STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of March 2, 2000 (the "Agreement"), by and
between Savoir Technology Group, Inc., a Delaware corporation ("Issuer"), and
Avnet, Inc., a New York corporation ("Grantee").
WHEREAS, Issuer, Grantee and Tactful Acquisition Corp., a Delaware
corporation ("Sub"), which is a direct wholly owned subsidiary of Grantee,
propose to enter into an Agreement and Plan of Merger, dated as of the date
hereof (the "Merger Agreement"; capitalized terms used but not defined herein
shall have the meanings set forth in the Merger Agreement), providing for, among
other things, a merger (the "Merger") of Sub with and into Issuer;
WHEREAS, as a condition and inducement to Grantee's willingness to enter
into the Merger Agreement, Grantee has requested that Issuer agree, and Issuer
has agreed, to grant Grantee the Option (as defined below); and
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein and in
the Merger Agreement, Issuer and Grantee agree as follows:
1. GRANT OF OPTIONS. Subject to the terms and conditions set forth herein,
Issuer hereby grants to Grantee an irrevocable option (the "Option") to purchase
up to 2,023,435 shares (the "Option Shares") of common stock, par value $0.01
per share, of Issuer (the "Issuer Common Stock") (being 15% of the number of
shares of Issuer Common Stock outstanding on February 24, 2000 before such
issuance), at a purchase price of $6.83 per Option Share (such price, as
adjusted if applicable, the "Purchase Price"), payable in cash or in shares of
common stock, par value $1.00 per share, of Grantee (the "Grantee Common
Stock"), at the election of Grantee. The number and nature of Option Shares that
may be received upon the exercise of the Option and the Purchase Price are
subject to adjustment as set forth herein.
2. EXERCISE OF OPTION. (a) Grantee may exercise the Option, in whole or in
part, at any time or from time to time following the occurrence of a Purchase
Event (as defined below); provided that, except as otherwise provided herein,
the Option shall terminate and be of no further force and effect upon the
earliest to occur of (i) the Effective Time, (ii) 6 months after the first
occurrence of a Purchase Event (or if, at the expiration of such 6-months after
the first occurrence of a Purchase Event, the Option cannot be exercised by
reason of any applicable judgment, decree, order, law or regulation, 10 business
days after such impediment to exercise shall have been removed, but in no event
under this clause (ii) later than the first anniversary of the Purchase Event),
(iii) termination of the Merger Agreement under circumstances which do not and
cannot result in Grantee's becoming entitled to receive the Termination Fee from
Issuer
pursuant to Section 4.9 of the Merger Agreement; and (iv) 12 months after the
termination of the Merger Agreement under circumstances which do or could result
in Grantee's becoming entitled to receive the Termination Fee from Issuer
pursuant to Section 4.9 of the Merger Agreement, unless during such 12-month
period, a Purchase Event shall occur. The Grantee also may terminate the Option,
in whole or in part, upon notice to Issuer. The termination of the Option shall
not affect any rights hereunder which by their terms extend beyond the date of
such termination.
(b) As used herein, a "Purchase Event" means an event the result of which
is that the Grantee becomes entitled to receive the Termination Fee from Issuer
pursuant to Section 4.9 of the Merger Agreement.
(c) In the event Grantee wishes to exercise the Option, it shall send to
Issuer a written notice (the "Exercise Notice"; the date of which being herein
referred to as the "Notice Date") specifying (i) the total number of Option
Shares it intends to purchase pursuant to such exercise and (ii) a place and
date not earlier than three business days nor later than 10 business days from
such Notice Date for the closing of such purchase (a "Closing"; and the date of
such Closing, a "Closing Date"); and (iii) whether it elects to pay the Purchase
Price in cash or in shares of Grantee Common Stock; provided that such closing
shall be held only if (A) such purchase would not otherwise violate or cause the
violation of applicable law (including the HSR Act), (B) no law, rule or
regulation shall have been adopted or promulgated, and no temporary restraining
order, preliminary or permanent injunction or other order, decree or ruling
issued by a court or other governmental authority of competent jurisdiction
shall be in effect, which prohibits delivery of such Option Shares (and the
parties hereto shall use their reasonable best efforts to have any such order,
injunction, decree or ruling vacated or reversed) and (C) any prior notification
to or approval of any other regulatory authority in the United States or
elsewhere required in connection with such purchase shall have been made or
obtained, other than those which if not made or obtained would not reasonably be
expected to result in a significant detriment to the Grantee and its
Subsidiaries taken as a whole or the Issuer and its Subsidiaries taken as a
whole. If the Closing cannot be consummated by reason of a restriction set forth
in clause (A), (B) or (C) above, notwithstanding the provisions of Section 2(a),
the Closing shall be held within 5 business days following the elimination of
such restriction.
