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AMENDED AND RESTATED
WARRANT AGREEMENT OF
AVNET, INC.
11,452 SHARES
Dated as of July 3, 2000
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COMMON STOCK PURCHASE WARRANT
AMENDED AND RESTATED WARRANT AGREEMENT dated as of July 3, 2000, between
Avnet, Inc. (the "Company"), the Company as Warrant Agent, Savoir Technology
Group, Inc. ("Savoir") and IBM Credit Corporation (the "Warrant Holder" or
"Holder").
WHEREAS, in connection with an Inventory and Working Capital Agreement
Amendment #4 dated as of September 30, 1997, by and between Savoir (then known
as Western Micro Technology, Inc.) and the Holder, the Holder received warrants
(the "Original Warrants") to acquire 100,000 shares of Common Stock of Savoir,
at an exercise price of $7.50 per share, subject to adjustment, pursuant to a
Warrant Agreement dated September 30, 1997 (the "Original Warrant Agreement");
WHEREAS, pursuant to Section 2.6 of the Original Warrant Agreement, in
September 1998, the exercise price of the Original Warrants was reset to
$4.76875 per share (the "Reset");
WHEREAS, pursuant to an Amended and Restated Agreement and Plan of Merger
by and between the Company, Tactful Acquisition Corp. ("Tactful") and Savoir,
dated March 2, 2000 (the "Merger Agreement"), on July 3, 2000, Tactful merged
with and into Savoir (the "Merger") and Savoir became a wholly-owned subsidiary
of the Company;
WHEREAS, as a result of the the Merger, each outstanding share of common
stock of Savoir was converted into a right to receive a portion of a share of
the common stock, par value $1.00 per share, of the Company equal to number
derived by dividing $7.85 by $68.5472 (the "Exchange Ratio");
WHEREAS, pursuant to Section 1.9(ii) of the Merger Agreement, at the
effective time of the Merger, the Original Warrants were converted into a right
to acquire shares of the common stock, par value $1.00 per share (the "Shares")
of the Company, adjusted according to the Exchange Ratio (the "Warrants");
WHEREAS, the Company, Savoir and the Holder wish to amend and restate the
Original Warrant Agreement and the Original Warrants to reflect the effects of
the Reset and the Merger;
In consideration of the foregoing, and for the purpose of defining the
terms and provisions of all of the Warrants and the respective rights and
obligations thereunder of the Company and the Holder, the Company and the
Warrant Holder hereby agree as follows:
SECTION 1. TRANSFERABILITY AND FORM OF THE WARRANTS.
1.1 REGISTRATION. The Warrants shall be numbered and shall be registered on
the books of the Company maintained at the principal office of the Company at
0000 Xxxxx 00xx Xxxxxx, Xxxxxxx, Xxxxxxx 00000 (the "Warrant Register"). The
Company shall be entitled to treat the Holders of the Warrants as the owners in
fact thereof for all purposes and shall not be bound to recognize any equitable
or other claim to or interest in such Warrants on the part of any other person,
and shall not be liable for any Company registration or transfer of the Warrants
which is registered or to be registered in the name of a fiduciary or the
nominee of a fiduciary unless made with the actual knowledge that a fiduciary or
nominee is committing a breach of trust in requesting such registration of
transfer, or with such knowledge of such facts that its participation therein
amounts to bad faith.
1.2 TRANSFER RESTRICTIONS. The Warrants are freely transferable, subject to
applicable securities laws restrictions. The holder of any Warrants so
transferred shall continue to be bound by this Agreement. However, the minimum
denomination of any Warrant hereunder shall be a Warrant exchangeable for 1,000
Warrant Shares.
1.3 TRANSFER-GENERAL. Subject to the terms hereof, the Warrants shall be
transferable only on the books of the Company maintained at its principal office
upon delivery thereof duly endorsed by the Holder or by its duly authorized
attorney or representative, or accompanied by proper evidence of succession,
assignment or authority to transfer. In all cases of transfer by an attorney,
the original power of attorney, duly approved, or a copy thereof, duly
certified, shall be deposited and remain with the Company. In case of transfer
by executors, administrators, guardians or other legal representatives, duly
authenticated evidence of their authority shall be produced, and may be required
to be deposited and to remain with the Company in its discretion. Upon any
registration of transfer, the Company shall countersign and deliver new Warrants
to the Persons entitled thereto. The Company or the Warrant Agent may require
the payment of a sum sufficient to cover any tax or governmental charge that may
be imposed in connection with any such transfer.
1.4 NOTICES OF CORPORATE ACTIONS. In the event of: (a) any taking by the
Company of a record of the holders of the Common Stock for the purpose of
determining the holders thereof who are entitled to receive any dividend or
distribution, or any right to subscribe for, purchase or otherwise acquire any
shares of capital stock of any class or any other securities, (b) any capital
reorganization of the Company, any reclassification or recapitalization of the
capital stock of the Company or any consolidation or merger involving the
Company and any other Person or any transfer or other disposition of all or
substantially all the assets of the Company to another Person; (c) any voluntary
or involuntary dissolution, liquidation or winding-up of the Company, or (d) any
amendment of the Certificate of Incorporation of the Company, the Company shall
mail to each Warrant Holder in accordance with the provisions of Section 12
hereof a notice specifying (i) the date or expected date on which any such
record is to be taken for the purpose of such dividend, distribution or right,
and the amount and character of such dividend, distribution or right and (ii)
the date or expected date on which any such reorganization, reclassification,
recapitalization, consolidation, merger, transfer, disposition, dissolution,
liquidation or winding-up is to take place, the time, if any such time is to be
fixed, as of which the holders of record of Common Stock shall be entitled to
exchange their shares of Common Stock for the securities or other property
deliverable upon such
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reorganization, reclassification, recapitalization, consolidation, merger,
transfer, disposition, dissolution, liquidation or winding-up and a description
in reasonable detail of the transaction. Such notice shall be mailed to the
extent practicable at least thirty (30), but not more than ninety (90) days
prior to the date therein specified. In the event that the Company at any time
sends any notice to the holders of its Common Stock, it shall concurrently send
a copy of such notice to each Warrant Holder.
