Banc of America
Securities LLC
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
As Representatives of the several underwriters named in
Schedule I
c/o J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Arrow Electronics,
Inc., a New York corporation (the “ Company ”),
proposes to issue and sell to the several underwriters named in
Schedule I hereto (the “ Underwriters
”) $300,000,000 aggregate principal amount of its 6.000%
Notes due 2020 (the “ Securities ”), the terms
of which are identified on Schedule III hereto, to be
issued pursuant to the provisions of an Indenture dated as of
January 15, 1997, as supplemented (the “
Indenture ”) between the Company and Bank of New York
Mellon (as successor to Bank of Montreal Trust Company), as Trustee
(the “ Trustee ”) .
The Company has
filed with the Securities and Exchange Commission (the “
Commission ”) a registration statement on Form S-3,
including a prospectus, relating to among other things, certain
debt securities and equity securities of the Company (the “
Shelf Securities ”), including the Securities, to be
issued from time to time by the Company. The registration statement
as amended to the date of this Agreement, including the information
(if any) deemed to be part of the registration statement at the
time of effectiveness pursuant to Rule 430A or Rule 430B
under the Securities Act of 1933, as amended (the “
Securities Act ”), is hereinafter referred to as the
“ Registration Statement ,” and the related
prospectus covering the Shelf Securities dated September 23, 2009,
in the form first used to confirm sales of the Securities (or in
the form first made available to the Underwriters by the Company to
meet requests of purchasers pursuant to Rule 173 under the
Securities Act) is hereinafter referred to as the “ Basic
Prospectus .” The Basic Prospectus, as supplemented by
the prospectus supplement specifically relating to the Securities
in the form first used to confirm sales of the Securities (or in
the form first made available to the Underwriters by the Company to
meet requests of purchasers pursuant to Rule 173 under the
Securities Act) is hereinafter referred to as the “
Prospectus ,” and the term “ preliminary
prospectus ” means any preliminary form of the
Prospectus. For purposes of this Agreement, “ free writing
prospectus ” has the meaning set forth in Rule 405
under the Securities Act, and “ Time of Sale
Prospectus ” means the Basic Prospectus, as supplemented
by the preliminary prospectus supplement dated September 23,
2009, specifically relating to the Securities in the form made
available to the Underwriters by the Company together with the free
writing prospectuses, if any, each identified on
Schedule II hereto. As used herein, the terms
“Registration Statement,” “Basic
Prospectus,” “Prospectus,” “preliminary
prospectus” and “Time of Sale Prospectus” shall
include in each case the documents, if any, incorporated by
reference therein. The term “ Time of Sale ”
shall mean 3:40 p.m. (Eastern time) on September 23, 2009,
which is the time of the first contract of sale for the Securities.
The terms “ supplement ,” “
amendment ” and “ amend ” as used
herein with respect
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to the
Registration Statement, the Basic Prospectus, the Time of Sale
Prospectus, any preliminary prospectus or free writing prospectus
shall include all documents subsequently filed by the Company with
the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the “ Exchange Act ”), that are deemed
to be incorporated by reference therein.
1.
Representations and Warranties . The Company represents and
warrants to and agrees with each of the Underwriters
that:
(a) The
Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission. If the Registration Statement is an
automatic shelf registration statement as defined in Rule 405
under the Securities Act, the Company is a well-known seasoned
issuer (as defined in Rule 405 under the Securities Act)
eligible to use the Registration Statement as an automatic shelf
registration statement and the Company has not received notice that
the Commission objects to the use of the Registration Statement as
an automatic shelf registration statement.
