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22. The designation of the initial Exchange Rate Agent: Not applicable.
23. If the Fixed Rate Notes are to be convertible into or exchangeable for
any securities of any Person (including the Company), the terms and conditions
upon which such Securities will be so convertible or exchangeable: Not
applicable.
24. Whether the Fixed Rate Notes are to be subordinated or unsubordinated
indebtedness of the Company: The Fixed Rate Notes are to be unsubordinated
indebtedness of the Company.
25. Any other terms of or provisions applicable to the Fixed Rate Notes and
the sale thereof:
A. Form of Fixed Rate Notes: The form of permanent global Fixed Rate
Note shall be substantially in the form of Exhibit B attached hereto
[omitted].
B. Manner of Sale: The Company has engaged Merrill Lynch, Pierce,
Fenner & Smith Incorporated as lead underwriter for the purpose of selling
the Fixed Rate Notes in an underwritten public offering in the United
States, all as more fully set forth in the Standard Underwriting Agreement
Provisions attached hereto as Exhibit C [omitted] and the Pricing Agreement
attached hereto as Exhibit D [omitted].
C. Issue price to the public of the Notes: 99.796% of principal
amount.
D. Underwriters' commission or discount as a percentage of the
principal amount of Notes to be issued: .45% of principal amount;
E. Additional Fixed Rate Notes: The Company will have the ability,
without the consent of the Holders of the Fixed Rate Notes, to reopen the
series and issue additional Fixed Rate Notes.
and further
RESOLVED, that the proper officers of the Company are hereby authorized,
empowered and directed to execute and deliver an Officers' Certificate pursuant
to Section 301 of the Indenture with respect to the Notes, as well as such other
agreements, certificates, instruments and documents and to do such other acts as
they may from time to time determine are necessary or appropriate in order to
effectuate the purposes of any of the foregoing resolutions; and further
RESOLVED, that all acts and things done by any of the officers of the
Company prior to the date hereof that are within the authority conferred by any
of the foregoing resolutions are hereby ratified, confirmed, approved and
adopted.
6
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ANNEX A-2
RESOLUTIONS
ADOPTED BY THE CHIEF FINANCIAL OFFICER OF
AVNET, INC.
ON OCTOBER 27, 2000
WHEREAS, on October 12, 2000, the Chief Financial Officer of Avnet, Inc.
adopted resolutions (the "October 12 Resolutions") which established the terms
and authorized the issuance of $200,000,000 aggregate principal amount of a
series of unsecured debt securities of the Company designated 8.20% Notes due
October 17, 2000 (the "Fixed Rate Notes"), pursuant to an Indenture dated as of
October 1, 2000, between the Company and Bank One Trust Company, N.A., as
Trustee (the "Indenture"); and
WHEREAS, Section 301 of the Indenture provides that "All Securities of any
one series need not be issued at the same time and, unless otherwise provided, a
series may be reopened, without the consent of the Holders, for issuances of
additional Securities of such series"; and
WHEREAS, clause 25E of the designation and terms of the Fixed Rate Notes in
the October 12 Resolutions provides that "The Company will have the ability,
without the consent of the Holders of the Fixed Rate Notes, to reopen the series
and issue additional Fixed Rate Notes"; and
WHEREAS, on October 27, 2000, a prospectus supplement dated October 26,
2000 (the "Prospectus Supplement"), relating to an additional $50,000,000
aggregate principal amount of Fixed Rate Notes was filed with the Securities and
Exchange Commission pursuant to Rule 424(b)(2) under the Securities Act of 1933,
as amended, and first distributed to investors;
NOW, THEREFORE, BE IT RESOLVED, that the actions taken by the officers of
the Company in preparing, filing and distributing the Prospectus Supplement are
hereby in all respects ratified, confirmed, approved and adopted; and further
RESOLVED, that paragraphs 2 and 25 of the designation and terms of the
Fixed Rate Notes in the October 12 Resolutions are hereby amended and restated
to read in their entirety as follows:
2. Any limit upon the aggregate principal amount of the Fixed Rate Notes
that may be authenticated and delivered under the Indenture (except for Fixed
Rate Notes authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Fixed Rate Notes pursuant to the Indenture):
$250,000,000.
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25. Any other terms of or provisions applicable to the Fixed Rate Notes and
the sale thereof:
A. Form of Fixed Rate Notes: The form of permanent global Fixed Rate
Note for the additional $50,000,000 of Fixed Rate Notes shall be
substantially in the form of Exhibit A attached hereto.
B. Manner of Sale: The Company has engaged Merrill Lynch, Pierce,
Fenner & Smith Incorporated as underwriter for the purpose of selling the
additional $50,000,000 of Fixed Rate Notes in an underwritten public
offering in the United States, all as more fully set forth in the Pricing
Agreement attached hereto as Exhibit B.
C. Issue price to the public of the additional Fixed Rate Notes:
99.935% of principal amount.
D. Underwriters' commission or discount as a percentage of the
principal amount of Notes to be issued: .45% of principal amount.
E. Additional Fixed Rate Notes: The Company will have the ability,
without the consent of the Holders of the Fixed Rate Notes, to reopen the
series and issue additional Fixed Rate Notes.
and further
RESOLVED, that in all other respects, the designation and terms of the
Fixed Rate Notes, as set forth in the October 12 Resolutions, are confirmed,
ratified and approved; and
RESOLVED, that the proper officers of the Company are hereby authorized,
empowered and directed to execute and deliver an Officers' Certificate pursuant
to Section 301 of the Indenture with respect to the additional $50,000,000 of
Fixed Rates Notes, as well as such other agreements, certificates, instruments
and documents, and to do such other acts and things as they may from time to
time determine are necessary or appropriate in order to effectuate the purposes
of any of the foregoing resolutions; and further
RESOLVED, that all acts and things done by any of the officers of the
Company prior to the date hereof that are within the authority conferred by any
of the foregoing resolutions and the October 12 Resolutions are hereby ratified,
confirmed, approved and adopted.
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EXHIBIT A
FORM OF FIXED RATE NOTE
This Security is issued in global form and is registered in the name of The
Depository Trust Company, a New York corporation (the "Depositary" or "DTC") or
a nominee of the Depositary. This Security is not exchangeable for Securities
registered in the name of a Person other than the Depositary or its nominee
except in the limited circumstances described in the Indenture, and no transfer
of this Security (other than a transfer of this Security as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary) may be registered except in
the limited circumstances described in the Indenture.