1.5 FORM OF THE WARRANTS. The text of the Warrants and of the form of
election (the "Purchase Form") to purchase Shares pursuant to the Warrants
("Warrant Shares") shall be substantially as set forth in Exhibit A attached
hereto. The Exercise Price (as defined in and determined in accordance with the
provisions of Sections 2 and 6 hereof) and the number of Warrant Shares issuable
upon exercise of the Warrant is subject to adjustment upon the occurrence of
certain events, all as hereinafter provided. The Warrant shall be executed on
behalf of the Company by its Chairman of the Board, its Chief Executive Officer,
President, Chief Financial Officer, or one of its Vice Presidents, and attested
by its Secretary or an Assistant Secretary.
The Warrants shall be dated as of the date of countersignature thereof by
the Company either upon initial issuance or upon transfer.
SECTION 2. TERMS OF THE WARRANTS; EXERCISE OF THE WARRANTS; EXERCISE PRICE,
ETC.
2.1 TERM OF THE WARRANTS/VESTING. Subject to the terms of this Agreement,
the Holder shall have the right, which may be exercised from time to time until
September 30, 2004 (the "Expiration Date"), to purchase from the Company the
number of fully paid and nonassessable Warrant Shares which the Holder may at
the time be entitled to purchase on exercise of such Warrant. The Warrant is
fully vested. If the last day for the exercise of the Warrant shall not be a
business day, then the Warrant may be exercised on the next succeeding business
day.
2.2 EXERCISE OF THE WARRANTS. The Warrants may be exercised upon surrender
to the Company, at its principal office, of the certificate evidencing the
particular Warrant to be exercised, together with the Purchase Form on the
reverse thereof duly completed and executed, and upon payment to the Company of
the Exercise Price, for the number of Warrant Shares in respect of which such
Warrant is then exercised. Upon partial exercise, a Warrant certificate for the
unexercised portion shall be delivered to the Holder. Payment of the aggregate.
Exercise Price shall be made as provided in Section 2.3 below.
Subject to Section 3 hereof, upon such surrender of a Warrant, a completed
Purchase Form, and payment of the Exercise Price as aforesaid, the Company shall
issue and cause to be delivered with all reasonable dispatch to or upon the
written order of the Holder and in such name or names as the Holder may
designate, a certificate or certificates for the number of full Warrant Shares
so purchased upon the exercise of the particular Warrant, together with an
additional whole share in respect of any fractional Warrant Share otherwise
issuable upon such surrender. Such certificate or certificates shall be deemed
to have been issued and any person so designated to be named therein shall be
deemed to have become a holder of record of such Warrant Shares as of the date
of the surrender of the particular Warrant, a completed Purchase Form, and
payment of the Exercise Price, as aforesaid; provided, however, that if, at the
date of surrender of the particular Warrant, a completed Purchase Form, and
payment of such Exercise Price, the transfer books for the Warrant Shares or
other class of stock purchasable upon the exercise of the particular Warrant
shall be closed, the certificates for the Warrant Shares in respect of which the
particular Warrant is then exercised shall be issuable as of the date on which
such books shall next be opened (whether before or after the
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Expiration Date) and until such date the Company shall be under no duty to
deliver any certificate for such Warrant Shares; provided, further, that the
transfer books of record, unless otherwise required by law, shall not be closed
at any one time for a period longer than 20 calendar days.
2.3 PAYMENT OF THE EXERCISE PRICE. Payment of the Exercise Price shall be
made at the option of the Holder by one or more of the following methods: (i) by
delivery of cash, or a certified or official bank check in the amount of such
Exercise Price, (ii) by instructing the Company to withhold a number of Warrant
Shares then issuable upon exercise of the particular Warrant with an aggregate
Fair Value (as defined in Section 7 hereof) equal to such Exercise Price (the
"Share Withholding Option"), (iii) by surrender to the Company of Notes in
principal amount plus accrued interest equal to the applicable Exercise Price,
or (iv) by surrendering to the Company shares of Common Stock previously
acquired by the Holder with an aggregate Fair Value equal to such Exercise
Price, or any combination of foregoing. In the event of any withholding of
Warrant Stock or surrender of Common Stock pursuant to clause (ii) or (iv) above
where the number of shares whose Fair Value is equal to the Exercise Price is
not a whole number, the number of shares withheld by or surrendered to the
Company shall be rounded down to the nearest whole share.
2.4 COMPLIANCE WITH GOVERNMENT REGULATIONS. Holder acknowledges that none
of the Warrants or Warrant Shares has been registered under the Act, and may be
sold or disposed of in the absence of such registration only pursuant to an
exemption from such registration and in accordance with this Agreement. The
Warrants and Warrant Shares will bear a legend to the following effect:
"THE SALE OF THE SECURITIES REPRESENTED HEREBY HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"). NO SALE OR OTHER DISPOSITION OR PLEDGE OF THESE
SECURITIES OR THE SECURITIES UNDERLYING THESE SECURITIES CAN
BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
RELATING THERETO OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY OR A NO ACTION LETTER OR INTERPRETIVE OPINION OF THE
STAFF OF THE SECURITIES AND EXCHANGE COMMISSION THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE ACT."