(b) (i) Each
document, if any, filed or to be filed pursuant to the Exchange Act
and incorporated by reference in the Time of Sale Prospectus or the
Prospectus complied or will comply when so filed in all material
respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (ii) the
Registration Statement does not contain, each part of the
Registration Statement, when such part became effective, did not
contain, and each such part, as amended or supplemented, if
applicable, will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading,
(iii) the Registration Statement and the Prospectus comply,
and as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules
and regulations of the Commission thereunder, (iv) the Time of
Sale Prospectus does not, and at the time of each sale of the
Securities in connection with the offering when the Prospectus is
not yet available to prospective purchasers and at the Closing Date
(as defined in Section 4), the Time of Sale Prospectus, as
then amended or supplemented, if applicable, will not, contain any
untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and
(v) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement
of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph do not
apply to (A) statements or omissions in the Registration
Statement, the Time of Sale Prospectus or the Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by such Underwriter through you expressly for
use therein or (B) that part of the Registration Statement
that constitutes the Statement of Eligibility (Form T-1) under the
Trust Indenture Act of 1939, as amended (the “ Trust
Indenture Act ”), of the Trustee.
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(c) The Company is
not an “ineligible issuer” in connection with the
offering pursuant to Rules 164, 405 and 433 under the
Securities Act. Any free writing prospectus that the Company is
required to file pursuant to Rule 433(d) under the Securities Act
has been, or will be, filed with the Commission in accordance with
the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Each free writing
prospectus that the Company has filed, or is required to file,
pursuant to Rule 433(d) under the Securities Act or that was
prepared by or on behalf of or used or referred to by the Company
complies or will comply in all material respects with the
requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Except for the free
writing prospectuses, if any, identified in Schedule II
hereto, each furnished to you before first use, the Company has not
prepared, used or referred to, and will not, without your prior
consent, prepare, use or refer to, any free writing
prospectus.
(d) Since the
respective dates as of which information is given in the Time of
Sale Prospectus, there has not been any material adverse change, or
any development involving a prospective material adverse change, in
or affecting the general affairs, management, financial position,
or results of operations of the Company and its Material
Subsidiaries (as defined below), otherwise than as set forth or
contemplated in the Time of Sale Prospectus and the
Prospectus.
(e) The Company
has been duly incorporated and is validly existing as a corporation
in good standing under the laws of the State of New York, with
power and authority (corporate and other) to own its properties and
conduct its business as described in the Time of Sale Prospectus
and the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole; and
each subsidiary of the Company which constitutes a
“significant subsidiary” within the meaning of
Rule 1-02 of Regulation S-X and each subsidiary of the
Company which constitutes a “restricted subsidiary”
within the meaning of the Indenture (together, the “
Material Subsidiaries ”), has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation, with power and authority
(corporate and other) to own its properties and to conduct its
business as described in the Time of Sale Prospectus, and has been
duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which the conduct of its business or its ownership
or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(f) This Agreement
has been duly authorized, executed and delivered by the Company;
the Securities have been duly authorized and, when issued and
delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the Indenture, under which they are to be
issued,
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which will be
substantially in the form previously delivered to you; the
Indenture has been duly qualified under the Trust Indenture Act and
has been duly authorized, executed and delivered by the Company and
constitutes a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors’ rights and
to general equity principles; and the Securities and the Indenture
will conform to the descriptions thereof in the Time of Sale
Prospectus and the Prospectus and will be in substantially the form
previously delivered to you.
(g) Each
preliminary prospectus filed as part of the registration statement
as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when
so filed in all material respects with the Securities Act and the
applicable rules and regulations of the Commission
thereunder.
(h) Prior to the
date hereof, neither the Company nor any of its affiliates has
taken any action which is designed to or which has constituted or
which might have been expected to cause or result in stabilization
or manipulation of the price of any security of the Company in
connection with the offering of the Securities.
(i) The execution
and delivery by the Company of, and the performance by the Company
of its obligations under, this Agreement, the Indenture and the
Securities will not contravene any provision of applicable law or
the certificate of incorporation or by-laws of the Company or any
agreement or other instrument binding upon the Company or any of
its Material Subsidiaries or to which any of its or their
properties are subject that is material to the Company and its
subsidiaries, taken as a whole, or any material judgment, order or
decree of any governmental body, agency or court having
jurisdiction over the Company or any Material Subsidiary or any of
their properties, and no consent, approval, authorization or order
of, or qualification with, any governmental body or agency is
required for the performance by the Company of its obligations
under this Agreement, the Indenture and the Securities, except such
as may be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the
Securities.