3. PAYMENT AND DELIVERY OF CERTIFICATES. (a) On each Closing Date, if
Grantee has elected to pay the Purchase Price therefor in cash, Grantee shall
pay to Issuer in immediately available funds by wire transfer to a bank account
designated by Issuer an amount equal to the Purchase Price multiplied by the
Option Shares to be purchased on such Closing Date.
(b) On each Closing Date, if Grantee has elected to pay the Purchase Price
therefor in shares of Grantee Common Stock ("Purchase Shares"), Grantee shall
deliver to Issuer a certificate or certificates representing the Purchase Shares
to be delivered at such Closing, which Purchase Shares shall be free and clear
of all liens, charges or encumbrances ("Liens"),
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and Issuer shall deliver to Grantee a letter agreeing that Issuer shall not
offer to sell or otherwise dispose of such Purchase Shares in violation of
applicable law or the provisions of this Agreement. The number of Purchase
Shares issuable at such Closing shall be obtained by multiplying the number of
Option Shares specified in the Exercise Notice therefor by a fraction, of which
the numerator shall be the Purchase Price, and the denominator shall be price
per share of Grantee Common Stock on the five trading days immediately preceding
the Notice Date therefor.
(c) At each Closing, simultaneously with the delivery of immediately
available funds as provided in Section 3(a) or Purchase Shares as provided in
Section 3(b), Issuer shall deliver to Grantee a certificate or certificates
representing the Option Shares to be purchased at such closing, which Option
Shares shall be free and clear of all Liens, and Grantee shall deliver to Issuer
a letter agreeing that Grantee shall not offer to sell or otherwise dispose of
such Option Shares in violation of applicable law or the provisions of this
Agreement.
(c) Certificates for the Option Shares and Purchase Shares (collectively,
"Shares") delivered at each Closing shall be endorsed with a restrictive legend
which shall read substantially as follows:
THE TRANSFER OF THE STOCK REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO
RESTRICTIONS ARISING UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND PURSUANT
TO THE TERMS OF A STOCK OPTION AGREEMENT DATED AS OF MARCH __, 2000. A COPY OF
SUCH AGREEMENT WILL BE PROVIDED TO THE HOLDER HEREOF WITHOUT CHARGE UPON RECEIPT
BY THE ISSUER OF A WRITTEN REQUEST THEREFOR.
It is understood and agreed that (i) the reference to restrictions arising under
the Securities Act in the above legend shall be removed by delivery of
substitute certificate(s) without such reference if the issuer of such Shares
shall have received a copy of a letter from the staff of the SEC, or an opinion
of counsel in form and substance reasonably satisfactory to such issuer and its
counsel, to the effect that such legend is not required for purposes of the
Securities Act and (ii) the reference to restrictions pursuant to this Agreement
in the above legend shall be removed by delivery of substitute certificate(s)
without such reference if the Shares evidenced by certificate(s) containing such
reference have been sold or transferred in compliance with the provisions of
this Agreement under circumstances that do not require the retention of such
reference.
4. AUTHORIZED STOCK. (a) Issuer hereby represents and warrants to, and
covenants with, Grantee that Issuer has taken all necessary corporate and other
action to authorize and reserve and to permit it to issue, at all times from the
date hereof until the obligation to deliver Shares upon the exercise of the
Option terminates, and will have reserved for issuance, upon exercise of the
Option, all of the Option Shares issuable to Grantee upon exercise of the
Option, and Issuer will take all necessary corporate and other action to
authorize
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and reserve for issuance and to permit it to issue all additional shares of
Issuer Common Stock or other securities which may be issued pursuant to Section
6 upon exercise of the Option. The Option Shares to be issued upon due exercise
of the Option, including all additional shares of Issuer Common Stock or other
securities which may be issuable upon exercise of the Option pursuant to Section
6, upon issuance pursuant hereto, shall be duly and validly issued, fully paid
and nonassessable, and shall be delivered free and clear of all Liens, including
any preemptive rights of any stockholder of Issuer.
