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EXHIBIT 1.1
[ ] 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
____________, 2000 (such indenture as amended or supplemented is herein referred
to as the "Indenture"), between the Company and Bank One Trust Company, N.A., as
Trustee, in one or more series, which series may vary as to interest rates,
maturities, redemption provisions, conversion provisions, selling prices and
other terms, with all such terms for any particular series of the Securities
being determined at the time of sale. Particular series of the Securities will
be sold pursuant to a Pricing Agreement referred to in Section 2, for resale in
accordance with terms of offering determined at the time of sale.
The firm or firms which agree to purchase the Securities are
hereinafter referred to as the "Underwriters" of such Securities, and the
representative or representatives of the Underwriters, if any, specified in a
Pricing Agreement referred to in Section 2 are hereinafter referred to as the
"Representatives"; provided, however, that if the Pricing Agreement does not
specify any representative of the Underwriters, the term "Representatives," as
used herein (other than in the second sentence of Section 2), shall mean the
Underwriters.
2. Purchase and Offering of Securities. The obligation of the
Underwriters to purchase any Securities will be evidenced by an exchange of
written communications ("Pricing Agreement") at the time the Company determines
to sell Securities. The Pricing Agreement will incorporate by reference these
Standard Underwriting Agreement Provisions (these "Provisions"), except as
otherwise provided therein, and will specify (1) the firm or firms which will be
Underwriters, (2) the names of any Representatives, (3) the principal amount of
Securities to be purchased by each Underwriter and the purchase price to be paid
by the Underwriters, (4) the terms of the Securities not already specified in
the Indenture, (5) the time and date on which delivery of the Securities will be
made to the Representatives for the accounts of the several Underwriters (such
time and date, or such other time and date not later than seven full business
days thereafter as the Representatives and the Company agree to as to time and
date for payment and delivery, being herein and in the Pricing Agreement
referred to as the "Closing Date") and (6) the place of delivery and payment.
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The obligations of the Underwriters to purchase the Securities will be
several and not joint. The Securities delivered to the Underwriters on the
Closing Date will be in definitive fully registered form, in such denominations
and registered in such names as the Representatives may request.
The Underwriters, through the representatives, will pay to the Company
the purchase price for the Securities, less the commission of the Underwriters,
on the Closing Date, by wire transfer of same-day funds to an account to be
specified by the Company not less than two full business days in advance of the
Closing Date.
Certificates for the Securities shall be registered in such names and
in such denominations as the Representatives may request not less than two full
business days in advance of the Closing Date.
3. Representations and Warranties of the Company: The Company
represents and warrants to each of the Underwriters as of the date of execution
of any Pricing Agreement (the "Representation Date") and as of any Closing Date
that:
(a) the Company is permitted to use Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement on such Form (Registration No. 333-_____), 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
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in order to make the statements therein not misleading; provided,
however, that the Company makes no warranty or representation with
respect to any statement contained in the Registration Statement or the
Prospectus in reliance upon and in conformity with information
furnished in writing by or on behalf of any Underwriter through the
Representatives to the Company expressly for use in the Registration
Statement or the Prospectus;
(c) all of the issued and outstanding shares of capital stock
of the Company have been duly and validly authorized and issued and are
fully paid, non-assessable and free of statutory and contractual
preemptive rights; the Company and each of its 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 would
constitute a breach of, or default
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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
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,
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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 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
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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 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
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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 and conditions which, individually or in the aggregate,
could not be expected to have a Material Adverse Effect, and to the
best of the Company's knowledge, there is no reasonable basis for any
such order, action, suit or proceeding with respect to any
environmental law which could be expected to have a Material Adverse
Effect;
(w) the Company is not an "investment company" or an
affiliated person of, or "promoter" or "principal underwriter" for, an
"investment company," as such terms are defined in the Investment
Company Act of 1940, as amended, and the rules and regulations
thereunder; and
(x) to the best knowledge of the Company, no labor problem
exists with employees of the Company or any of its Subsidiaries or is
imminent that could have a Material Adverse Effect.
4. Certain Covenants of the Company: The Company hereby agrees:
(a) to furnish such information as may be reasonably required
by and otherwise to cooperate with, the Representatives in qualifying
the Securities for offering and sale under the securities or blue sky
laws of such states as the Representatives may designate (including the
provisions of Florida blue sky law, if requested, relating to issuers
doing business with Cuba) and to maintain such qualifications in effect
as long as required for the distribution of the Securities, provided
that the Company shall not be required to qualify as a foreign
corporation or a dealer or to consent to the service of process under
the laws of any such state (except service of process with respect to
the offering and sale of the Securities) or to take any action which
would or could subject the Company to taxation in any state where it is
not now so subject; and to promptly advise the Representatives of the
receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose;
(b) to make available to the Representatives in New York City,
as soon as practicable after the Registration Statement becomes
effective, and thereafter from time to time to furnish to the
Underwriters, as many copies of the Prospectus (or of the Prospectus as
amended or supplemented if the Company shall have made any amendments
or
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supplements thereto after the effective date of the Registration
Statement) as the Underwriters may reasonably request for the purposes
contemplated by the Act;
(c) that the Company will use its best efforts to cause any
amendment of the Registration Statement to become effective promptly.