Unless this certificate is presented by an authorized representative of DTC
to Avnet, Inc. or its agent for registration of transfer, exchange, or payment,
and any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
AVNET, INC
8.20% Notes due 2003
CUSIP No. 053807 AG 8
No. 2 $50,000,000
AVNET, INC., a corporation duly organized and existing under the laws of
the State of New York (herein called the "Company," which term includes any
successor Person under the Indenture referred to on the reverse hereof), for
value received, hereby promises to pay to CEDE & CO. or registered assigns the
principal sum of FIFTY MILLION DOLLARS on October 17, 2003, and to pay interest
thereon from October 17, 2000 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually in arrears on
April 17 and October 17 in each year, commencing April 17, 2001, at the rate of
8.20% per annum until the principal hereof is paid or made available for
payment. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the date 15 calendar days prior to such Interest
Payment Date (whether or not a Business Day). Except as otherwise provided in
the Indenture, any such interest not so punctually paid or duly provided for
will forthwith cease to be payable to the Holder on such Regular Record Date and
may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such
A-1
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Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the offices or agencies of the Company maintained for
that purpose in the Borough of Manhattan, the City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debt; provided, however, that at
the option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register.
In the case where any Interest Payment Date or the maturity date of this
Security does not fall on a Business Day, payment of interest or principal
otherwise payable on such day need not be made on such day, but may be made on
the next succeeding Business Day with the same force and effect as if made on
such Interest Payment Date or the maturity date of this Security.
Reference is hereby made to the further provisions of this Security set
forth on the reverse side hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature of an authorized
signatory, this Security shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
A-2
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: October 31, 2000
AVNET, INC.
By: /s/ Raymond Sadowski
--------------------
Raymond Sadowski
Senior Vice President and
Chief Financial Officer
Attest:
/s/ David R. Birk
---------------------------
David R. Birk, Secretary
A-3
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
BANK ONE TRUST COMPANY, N.A.,
as Trustee
By: /s/ Michael D. Pinzon
---------------------------
Name: Michael D. Pinzon
Title: Authorized Officer
A-4
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This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities") issued and to be issued in one or more
series under an Indenture, dated as of October 1, 2000 (herein called the
"Indenture"), between the Company and Bank One Trust Company, N.A., as Trustee
(herein called the "Trustee," which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof, initially limited in aggregate principal amount
to $200,000,000 and currently limited in aggregate principal amount to
$250,000,000. The Securities of this series are issuable as only Registered
Securities, without coupons, in denominations of $1,000 and any integral
multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor
of any authorized denominations, as requested by the Holder surrendering the
same, upon surrender of the Security or Securities to be exchanged at any office
or agency described below where Registered Securities of this series may be
presented for registration of transfer.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Security upon compliance with certain conditions set forth
therein.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Upon payment (i) of the amount of principal so declared due and
payable and (ii) of interest on any overdue principal and overdue interest (in
each case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and interest, if any, on the Securities of this series shall
terminate.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding (with each series
voting as a separate class in certain cases specified in the Indenture, or with
all series voting as one class, in certain other cases specified in the
Indenture), on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notification of such consent or waiver is made upon this
Security.
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As set forth in, and subject to, the provisions of the Indenture, no Holder
of any Security of this series will have any right to institute any proceeding
with respect to the Indenture or for any remedy thereunder, unless such Holder
shall have previously given to the Trustee written notice of a continuing Event
of Default with respect to this series, the Holders of not less than 25% in
principal amount of the Outstanding Securities of this series shall have made
written request, and offered reasonable indemnity, to the Trustee to institute
such proceeding as trustee, and the Trustee shall not have received from the
Holders of a majority in principal amount of the Outstanding Securities of this
series a direction inconsistent with such request and shall have failed to
institute such proceeding within 60 days; provided, however, that such
limitations do not apply to a suit instituted by the Holder hereof for the
enforcement of payment of the principal of (and premium, if any) and interest on
this Security on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provisions of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of (and premium, if any)
and interest on such Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form, without
coupons, in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to the
conflicts of laws provisions thereof.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
A-6
<PAGE>
EXHIBIT B
AVNET, INC.
DEBT SECURITIES
PRICING AGREEMENT
October 26, 2000
Avnet, Inc.
2211 South 47th Street
Phoenix, Arizona 85034
Ladies and Gentlemen:
Referring to the debt securities of Avnet, Inc. (the "Company") covered by
the Registration Statement on Form S-3 (No. 333-39530) filed by the Company, on
the basis of the representations, warranties and agreements contained in this
Agreement and in the Company's Standard Underwriting Agreement Provisions for
Debt Securities attached hereto (the "Standard Underwriting Agreement"), and
subject to the terms and conditions set forth herein and therein, Merrill Lynch,
Pierce, Fenner & Smith Incorporated ("Merrill Lynch") agrees to purchase, and
the Company agrees to sell to Merrill Lynch, an additional $50,000,000 aggregate
principal amount of 8.20% Notes due 2003 (the "Notes").
The price at which the Notes shall be purchased from the Company by Merrill
Lynch shall be 99.485% of the principal amount thereof plus accrued interest
from October 17, 2000. The Notes will be offered as set forth in the Prospectus
Supplement relating thereto. The Notes will have the following terms:
Title: 8.20% Notes due 2003.
Interest Rate: The Notes will bear interest from October 17, 2000
at 8.20% per annum.
Interest Payment Dates: Interest on the Notes is payable semi-annually on
April 17 and October 17 of each year commencing
April 17, 2001.
Maturity: The Notes will mature on October 17, 2003.
Other Provisions: as set forth in the Prospectus Supplement relating
to the Notes.
B-1
<PAGE>
Closing: 9:30 A.M. on October 31, 2000, at the offices of
Fried, Frank, Harris, Shriver & Jacobson, One New
York Plaza, New York, New York 10004, in same day
funds.
Address of Merrill Lynch:
Merrill Lynch, Pierce, Fenner & Smith Incorporated
World Financial Center
North Tower
New York, New York 10281
The provisions contained in the Standard Underwriting Agreement Provisions,
a copy of which is attached hereto, are incorporated herein by reference.
A global certificate representing all of the Notes will be made available
for inspection at the offices of Fried, Frank, Harris, Shriver & Jacobson, One
New York Plaza, New York, New York 10004, at least one business day prior to the
Closing Date.
This Pricing Agreement may be executed in one or more counterparts, all of
which counterparts shall constitute one and the same instrument.
B-2
<PAGE>
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 between Merrill Lynch and the Company in accordance
with its terms.
