AGREEMENT
, dated
between Avnet, Inc., a New York corporation (the
“Corporation”) and
(“Indemnitee”).
WHEREAS ,
Indemnitee currently serves and performs valuable services for the
Corporation as an officer or director of the Corporation or a
subsidiary thereof and, as such, may be subject to claims, actions,
suits or proceedings arising as a result of such service;
and
WHEREAS ,
the Corporation (i) has adopted By-Laws providing for the
indemnification and advancement of expenses by the Corporation of
any director and officer to the full extent permitted by law, and
(ii) the Business Corporation Law of the State of New York
(the “State Statute”) is not exclusive of other rights
of indemnification or advancement when authorized by an agreement
providing for such rights; and
WHEREAS ,
in order to induce Indemnitee to serve or continue to serve as an
officer or director of the Corporation or a subsidiary thereof, the
Corporation has determined that it is in its best interest to enter
into this agreement;
NOW,
THEREFORE, the parties hereto agree as follows:
FIRST:
Indemnification . The Corporation hereby agrees to hold
harmless and indemnify Indemnitee, effective as of the date
Indemnitee first became a director or officer of the Corporation or
a subsidiary thereof, or served in any other capacity of another
corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise at the request of the Corporation or a
subsidiary thereof, from and against any and all judgments, fines,
amounts paid in settlement and expenses, including attorneys’
fees, incurred as a result of or in connection with any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative or as a result of or in
connection with any appeal therein, whether or not such action,
suit or proceeding is by or in the right of the Corporation or any
subsidiary thereof to provide a judgment in its favor, including
any action, suit or proceeding by or in the right of any other
corporation of any type or kind, domestic or foreign, or any
partnership, joint venture, trust, employee benefit plan or other
enterprise that the Indemnitee serves in any capacity at the
request of the Corporation, to which Indemnitee is, was or at any
time becomes a party, or is threatened to be made a party or as a
result of or by reason of the fact that Indemnitee is, was or at
any time, becomes a director or officer of the Corporation or a
subsidiary thereof, or is or was serving or at any time serves such
other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, in any capacity, whether arising
out of any breach of Indemnitee’s fiduciary duty, under any
state or federal law or otherwise, as a director or officer of the
Corporation or subsidiary or as a director, officer, employee or
agent of such other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise if Indemnitee acted in
good
faith, for a
purpose which Indemnitee reasonably believed to be in or (in the
case of service for another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise) not
opposed to, the best interests of the corporation, and, in criminal
actions or proceedings, in addition, had no reasonable cause to
believe that his or her conduct was unlawful; provided, however,
that no indemnity pursuant to this Article FIRST shall be
paid by the Corporation
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(1)
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except to the extent the aggregate
of losses to be indemnified exceeds the amount of such losses for
which Indemnitee is actually paid pursuant to any insurance
purchased and maintained by the Corporation for the benefit of
Indemnitee;
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(2)
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if
judgment or other final adjudication establishes that the
Indemnitee’s acts were committed in bad faith or were the
result of active and deliberate dishonesty and were material to the
cause of action so adjudicated, or that Indemnitee personally
gained in fact a financial profit or other advantage to which
Indemnitee was not legally entitled; or
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(3)
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if
a final judgment by a court having jurisdiction in the matter shall
determine that such indemnification is not lawful.
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The termination
of any such civil, criminal, administrative or investigative
action, suit or proceeding by judgment, settlement, conviction or
upon a plea of nolo contendere, or its equivalent, shall not create
a presumption that Indemnitee did not act in good faith, for a
purpose which Indemnitee reasonably believed to be in or (in the
case of service for another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise) not
opposed to, the best interests on the corporation, or that
Indemnitee had reasonable cause to believe that his or her conduct
was unlawful. For purposes of this Agreement (i) the
Corporation shall be deemed to have requested Indemnitee to serve
in a capacity with respect to an employee benefit plan where the
performance by Indemnitee of his or her duties to the Corporation
or a subsidiary thereof also imposes duties on, or otherwise
involves services by, Indemnitee to the plan or participants or
beneficiaries of the plan; (ii) excise taxes assessed on
Indemnitee with respect to any employee benefit plan pursuant to
applicable law shall be considered fines; and (iii) action
taken or omitted by Indemnitee with respect to an employee benefit
plan in the performance of Indemnitee’s duties for a purpose
reasonably believed by Indemnitee to be either in the interest of
the Corporation or a subsidiary or in the interest of the
participants and beneficiaries of the plan shall be deemed to be
for a purpose which is not opposed to the best interests of the
Corporation.
SECOND:
Continuation of Indemnity . All agreements and obligations
of the Corporation contained herein shall continue during the
period Indemnitee shall serve as a director or officer of the
Corporation or subsidiary thereof and thereafter so long as
Indemnitee shall be subject to any possible claim or threatened,
pending or completed action, suit or proceeding, whether, civil,
criminal, administrative or investigative, by reason of the fact
that Indemnitee was a director or officer of the Corporation or
subsidiary or served at the request of the Corporation in any
capacity in any other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise.
THIRD :
Determination of Entitlement to Indemnification . Upon
written request by Indemnitee for indemnification pursuant to
Article FIRST hereof, the entitlement of
Indemnitee to
indemnification, to the extent not provided pursuant to the terms
of this Agreement, shall be determined by the following person or
persons who shall be empowered to make such determination:
(a) the Board of Directors of the Corporation, acting by a
quorum consisting of directors who are not parties to the action,
suit or proceeding with respect to which indemnification is sought;
or (b) if a quorum is not obtainable, or, even if obtainable,
if a quorum of directors who are not parties to the action, suit or
proceeding with respect to which indemnification is sought so
directs, either by the Board of Directors upon the written opinion
of independent legal counsel, a copy of which shall be delivered to
Indemnitee, or by the Corporation’s shareholders. Such
independent counsel shall be selected by the Board of Directors and
approved by Indemnitee. Upon failure of the Board of Directors to
select such independent counsel or upon failure of Indemnitee so to
approve, such independent counsel shall be selected upon
application to a court of competent jurisdiction. Such
determination of entitlement to indemnification shall be made not
later than 30 calendar days after receipt by the Corporation of a
written request for indemnification. Such request shall include
documentation or information which is necessary for such
determination and which is reasonably available to Indemnitee. Any
expenses incurred by Indemnitee in connection with a request for
indemnification or advancement of expenses under this Agreement, or
under any provision of the Corporation’s Certificate of
Incorporation or By-laws or any d
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