The Company will not file any amendment to the Registration Statement
or amendment or supplement to the Prospectus relating to any series of
the Securities to which the Underwriters of such series shall object in
writing after a reasonable opportunity to review the same. Subject to
the foregoing sentence, the Company will cause each Prospectus
supplement relating to the Securities to be filed with the Commission
pursuant to the applicable paragraph of Rule 424 within the time period
prescribed and will provide evidence satisfactory to the Underwriters
of such timely filing. The Company will promptly advise the
Underwriters of any series of Securities (A) when any Prospectus
supplement relating to such series shall have been filed with the
Commission pursuant to Rule 424, (B) when, prior to termination of the
offering of such series, any amendment to the Registration Statement
shall have been filed with the Commission or become effective, (C) of
any request by the Commission for any amendment of the Registration
Statement or supplement to the Prospectus or for any additional
information, (D) of the receipt by the Company of any notification of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the use of any
Prospectus or Prospectus supplement or, if the Company has knowledge,
of the institution or threat of any proceeding for that purpose and (E)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or, if the Company has knowledge, of the initiation or
threat of any proceeding for such purpose. The Company will make every
reasonable effort to prevent the issuance of any such stop order or of
any order suspending or preventing any such use and, if issued, to
obtain as soon as possible the withdrawal thereof;
(d) to furnish to the Representatives and, upon request, to
each of the other Underwriters for a period of three years from the
date of each Pricing Agreement (i) copies of any reports or other
communications which the Company shall send to its shareholders or
shall from time to time publish or publicly disseminate, (ii) copies of
all annual, quarterly and current reports filed with the Commission on
Forms 10-K, 10-Q and 8-K, or such other similar form as may be
designated by the Commission, and (iii) such other information as the
Representatives may reasonably request regarding the Company or its
Subsidiaries;
(e) to advise the Underwriters of a series of Securities
promptly of the happening of any event known to the Company within the
time during which a prospectus relating to such series is required to
be delivered under the Act which, in the judgment of the Company, would
require the making of any change in the Prospectus then being used, or
in the information incorporated therein by reference, so that the
Prospectus would not include an untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in light of the circumstances under which they are made, not
misleading, and, during such time, to prepare and furnish, at the
Company's expense, to the Underwriters
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promptly such amendments or supplements to such Prospectus as may be
necessary to reflect any such change and to furnish to the
Representatives a copy of such proposed amendment or supplement before
filing any such amendment or supplement with the Commission;
(f) that, as soon as practicable after the date of each
Pricing Agreement, the Company will make generally available to its
Security holders an earnings statement that satisfies the provisions of
Section 11(a) of the Act and Rule 158 under the Act;
(g) to apply the net proceeds from the sale of the Securities
in the manner set forth under the caption "Use of Proceeds" in the
Prospectus;
(h) if the Securities being sold pursuant to the applicable
Pricing Agreement are convertible into or exchangeable or exercisable
for Underlying Securities, to take all actions contemplated by Section
3(h) hereof and, if such Underlying Securities are Underlying Equity
Securities, to reserve and keep available at all times, free of
preemptive or other similar rights, a sufficient number of shares of
Underlying Equity Securities for the purpose of enabling the Company to
satisfy any obligation to issue such Underlying Equity Securities upon
any such conversion, exchange or exercise;
(i) to pay all expenses, fees and taxes (other than any
transfer taxes and fees and disbursements of counsel for the
Underwriters except as set forth under Section 5 hereof and (iv)
below) in connection with (i) the preparation and filing of the
Registration Statement, each preliminary prospectus, the Prospectus,
and any amendments or supplements thereto, and the printing and
furnishing of copies of each thereof to the Underwriters and to dealers
(including costs of mailing and shipment), (ii) the preparation,
issuance, execution, authentication and delivery of the Securities,
(iii) the printing of the Pricing Agreement (including these
Provisions), an Agreement Among Underwriters, any dealer agreements,
any Powers of Attorney, the Indenture and the reproduction and/or
printing and furnishing of copies of each thereof to the Underwriters
and to dealers (including costs of mailing and shipment), (iv) the
qualification of the Securities for offering and sale under state laws
and the determination of their eligibility for investment under state
law as aforesaid (including the legal fees and filing fees and other
disbursements of counsel for the Underwriters) and the printing and
furnishing of copies of any blue sky surveys or legal investment
surveys to the Underwriters and to dealers, (v) any listing of the
Securities on any securities exchange and any registration thereof
under the Exchange Act, (vi) any fees payable to investment rating
agencies with respect to the Securities, (vii) any filing for review of
the public offering of the Securities by the National Association of
Securities Dealers, Inc. (the "NASD"), and (viii) the performance of
the Company's other obligations hereunder; and
(j) that the Company will not, without the consent of the
Representatives, offer 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
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the obligations of the several Underwriters in accordance with clause (a)(iii),
(a)(iv) or (a)(v) of Section 9 hereof, or (b) a default by one or more of the
Underwriters in its or their respective obligations hereunder, the Company shall
reimburse the Underwriters for all of their out-of-pocket expenses, including
the reasonable fees and disbursements of their counsel.