2.5 EXERCISE PRICE. The price per share at which Warrant
Shares shall be purchasable upon exercise of the Warrant (the "Exercise Price")
shall be $41.64 per share, subject to adjustment pursuant to Section 6 hereof.
2.6 EXERCISE PRICE RESET. In the event that on any anniversary
of September 30, 1997 during the term of the Warrants, the average of the
closing bid price for the ten (10) Trading Days prior to such anniversary is
less than the Exercise Price of the Warrants then in effect, then the Exercise
Price of the Warrants shall be reset to 87.5% of the average of the closing bid
prices for such ten (10) Trading Day period. In the event that the Common Stock
of the Company is no longer publicly traded on any such anniversary date, then
in lieu of the ten (10) Trading Day average of the closing bid prices, the Fair
Value of the Common Stock shall be used.
SECTION 3. PAYMENT OF TAXES. The Company will pay all documentary stamp
taxes, if any, attributable to the initial issuance of the Warrants and Warrant
Shares upon the exercise of any of the
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Warrants; provided, however, that the Company shall not be required to pay any
tax or taxes which may be payable in respect of any transfer involved in the
issue or delivery of the Warrants or certificates for Warrant Shares in a name
other than that of the Holder of the particular Warrant.
SECTION 4. MUTILATED OR MISSING WARRANTS. In case the Warrant shall be
mutilated, lost, stolen or destroyed, the Company shall issue and deliver in
exchange and substitution for and upon cancellation of the mutilated Warrant, or
in lieu of and substitution for the Warrant lost, stolen or destroyed, a new
Warrant certificate of like tenor and representing an equivalent right or
interest; but only upon receipt of evidence reasonably satisfactory to the
Company of such loss, theft or destruction of the particular Warrant certificate
and indemnity or bond, if requested, also reasonably satisfactory to them. An
applicant for such substitute Warrant certificate shall also comply with such
other reasonable regulations and pay such other reasonable charges as the
Company may prescribe.
SECTION 5. RESERVATION OF WARRANT SHARES.
5.1 RESERVATION OF WARRANT SHARES. There have been reserved, and the
Company shall at all times keep reserved, out of its authorized shares of Common
Stock, a number of shares of Common Stock sufficient to provide for the exercise
of the rights of purchase represented by the outstanding Warrants. The transfer
agent for the Common Stock ("Transfer Agent"), and every subsequent transfer
agent for any shares of the Company's capital stock issuable upon the exercise
of any of the rights of purchase aforesaid will be and are hereby irrevocably
authorized and directed at all times until the Expiration Date to reserve such
number of authorized shares as shall be requisite for such purpose. The Company
will keep a copy of this Agreement on file with the Transfer Agent and with
every subsequent transfer agent for any shares of the Company's capital stock
issuable upon the exercise of the rights of purchase represented by the Warrant.
The Company covenants that all Warrant Shares which may be issued upon exercise
of the Warrant will, upon issue, be fully paid, nonassessable, free of
preemptive rights in any third party and free from all taxes, liens, charges and
security interests with respect to the issue thereof. The Company will supply
such Transfer Agent and any subsequent transfer agent with duly executed stock
certificates for such purpose and will itself provide or otherwise make
available any cash which may be payable as provided in Section 8 of this
Agreement. The Company will furnish to such Transfer Agent a copy of all notices
of adjustments, and certificates related thereto, transmitted to each Holder.
The particular Warrant surrendered in the exercise of the rights thereby
evidenced shall be canceled by the Company.
5.2 CANCELLATION OF THE WARRANTS. In the event the Company shall purchase a
Warrant, or otherwise acquire any of the Warrants, the particular Warrant shall
be canceled and retired.
SECTION 6. ADJUSTMENT OF THE EXERCISE PRICE AND NUMBER OF WARRANT SHARES.
The number and kind of securities purchasable upon the exercise of the Warrant
and the Exercise Price shall be subject to adjustment from time to time upon the
happening of certain events, as hereinafter defined.
6.1 STOCK DIVIDENDS, SUBDIVISIONS AND COMBINATIONS. If at any time the
Company shall:
(1) take a record of the holders of its Common Stock for the purpose of
entitling them to receive a dividend payable in, or other distribution of,
additional shares of Common Stock,
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(2) subdivide its shares of Common Stock outstanding into a larger number
of shares of such Common Stock, or
(3) combine its shares of Common Stock outstanding into a smaller number of
shares of such Common Stock, then the number of Warrant Shares shall be adjusted
so that the Warrant Holder thereafter will be entitled to receive the number of
shares of Common Stock that such Warrant Holder would have owned immediately
following such action had the Warrant been exercised immediately prior thereto,
and the Exercise Price of the Warrant shall be adjusted to equal the product of
the Exercise Price in effect immediately prior to such event multiplied by a
fraction the numerator of which is equal to the number of Warrant Shares
purchasable upon the exercise of the Warrant immediately prior to such
adjustment, and the denominator of which is equal to the number of Warrant
Shares purchasable immediately thereafter, and thereafter the provisions of this
Warrant Agreement shall apply with like effect to such additional or
reclassified shares.