(b) Grantee hereby represents and warrants to, and covenants with, Issuer
that prior to each Closing at which Grantee will issue Purchase Shares, Grantee
will take all necessary corporate and other action to authorize and reserve and
to permit it to issue, and will have reserved for issuance, all of the Purchase
Shares issuable to Issuer at such Closing, and Grantee will take all necessary
corporate and other action to authorize and reserve for issuance and to permit
it to issue all additional shares of Grantee Common Stock or other securities
which may be issued pursuant to Section 6 upon exercise of the Option. The
Purchase Shares to be issued upon due exercise of the Option, including all
additional shares of Grantee Common Stock or other securities which may be
issuable upon exercise of the Option pursuant to Section 6, upon issuance
pursuant hereto, shall be duly and validly issued, fully paid and nonassessable,
and shall be delivered free and clear of all Liens, including any preemptive
rights of any stockholder of Grantee.
5. PURCHASE NOT FOR DISTRIBUTION. Grantee hereby represents and warrants to
Issuer that any Option Shares or other securities acquired by Grantee upon
exercise of the Option will not be taken with a view to the public distribution
thereof and will not be transferred or otherwise disposed of except in a
transaction registered or exempt from registration under the Securities Act.
Issuer hereby represents and warrants to Grantee that any Purchase Shares or
other securities acquired by Issuer upon exercise of the Option will not be
taken with a view to the public distribution thereof and will not be transferred
or otherwise disposed of except in a transaction registered or exempt from
registration under the Securities Act.
6. ADJUSTMENT UPON CHANGES IN CAPITALIZATION, ETC. (a) In the event of any
change in Shares by reason of reclassification, recapitalization, stock split,
split-up, combination, exchange of shares, stock dividend, dividend, dividend
payable in any other securities, or any similar event, the type and number of
Shares or securities subject to the Option, and the Purchase Price therefor
(including for purposes of repurchase thereof pursuant to Section 7), shall be
adjusted appropriately, and proper provisions shall be made in the agreements
governing such transaction, so that Grantee and Issuer each shall receive upon
exercise of the Option the number and class of shares or other securities or
property that Grantee would have received in respect of Shares if the Option had
been exercised immediately prior to such event or the record date therefor, as
applicable. If any additional shares of Issuer Common Stock are issued after the
date of this Agreement (other than pursuant to an event described in the
immediately preceding sentence), the number of shares of Issuer Common Stock
subject to the
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Option shall be adjusted so that immediately prior to such issuance, it equals
15% of the number of Shares then issued and outstanding. In no event shall the
number of shares of Issuer Common Stock subject to the Option exceed 15% of the
number of shares of Issuer Common Stock issued and outstanding at the time of
exercise (without giving effect to any shares subject or issued pursuant to the
Option).
(b) Without limiting the foregoing, whenever the number of Option Shares
purchasable upon exercise of the Option is adjusted as provided in this Section
6, the Purchase Price per Option Share shall be adjusted by multiplying the
Purchase Price by a fraction, the numerator of which is equal to the number of
Option Shares purchasable prior to the adjustment and the denominator of which
is equal to the number of Option Shares purchasable after the adjustment.