(j) Other than as
set forth in the Time of Sale Prospectus and the Prospectus, there
are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is the subject
which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a
material adverse effect on the Company and its subsidiaries, taken
as a whole, and, to the best of the Company’s knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(k) The Company is
not, and after giving effect to the offering and sale of the
Securities, will not be an “investment company”, as
such term is defined in the United States Investment Company Act of
1940, as amended (the “ Investment Company Act
”).
4
(l) The Company
and its Material Subsidiaries (i) are in compliance with any
and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes,
pollutants or contaminants (“ Environmental Laws
”), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to
conduct their respective businesses and (iii) are in
compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses
or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly
or in the aggregate, have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(m) Ernst &
Young LLP, who has certified certain financial statements of the
Company and its subsidiaries is an independent public accountant as
required by the Securities Act and the rules and regulations of the
Commission thereunder.
(n) The operations
of the Company and its subsidiaries are and have been conducted in
all material respects at all times in compliance with applicable
financial recordkeeping and reporting requirements of the Currency
and Foreign Transactions Reporting Act of 1970, as amended, the
money laundering statutes of all jurisdictions, the rules and
regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “ Money Laundering
Laws ”) and no action, suit or proceeding by or before
any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries with
respect to the Money Laundering Laws is pending or, to the best
knowledge of the Company, threatened.
(o) None of the
Company, any of its subsidiaries or, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the
Company or any of its subsidiaries is currently subject to any U.S.
sanctions administered by the Office of Foreign Assets Control of
the U.S. Department of the Treasury (“ OFAC ”);
and the Company will not directly or indirectly use the proceeds of
the offering hereunder, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or
other person or entity, for the purpose of financing the activities
of any person currently subject to any U.S. sanctions administered
by OFAC.
2.
Agreements to Sell and Purchase . Subject to the terms and
conditions herein set forth, the Company agrees to issue and sell
to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at a
purchase price of 99.319% of the aggregate principal amount thereof
(the “ Purchase Price ”) with respect to the
Securities plus accrued interest, if any, to the Closing Date, the
principal amount of Securities set forth opposite the name of such
Underwriter in Schedule I hereto.
3. Terms
of Public Offering . (a) The Company is advised by you
that the Underwriters propose to make a public offering of their
respective portions of the Securities as soon after the parties
have executed this Agreement as in your judgment is advisable. The
Company is further advised by you that the Securities are to be
offered to the public initially at 99.969% of their principal
amount (the “ Public Offering Price ”) plus
accrued interest, if any, to the Closing Date.
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(b) Each
Underwriter severally represents and warrants to and agrees with
the Company that:
(1) in relation to
each member state of the European Economic Area that has
implemented the Prospectus Directive (each, a relevant member
state), each Underwriter has represented and agreed that with
effect from and including the date on which the Prospectus
Directive is implemented in that relevant member state (the
relevant implementation date), it has not made and will not make an
offer of the Securities to the public in that relevant member state
other than: (i) at any time to any legal entity that is
authorized or regulated to operate in the financial markets or, if
not so authorized or regulated, whose corporate purpose is solely
to invest in securities; (ii) at any time to any legal entity
that has two or more of (A) an average of at least 250
employees during the last financial year; (B) a total balance
sheet of more than €
43,000,000 and (C) an annual
net turnover of more than €
50,000,000, as shown in its last
annual or consolidated accounts; (iii) to fewer than 100
natural or legal persons (other than qualified investors defined in
the Prospectus Directive) subject to obtaining the prior written
consent of the representatives or (iv) at any time in any
other circumstances that do not require the publication of a
prospectus pursuant to Article 3 of the Prospectus Directive;
provided that no such offer of Securities referred to in