6.2. RIGHTS OFFERINGS AND OFFERINGS OF COMMON STOCK.
(a) In the event that the Company issues rights, options or warrants to all
holders of its Common Stock in respect of its Common Stock entitling them to
subscribe for or purchase shares of Common Stock at a price per share less than
the Fair Value per share (determined as provided below) of the Common Stock on
the date fixed for the determination of stockholders entitled to receive such
rights, options or warrants, the Exercise Price in effect at the opening of
business on the day following the date fixed for such determination shall be
decreased by multiplying such Exercise Price by a fraction of which the
numerator shall be the number of shares of Common Stock Outstanding at the close
of business on the date fixed for such determination plus the number of shares
of Common Stock which the aggregate of the offering price of the total number of
shares of Common Stock so offered for subscription or purchase would purchase at
such Fair Value and the denominator shall be the number of shares of Common
Stock Outstanding at the close of business on the date fixed for such
determination plus the number of shares of Common Stock so offered for
subscription or purchase, such decrease to become effective immediately after
the opening of business on the day following the date fixed for such
determination. To the extent that shares of Common Stock are not delivered after
the expiration of such rights, options or warrants, the Exercise Price shall be
readjusted (but only with regard to any Warrant exercised after such expiration)
to the Exercise Price that would be in effect had the adjustment made upon the
issuance of such rights, options or warrants been made upon the basis of
delivery of only the number of shares of Common Stock actually issued. The
Company will not issue any rights, options or warrants in respect of shares of
Common Stock held in the treasury of the Company. The foregoing provisions of
this Section 6.2 shall not apply to any rights issued to holders of Common Stock
that are not currently exercisable and shall not apply until such time that such
rights become exercisable.
(b) In case the Company shall issue shares of Common Stock, Stock Purchase
Rights or Convertible Securities, for a price per share of Common Stock, in the
case of the issuance of Common Stock, or for a price per share of Common Stock
initially deliverable upon conversion or exchange of such securities less than
Fair Value per share of Common Stock on the date the Company fixed the offering,
conversion or exchange price of such additional shares, the Exercise Price in
effect at the opening of business on the day following the date fixed for such
determination shall be decreased by multiplying such Exercise Price by a
fraction of which the numerator shall be the number of shares of Common Stock
Outstanding at the close of business on the date fixed for such determination
plus the number of shares of Common Stock which the aggregate of the offering
price of the total number of shares of Common Stock so offered for subscription
or purchase would purchase at such Fair Value and the denominator shall be the
number of shares of Common Stock
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Outstanding at the close of business on the date fixed for such determination
plus the number of shares of Common Stock so offered for subscription or
purchase, such decrease to become effective immediately after the opening of
business on the day following the date fixed for such determination. Such
adjustment shall be made whenever such shares, Stock Purchase Rights or
Convertible Securities are issued, and shall become effective immediately after
the effective date of such event retroactive to the record date, if any, for
such event. To the extent that shares of Common Stock are not delivered after
the expiration of such Stock Purchase Rights or the Convertible Securities are
not converted, the Exercise Price shall be readjusted (but only with regard to
any Warrant exercised after such expiration) to the Exercise Price that would be
in effect had the adjustment made upon the issuance of such Stock Purchase
Rights or Convertible Securities been made upon the basis of delivery of only
the number of shares of Common Stock actually issued.
6.3 OTHER DISTRIBUTIONS. In case the Company shall, by dividend or
otherwise, distribute to all holders of its Common Stock cash, evidences of
indebtedness, shares of any class of capital stock or any other property or
rights (including securities, but excluding (i) any dividend or distribution
referred to in Section 6.1, and (ii) any merger or consolidation or other
transactions to which Section 6.4 applies), then, in such event, upon the
exercise of the Warrant, the Holder shall receive from the Company, in addition
to the shares of Common Stock to which the Holder is entitled, any cash,
evidences of indebtedness, shares of any class of capital stock or any other
property distributed by the Company with respect to the shares of Common Stock
as to which the exercised Warrant pertains, and until such Exercise the Company
shall retain the cash, evidences of indebtedness, shares of any class of capital
stock, or other property or rights so distributed in trust for the benefit of
the Holder. Upon the expiration of any such unexercised Warrant, to the extent
not exercised, the property held in trust shall be released to the Company or
its designee.
In the event of a distribution by the Company to holders of its shares of
Common Stock of stock of a subsidiary or securities convertible into or
exercisable for such stock, then in lieu of an adjustment in the number of
Shares purchasable upon the exercise of any of the Warrants, the Holder of any
of the Warrants, upon the exercise thereof at any time after such distribution,
shall be entitled to receive from the Company, such subsidiary or both, as the
Company shall determine, the stock or other securities to which such Holder
would have been entitled if such Holder had exercised the particular Warrant
immediately prior thereto, all subject to further adjustment as provided in this
Section 6.
6.4 REORGANIZATION, RECLASSIFICATION, MERGER, CONSOLIDATION OR DISPOSITION
OF ASSETS.
(a) In case the Company shall reorganize its capital, reclassify its
capital stock, consolidate or merge with or into another corporation (where the
Company is not the surviving corporation or where there is any change whatsoever
in, or distribution with respect to, the outstanding Common Stock of the
Company), or sell, transfer or otherwise dispose of all or substantially all of
its property, assets or business to another corporation and, pursuant to the
terms of such reorganization, reclassification, merger, consolidation or
disposition of assets, (i) shares of common stock of the successor or acquiring
corporation or of the Company (if it is the surviving corporation) or (ii) any
cash, shares of stock or other securities or property of any nature whatsoever
(including warrants, options, or other subscription or purchase rights) in
addition to or in lieu of common stock of the successor or acquiring corporation
are to be received by or distributed to the holders of Common Stock of the
Company who are holders immediately prior to such transaction, then the Holder
of the Warrants shall have the right thereafter to receive from the Company,
upon exercise of the applicable Warrant, the number of shares of common stock of
the successor or acquiring corporation or of the Company, if it is the surviving
corporation, and other property receivable upon or as a result of such
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reorganization, reclassification, merger, consolidation or disposition of assets
by a holder of the number of shares of Common Stock for which the Warrants are
exercisable immediately prior to such event and until such exercise the Company
shall retain the cash, evidences of indebtedness, shares of any class of capital
stock, or other property or rights so received in trust for the benefit of the
Holder. If the Warrant is exercised in such event, the aggregate Exercise Price
otherwise payable for the shares of Common Stock transferable upon exercise of
the Warrant shall be allocated among the shares of common stock and other
property receivable as a result of such reorganization, reclassification,
merger, consolidation or disposition of assets in proportion to the respective
fair market values of such shares of common stock and other property as
determined in good faith by the Holder and the Company, if necessary. Upon the
expiration of any such unexercised Warrant, to the extent not exercised, the
property held in trust shall be released to the Company or its designee.