(c) Without limiting the parties' relative rights and obligations under the
Merger Agreement, in the event that Issuer enters into an agreement (i) to
consolidate with or merge or convert into any Person, other than Grantee or one
of its Subsidiaries, and Issuer will not be the continuing or surviving
corporation in such consolidation, conversion, or merger, (ii) to permit any
Person, other than Grantee or one of its Subsidiaries, to merge into Issuer and
Issuer will be the continuing or surviving corporation, but in connection with
such merger, the shares of Company Common Stock outstanding immediately prior to
the consummation of such merger will be changed into or exchanged for stock or
other securities of Issuer or any other Person or cash or any other property, or
(iii) to sell or otherwise transfer all or substantially all of its assets to
any Person, other than Grantee or one of its Subsidiaries, then, and in each
such case, the agreement governing such transaction will make proper provision
so that the Option will, upon the consummation of any such transaction and upon
the terms and conditions set forth herein, be converted into, or exchanged for,
an option with identical terms appropriately adjusted to acquire the number and
class of shares or other securities or property that Grantee would have received
in respect of Option Shares had the Option been exercised immediately prior to
such consolidation, conversion, merger, sale or transfer or the record date
therefor, as applicable. Issuer shall take such steps in connection with such
consolidation, merger, conversion, sale, transfer, or other such transaction as
may be reasonably necessary to assure that the provisions hereof shall
thereafter apply as nearly as possible to any securities or property thereafter
deliverable upon exercise of the Option.
7. REPURCHASE OF OPTION. (a) Notwithstanding the provisions of Section
2(a), at any time upon or after the first occurrence of a Purchase Event and
prior to termination of the Option in accordance with Section 2, Issuer shall at
the request of Grantee (any such request, a "Cash Exercise Notice"), repurchase
from Grantee the Option or a portion thereof (if and to the extent not
previously exercised or terminated) at a price which, subject to Section 10
below, is equal to the excess, if any, of (x) the Applicable Price (as defined
below) as of the Section 7 Request Date (as defined below) for an Option Share
over (y) the Purchase Price (subject to adjustment pursuant to Section 6),
multiplied by all or such portion of the Option
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Shares subject to the Option as the Grantee shall specify in the Cash Exercise
Notice (the "Option Repurchase Price").
(b) Notwithstanding the provisions of Section 2(a), at any time following
the occurrence of a Purchase Event, Issuer (or any successor entity thereof)
may, at its election (notice of which shall be given to Grantee), repurchase the
Option (if and to the extent not previously exercised or terminated) at the
Option Repurchase Price; provided that the aggregate number of Option Shares as
to which the Option may be repurchased shall not exceed 1,348,957. For purposes
of this Agreement, an exercise of the Option shall be deemed to occur on the
Closing Date and not on the Notice Date relating thereto.
(c) In connection with any exercise of rights under this Section 7, Issuer
shall, within 5 business days after the Section 7 Request Date, pay the Option
Repurchase Price in immediately available funds, and Grantee shall surrender to
Issuer the Option or the applicable portion thereof. Upon receipt by the Grantee
of the Option Repurchase price, the obligations of the Issuer to deliver Option
Shares pursuant to Section 3 of this Agreement shall be terminated with respect
to the number of Option Shares specified in the Cash Exercise Notice or the
number of Option Shares as to which the Option is repurchased under Section
7(b).
(d) For purposes of this Agreement, the following terms have the following
meanings:
(i) "Applicable Price", as of any date, means the highest of (A) the
highest price per Share paid or proposed to be paid by any third party for
Shares or the consideration per Share received or to be received by holders
of Shares, in each case pursuant to any Acquisition Proposal for or with
Issuer made on or prior to such date or (B) the average closing price per
Share as reported by Nasdaq National Market ("NNM") or if the Shares are
not listed on the NNM, the highest bid price per Share as quoted on the
National Association of Securities Dealers Automated Quotation System or,
if the Shares are not quoted thereon, on the principal trading market on
which such Shares are traded as reported by a recognized source, during the
10 trading days preceding such date. If the consideration to be offered,
paid or received pursuant to the foregoing clause (A) shall be other than
in cash, the value of such consideration shall be determined in good faith
by an independent nationally recognized investment banking firm selected by
Grantee and reasonably acceptable to Issuer.
(ii) "Section 7 Request Date" means the date on which Issuer gives notice
of its election to repurchase the Option pursuant to Section 7(b) or
Grantee provides a Cash Exercise Notice, as the case may be.
