<PAGE> 1
As filed with the Securities and Exchange Commission on June 22, 1995
REGISTRATION NO. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------------
TECH DATA CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
------------------------------------
FLORIDA NO. 59-1578329
(State of Incorporation) (I.R.S. Employer Identification
Number)
5350 TECH DATA DRIVE
CLEARWATER, FLORIDA 34620
(813)539-7429
(ADDRESS AND TELEPHONE NUMBER OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------------------
TECH DATA CORPORATION
1995 EMPLOYEE STOCK PURCHASE PLAN
STEVEN A. RAYMUND
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
TECH DATA CORPORATION
5350 TECH DATA DRIVE, CLEARWATER, FLORIDA 34620
(813)539-7429
(Name, Address and Telephone Number of Agent for Service)
COPY TO:
FRANK N. FLEISCHER, ESQ.
SCHIFINO & FLEISCHER, P.A.
ONE TAMPA CITY CENTER, SUITE 2700
TAMPA, FLORIDA 33602
(813)223-1535
------------------------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Proposed Proposed
Amount maximum maximum Amount of
Title of shares to be offering price aggregate registration
to be registered registered per share (1) offering price (1) fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.0015 Par Value 1,000,000 Shares $10.75 $10,750,000 $3,707
====================================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
and computed pursuant to Rule 457(h) and based upon the average of the
high and low sale prices on June 15, 1995 as reported by the Nasdaq
National Market System.
================================================================================
<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
By this reference, the following documents filed or to be filed by
Tech Data Corporation (the "Company") with the Securities and Exchange
Commission (the "Commission") are incorporated into and made a part of this
Registration Statement:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended January 31, 1995, as filed with the Commission on April
18, 1995
2. The Company's Quarterly Report on Form 10-Q for the quarter
ended April 30, 1995, as filed with the Commission on June 14,
1995.
3. The description of the Company's Common Stock set forth on
pages 15 and 16 of the Company's Prospectus dated April 23,
1986, as filed with the Commission under Rule 424(b) of the
Securities Act of 1933, as amended, which was a part of the
Company's Registration Statement on Form S-1 (Registration
Statement No. 33-4135) and which was incorporated by reference
in the Company's Registration Statement on Form 8-A as filed
with the Commission under the Securities Exchange Act of 1934,
as amended (File No. 0-14625).
4. All documents filed by the Company with the Commission
subsequent to the date of this Registration Statement under
Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934, as amended, and prior to the filing of a
post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated into
and made a part of this Registration Statement from the date
of filing of such documents with the Commission.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the Common Stock issuable by the Company under the
Company's 1995 Employee Stock Purchase Plan will be passed upon for the Company
by Schifino & Fleischer, P.A., Tampa, Florida. Members of such firm do not own
any shares of the Company's outstanding Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Florida Business Corporation Act, as amended (the "Florida Act"),
provides that, in general, a business corporation may indemnify any person who
is or was a party to any proceeding (other than an action by, or in the right
of, the corporation) by reason of the fact that he or she is or was a director
or officer of the corporation, against liability incurred in connection with
such proceeding, including any
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<PAGE> 3
appeal thereof, provided certain standards are met, including that such officer
or director acted in good faith and in a manner he or she reasonably believed
to be in, or not opposed to, the best interests of the corporation, and
provided further that, with respect to any criminal action or proceeding, the
officer or director had no reasonable cause to believe his or her conduct was
unlawful. In the case of proceedings by or in the right of the corporation,
the Florida Act provides that, in general, a corporation may indemnify any
person who was or is a party to any such proceeding by reason of the fact that
he or she is or was a director or officer of the corporation against expenses
and amounts paid in settlement actually and reasonably incurred in connection
with the defense or settlement of such proceeding, including any appeal
thereof, provided that such person acted in good faith and in a manner he or
she reasonably believed to be in, or not opposed to, the best interests of the
corporation, except that no indemnification shall be made in respect of any
claim as to which such person is adjudged liable unless a court of competent
jurisdiction determines upon application that such person is fairly and
reasonably entitled to indemnity. To the extent that any officers or directors
are successful on the merits or otherwise in the defense of any of the
proceedings described above, the Florida Act provides that the corporation is
required to indemnify such officers or directors against expenses actually and
reasonably incurred in connection therewith. However, the Florida Act further
provides that, in general, indemnification or advancement of expenses shall not
be made to or on behalf of any officer or director if a judgment or other final
adjudication establishes that his or her actions, or omissions to act, were
material to the cause of action so adjudicated and constitute: (i) a violation
of the criminal law, unless the director or officer had reasonable cause to
believe his or her conduct was lawful or had no reasonable cause to believe it
was unlawful; (ii) a transaction from which the director or officer derived an
improper personal benefit; (iii) in the case of a director, a circumstance
under which the director has voted for or assented to a distribution made in
violation of the Florida Act or the corporation's articles of incorporation; or
(iv) willful misconduct or a conscious disregard for the best interests of the
corporation in a proceeding by or in the right of the corporation to procure a
judgment in its favor or in a proceeding by or in the right of a shareholder.