(b) In case of any such reorganization, reclassification, merger,
consolidation or disposition of assets, the successor or acquiring corporation
(if other than the Company) shall expressly assume the due and punctual
observance and performance of each and every covenant and condition of this
Agreement to be performed and observed by the Company and all the obligations
and liabilities hereunder. For purposes of this Section 6.4, "common stock of
the successor or acquiring corporation" shall include stock of such corporation
ration of any class that is not preferred as to dividends or assets over any
other class of stock of such corporation and that is not subject to redemption
and shall also include any evidences of indebtedness, shares of stock or other
securities that are convertible into or exchangeable for any such stock, either
immediately or upon the arrival of a specified date or the happening of a
specified event and any warrants or other rights to subscribe for or purchase
any such stock. The foregoing provisions of this Section 6.4 shall similarly
apply to successive reorganizations, reclassification, mergers, consolidations
or disposition of assets.
6.5 ADJUSTMENT OF NUMBER OF SHARES PURCHASABLE. Upon any adjustment of the
Exercise Price as provided in Section 6.2 hereof, the Holder shall thereafter be
entitled to purchase upon the exercise of the Warrant, at the Exercise Price
resulting from such adjustment, the number of shares of Common Stock obtained by
multiplying the Exercise Price in effect immediately prior to such adjustment by
the number of shares of Common Stock transferable on the exercise hereof
immediately prior to such adjustment and dividing the product thereof by the
Exercise Price resulting from such adjustment.
6.6 DETERMINATION OF CONSIDERATION. For purposes of Section 6.2 hereof, the
consideration received and/or receivable by the Company in connection with the
issuance, sale, grant or exercise of additional shares of Common Stock, Stock
Purchase Rights or Convertible Securities, irrespective of the accounting
treatment of such consideration, shall be valued as follows:
(1) SECURITIES OR OTHER PROPERTY. In the case of securities or other
property, the fair market value thereof as of the date immediately preceding
such issuance, sale, grant or exercise as determined in good faith by the Board
of Directors of the Company which determination shall be conclusive absent
manifest error.
(2) DIVIDENDS IN SECURITIES. In case the Company shall declare a dividend
or make any other distribution upon any stock of the Company payable in either
case in Common Stock or Convertible Securities, such Common Stock or Convertible
Securities, as the case may be, issuable in payment of such dividend or
distribution shall be deemed to have been issued or sold without consideration.
(3) MERGER, CONSOLIDATION OR SALE OF ASSETS. In case any shares of Common
Stock, Stock Purchase Rights or Convertible Securities shall be issued in
connection with any merger or
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consolidation in which the Company is the surviving corporation, the amount of
consideration therefor shall be deemed to be the fair value of such portion of
the assets and business of the non-surviving corporation attributable to such
Common Stock, Stock Purchase Rights or Convertible Securities, as is determined
in good faith by the Board of Directors of the Company which determination shall
be conclusive absent manifest error.
6.7 OTHER PROVISIONS APPLICABLE TO ADJUSTMENTS UNDER THIS SECTION. The
following provisions shall be applicable to the adjustments provided for
pursuant to this Section 6:
(A) WHEN ADJUSTMENTS TO BE MADE. The adjustments required by this Section 6
shall be made whenever and as often as any specified event requiring such an
adjustment shall occur. For the purpose of any such adjustment, any specified
event shall be deemed to have occurred at the close of business in New York on
the date of its occurrence.
(B) FRACTIONAL INTERESTS. In computing adjustments under this Section 6,
fractional interests in Common Stock shall be taken into account to the nearest
1/100th of a share.
(C) WHEN ADJUSTMENT NOT REQUIRED.
(1) If the Company shall take a record of the holders of its Common Stock
for the purpose of entitling them to receive a dividend or distribution to which
the provisions of Section 6 would apply, but shall, thereafter and before the
distribution to stockholders thereof, legally abandon its plan to pay or deliver
such dividend or distribution, then thereafter no adjustment shall be required
by reason of the taking of such record and any such adjustment previously made
in respect thereof shall be rescinded and annulled.
(2) In case the Company shall sell or issue shares of Common Stock or Stock
Purchase Rights in the following situations:
(i) to, officers, directors, consultants or employees of the Company
pursuant to a plan approved by the Company's shareholders or Board of Directors
at a price not less than 85% of the Fair Value of the Company's Common Stock in
an amount (taking into account all prior sales or issuances excluded pursuant to
this clause (i)) not greater than 5% of the total number of shares of Common
Stock Outstanding; or
(ii) pursuant to a provision in any existing agreement between the Company
and any third party in respect of an acquisition by the Company in which all or
a portion of the consideration in connection with such acquisition is payable by
the issuance of shares of Common Stock or Stock Purchase Rights; or
(iii) to the former holders of Savoir's Series A Preferred Stock, $0.01 par
value, as dividends thereon; or
(iv) to any Person upon the exercise of any Stock Purchase Right of Savoir
outstanding on September 30, 1997;
(v) to Canpartners Investments IV, LLC and Xxxxxx Xxxxxxx Inc., a Delaware
corporation, upon exercise of their warrant dated September 30, 1997, to acquire
45,808 shares of the Company's Common Stock,
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there shall be no adjustment in the Exercise Price or the number of Warrant
Shares either upon the initial issuance of such securities or upon the exercise
or conversion thereof.