8. REGISTRATION RIGHTS. Issuer shall, if requested by Grantee or any
Subsidiary of Grantee which is the owner of Option Shares (collectively with
Grantee, the
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"Owners") at any time and from time to time within two years of the first
exercise of the Option, as expeditiously as possible prepare and file up to two
registration statements under the Securities Act if such registration is
necessary in order to permit the sale or other disposition of any or all shares
or other securities that have been acquired by or are issuable to such Owners
upon exercise of the Option ("Registrable Securities") in accordance with the
intended method of sale or other disposition stated by such Owners, including a
"shelf" registration statement under Rule 415 under the Securities Act or any
successor provision, and Issuer shall use all reasonable efforts to qualify such
Registrable Securities under any applicable state securities laws. Issuer shall
use all reasonable efforts to cause each such registration statement to become
effective, to obtain all consents or waivers of other parties which are required
therefor and to keep such registration statement effective for such period at
least 90 days from the day such registration statement first becomes effective
as may be reasonably necessary to effect such sale or other disposition. The
obligations of Issuer hereunder to file a registration statement and to maintain
its effectiveness may be suspended for a period of time not exceeding 90 days in
the aggregate if the Board of Directors of Issuer shall have determined in good
faith that the filing of such registration statement or the maintenance of its
effectiveness would require disclosure of nonpublic information that would
materially and adversely affect Issuer (but in no event shall Issuer exercise
such postponement right more than once in any 12-month period). Any registration
statement prepared and filed under this Section 8, and any sale covered thereby,
shall be at Issuer's expense except for underwriting discounts or commissions,
brokers' fees and the reasonable fees and disbursements of Owners' counsel
related thereto. The Owners shall provide all information reasonably requested
by Issuer for inclusion in any registration statement to be filed hereunder. If
during the time period referred to in the first sentence of this Section 8
Issuer effects a registration under the Securities Act capital stock of the same
class as the Registrable Securities for its own account or for any other
stockholders of Issuer (other than on Form S-4 or Form S-8, or any successor
form), it shall allow the Owners the right to participate in such registration,
and such participation shall not affect the obligation of Issuer to effect two
registration statements for the Owners under this Section 8; provided that, if
the managing underwriters of such offering advise Issuer in writing that in
their opinion the number of Registrable Securities requested to be included in
such registration exceeds the number which can be sold in such offering without
adversely affecting the offering price, Issuer and the Owners shall each reduce
on a pro rata basis the Registrable Securities to be included therein on their
respective behalf. In connection with any registration pursuant to this Section
8, Issuer and the Owners shall provide each other and any underwriter of the
offering with customary representations, warranties, covenants, indemnification
and contribution in connection with such registration.
9. ADDITIONAL COVENANTS OF ISSUER. (a) If Shares or any other securities to
be acquired upon exercise of the Option are then listed on the NNM or any other
securities exchange or market, Issuer, upon the request of any Owner, will
promptly file an application to list the Shares or other securities to be
acquired upon exercise of the Options on the NNM or such other securities
exchange or market and will use its reasonable best efforts to obtain approval
of such listing as soon as practicable.
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(b) Issuer will use its reasonable best efforts to take, or cause to be
taken, all actions and to do, or cause to be done, all things necessary, proper
or advisable under applicable laws and regulations to permit the exercise of the
Option in accordance with the terms and conditions hereof, as soon as
practicable after the date hereof, including making any appropriate filing
pursuant to the HSR Act and any other applicable law, supplying as promptly as
practicable any additional information and documentary material that may be
requested pursuant to the HSR Act and any other applicable law, and taking all
other actions necessary to cause the expiration or termination of the applicable
waiting periods under the HSR Act as soon as practicable.
(c) Issuer agrees not to avoid or seek to avoid (whether by charter
amendment or through reorganization, consolidation, conversion, merger, issuance
of rights, dissolution or sale of assets, or by any other voluntary act) the
observance or performance of any of the covenants, agreements or conditions to
be observed or performed hereunder by it.
(d) Issuer shall take all such steps as may be required to cause any
acquisitions or dispositions by Grantee (or any affiliate who may become subject
to the reporting requirements of Section 16(a) of the Exchange Act) of any
Shares acquired in connection with this Agreement (through conversion or
exercise of the Option or otherwise) to be exempt under Rule 16b-3 promulgated
under the Exchange Act.