Very truly yours,
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By /s/ David Rosenberg
------------------------
Name: David Rosenberg
Title: Vice President
The foregoing Pricing Agreement
is hereby confirmed as of the
date first above written
AVNET, INC.
By /s/ Raymond Sadowski
-----------------------------
Name: Raymond Sadowski
Title: Senior Vice President and
Chief Financial Officer
B-3
<PAGE>
October 2000
AVNET, INC.
DEBT SECURITIES
STANDARD UNDERWRITING AGREEMENT PROVISIONS
------------------------------------------
1. Introductory. Avnet, Inc., a New York corporation (the "Company"),
proposes to issue and sell from time to time certain of its senior or
subordinated debt securities, warrants to purchase such debt securities (senior
or subordinated debt securities and warrants to purchase such debt securities
are referred to herein as "Securities") or units consisting of one or more
Securities registered under the registration statement referred to in Section
3(a). The Securities will be issued under an indenture, dated as of October 1,
2000 (such indenture as amended or supplemented is herein referred to as the
"Indenture"), between the Company and Bank One Trust Company, N.A., as Trustee,
in one or more series, which series may vary as to interest rates, maturities,
redemption provisions, conversion provisions, selling prices and other terms,
with all such terms for any particular series of the Securities being determined
at the time of sale. Particular series of the Securities will be sold pursuant
to a Pricing Agreement referred to in Section 2, for resale in accordance with
terms of offering determined at the time of sale.
The firm or firms which agree to purchase the Securities are hereinafter
referred to as the "Underwriters" of such Securities, and the representative or
representatives of the Underwriters, if any, specified in a Pricing Agreement
referred to in Section 2 are hereinafter referred to as the "Representatives";
provided, however, that if the Pricing Agreement does not specify any
representative of the Underwriters, the term "Representatives," as used herein
(other than in the second sentence of Section 2), shall mean the Underwriters.
2. Purchase and Offering of Securities. The obligation of the Underwriters
to purchase any Securities will be evidenced by an exchange of written
communications ("Pricing Agreement") at the time the Company determines to sell
Securities. The Pricing Agreement will incorporate by reference these Standard
Underwriting Agreement Provisions (these "Provisions"), except as otherwise
provided therein, and will specify (1) the firm or firms which will be
Underwriters, (2) the names of any Representatives, (3) the principal amount of
Securities to be purchased by each Underwriter and the purchase price to be paid
by the Underwriters, (4) the terms of the Securities not already specified in
the Indenture, (5) the time and date on which delivery of the Securities will be
made to the Representatives for the accounts of the several Underwriters (such
time and date, or such other time and date not later than seven full business
days thereafter as the Representatives and the Company agree to as to time and
date for payment and delivery, being herein and in the Pricing Agreement
referred to as the "Closing Date") and (6) the place of delivery and payment.
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.
B-4
<PAGE>
The Underwriters, through the representatives, will pay to the Company the
purchase price for the Securities, less the commission of the Underwriters, on
the Closing Date, by wire transfer of same-day funds to an account to be
specified by the Company not less than two full business days in advance of the
Closing Date.
Certificates for the Securities shall be registered in such names and in
such denominations as the Representatives may request not less than two full
business days in advance of the Closing Date.
3. Representations and Warranties of the Company: The Company represents
and warrants to each of the Underwriters as of the date of execution of any
Pricing Agreement (the "Representation Date") and as of any Closing Date that:
(a) the Company is permitted to use Form S-3 under the Securities Act
of 1933, as amended (the "Act"), and has filed with the Securities and
Exchange Commission (the "Commission") a registration statement on such
Form (Registration No. 333-39530), which has become effective, for the
registration under the Act of various securities of the Company, including
the Securities. Such registration statement, as amended at the
Representation Date, meets the requirements set forth in Rule 415(a)(1)(x)
under the Act and complies in all other material respects with said Rule.
Such registration statement, including the exhibits thereto, as amended at
the Representation Date, is hereinafter called the "Registration
Statement," and the prospectus included in the Registration Statement, as
supplemented to reflect the terms of any series of the Securities and the
plan of distribution thereof, in the form furnished to the Underwriters for
use in connection with the offering of the Securities, is hereinafter
called the "Prospectus." Any reference herein to the Registration Statement
or the Prospectus shall be deemed to include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under
the Securities Exchange Act of 1934 (the "Exchange Act") on or before the
Representation Date or the date of the Prospectus, as the case may be, and
any reference herein to the terms "amend," "amendment" or "supplement" with
respect to the Registration Statement or the Prospectus shall be deemed to
include the filing of any document under the Exchange Act after the
Representation Date or the date of the Prospectus, as the case may be,
deemed to be incorporated therein by reference;
(b) (i) the Registration Statement, the Prospectus and the Indenture
comply in all material respects with the applicable requirements of the
Act, the Trust Indenture Act of 1939 (the "Trust Indenture Act") and the
Exchange Act and the respective rules thereunder, and (ii) neither the
Registration Statement nor the Prospectus contains any untrue statement of
a material fact or omits to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; provided, however, that the Company 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;
B-5
<PAGE>
(c) all of the issued and outstanding shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid, non-assessable and free of statutory and contractual preemptive
rights; the Company and each of its Material Subsidiaries have been duly
incorporated and are validly existing as corporations in good standing
under the laws of their respective jurisdictions of incorporation, with
full power and authority to own their respective properties and conduct
their respective businesses as described in the Registration Statement and
the Prospectus; the Company has full power and authority to execute and
deliver the Pricing Agreement (including these Provisions) and the
Indenture and to issue and sell the Securities as herein contemplated
("Subsidiary" meaning any subsidiary of the Company, and "Material
Subsidiary" meaning a Subsidiary which would be a "significant subsidiary"
as that term is defined in Item 1-02(w) of Regulation S-X promulgated under
the Act, if "5 percent" were substituted in each place in which "10
percent" appears in such definition, and "Non-Material Subsidiary" meaning
a Subsidiary which is not a Material Subsidiary);
(d) the Company and each of its Subsidiaries are duly qualified or
licensed by, and are in good standing in, each jurisdiction in which they
conduct their respective businesses and in which the failure, individually