The Company's By-Laws include the following provisions:
ARTICLE NINE
INDEMNIFICATION
"9.1 Under the circumstances prescribed in Section 9.3 and 9.4, the
Corporation shall indemnify and hold harmless any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a Director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
Director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (include attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in a manner which he
reasonably believed to be in or not opposed to the best interest of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
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<PAGE> 4
9.2 Under the circumstances prescribed in Section 9.3 and 9.4, the
Corporation shall indemnify and hold harmless any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that he is or was a Director, officer, employee
or agent of the Corporation, or is or was serving at the request of the
Corporation as a Director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation; except that no indemnification shall be made
in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable for negligence or misconduct in the performance of
his duty to the Corporation, unless and only to the extent that the court in
which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, such person if fairly and reasonably entitled to indemnify for such
expenses that the court shall deem proper.
9.3 To the extent that a Director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Sections 9.1 and 9.2, or in defense
of any claim, issue or matter therein, he shall be indemnified against expenses
(including attorney's fees) actually and reasonably incurred by him in
connection therewith.
9.4 Except as provided in Section 9.3 and except as may be ordered
by a court, any indemnification under Sections 9.1 and 9.2 shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of the Director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth
in Sections 9.1 and 9.2. Such a determination shall be made (1) by the Board
of Directors by a majority vote of a quorum consisting of Directors who were
not parties to such action, suit or proceeding, or (2) if such a quorum is not
obtainable, or, even if obtainable a quorum of disinterested Directors so
directs, by independent legal counsel in a written opinion, or (3) by the
affirmative vote of a majority of the shares entitled to vote thereon owned by
persons who were not parties to such action, suit or proceeding.
9.5 Expenses, including attorneys' fees, incurred in defending a
civil or criminal action, suit, or proceeding may be paid by the Corporation in
advance of the final disposition of such action, suit, or proceeding upon a
preliminary determination following one of the procedures set forth in Section
9.4 that the Director, officer, employee or agent met the applicable standard
of conduct set forth in Section 9.1 or Section 9.2 or as authorized by the
Board of Directors in the specific case and, in either event, upon receipt of
an undertaking by or on behalf of the Director, officer, employee, or agent to
repay such amount unless it shall ultimately be determined that he is entitled
to be indemnified by the Corporation as authorized in this Section.
9.6 The Corporation shall have the power to make any other or
further indemnification of any of its Directors, officers, employees, or
agents, under any By-Law, agreement, vote of shareholders or disinterested
Directors, or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, except an indemnification
against gross negligence or willful misconduct.
9.7 The indemnification provided by this Article Nine shall
continue as to a person who has ceased to be a Director, employee or agent and
shall inure to the benefit of the heirs, executors or administrators of such a
person.
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<PAGE> 5
9.8 The Corporation may purchase and maintain insurance on behalf
of any person who is or was a Director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
Director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against any liability asserted against
himself and incurred by him in any such capacity, or arising out of his status
as such, whether or not the Corporation would have the power to indemnify him
against such liability under the provisions of this Article Nine.
9.9 If any expenses or other amounts are paid by way of
indemnification, otherwise than by court order or action by the shareholder or
by an insurance carrier pursuant to insurance maintained by the Corporation,
the Corporation shall, not later than the next annual meeting of shareholders
unless such meeting is held within three months from the date of such payment,
and, in any event, within 15 months from the date of such payment, deliver
personally or send by first class mail to its shareholders of record at the
time entitled to vote for the election of Directors a statement specifying the
persons paid, the amounts paid, and the nature and status at the time of such
payment of the litigation or threatened litigation."