(d) MAXIMUM EXERCISE PRICE. Except with respect to mechanical adjustments
pursuant to Section 6.1 above, at no time shall the Exercise Price per share of
Common Stock exceed the amount set forth in Section 2.5 of this Agreement, as
adjusted pursuant to Section 2.6.
(e) CERTAIN LIMITATIONS. Notwithstanding anything herein to the contrary,
the Company agrees not to enter into any transaction that, by reason of any
adjustment under Section 6 above, would cause the Exercise Price to be less than
the par value of the Common Stock, if any, unless the Company first reduces the
par value of the Common Stock to be less than the Exercise Price that would
result from such transaction.
(f) NOTICE OF ADJUSTMENTS. Whenever the number of shares of Common Stock
for which the Warrants are exercisable or the Exercise Price shall be adjusted
pursuant to this Section 6, the Company forthwith shall prepare a certificate to
be executed by either the chief executive or chief financial officer of the
Company setting forth, in reasonable detail, the event requiring the adjustment
and the method by which such adjustment was calculated, specifying the number of
shares of Common Stock for which the Warrants are exercisable and (if such
adjustment was made pursuant to Section 6.3) describing the number and kind of
any other shares of stock or other property for which the Warrants are
exercisable, and any related change in the Exercise Price, after giving effect
to such adjustment or change. The Company shall promptly deliver a signed copy
of such certificate to the Holder in accordance with Section 12. The Company
shall keep at its principal office copies of all such certificates and cause the
same to be available for inspection at said office during normal business hours
by any Holder or any prospective transferee of any Warrants designated by a
Holder thereof.
(g) INDEPENDENT APPLICATION. Except as otherwise provided herein, all
subsections of this Section 6 are intended to operate independently of one
another (but without duplication). If an event occurs that requires the
application of more than one subsection, all applicable subsections shall be
given independent effect without duplication.
6.8 RIGHT OF FIRST REFUSAL. As used in this Section 6.8, the term "Holder's
Ratio" means the sum of the number of shares of Common Stock of the Company,
plus the number of shares of Common Stock of the Company underlying the
Warrants, plus the number of shares of Common Stock of the Company underlying
Stock Purchase Rights, held by a Holders or its assigns, divided by the number
of shares of Common Stock of the Company Outstanding from time to time. The
Company agrees that if at any time while a Holder holds shares of Common Stock
of the Company or Warrants, if the Company desires to sell or issue shares of
Common Stock or Stock Purchase Rights of the Company (excluding shares of Common
Stock issuable after the date hereof pursuant to Stock Purchase Rights of the
Company existing on the date hereof, or shares issuable in connection with the
matters listed in Section 6.7(c)(2)), then the Company shall first notify all
the Holders of the terms of such proposed sale and issuance and permit the
Holders to acquire on the same terms and conditions (which need only include
monetary terms and conditions and not need include any terms and conditions
which cannot be matched by the Holders) an amount equal to the number of shares
of Common Stock or Stock Purchase Rights proposed to be issued or sold times the
Holder's Ratio. The Holders shall have ten (10) Business Days after receipt of
such notice to elect by notice to the Company in writing whether to purchase
such shares of Common Stock or such Stock Purchase Rights, and may withdraw
their election by notice to the Company at any time up to two (2) Business Days
prior to the closing of the offer. After the ten (10) Business Day period has
expired, the Company shall have up to
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ninety (90) days (or such longer time as may be reasonable necessary in the
event the proposed issuance is pursuant to a public offering of shares of Common
Stock or Stock Purchase Rights) to complete the sale of any such shares of
Common Stock or Stock Purchase Rights, provided that if the Company later
desires to change the terms of such sale or issuance in any material respect it
shall first reoffer such shares of Common Stock or Stock Purchase Rights to the
Holders pursuant to the procedures set forth herein.
The Right of First Refusal set forth in this Section may only be
transferred in connection with a transfer of the Warrants or Warrant Shares and
shall terminate with respect to any of the Holders' shares after such shares
have been sold pursuant to a registration statement filed with and declared
effective by the Securities and Exchange Commission or pursuant to Rule 144
under the Act, and shall in no event continue beyond the term of the Warrants.
SECTION 7. DEFINITIONS.
As used in this Warrant Agreement, the following terms shall have the
following respective meanings:
ACT shall mean the Securities Act of 1933, as amended.
BUSINESS DAY shall mean any day that is not a Saturday or Sunday or a day
on which banks are required or permitted to be closed in New York or California.
COMMON STOCK means the Common Stock of the Company, $1.00 par value per
share, and any capital stock into which such Common Stock may thereafter be
changed, and shall also include (i) capital stock of the Company of any other
class (regardless of how denominated) issued to the holders of shares of any
Common Stock upon any reclassification thereof which is also not preferred as to
dividends or liquidation over any other class of stock of the Company and which
is not subject to redemption and (ii) shares of common stock of any successor or
acquiring corporation (as defined in Section 6.4 hereof) received by or
distributed to the holders of Common Stock of the Company in the circumstances
contemplated by Section 6.4 hereof.
CONVERTIBLE SECURITIES shall mean evidences of indebtedness, shares of
stock or other securities that are convertible into or exchangeable for, with or
without payment of additional consideration in cash or property, shares of
Common Stock, either immediately or upon the occurrence of a specified date or a
specified event.
CURRENT MARKET PRICE shall mean as of any specified date the average of the
Daily Market Price of the Common Stock of the Company for the twenty (20)
consecutive Trading Days immediately preceding such date. The "Daily Market
Price" for each such Trading Day shall be the closing price of the Common Stock
on the principal stock exchange or market on which such stock is actually
traded.