(i) to (iii) above shall require the Company or any
Underwriter to publish a prospectus pursuant to Article 3 of
the Prospectus Directive or supplement a prospectus pursuant to
Article 16 of the Prospectus Directive. For purposes of this
provision, the expression an “offer of securities to the
public” in any relevant member state means the communication
in any form and by any means of sufficient information on the terms
of the offer and the securities to be offered so as to enable an
investor to decide to purchase or subscribe the securities, as the
expression may be varied in that member state by any measure
implementing the Prospectus Directive in that member state, and the
expression “Prospectus Directive” means Directive
003/71/EC and includes any relevant implementing measure in each
relevant member state;
(2) (i) it
has only communicated or caused to be communicated and will only
communicate or cause to be communicated an invitation or inducement
to engage in investment activity (within the meaning of
Section 21 of the Financial Services and Markets Act 2000 (the
“ FSMA ”) received by it in connection with the
issue or sale of the Securities in circumstances in which
Section 21(1) of the FSMA does not apply to the Company; and
(ii) it has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in
relation to the Securities in, from or otherwise involving the
United Kingdom;
(3) it has not
offered or sold and will not make an offer or sell the Securities
by means of any document other than (i) in circumstances which
do not
6
constitute an
offer to the public within the meaning of the Companies Ordinance
(Cap.32, Laws of Hong Kong), or (ii) to “professional
investors” within the meaning of the Securities and Futures
Ordinance (Cap.571, Laws of Hong Kong) and any rules made
thereunder, or (iii) in other circumstances which do not
result in the document being a “prospectus” within the
meaning of the Companies Ordinance (Cap.32, Laws of Hong Kong), and
no advertisement, invitation or document relating to the notes may
be issued or may be in the possession of any person for the purpose
of issue (in each case whether in Hong Kong or elsewhere), which is
directed at, or the contents of which are likely to be accessed or
read by, the public in Hong Kong (except if permitted to do so
under the laws of Hong Kong) other than with respect to Securities
which are or are intended to be disposed of only to persons outside
Hong Kong or only to “professional investors” within
the meaning of the Securities and Futures Ordinance (Cap. 571, Laws
of Hong Kong) and any rules made thereunder;
(4) the Securities
have not been registered under the Securities and Exchange Law of
Japan (the “Securities and Exchange Law”), and it has
not offered or sold and it will not offer or sell any Securities,
directly or indirectly, in Japan or to, or for the benefit of, any
resident of Japan (which term as used herein means any person
resident in Japan, including any corporation or other entity
organized under the laws of Japan), or to others for re-offering or
resale, directly or indirectly, in Japan or to a resident of Japan,
except pursuant to an exemption from the registration requirements
of, and otherwise in compliance with, the Securities and Exchange
Law and any other applicable laws, regulations and ministerial
guidelines of Japan; and
(5) the Prospectus
has not been registered as a prospectus with the Monetary Authority
of Singapore. Accordingly, the Prospectus and any other document or
material in connection with the offer or sale, or invitation for
subscription or purchase, of the Securities may not be circulated
or distributed, nor may the Securities be offered or sold, or be
made the subject of an invitation for subscription or purchase,
whether directly or indirectly, to persons in Singapore other than
(i) to an institutional investor under Section 274 of the
Securities and Futures Act, Chapter 289 of Singapore (the
“ SFA ”), (ii) to a relevant person, or any
person pursuant to Section 275(1A), and in accordance with the
conditions, specified in Section 275 of the SFA or
(iii) otherwise pursuant to, and in accordance with the
conditions of, any other applicable provision of the
SFA.
4.
Payment and Delivery . (a) The Securities to be
purchased severally by each Underwriter hereunder, registered in
the name of Cede & Co. as nominee of The Depository Trust
Company (“ DTC ”), shall be delivered through
the facilities of DTC by or on behalf of the Company to you, for
the account of such Underwriter, against payment by or on behalf of
such Underwriter of the purchase price therefor by wire transfer to
an account designated by the Company, payable to the order of the
Company in Federal (same-day) funds. The time and date of such
delivery and payment shall be 9:30 a.m., New York City time, on
September 30, 2009 or such other time and date as you and the
Company may agree upon in writing. Such time and date are herein
called the “ Closing Date ”.