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
The exhibit numbers on the following list correspond to the numbers in
the exhibit table required pursuant to Item 601 of Regulation S-K:
<TABLE>
<CAPTION>
Exhibit
Number Description
------ -----------
<S> <C>
4.1(1) -- Tech Data Corporation 1995 Employee Stock Purchase Plan
4.2(2) -- Articles of Incorporation of the Company as amended to April 23, 1986.
4.3(3) -- Articles of Amendment to Articles of Incorporation of the Company filed on August 27, 1987.
4.4(4) -- Articles of Amendment to Articles of Incorporation of the Company filed on July 15, 1993.
4.5(5) -- By-Laws of the Company as amended to March 28, 1995.
5(1) -- Opinion of Schifino & Fleischer, P.A.
23-1(1) -- Consent of Schifino & Fleischer, P.A., appears in its opinion filed as Exhibit 5 hereto.
23-2(1) -- Consent of Price Waterhouse LLP.
24(1) -- Power of Attorney included on signature page.
</TABLE>
______________________
1. Filed herewith.
2. Incorporated by reference to the Exhibits included in the
Company's Registration Statement on Form S-1, File No.
33-4135.
3. Incorporated by reference to the Exhibits included in the
Company's Registration Statement on Form S-1, File No.
33-21997.
II-4
<PAGE> 6
4. Incorporated by reference to the Exhibits included in the
Company's Form 10-K for the year ended January 31, 1994, File
No. 0-14625.
5. Incorporated by reference to the Exhibits included in the
Company's Form 10-K for the year ended January 31, 1995, File
No. 0-14625.
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers of sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or event
arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the information
set forth in the registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission
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such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
[Balance of page intentionally left blank]
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<PAGE> 8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
amendment to the Registration Statement to be signed on its behalf by the
undersigned thereunto duly authorized, in the City of Clearwater and State of
Florida, on the 21st day of June, 1995.
TECH DATA CORPORATION
By /s/ Steven A. Raymund
---------------------------------------
Steven A. Raymund,
Chairman of the Board of Directors;
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature to this Registration Statement appears
below hereby appoints Jeffery P. Howells and Arthur W. Singleton, or either of
them, as his attorney-in-fact to sign on his behalf individually and in the
capacity stated below and to file all amendments and post-effective amendments
to this Registration Statement, and any and all instruments or documents filed
as a part of or in connection with this Registration Statement or the
amendments thereto, and the attorney-in-fact, or either of them, may make such
changes and additions to this Registration Statement as the attorney-in-fact,
or either of them, may deem necessary or appropriate.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Steven A. Raymund Chairman of the Board of Directors; June 21, 1995
- ----------------------------------- Chief Executive Officer
Steven A. Raymund
/s/ A. Timothy Godwin President; Chief Operating Officer; June 21, 1995
- ----------------------------------- Director
A. Timothy Godwin
/s/ Jeffery P. Howells Senior Vice President of Finance; June 21, 1995
- ----------------------------------- Chief Financial Officer
Jeffery P. Howells (principal financial officer)
/s/ Joseph B. Trepani Vice President and Worldwide June 21, 1995
- ----------------------------------- Controller; (principal accounting officer)
Joseph B. Trepani
/s/ Charles E. Adair Director June 21, 1995
- -----------------------------------
Charles E. Adair
/s/ Daniel M. Doyle Director June 21, 1995
- -----------------------------------
Daniel M. Doyle
/s/ Donald F. Dunn Director June 21, 1995
- -----------------------------------
Donald F. Dunn
/s/ Lewis J. Dunn Director June 21, 1995
- -----------------------------------
Lewis J. Dunn
/s/ Edward C. Raymund Director; Chairman Emeritus June 21, 1995
- -----------------------------------
Edward C. Raymund
/s/ John Y. Williams Director June 21, 1995
- -----------------------------------
John Y. Williams
</TABLE>
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<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Page
Number Description Number
- ------ ----------- ------
<S> <C> <C>
4.1 Tech Data Corporation 1995 Employee Stock Purchase Plan
4.2 Articles of Incorporation of the Company as amended to April 23, 1986. *
4.3 Articles of Amendment to Articles of Incorporation of the Company filed
on August 27, 1987. *
4.4 Articles of Amendment to Articles of Incorporation of the Company filed
on July 15, 1993. *
4.5 By-Laws of the Company as amended to March 28, 1995 *
5 Opinion of Schifino & Fleischer, P.A.
23-1 Consent of Schifino & Fleischer, P.A., appears in its opinion filed as
Exhibit 5 hereto.