FAIR VALUE means, per share of Common Stock as of any specified date, (i)
if the Common Stock is publicly traded on such date, the Current Market Price
per share or (ii) if the Common Stock is not publicly traded on such date, the
fair market value per share of Common Stock shall be agreed upon in good faith
between the Holders and the Company.
OUTSTANDING shall mean, when used with reference to Common Stock, at any
date as of which the number of shares thereof is to be determined, all issued
and outstanding shares of
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Common Stock, except shares then owned or held by or for the account of the
Company or any Subsidiary there of.
PERSON shall mean any individual, sole proprietorship, partnership, limited
liability company, joint venture, trust, incorporated organization, association,
corporation, institution, public benefit corporation, entity or government
(whether federal, state, county, city, municipal or otherwise, including,
without limitation, any instrumentality, division, agency, body or department
thereof).
PREEMPTIVE RIGHT means a right of a stockholder to preempt or to purchase
before others a new issue of shares in proportion to one's present interest in
the Company.
STOCK PURCHASE RIGHTS shall mean any options, warrants or other securities
or rights to subscribe to or exercisable for the purchase of shares of Common
Stock or Convertible Securities, whether or not immediately exercisable.
TRADING DAY means any day that the principal stock exchange or market on
which the securities of the Company are traded is open for trading.
SECTION 8. FRACTIONAL INTERESTS. The Company shall not be required to issue
fractional Warrant Shares on the exercise of the Warrant. If any fraction of a
Warrant Shares would, except for the provisions of this Section 8, be issuable
on the exercise of the Warrant (or specified portion thereof), the Company shall
round up such share to an additional whole share of Common Stock.
SECTION 9. NO RIGHTS AS STOCKHOLDER; NOTICES TO HOLDER. Nothing contained
in either this Agreement or the Warrant shall be construed as conferring upon
the Holder or its permitted transferees the right to vote or to receive
dividends or to consent to or receive notice as a stockholder in respect of any
meeting of stockholders for the election of directors of the Company or any
other matter, or any rights whatsoever as a stockholder of the Company.
SECTION 10. INSPECTION OF WARRANT AGREEMENT. The Company shall keep copies
of this Agreement and any notices given or received hereunder available for
inspection by the Holder during normal business hours at its principal office.
SECTION 11. IDENTITY OF TRANSFER AND WARRANT AGENT. Forthwith upon the
appointment of any subsequent transfer agent for the Common Stock or Warrant
Agent, or any other shares of the Company's capital stock issuable upon the
exercise of the Warrant, the Company will notify the Holder of the name and
address of such subsequent transfer agent.
SECTION 12. NOTICES. Any notice pursuant to this Agreement by any Holder to
the Company, shall be in writing and shall be mailed first class, postage
prepaid, or delivered to the Company at its office at 0000 Xxxxx 00xx Xxxxxx,
Xxxxxxx, Xxxxxxx 00000.
Each party hereto may from time to time change the address to which notices
to it are to be delivered or mailed hereunder by notice in writing to the other
party. Any notice mailed pursuant to this Agreement by the Company or the
Warrant Agent to the Holder shall be in writing and shall be mailed first class,
postage prepaid, or delivered to the Holder at its address on the books of the
Warrant Agent.
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SECTION 13. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to principles of conflict of laws. The parties hereto agree to submit to
the jurisdiction of the United States District Court for the Southern District
of New York and the jurisdiction of any court of the State of New York located
in New York County in any action or proceeding arising out of or relating to
this Agreement.
SECTION 14. WAIVER OF JURY TRIAL. EACH OF THE COMPANY AND THE HOLDER HEREBY
IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING
(INCLUDING ANY COUNTERCLAIM) OF ANY TYPE IN WHICH THE COMPANY AND THE HOLDER ARE
PARTIES AS TO ALL MATTERS ARISING DIRECTLY OR INDIRECTLY OUT OF THIS AGREEMENT
OR ANY DOCUMENT, INSTRUMENT OR AGREEMENT EXECUTED IN CONNECTION HEREWITH.
SECTION 15. SUCCESSORS. All the covenants and provisions of this Agreement
by or for the benefit of the Company or the Warrant Agent shall bind and inure
to the benefit of their respective successors and assigns hereunder.
SECTION 16. MERGER OR CONSOLIDATION OF THE COMPANY. So long as the Warrant
remains outstanding, the Company will not merge consolidate with or into, or
sell, transfer or lease all or substantially all of its property to, any other
corporation unless the successor or purchasing corporation, as the case may be
(if not the Company), shall expressly assume, by supplemental agreement, the due
and punctual performance and observance of each and every covenant and condition
of this Agreement to be performed and observed by the Company.
SECTION 17. AMENDMENTS AND WAIVERS. This Agreement may not be modified or
amended except by an instrument or instruments in writing signed by the Company
and a majority of the Holders (by number of shares). Either the Company or any
Holder may, by an instrument in writing, waive compliance by the other party
with any term or provision of this Agreement on the part of such other party
hereto to be performed or complied with. The waiver by any such party of a
breach of any term or provision of this Agreement shall not be construed as a
waiver by any other party or of any subsequent breach.
SECTION 18. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall be
construed to give to any person or corporation, other than the Company and the
Holder, any legal or equitable right, remedy or claim under this Agreement, but
this Agreement shall be for the sole and exclusive benefit of the Company and
the Holder.