or in the aggregate, to be so licensed or qualified could have a material
adverse effect on the operations, business, prospects or financial
condition of the Company and its Subsidiaries taken as a whole (a "Material
Adverse Effect"), and with respect to the Company, the jurisdictions listed
on Schedule A hereto constitute a complete list of such jurisdictions; and
the Company and each of its Subsidiaries are in compliance with the laws,
orders, rules, regulations and directives issued or administered by such
jurisdictions, except where the failure to so comply with such laws,
orders, rules, regulations and directives, whether individually or in the
aggregate, could not be expected to have a Material Adverse Effect;
(e) neither the Company nor any of its Subsidiaries is in breach of,
or in default under (nor has any event occurred which with notice, lapse of
time, or both would constitute a breach of, or default under), (i) its
respective charter or by-laws or (ii) in the performance or observance of
any obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, bank loan or credit agreement or other
agreement or instrument to which the Company or any of its Subsidiaries is
a party or by which any of them is bound, except for, in the case of clause
(i) above, breaches and defaults of Non-Material Subsidiaries which,
individually or in the aggregate, could not be expected to have a Material
Adverse Effect, and except for, in the case of clause (ii) above, breaches
and defaults which, individually or in the aggregate, could not be expected
to have a Material Adverse Effect, and the execution, delivery and
performance of the Pricing Agreement (including these Provisions) and the
Indenture, and the issuance of the Securities and any Underlying Securities
(as hereinafter defined) and consummation of the transactions contemplated
hereby and thereby, will not conflict with, or result in any breach of or
constitute a default under (nor constitute any event which with notice,
lapse of time, or both
B-6
<PAGE>
would constitute a breach of, or default under), any provision of (x) the
charter or by-laws of the Company or any of its Subsidiaries or (y) any
license, indenture, mortgage, deed of trust, bank loan or credit agreement
or other agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which any of them or their respective
properties may be bound or affected, or (z) any federal, state, local or
foreign law, regulation or rule or any decree, judgment or order
specifically binding on the Company or any of its Subsidiaries, except for,
in the case of clause (x) above, conflicts, breaches and defaults of
Non-Material Subsidiaries which, individually or in the aggregate, could
not be expected to have a Material Adverse Effect, and except for, in the
case of clauses (y) and (z) above, conflicts, breaches and defaults which,
individually or in the aggregate, could not be expected to have a Material
Adverse Effect;
(f) the Indenture has been duly authorized, executed and delivered by
the Company and is a legal, valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, and by general principles of equity;
(g) the Securities have been duly authorized by the Company and when
executed and delivered by the Company will constitute legal, valid and
binding obligations of the Company enforceable against the Company in
accordance with their terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally, and by general principles of
equity;
(h) If the Securities being sold pursuant to the applicable Pricing
Agreement are convertible into or exchangeable or exercisable for any
equity securities ("Underlying Equity Securities"), such Underlying Equity
Securities have been, or as of the date of such Pricing Agreement will have
been, duly authorized, reserved for issuance and will, when issued upon the
conversion of Securities into, or the exchange or exercise of Securities
for, such Underlying Equity Securities, be duly issued, fully paid and
non-assessable, will not be subject to any preemptive rights of any
security holder of the Company and no holder thereof will be subject to
personal liability by reason of being such a holder. If the Securities
being sold pursuant to the applicable Pricing Agreement are convertible
into or exchangeable or exercisable for any debt securities ("Underlying
Debt Securities" and together with Underlying Equity Securities,
"Underlying Securities"), such Underlying Debt Securities have been, or as
of the date of such Pricing Agreement will have been, duly authorized for
issuance upon the conversion of Securities into, or the exchange or
exercise of Securities for, such Underlying Debt Securities. Such
Underlying Debt Securities, when issued and authenticated in the manner
provided for in the applicable indenture and delivered in accordance with
the terms thereof, will constitute valid and legally binding obligations of
the Company, enforceable against the Company in accordance with their
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium, or other similar laws relating to
or affecting creditors rights generally or by general equitable
B-7
<PAGE>
principles. Any indenture under which Underlying Debt Securities will be
issued has been, or prior to the date of the applicable Pricing Agreement
will have been, duly authorized, executed and delivered by the Company and
constitutes or will constitute a valid and legally binding obligation of
the Company, enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium, or other similar laws relating to or affecting
creditors rights generally or by general equitable principles.
(i) the Pricing Agreement has been duly authorized, executed and
delivered by the Company;
(j) the Securities, any Underlying Securities and the Indenture
conform in all material respects to the description thereof contained in
the Registration Statement and Prospectus;
(k) no approval, authorization, consent or order of or filing with any
national, state or local governmental or regulatory commission, board,
body, authority or agency is required in connection with the issuance and
sale of the Securities and any Underlying Securities as contemplated hereby
other than registration of the Securities and any Underlying Securities
under the Act, qualification of the Indenture under the Trust Indenture Act
and any necessary qualification under the securities or blue sky laws of
the various jurisdictions in which the Securities and any Underlying
Securities are being offered by the Underwriters;
(l) the accountants whose reports on the consolidated financial
statements of the Company and its Subsidiaries are filed with the
Commission as part of the Registration Statement and Prospectus are
independent public accountants as required by the Act and the applicable
published rules and regulations thereunder;
(m) each of the Company and its Subsidiaries (i) has all necessary
licenses, authorizations, consents and approvals, (ii) has made all filings
required under any federal, state, local or foreign law, regulation or
rule, and (iii) has obtained all necessary authorizations, consents and
approvals from other persons, except where the failure to have, make or
obtain such licenses, authorizations, consents, approvals and filings,
individually or in the aggregate, could not be expected to have a Material
Adverse Effect; and neither the Company nor any of its Subsidiaries is in
violation of, or in default under, any such license, authorization, consent
or approval or any federal, state, local or foreign law, regulation or rule
or any decree, order or judgment applicable to the Company or any of its