23-2 Consent of Price Waterhouse LLP.
24 Power of Attorney included on signature page.
</TABLE>
<PAGE> 1
EXHIBIT 4.1
TECH DATA CORPORATION
1995 EMPLOYEE STOCK PURCHASE PLAN
ARTICLE I
NAME AND PURPOSE
1.1 Name. The name of this Plan is the "Tech Data Corporation 1995
Employee Stock Purchase Plan."
1.2 Purpose and Construction. The Plan is intended to provide a
method whereby employees of Tech Data Corporation and certain other related
corporations will have an opportunity to acquire a proprietary interest in Tech
Data Corporation through the purchase of shares of its common stock. It is
intended for this Plan to qualify as an "employee stock purchase plan" under
Section 423 of the Internal Revenue Code of 1986, as amended (the "Code"). The
provisions of the Plan shall be construed so as to extend and limit
participation in a manner consistent with the requirements of the Code.
ARTICLE II
DEFINITIONS OF TERMS
2.1 General Definitions. The following words and phrases, when
used in the Plan, unless otherwise specifically defined or unless the context
clearly otherwise requires, shall have the following respective meanings:
(a) Accumulation Period. The period beginning on the
first day following an Exercise Date and ending upon the immediately
succeeding Exercise Date. The initial Accumulation Period under the
Plan shall begin on July 1, 1995 and end on July 31, 1995.
(b) Board. The Board of Directors of Tech Data
Corporation.
(c) Business Day. Any day that the exchange upon which
the Common Stock is then traded is open for business.
(d) Committee. The Employee Stock Purchase Plan
Committee as appointed by the Board.
(e) Common Stock. The Company's common stock, $.0015 par
value.
(f) Company. Tech Data Corporation.
(g) Effective Date. July 1, 1995. However, in order to
remain effective, the Plan must be approved by the shareholders of the
Company within one year before or after the approval by the Board.
(h) Employee. Any person who is regularly and actively
employed by the Employer; provided, however, that the term "Employee"
does not include any person whose customary employment is 20 hours or
less per week or whose customary employment is for not more than five
months in any calendar year.
<PAGE> 2
(i) Employer. The Committee may from time to time
designate the corporations whose employees may be offered Options
under the Plan. Designations of participating corporations shall be
made from time to time by the Committee from among a group of
corporations consisting of the Company and its Parents or
Subsidiaries. The group of corporations from among which such
designations shall be permitted shall include those corporations which
may become Parents or Subsidiaries after the adoption and approval of
this Plan.
(j) Entry Date. Each January 1, April 1, July 1 and
October 1. There shall be a special Entry Date of July 1, 1995, in
connection with the initial commencement of the Plan.
(k) Exercise Date. The last Business Day of each month.
The initial Exercise Date under the Plan shall be July 31, 1995.
(l) Fair Market Value. The last reported sales price at
which shares of the Common Stock were traded or, if the Common Stock
was not traded on a specified date, the last reported sales price on
the date nearest preceding such date.
(m) Officer. The president, principal financial officer,
principal accounting officer (or, if there is no such accounting
officer, the controller), any vice-president in charge of a principal
business unit, division or function (such as sales, administration or
finance), any other officer who performs a policy-making function, or
any other person who performs similar policy-making functions for the
Company, its Parents or Subsidiaries, or as otherwise defined in Rule
16a-1(f), promulgated under the Securities and Exchange Act of 1934,
as amended.
(n) Option. An option granted under the Plan to purchase
Shares.
(o) Option Date. The last Business Day of each month of
every year on which the Board grants Options under the Plan. The
initial Option Date under the Plan shall be July 31, 1995.
(p) Parent. Any corporation (other than the Company) in
an unbroken chain of corporations ending with the Company if, at the
time of the grant of an Option, each of the corporations (other than
the Company) owns stock possessing 50% or more of the total combined
voting power of all classes of stock in one of the other corporations
in such chain.
(q) Participant. An eligible Employee who has elected to
participate in the Plan.