10. LIMITATION OF GRANTEE PROFIT. (a) Notwithstanding any other provision
in this Agreement, in no event shall Grantee's Total Profit (as defined below)
exceed $5,100,000 (the "Maximum Profit") and, if it otherwise would exceed such
amount, Grantee, at its sole discretion, shall either (i) reduce the number of
Shares subject to the Option, (ii) deliver to Issuer for cancellation Shares (or
other securities into which such Option Shares are converted or exchanged)
previously purchased by Grantee, (iii) pay cash to Issuer, or (iv) any
combination of the foregoing, so that Grantee's actually realized Total Profit
shall not exceed the Maximum Profit after taking into account the foregoing
actions.
(b) Notwithstanding any other provision of this Agreement, the Option may
not be exercised for a number of Option Shares as would, as of any Notice Date,
result in a Notional Total Profit (as defined below) of more than the Maximum
Profit and, if exercise of the Option otherwise would result in the Notional
Total Profit exceeding such amount, Grantee, at its discretion, may (in addition
to any of the actions specified in Section 10(a) above) (i) reduce the number of
Shares subject to the Option or (ii) increase the Purchase Price for that number
of Option Shares set forth in the Exercise Notice so that the Notional Total
Profit shall not exceed the Maximum Profit; PROVIDED that nothing in this
sentence shall restrict any exercise of the Option permitted hereby on any
subsequent date at the Purchase Price set forth in Section 1 hereof.
(c) For purposes of this Agreement, "Total Profit" shall mean: (i) the
aggregate amount (before taxes) of (A) any excess of (x) the net cash amounts or
fair market value of any
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property received by Grantee pursuant to a sale of Option Shares (or securities
into which such shares are converted or exchanged) over (y) the Grantee's
aggregate Purchase Price for such Option Shares (or other securities), plus (B)
any amounts received by Grantee on the repurchase of the Option by Issuer
pursuant to Section 7, plus (C) any Termination Fee paid by Issuer and received
by Grantee pursuant to Section 4.9 of the Merger Agreement, minus (ii) the
amounts of any cash previously paid by Grantee to Issuer pursuant to this
Section 10 plus the value of the Option Shares (or other securities) previously
delivered by Grantee to Issuer for cancellation pursuant to this Section 10.
(d) For purposes of this Agreement, "Notional Total Profit" with respect to
any number of Option Shares as to which Grantee may propose to exercise the
Option shall mean the Total Profit determined as of the Notice Date assuming
that the Option was exercised on such date for such number of Option Shares
specified in the Exercise Notice and assuming that such Option Shares, together
with all other Option Shares previously acquired upon exercise of the Option and
held by Grantee as of such date, were sold for cash at the closing price per
Share on the NNM as of the close of business on the preceding trading day (less
customary brokerage commissions).
(e) Notwithstanding any other provision of this Agreement, nothing in this
Agreement shall affect the ability of Grantee to receive, nor relieve Issuer's
obligation to pay, the Termination Fee provided for in Section 4.9 of the Merger
Agreement; provided that if and to the extent the Total Profit received by
Grantee would exceed the Maximum Profit following receipt of such payment,
Grantee shall be obligated to promptly comply with the terms of Section 10(a).
(f) For purposes of Section 10(a) and clause (ii) of Section 10(c), the
value of any Option Shares delivered by Grantee to Issuer shall be the
Applicable Price of such Option Shares.
11. LOSS, THEFT, ETC. OF AGREEMENT. This Agreement (and the Option granted
and evidenced hereby) is exchangeable, without expense, at the option of
Grantee, upon presentation and surrender of this Agreement at the principal
office of Issuer for other Agreements providing for Options of different
denominations entitling the holder thereof to purchase in the aggregate the same
number of Shares purchasable hereunder. The terms "Agreement" and "Option" as
used herein include any other Agreements and related Options for which this
Agreement (and the Option granted hereby) may be exchanged. Upon receipt by
Issuer of evidence reasonably satisfactory to it of the loss, theft, destruction
or mutilation of this Agreement, and (in the case of loss, theft or destruction)
of reasonably satisfactory indemnification, and upon surrender and cancellation
of this Agreement, if mutilated, Issuer will execute and deliver a new Agreement
of like tenor and date. Any such new Agreement executed and delivered shall
constitute an additional contractual obligation on the part of Issuer, whether
or not the Agreement so lost, stolen, destroyed or mutilated shall at any time
be enforceable by anyone.