Subsidiaries the effect of which violation or default, singly or in the
aggregate, would have a Material Adverse Effect;
(n) all legal or governmental proceedings, contracts or documents of a
character required to be described in the Registration Statement or the
Prospectus or to be filed as an
B-8
<PAGE>
exhibit to the Registration Statement have been so described or filed as
required;
(o) there are no actions, suits or proceedings pending or threatened
against the Company or any of its Subsidiaries or any of their respective
properties, at law or in equity, before or by any federal, state, local or
foreign governmental or regulatory commission, board, body, authority or
agency which, singly or in the aggregate, have a reasonable likelihood of
resulting in judgments, decrees or orders having a Material Adverse Effect;
(p) the audited financial statements included in the Registration
Statement and the Prospectus present fairly the consolidated financial
position of the Company and its Subsidiaries as of the dates indicated and
the consolidated results of operations and cash flows of the Company and
its Subsidiaries for the periods specified; such financial statements have
been prepared in conformity with generally accepted accounting principles
applied on a consistent basis during the periods involved;
(q) subsequent to the respective dates as of which information is
given in the Registration Statement and Prospectus, and except as may be
otherwise stated in the Registration Statement or Prospectus, there has not
been (A) any material and unfavorable change, financial or otherwise, in
the business, properties, prospects, regulatory environment, results of
operations or condition (financial or otherwise), present or prospective,
of the Company and its Subsidiaries taken as a whole, (B) any transaction,
which is material and unfavorable to the Company and its Subsidiaries taken
as a whole, contemplated or entered into by the Company or any of its
Subsidiaries or (C) any obligation, contingent or otherwise, directly or
indirectly, incurred by the Company or any of its Subsidiaries which is
material and unfavorable to the Company and its Subsidiaries taken as a
whole;
(r) no Subsidiary is a "significant subsidiary" as that term is
defined in Item 1-02(w) of Regulation S-X promulgated under the Act, except
for Avnet Europe NV/SA;
(s) the Company and each of the Subsidiaries have filed all material
federal and state income and franchise tax returns (or obtained extensions
with respect to the filing of such returns) and have paid all taxes shown
thereon as currently due, and the Company has no knowledge of any material
tax deficiency which has been or might be asserted against the Company or
any of the Subsidiaries; all material tax liabilities are adequately
provided for on the books of the Company and each of the Subsidiaries;
(t) the Company and its Subsidiaries own or possess, or can acquire on
reasonable terms, adequate material patents, patent rights, licenses,
trademarks, inventions, service marks, trade names, copyrights and know-how
(including trade secrets and other proprietary or confidential information,
systems or procedures, whether patented or unpatented) (collectively,
"intellectual property") necessary to conduct the business now or proposed
to be operated by them as described in the Registration Statement and in
the Prospectus, and neither the Company nor any of its Subsidiaries has
received any notice of
B-9
<PAGE>
infringement of or conflict with (or knows of any such infringement of or
conflict with) asserted rights of others with respect to any of such
intellectual property which, if such assertion of infringement or conflict
were sustained, would result, singly or in the aggregate, in any Material
Adverse Effect;
(u) neither the Company nor any agent acting on its behalf has taken
or will take any action that might cause the Pricing Agreement or sale of
the Securities to violate Regulation T, U or X of the Board of Governors of
the Federal Reserve System, in each case as in effect, or as the same may
hereafter be in effect, on the Closing Date;
(v) except as described in the Registration Statement and the
Prospectus, (i) the operations of the Company and its Subsidiaries are in
compliance with all applicable environmental laws, except where the failure
to so comply with such laws, individually or in the aggregate, could not be
expected to have a Material Adverse Effect, (ii) the Company and its
Subsidiaries have obtained all environmental, health and safety permits,
licenses and approvals necessary for its operation, all such permits,
licenses and approvals are in effect and the Company and its Subsidiaries
are in compliance with the terms and conditions thereof, except where the
failure to so obtain, keep in effect and comply with such permits, licenses
and approvals, whether individually or in the aggregate, could not be
expected to have a Material Adverse Effect, (iii) with respect to any
property currently or formerly owned, leased or operated by the Company or
any of its Subsidiaries, (a) neither the Company nor any such Subsidiary is
subject to any judicial or administrative proceeding or any order from or
agreement with any governmental authority (collectively, "Proceedings"),
and (b) the Company does not have knowledge of any pending or threatened
investigation by any governmental authority (collectively,
"Investigations") relating to any violation or alleged violation of any
environmental law, any release or threatened release of a hazardous
material into the environment, or any remedial action that may be necessary
in connection with any such violation or release, except for such
Proceedings or Investigations which, whether individually or in the
aggregate, could not be expected to have a Material Adverse Effect, (iv)
neither the Company nor any such Subsidiary has filed any notice under any
environmental law indicating past or present treatment, storage, disposal
or release of a hazardous material into the environment in a manner that is
not in compliance with, or which could result in liability under,
applicable environmental laws, except where such non-compliance or
liability, whether individually or in the aggregate, could not be expected
to have a Material Adverse Effect, (v) neither the Company nor any such
Subsidiary has received notice of a claim that it may be subject to
liability (a "Notice") as a result of a release or threatened release of
hazardous material, except for such Notice which, whether individually or
in the aggregate, could not be expected to have a Material Adverse Effect,
and (vi) there are no events, circumstances or conditions that might
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any of its
Subsidiaries relating to chemicals, pollutants, contaminants, wastes, toxic
substances, petroleum or petroleum products or any environmental law,
except for events, circumstances
B-10
<PAGE>
and conditions which, individually or in the aggregate, could not be
expected to have a Material Adverse Effect, and to the best of the
Company's knowledge, there is no reasonable basis for any such order,
action, suit or proceeding with respect to any environmental law which
could be expected to have a Material Adverse Effect;
(w) the Company is not an "investment company" or an affiliated person
of, or "promoter" or "principal underwriter" for, an "investment company,"
as such terms are defined in the Investment Company Act of 1940, as
amended, and the rules and regulations thereunder; and
(x) to the best knowledge of the Company, no labor problem exists with
employees of the Company or any of its Subsidiaries or is imminent that
could have a Material Adverse Effect.