7
(b) The documents
to be delivered at the Closing Date by or on behalf of the parties
hereto pursuant to Section 6 hereof, including the
cross-receipt for the Securities and any additional documents
requested by the Underwriters pursuant to Section 6 hereof,
will be delivered at the offices of Milbank, Tweed, Hadley &
McCloy LLP, 1 Chase Manhattan Plaza, New York, NY 10005 (the
“ Closing Location ”) on the Closing Date. A
meeting will be held at the Closing Location at 9:30 a.m., New York
City time, on the New York Business Day next preceding the Closing
Date, at which meeting the final drafts of the documents to be
delivered pursuant to the preceding sentence will be available for
review by the parties hereto. For the purposes of this
Section 4, “ New York Business Day ” shall
mean each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in New York are generally
authorized or obligated by law or executive order to
close.
5.
Covenants of the Company . The Company covenants with each
Underwriter as follows:
(a) To prepare the
Registration Statement, the Time of Sale Prospectus and the
Prospectus in a form approved by you and, before amending or
supplementing the Registration Statement, the Time of Sale
Prospectus or the Prospectus, to furnish to the Underwriters a copy
of each such proposed amendment or supplement and not to use any
such proposed amendment or supplement to which the Underwriters
reasonably object, and to file with the Commission within the
applicable period specified in Rule 424(b) under the Securities
Act, any prospectus required to be filed pursuant to such
Rule.
(b) To endeavor to
qualify the Securities for offer and sale under the securities or
Blue Sky laws of such jurisdictions as you shall reasonably request
and to maintain such qualification for as long as you shall
reasonably request.
(c) To furnish to
you a copy of each proposed free writing prospectus to be prepared
by or on behalf of, used by, or referred to by the Company and not
to use or refer to any proposed free writing prospectus to which
you reasonably object.
(d) If the Time of
Sale Prospectus is being used to solicit offers to buy the
Securities at a time when the Prospectus is not yet available to
prospective purchasers and any event shall occur or condition exist
as a result of which it is necessary to amend or supplement the
Time of Sale Prospectus in order to make the statements therein, in
the light of the circumstances, not misleading, or if any event
shall occur or condition exist as a result of which the Time of
Sale Prospectus conflicts with the information contained in the
Registration Statement then on file, or if, in the opinion of
counsel for the Underwriters, it is necessary to amend or
supplement the Time of Sale Prospectus to comply with applicable
law, forthwith to prepare, file with the Commission and furnish, at
its own expense, to the Underwriters and to any dealer upon
request, either amendments or supplements to the Time of Sale
Prospectus so that the statements in the Time of Sale Prospectus as
so amended or supplemented will not, in the light of the
8
circumstances
when the Time of Sale Prospectus is delivered to a prospective
purchaser, be misleading or so that the Time of Sale Prospectus, as
amended or supplemented, will no longer conflict with the
Registration Statement, or so that the Time of Sale Prospectus, as
amended or supplemented, will comply with applicable
law.
(e) To furnish you
with copies of the Registration Statement, each amendment or
supplement thereto signed by an authorized officer of the Company
(including exhibits thereto and documents incorporated therein by
reference), and to each of the Underwriters the Time of Sale
Prospectus, the Prospectus and any documents incorporated therein
by reference, in each case in such quantities as you may from time
to time reasonably request, and if, during such period after the
first date of the public offering of the Securities as in the
opinion of counsel for the Underwriters the Prospectus (or in lieu
thereof the notice referred to in Rule 173(a) under the Securities
Act) is required by law to be delivered in connection with sales by
an Underwriter or a dealer, any event shall have occurred as a
result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made when such Prospectus (or in lieu thereof the notice referred
to in Rule 173(a) under the Securities Act) is delivered, not
misleading, or if, in the opinion of counsel for the Underwriters,
it shall be necessary during such same period to amend or
supplement the Prospectus to comply with applicable law, to notify
you and upon your request to prepare and furnish without charge to
each Underwriter and to any dealer in securities as many copies as
you may from time to time reasonably
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