(r) Plan. The Tech Data Corporation 1995 Employee Stock
Purchase Plan, including all amendments and supplements thereto.
(s) Share. A share of Common Stock.
(t) Subsidiary. Any corporation (other than the Company)
in an unbroken chain of corporations beginning with the Company if, at
the time of the grant of an Option, each of the corporations, other
than the last corporation in the unbroken chain, owns stock possessing
50% or more of the total combined voting power of all classes of stock
in one of the other corporations in such chain.
2
<PAGE> 3
2.2 Other Definitions. In addition to the above definitions,
certain words and phrases used in the Plan may be defined in other portions of
the Plan.
ARTICLE III
ELIGIBILITY AND PARTICIPATION
3.1 Initial Eligibility. An Employee who has completed ninety
(90) days of employment shall be eligible to participate under the Plan on or
after the first Entry Date following the completion of the Employee's initial
ninety (90) days of employment. For purposes of determining eligibility,
employment by an entity which is acquired by the Employer or whose assets are
acquired by the Employer shall not be treated as employment by the Employer
unless the Board shall make a determination otherwise.
3.2 Leave of Absence. For purposes of participation in the Plan,
a person on leave of absence shall be deemed to be an Employee for the first 90
days of such leave of absence and such person's employment shall be deemed to
have terminated at the close of business on the 90th day of such leave of
absence unless such person shall have returned to active employment prior to
the close of business on such 90th day. Termination by the Employer of any
person's leave of absence, other than termination of such leave of absence on
return to active employment shall terminate a person's employment for all
purposes of the Plan and shall terminate such person's participation in the
Plan and right to exercise any option.
3.3 Restriction on Participation. Notwithstanding any provision
of the Plan to the contrary, no Employee shall be eligible to participate in
the Plan if immediately after the grant, such person would own stock, and/or
hold outstanding options to purchase stock, possessing five percent (5%) or
more of the total combined voting power or value of all classes of stock of the
Company or of any Parent or Subsidiary (for purposes of this paragraph, the
rules of Section 424(d) of the Code shall apply in determining stock ownership
of any person).
3.4 Commencement of Participation. An eligible Employee may
become a participant by completing the forms provided by the Employer
(including the "Purchase Order Form" and the "Payroll Deduction Authorization
Form" and/or the "Lump-sum Purchase Authorization Form", collectively referred
to herein as the "Participation Forms") and filing them with the individual
designated by the Committee as the Stock Purchase Plan Coordinator (the
"Coordinator") on or before the date set therefor by the Committee.
3.5 Participation Forms. The Participation Forms which eligible
Employees must complete, sign and deliver to the Employer in order to
participate in the Plan shall include the following:
(a) A specification of the fixed dollar amount to be
deducted from the compensation payable to the Employee in each payroll
period.
(b) A direction that the maximum possible number of
Shares be purchased on the Exercise Date, except to the extent the
Employee shall have notified the Employer in writing (in accordance
with the requirements of Section 7.4 of the Plan) to the contrary
prior to the Exercise Date.
3
<PAGE> 4
(c) A specification of the exact name of the Employee to
whom the Stock purchased is to be registered.
(d) An agreement that (i) the Shares acquired under the
Plan shall be purchased and initially held in the name of the Plan, the
Company or its designee on behalf of the Participants under the Plan,
and (ii) the Shares acquired under the Plan shall remain in a
safekeeping location maintained by the Company or its designee on
behalf of the Participants for a period of two years from the Option
Date so that the Company will be able to monitor compliance with the
provisions of the Plan governing disposition of Shares.
(e) An agreement that the Employee will not dispose of
any Shares acquired under the Plan within one year after the Exercise
Date. This agreement may be waived by the Committee if a sale of said
Shares within one year from the Exercise Date is necessary to enable
the Employee to meet immediate and material financial needs if such
financial hardship cannot be met by other reasonably available
resources of the Employee. Such a waiver shall be valid only if and
when the Employee makes written application to the Committee and if
the Employee receives written approval from the Committee. If an
Employee who has acquired Shares under the Plan dies within one year
after the Exercise Date and his estate or beneficiary(ies) applies for
a waiver of the provision of such agreement for any reason, such a
waiver shall be approved by the Committee.