4. Certain Covenants of the Company: The Company hereby agrees:
(a) to furnish such information as may be reasonably required by and
otherwise to cooperate with, the Representatives in qualifying the
Securities for offering and sale under the securities or blue sky laws of
such states as the Representatives may designate (including the provisions
of Florida blue sky law, if requested, relating to issuers doing business
with Cuba) and to maintain such qualifications in effect as long as
required for the distribution of the Securities, provided that the Company
shall not be required to qualify as a foreign corporation or a dealer or to
consent to the service of process under the laws of any such state (except
service of process with respect to the offering and sale of the Securities)
or to take any action which would or could subject the Company to taxation
in any state where it is not now so subject; and to promptly advise the
Representatives of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities for sale
in any jurisdiction or the initiation or threatening of any proceeding for
such purpose;
(b) to make available to the Representatives in New York City, as soon
as practicable after the Registration Statement becomes effective, and
thereafter from time to time to furnish to the Underwriters, as many copies
of the Prospectus (or of the Prospectus as amended or supplemented if the
Company shall have made any amendments or 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
B-11
<PAGE>
period prescribed and will provide evidence satisfactory to the
Underwriters of such timely filing. The Company will promptly advise the
Underwriters of any series of Securities (A) when any Prospectus supplement
relating to such series shall have been filed with the Commission pursuant
to Rule 424, (B) when, prior to termination of the offering of such series,
any amendment to the Registration Statement shall have been filed with the
Commission or become effective, (C) of any request by the Commission for
any amendment of the Registration Statement or supplement to the Prospectus
or for any additional information, (D) of the receipt by the Company of any
notification of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the use of any
Prospectus or Prospectus supplement or, if the Company has knowledge, of
the institution or threat of any proceeding for that purpose and (E) of the
receipt by the Company of any notification with respect to the suspension
of the qualification of the Securities for sale in any jurisdiction or, if
the Company has knowledge, of the initiation or threat of any proceeding
for such purpose. The Company will make every reasonable effort to prevent
the issuance of any such stop order or of any order suspending or
preventing any such use and, if issued, to obtain as soon as possible the
withdrawal thereof;
(d) to furnish to the Representatives and, upon request, to each of
the other Underwriters for a period of three years from the date of each
Pricing Agreement (i) copies of any reports or other communications which
the Company shall send to its shareholders or shall from time to time
publish or publicly disseminate, (ii) copies of all annual, quarterly and
current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or
such other similar form as may be designated by the Commission, and (iii)
such other information as the Representatives may reasonably request
regarding the Company or its Subsidiaries;
(e) to advise the Underwriters of a series of Securities promptly of
the happening of any event known to the Company within the time during
which a prospectus relating to such series is required to be delivered
under the Act which, in the judgment of the Company, would require the
making of any change in the Prospectus then being used, or in the
information incorporated therein by reference, so that the Prospectus would
not include an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading, and, subject to
Section 4(c) during such time, to prepare and furnish, at the Company's
expense, to the Underwriters promptly such amendments or supplements to
such Prospectus as may be necessary to reflect any such change and to
furnish to the Representatives a copy of such proposed amendment or
supplement before filing any such amendment or supplement with the
Commission;
(f) that, as soon as practicable after the date of each Pricing
Agreement, the Company will make generally available to its Security
holders an earnings statement that satisfies the provisions of Section
11(a) of the Act and Rule 158 under the Act;
(g) to apply the net proceeds from the sale of the Securities in the
manner set
B-12
<PAGE>
forth under the caption "Use of Proceeds" in the Prospectus;
(h) if the Securities being sold pursuant to the applicable Pricing
Agreement are convertible into or exchangeable or exercisable for
Underlying Securities, to take all actions contemplated by Section 3(h)
hereof and, if such Underlying Securities are Underlying Equity Securities,
to reserve and keep available at all times, free of preemptive or other
similar rights, a sufficient number of shares of Underlying Equity
Securities for the purpose of enabling the Company to satisfy any
obligation to issue such Underlying Equity Securities upon any such
conversion, exchange or exercise;
(i) to pay all expenses, fees and taxes (other than any transfer taxes
and fees and disbursements of counsel for the Underwriters except as set
forth under Section 5 hereof and (iv) below) in connection with (i) the
preparation and filing of the Registration Statement, each preliminary
prospectus, the Prospectus, and any amendments or supplements thereto, and
the printing and furnishing of copies of each thereof to the Underwriters
and to dealers (including costs of mailing and shipment), (ii) the
preparation, issuance, execution, authentication and delivery of the
Securities, (iii) the printing of the Pricing Agreement (including these
Provisions), an Agreement Among Underwriters, any dealer agreements, any
Powers of Attorney, the Indenture and the reproduction and/or printing and
furnishing of copies of each thereof to the Underwriters and to dealers
(including costs of mailing and shipment), (iv) the qualification of the
Securities for offering and sale under state laws and the determination of
their eligibility for investment under state law as aforesaid (including
the legal fees and filing fees and other disbursements of counsel for the
Underwriters) and the printing and furnishing of copies of any blue sky
surveys or legal investment surveys to the Underwriters and to dealers, (v)
any listing of the Securities on any securities exchange and any
registration thereof under the Exchange Act, (vi) any fees payable to
investment rating agencies with respect to the Securities, (vii) any filing
for review of the public offering of the Securities by the National
Association of Securities Dealers, Inc. (the "NASD"), and (viii) the
performance of the Company's other obligations hereunder; and
(j) that the Company will not, without the consent of the
Representatives, offer 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
B-13
<PAGE>
Section 9 hereof, or (b) a default by one or more of the Underwriters in its or
their respective obligations hereunder, the Company shall reimburse the
Underwriters for all of their out-of-pocket expenses, including the reasonable
fees and disbursements of their counsel.
6.Conditions of Underwriters' Obligations: The several obligations of the
Underwriters to purchase and pay for the Securities are subject to the accuracy
of the representations and warranties on the part of the Company herein on the
Representation Date and at the Closing Date (including those contained in the
Pricing Agreement), to the accuracy of the statements of officers of the Company
made pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following conditions:
(a) The Company shall furnish to the Representatives at the Closing
Date an opinion of Carter, Ledyard & Milburn, counsel for the Company, or
other counsel to the Company reasonably acceptable to the Representatives,
addressed to the Underwriters and dated the Closing Date and in form
satisfactory to counsel for the Underwriters, stating that:
(i) the Pricing Agreement (which incorporates by reference all of
these Provisions) has been duly authorized, executed and delivered by
the Company;
(ii) the Indenture has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution
and delivery by the Trustee, constitutes the legal, valid and binding
agreement of the Company enforceable against the Company in accordance
with its terms, except insofar as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally, and by general
principles of equity;
(iii) the Securities have been duly authorized by the Company
and, when executed and authenticated in accordance with the terms of
the Indenture and delivered to and paid for by the Underwriters, will
be legal, valid and binding obligations of the Company enforceable
against the Company in accordance with their terms, except insofar as
the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally,
and by general principles of equity;
(iv) if any Securities are convertible into, or exchangeable or
exercisable for, Underlying Equity Securities, the Underlying Equity
Securities are duly and validly authorized, have been duly reserved
for issuance upon conversion, exchange or exercise of the related
Securities and when duly issued upon such conversion, exchange or
exercise will be duly and validly issued, fully paid and
non-assessable;
(v) the Securities, any Underlying Securities and the Indenture
conform in all material respects to the summary descriptions thereof
contained in the
B-14
<PAGE>
Registration Statement and Prospectus;
(vi) the Registration Statement and the Prospectus (except as to
the financial statements and schedules and other financial and
statistical data contained or incorporated by reference therein and
the Trustee's Statement of Eligibility on Form T-1, as to which such
counsel need express no opinion) comply as to form in all material
respects with the requirements of the Act;
(vii) the Registration Statement has become effective under the
Act and, to the best of such counsel's knowledge, no stop order
proceedings with respect thereto are pending or threatened under the
Act;
(viii) no approval, authorization, consent or order of or filing
with any United States Federal or New York State governmental or
regulatory commission, board, body, authority or agency is required in
connection with the issue or sale of the Securities by the Company as
contemplated hereby, other than registration of the Securities under
the Act and qualification of the Indenture under the Trust Indenture
Act (except such counsel need express no opinion as to any necessary
qualification under the state securities or blue sky laws of the
various jurisdictions in which the Securities are being offered by the
Underwriters);
(ix) the Indenture has been duly qualified under the Trust
Indenture Act.