SECTION 19. AGREEMENT IN CONFIDENCE. This Agreement and its terms and the
relationship between the Company and the Warrant Holder and its principals shall
be kept confidential by the Warrant Holder and its affiliates and by Company and
its affiliates and will not be disclosed by either of them except to the extent
that as a matter of law it must be disclosed by either party in any document
filed with any government agency or authority and available for public
inspection or as may be required to be disclosed in connection with the
Company's sale of its capital stock or assets or its merger, reorganization,
consolidation or similar event.
SECTION 20. CAPTIONS. The captions of the Sections of this Agreement have
been inserted for convenience only and shall have no substantive effect.
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SECTION 21. COUNTERPARTS. This Agreement may be executed in any number of
counterparts each of which so executed shall be deemed to be an original; but
such counterparts together shall constitute but one and the same instrument.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day, month and year first above written.
THE COMPANY, AND
AS THE WARRANT AGENT:
AVNET, INC.,
a New York corporation
By:________________________
Title:
SAVOIR
SAVOIR TECHNOLOGY GROUP, INC.
a Delaware corporation
By:________________________
Title:
THE WARRANT HOLDER:
IBM CREDIT CORPORATION
By: _____________________
Title:
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EXHIBIT A
No. ___ ________ Shares
COMMON STOCK PURCHASE WARRANT
Void After 5:00 P.M.
Pacific Daylight Time on September 30, 2004
THIS CERTIFIES THAT, for value received, IBM Credit Corporation, the
registered holder of this Common Stock Purchase Warrant (the "Warrant") or
permitted assigns (the "Holder"), is entitled to purchase from Avnet, Inc., a
New York corporation (the "Company"), at any time until September 30, 2004 (the
"Expiration Date"), at the purchase price per share of $41.65(the "Exercise
Price"), the number of shares of Common Stock of the Company (the "Common
Stock") which is equal to the number of Shares set forth above. The number of
shares purchasable upon exercise of this Warrant and the Exercise Price per
share shall be subject to adjustment from time to time as set forth in the
Warrant Agreement referred to below.
This Warrant is issued under and in accordance with an Amended and Restated
Warrant Agreement dated as of July 3, 2000 (the "Warrant Agreement"), between
the Company and the Warrant Holder and is subject to the terms and provisions
contained in the Warrant Agreement, to all of which the Holder of this Warrant
by acceptance hereof consents. A copy of the Warrant Agreement may be obtained
for inspection by the Holder hereof upon written request to the Company.
This Warrant may be exercised in whole or in part by presentation of this
Warrant with the Purchase Form annexed hereto duly executed and simultaneous
payment of the Exercise Price (subject to adjustment) at the principal office of
the Company at 0000 Xxxxx 00xx Xxxxxx, Xxxxxxx, Xxxxxxx, 00000. Payment of such
price shall be made at the option of the Holder hereof in cash or by certified
or official bank check or otherwise as set forth in the Warrant Agreement,
including in the form of a "net exercise." Terms relating to exercise of this
Warrant is set forth more fully in the Warrant Agreement.
This Warrant may be exercised in whole or in part. Upon partial exercise, a
Warrant certificate for the unexercised portion shall be delivered to the
Holder. No fractional shares will be issued upon the exercise of this Warrant
but the Company shall round up to a whole share any fractional share issuable
upon the exercise of this Warrant. This Warrant is transferable only in limited
circumstances as described in the Warrant Agreement at the office of the
Company, in the manner and subject to the limitations set forth in the Warrant
Agreement.
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EXHIBIT A-1
"THE SALE OF THE SECURITIES REPRESENTED HEREBY HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). NO SALE OR
OTHER DISPOSITION OR PLEDGE OF THESE SECURITIES OR THE SECURITIES
UNDERLYING THESE SECURITIES CAN BE EFFECTED WITHOUT AN EFFECTIVE
REGISTRATION STATEMENT RELATING THERETO OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY OR A NO ACTION LETTER OR INTERPRETIVE
OPINION OF THE STAFF OF THE SECURITIES AND EXCHANGE COMMISSION THAT
SUCH REGISTRATION IS NOT REQUIRED UNDER THE ACT."
The Holder hereof may be treated by the Company and all other persons
dealing with this Warrant as the absolute owner hereof for any purpose and as
the person entitled to exercise the rights represented hereby, or to the
transfer hereof on the books of the Company. Any notice to the contrary
notwithstanding, and until such transfer on which books, the Company may treat
the Holder hereof as the owner for all purposes.
This Warrant does not entitle any Holder hereof to any of the rights of a
stockholder of the Company.
This Warrant shall not be valid or obligatory for any purpose until it
shall have been countersigned by the Company.
AVNET,INC.,
a New York corporation
By ___________________________
Name:
Title:
Attest _________________________
Name:
Title:
DATED: As of July 3, 2000
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EXHIBIT A-2
PURCHASE FORM
Mailing Address
-------------------------------- --------------------------------------
-------------------------------- --------------------------------------
-------------------------------- --------------------------------------
The undersigned hereby irrevocably elects to exercise the right of purchase
represented by the within Warrant for, and to purchase thereunder,
_______________ shares of the stock provided for therein, and tenders herewith
payment of the purchase price in full in the form of cash or by cashier's check
in the amount of $______________.
The undersigned requests that certificates for such shares be issued in the
name of:
-------------------------------------------------------------------------
-------------------------------------------------------------------------
-------------------------------------------------------------------------
(Please Print Name, Address and Social Security No.)
DATED: __________________
Name of Warrant holder or Permitted Assignee:
------------------------------------------------------------------------
Address:
-------------------------------------------------------------------------
-------------------------------------------------------------------------
Signature:____________________________________________________________
Signature Guaranteed:Note: The above signature must correspond with the name
as written upon the face of this Warrant in every
particular, without alteration or enlargement or
any change whatever, unless this Warrant has been
assigned.
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