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12. MISCELLANEOUS.
(a) EXPENSES. Except as otherwise provided herein or in the Merger
Agreement, each of the parties hereto shall bear and pay all expenses incurred
by it or on its behalf in connection with the transactions contemplated
hereunder, including fees and expenses of its own financial consultants,
investment bankers, accountants and counsel.
(b) WAIVER AND AMENDMENT. Any provision of this Agreement may be waived at
any time by the party that is entitled to the benefits of such provision. This
Agreement may not be modified, amended, altered or supplemented except upon the
execution and delivery of a written agreement executed by the parties hereto.
(c) ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARY; SEVERABILITY. Except as
otherwise set forth in the Merger Agreement, this Agreement, together with the
Merger Agreement (a) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, between the parties with
respect to the subject matter hereof and (b) is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder. If any
term, provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction or a federal or state regulatory agency to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated. If for any reason such court or
regulatory agency determines that the Option does not permit Grantee to acquire,
or does not require Issuer to issue or repurchase, the full number of Shares, or
all or the relevant portion of the Option, as the case may be and as provided in
Sections 2 and 7, as adjusted pursuant to Section 6, it is the express intention
of Issuer to allow Grantee to acquire or to require Issuer to issue or
repurchase such lesser number of Shares, or such lesser portion of the Option,
as the case may be, as may be permissible without any amendment or modification
hereof.
(d) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE (WITHOUT GIVING EFFECT TO
CHOICE OF LAW PRINCIPLES).
(e) DESCRIPTIVE HEADINGS. The descriptive headings contained herein are for
convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
(f) NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed given as set forth in Section 7.4 of the Merger
Agreement.
(g) COUNTERPARTS. This Agreement and any amendments hereto may be executed
in two counterparts, each of which shall be considered one and the same
agreement and shall become effective when both counterparts have been signed by
each of the parties and
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delivered to the other party, it being understood that both parties need not
sign the same counterpart.
(h) ASSIGNMENT. Grantee may not, without the prior written consent of
Issuer (which shall not be unreasonably withheld), assign this Agreement or the
Option to any other person. This Agreement shall not be assignable by Issuer
except by operation of law. Subject to the preceding sentence, this Agreement
shall be binding upon, inure to the benefit of and be enforceable by the parties
and their respective successors and assigns.
(i) REPRESENTATIONS AND WARRANTIES. The representations and warranties
contained in Sections 2.1 through 2.5 of the Merger Agreement are incorporated
herein by reference, mutatis mutandis.
(j) FURTHER ASSURANCES. In the event of any exercise of the Option by
Grantee, Issuer and Grantee shall execute and deliver all other documents and
instruments and take all other action that may be reasonably necessary in order
to consummate the transactions provided for by such exercise.
(k) ENFORCEMENT. The parties agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms. It is accordingly agreed that the parties
shall be entitled to specific performance of the terms hereof, this being in
addition to any other remedy to which they are entitled at law or in equity.
Both parties further agree to waive any requirement for the securing or posting
of any bond in connection with the obtaining of any such equitable relief and
that this provision is without prejudice to any other rights that the parties
hereto may have for any failure to perform this Agreement.
(l) CAPTIONS. The Article, Section and paragraph captions herein are for
convenience only, do not constitute part of this Agreement and shall not be
deemed to limit or otherwise affect any of the provisions hereof.
(m) CONFIDENTIALITY AGREEMENT. Issuer hereby waives the restrictions on
Grantee's acquisition of Shares contained in the Confidentiality Agreement to
the extent necessary to permit Grantee to exercise the Option and purchase the
Option Shares as herein provided.
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IN WITNESS WHEREOF, Issuer and Grantee have caused this Stock Option
Agreement to be signed by their respective officers thereunto duly authorized,
all as of the date first above written.
SAVOIR TECHNOLOGY GROUP, INC.
By:/s/P. ▇▇▇▇▇ ▇▇▇▇▇
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AVNET, INC.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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