6. Conditions of Underwriters' Obligations: The several obligations of
the Underwriters to purchase and pay for the Securities are subject to the
accuracy of the representations and warranties on the part of the Company herein
on the Representation Date and at the Closing Date (including those contained in
the Pricing Agreement), to the accuracy of the statements of officers of the
Company made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following conditions:
(a) The Company shall furnish to the Representatives at the
Closing Date an opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, 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 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
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11
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).
In rendering such opinion, counsel may state that such opinion
is limited to United States Federal and New York law.
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12
(b) The Company shall furnish to the Representatives at the
Closing Date an opinion of ▇▇▇▇▇ ▇. ▇▇▇▇, 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, or
(iii) under any United States Federal or New York State law,
regulation or rule, or under any decree, judgment or order
applicable to the Company or any of its Subsidiaries;
(vi) the execution, delivery and performance of the
Pricing Agreement and the Indenture, the issuance of the
Securities and any Underlying Securities by the Company and
the consummation
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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.
(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
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14
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 the Underwriters.
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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 amendment thereto), including the Rule
430A Information and the Rule 434 Information
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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 the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with
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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.
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
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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 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.
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9. Termination.
(a) The Representatives may terminate the applicable Pricing
Agreement, by notice to the Company, at any time at or prior to the
Closing Date, if (i) there has been, since the Representation Date or
since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, or (ii) any
of the ratings accorded any of the Company's debt securities shall have
been downgraded, or placed under surveillance or review, other than
with positive implications, by any credit rating agency recognized by
the Commission as a "nationally recognized statistical rating
organization," or (iii) there has occurred any material adverse change
in the financial markets in the United States or, if the Securities are
denominated or payable in, or indexed to, one or more foreign or
composite currencies, in the applicable international financial
markets, or any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective
change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in
the judgment of the Representatives, impracticable to market the
Securities or to enforce contracts for the sale of the Securities, or
(iv) trading in any securities of the Company has been suspended or
materially limited by the Commission or the New York Stock Exchange, or
trading generally on the New York Stock Exchange or the American Stock
Exchange or in the Nasdaq National Market has been suspended or
materially limited, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices have been required, by either of
said exchanges or by such system or by order of the Commission, the
NASD or any other governmental authority, or (v) a banking moratorium
has been declared by either Federal or New York authorities or, if the
Securities include debt securities denominated or payable in, or
indexed to, one or more foreign or composite currencies, by the
relevant authorities in the related foreign country or countries.
(b) If these Provisions or the applicable Pricing Agreement is
terminated pursuant to this Section 9, such termination shall be
without liability of any party to any other party except as provided in
Section 5 hereof, and provided further that Sections 3, 7, 8 and 9
shall survive such termination and remain in full force and effect.
10. Notices: Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing and, if to the
Underwriters, at their addresses furnished to the Company in the Pricing
Agreement for the purpose of communications hereunder and, if to the Company,
shall be sufficient in all respects if delivered or telefaxed to the Company at
the offices of the Company at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (fax no. (▇▇▇) ▇▇▇-▇▇▇▇).
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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.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
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-_____) 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 has been filed as Exhibit 1.1 to Registration No.
333-_____, are incorporated herein by reference.
A global certificate representing all of the Securities will be made
available for inspection at the office of ___________________, at least 24 hours
prior to the Closing Date.
We represent that we are authorized to act for the several Underwriters
named in Schedule I hereto in connection with this financing and any action
under this agreement by any of us will be binding upon all the Underwriters.
This Pricing Agreement may be executed in one or more counterparts, all
of which counterparts shall constitute one and the same instrument.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon
it will become a binding agreement among the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
[NAMES OF REPRESENTATIVES]
On behalf of themselves and
as Representatives of the
Several Underwriters
By
-------------------------
By
-------------------------
Name:
Title:
The foregoing Pricing Agreement
is hereby confirmed as of the
date first above written
AVNET, INC.
By
-------------------------
Name:
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