In addition, such counsel shall state that it has participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants of the Company and
representatives of the Underwriters, at which the contents of the
Registration Statement and Prospectus were discussed and, although such
counsel has not independently verified, is not passing upon and does not
assume responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement or Prospectus (except as
and to the extent stated in subparagraph (iv) above), no facts have come to
the attention of such counsel, in the course of such participation, that
cause it to believe that the Registration Statement, or any post-effective
amendment thereto, as of the date it was declared effective, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus or any supplement thereto, at the
date of such Prospectus or such supplement and at all times up to and
including the Closing Date, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading (it
being understood that such counsel need express no opinion with respect to
the financial statements and schedules and other financial and statistical
data included in the Registration Statement or Prospectus or with respect
to the Trustee's Statement of Eligibility on Form T-1).
B-15
<PAGE>
In rendering such opinion, counsel may state that such opinion is
limited to United States Federal and New York law.
(b) The Company shall furnish to the Representatives at the Closing
Date an opinion of David R. Birk, Senior Vice President and General Counsel
for the Company, or such other counsel to the Company reasonably acceptable
to the Representatives, addressed to the Underwriters and dated the Closing
Date and in form satisfactory to counsel for the Underwriters, stating
that:
(i) the Company is a corporation validly existing and in good
standing under the laws of the State of New York, with full corporate
power and authority to own its properties and conduct its business as
described in the Registration Statement and the Prospectus and to
issue, sell and deliver the Securities as herein contemplated;
(ii) the outstanding shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid,
non-assessable and free of statutory and contractual preemptive
rights;
(iii) each of the Subsidiaries organized in the United States of
America is a corporation validly existing and in good standing under
the laws of its respective jurisdiction of incorporation with full
corporate power and authority to own its respective properties and to
conduct its respective business, except where the failure to be
validly existing, to be in good standing, and to have such power and
authority could not, individually or in the aggregate, have a Material
Adverse Effect (in rendering this opinion with respect to
jurisdictions other than the State of New York, such counsel may state
that he is relying exclusively on certificates and other documents of
public officials of such jurisdictions);
(iv) the Company is duly qualified to transact business as a
foreign corporation in Arizona, California, Massachusetts, North
Carolina and Texas (in rendering this opinion, such counsel may state
that he is relying exclusively on certificates and other documents of
public officials of such jurisdictions);
(v) to the best of such counsel's knowledge, neither the Company
nor any of its Subsidiaries is in breach of, or in default under (nor
has any event occurred which with notice, lapse of time, or both would
constitute a breach of, or default under), (i) its charter or by-laws,
(ii) any "material contract" (within the meaning of Item 601(b)(10) of
Regulation S-K promulgated under the Exchange Act) to which the
Company or any of its Subsidiaries is a party or by which any of them
or their respective properties may be bound or affected, (iii) any
United States Federal or New York State law, regulation or rule, or
(iv) any decree, judgment or order
B-16
<PAGE>
applicable to the Company or any of its Subsidiaries;
(vi) the execution, delivery and performance of the Pricing
Agreement and the Indenture, the issuance of the Securities and any
Underlying Securities by the Company and the consummation by the
Company of the transactions contemplated hereby and thereby do not and
will not conflict with, or result in any breach of, or constitute a
default under (nor constitute any event which with notice, lapse of
time, or both would constitute a breach of or default under), any
provision of (x) the charter or by-laws of the Company or any of its
Subsidiaries or (y) any license, indenture, mortgage, deed of trust,
bank loan, credit agreement or other agreement or instrument to which
the Company or any of its Subsidiaries is a party or by which any of
them or their respective properties may be bound or affected, or (z)
any law, regulation or rule or any decree, judgment or order
applicable to the Company or any of its Subsidiaries, except for, in
the case of clause (x) above, conflicts, breaches and defaults of
Non-Material Subsidiaries which, individually or in the aggregate,
could not be expected to have a Material Adverse Effect, and except
for, in the case of clauses (y) and (z) above, conflicts, breaches and
defaults which, individually or in the aggregate, could not be
expected to have a Material Adverse Effect;
(vii) to the best of such counsel's knowledge, there are no
contracts, licenses, agreements, leases or documents of a character
which are required to be filed as exhibits to the Registration
Statement or to be summarized or described in the Prospectus which
have not been so filed, summarized or described;
(viii) to the best of such counsel's knowledge, there are no
actions, suits or proceedings pending or threatened against the
Company or any of its Subsidiaries or any of their respective
properties, at law or in equity or before or by any commission, board,
body, authority or agency which are required to be described in the
Prospectus but are not so described;
(ix) the documents incorporated by reference in the Registration
Statement and Prospectus, when they were filed (or, if an amendment
with respect to any such document was filed when such amendment was
filed), complied as to form in all material respects with the
requirements of the Exchange Act and the rules thereunder (except as
to the financial statements and schedules and other financial data
contained or incorporated by reference therein, and the Trustee's
Statement of Eligibility on Form T-1, as to which such counsel need
express no opinion);
(c) The Representatives shall have received from the Company's
independent public accountants letters dated, respectively, as of the
Representation Date and the Closing Date, and addressed to the Underwriters
in form and substance reasonably satisfactory to the Representatives.
B-17
<PAGE>
(d) The Representatives shall have received at the Closing Date the
favorable opinion of counsel for the Underwriters, dated the Closing Date,
in form and substance reasonably satisfactory to the Representatives.
(e) Prior to the Closing Date (i) the Registration Statement and all
amendments thereto, or modifications thereof, if any, shall not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading and (ii) the Prospectus and all amendments or
supplements thereto, or modifications thereof, if any, shall not contain an
untrue statement of material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements therein,
in the light of the circumstances under which they are made, not
misleading.
(f) Between the Representation Date and the Closing Date, there has
been no material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business.
(g) The Company will, at the Closing Date, deliver to the
Representatives a certificate of two of its executive officers to the
effect that the representations and warranties of the Company set forth in
Section 3 of this Agreement and the conditions set forth in subsections (e)
and subsection (f) of this Section 6 have been met and are true and correct
as of such date.
(h) The Company shall have furnished to the Representatives such other
documents and certificates as to the accuracy and completeness of any
statement in the Registration Statement and the Prospectus as of the
Closing Date as the Representatives may reasonably request.
(i) The Company shall perform such of its obligations under these
Provisions and the Pricing Agreement as are to be performed by the terms
hereof and thereof at or before the Closing Date.
(j) No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or threatened.
(k) At the Closing Date, counsel for the Underwriters shall have been
furnished with such information, certificates and documents as they may
reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as contemplated herein and related
proceedings, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all opinions and certificates mentioned above or
elsewhere in this Agreement shall be reasonably satisfactory in form and
substance to the Representatives and counsel for
B-18
<PAGE>
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
(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
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<PAGE>
amendment thereto), including the Rule 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) (the
"Furnished Information"); and provided, further, that with respect to any
untrue statement or omission or alleged untrue statement or omission made
in any preliminary prospectus, the indemnity provided in this Section 7(a)
shall not inure to the benefit of any Underwriter from whom the person
asserting any such losses, claims, damages, liabilities or expenses
purchased the Securities concerned to the extent that (i) any such loss,
claim, damage, liability or expense of such Underwriter and its affiliates
results from the fact that a copy of the final Prospectus (excluding
documents incorporated by reference) was not sent or given to such person
at or prior to the written confirmation of sale of such Securities as
required by the Act, and (ii) the untrue statement or omission has been
corrected in the final Prospectus; and provided, further, that the
indemnity provided in this Section 7(a) shall be limited, to the extent it
applies to fees and disbursements of counsel, to reasonable amounts of such
fees and disbursements.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section 7,
as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto) including the Rule 430A Information and the Rule
434 Information deemed to be a part thereof, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with the Furnished Information,
which the Underwriters agree to identify by letter to the Company dated
each Closing Date.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it
in respect of which indemnity may be sought hereunder, but failure to so
notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. In
the case of parties indemnified pursuant to Section 7(a) above, counsel to
the indemnified parties shall be selected by the Representatives, and, in
the case of parties indemnified pursuant to Section 7(b) above, counsel to
the indemnified parties shall be selected by the Company. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except
with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions
in the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without
B-20
<PAGE>
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 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.
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<PAGE>
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
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
B-22
<PAGE>
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.
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<PAGE>
10. Notices:
Except as otherwise herein provided, all statements, requests, notices
and agreements shall be in writing and, if to the Underwriters, at their
addresses furnished to the Company in the Pricing Agreement for the purpose
of communications hereunder and, if to the Company, shall be sufficient in
all respects if delivered or telefaxed to the Company at the offices of the
Company at 2211 South 47th Street, Phoenix, Arizona 85034, Attention: Mr.
Raymond Sadowski (fax no. (480) 643-7929).
11. Construction:
These Provisions and the Pricing Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York. The
section headings in these Provisions have been inserted as a matter of
convenience of reference and are not a part of these Provisions.
12. Parties at Interest:
The agreements set forth herein and in the Pricing Agreement have been
and are made solely for the benefit of the Underwriters and the Company and
the controlling persons, directors and officers referred to in Sections 7
and 8 hereof, and their respective successors, assigns, executors and
administrators. No other person, partnership, association or corporation
(including a purchaser, as such purchaser, from any of the Underwriters)
shall acquire or have any right under or by virtue of these Provisions or
the Pricing Agreement.
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SCHEDULE A
JURISDICTIONS IN WHICH AVNET, INC. IS INCORPORATED OR QUALIFIED
Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Florida,
Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Maryland,
Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nevada, New
Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma,
Oregon, Pennsylvania, Puerto Rico, Rhode Island, Tennessee, Texas, Utah,
Washington, Wisconsin.
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AVNET, INC.
DEBT SECURITIES
PRICING AGREEMENT
, 200_
Avnet, Inc.
2211 South 47th Street
Phoenix, Arizona 85034
Attention:
Ladies and Gentlemen:
Referring to the debt securities of Avnet, Inc. (the "Company") covered by
the Registration Statement on Form S-3 (No. 333-39530) filed by the Company, on
the basis of the representations, warranties and agreements contained in this
Agreement and in the Company's Standard Underwriting Agreement Provisions
attached hereto (the "Standard Underwriting Agreement"), and subject to the
terms and conditions set forth herein and therein, the Underwriters named on
Schedule I hereto ("Underwriters") agree to purchase, severally and not jointly,
and the Company agrees to sell to the Underwriters, $ aggregate principal amount
of __% Due (the "Securities") in the respective principal amounts set
forth opposite the names of the Underwriters on Schedule I hereto.
The price at which the Securities shall be purchased from the Company by
the Underwriters shall be % of the principal amount thereof [plus accrued
interest from , 200_]. The Securities will be offered as set forth in the
Prospectus Supplement relating thereto. The Securities will have the following
terms:
Title:
Interest Rate: ____% per annum
Interest Payment Dates: ________ and ________ commencing _____________, 200__.
Maturity:
Other Provisions: as set forth in the Prospectus Supplement relating to the
Securities.
Closing: ________ A.M. on __________, 200_, at , in same day funds.
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Name[s] and Address[es] of Representative[s]:
The provisions contained in the Standard Underwriting Agreement Provisions,
a copy of which is attached hereto, 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 one
business day prior to the Closing Date.
We represent that we are authorized to act for the several Underwriters
named in Schedule I hereto in connection with this financing and any action
under this agreement by any of us will be binding upon all the Underwriters.
This Pricing Agreement may be executed in one or more counterparts, all of
which counterparts shall constitute one and the same instrument.
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed duplicate hereof, whereupon it will
become a binding agreement among the Company and the several Underwriters in
accordance with its terms.
Very truly yours,
[NAMES OF REPRESENTATIVES]
On behalf of themselves and
as Representatives of the Several Underwriters
By _____________________________
By _____________________________
Name:
Title:
The foregoing Pricing Agreement
is hereby confirmed as of the
date first above written
AVNET, INC.
By _________________________
Name:
Title:
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