(f) An agreement that the Employee will inform the
Company of any disposition of any Shares acquired under the Plan
within two years from the Option Date pertaining to such Shares.
(g) A designation of the Beneficiary(ies) to whom the
balance in the Employee's account is to be paid in the event of
his/her death.
ARTICLE IV
SHARES TO BE OFFERED
4.1 Number of Shares. The number of Shares for which Options may
be granted under the Plan shall be 1,000,000. Such Shares may be authorized
but unissued Shares, Shares held in the treasury, or both.
4.2 Reusage. If an Option expires or is terminated, surrendered
or cancelled without having been fully exercised, the Shares covered by such
Option which were not purchased shall again be available for issuance under the
Plan.
4.3 Adjustments. In the event that prior to the transfer of all
of the Shares which may be issued in accordance with this Plan, there shall be
any increases or reductions in the number of shares of Common Stock of the
Company outstanding by reason of any one or more stock dividends, stock splits,
stock constrictions or any other material change in the capital structure of
the Company by way of reclassification, reorganization or recapitalization, the
aggregate number of Shares which may be issued under this Plan and the number
of Shares which may be purchased under each Option then or thereafter in effect
and the purchase price paid therefor shall be proportionately and equitably
adjusted.
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4.4 Ownership of Shares. No one shall, by any reason of this Plan
or of any Option granted or the exercise of rights under any such Option, have
any interest in Shares of the Company nor any rights of, or status as, a
stockholder of the Company unless and until (i) any such Option has been
exercised, (ii) shares of Common Stock shall have been paid for in full and
allocated to the Participant's stock purchase account, and (iii) all of the
applicable provisions of this Plan and of the Option granted shall have been
complied with. Purchased Shares shall be registered in the name of the Plan,
the Company or its designee and held on behalf of and in the name of the
Participants. Stock certificates shall not be issued to Participants for the
Shares held on their behalf, but all rights accruing to an owner of record of
such Shares, including, without limitation, voting rights, shall belong to the
Participant for whose account such Shares are held. Notwithstanding the
foregoing, a Participant may elect, at Participant's expense, to receive a
stock certificate after the purchase price for the Shares has been paid in full
subject to the terms and conditions of the Plan.
ARTICLE V
PAYROLL DEDUCTIONS AND CONTRIBUTIONS
5.1 Amount of Contributions. The Board shall specify the maximum
dollar contribution amount, including both payroll deductions and lump-sum
contributions, which shall never exceed $25,000 (the "Maximum Amount") of the
fair market value of Common Stock of the Company per calendar year.
5.2 Payroll Deductions. At the time the Participant files the
Participation Forms, the Participant may designate a fixed dollar amount which
the Participant shall elect to have deducted by the Employer from compensation
otherwise payable to the Participant during an Accumulation Period. The
minimum fixed dollar payroll deduction amount per payroll period shall be
$10.00.
5.3 Lump-sum Contributions. In connection with or as an
alternative to the payroll deduction method of accumulating funds for the
purchase of Shares as described in Section 5.1 above, Participants may also
elect to purchase Shares once per calendar quarter by presenting a personal
check and properly executed Participation Forms to the Coordinator no later
than March 20, June 20, September 20, and December 20 for the purchase of
Shares on the next succeeding Exercise Date. There shall be a special lump-sum
contribution date of July 20, 1995, in connection with the initial commencement
of the Plan.
5.4 Participant's Account. Payment for Shares may be made through
payroll deductions from the Participant's compensation, such deductions to be
authorized by a Participant in the Participation Forms, or lump-sum
contributions. A stock purchase account shall be set up on the books of the
Company or its designee in the name of each Participant. The amount of all
payroll deductions and lump-sum contributions (including any rollovers of
account balances from the Company's prior stock purchase plan) shall be
credited to the respective stock purchase accounts of the Participants on such
books.
5.5 Dividends. Cash dividends paid by the Company on Shares owned
by the Participants and held by the Company or its designee under the Plan
shall be credited to the respective stock purchase accounts of the Participants
in accordance with their interests in the Shares with respect to which the
dividends are paid.
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5.6 Changes in Payroll Deductions. Each Participant's
Participation Forms shall remain in effect for each Accumulation Period
subsequent thereto until the Participant either (a) ceases future contributions
to his stock purchase account in accordance with Section 7.4 of the Plan; or
(b) revises his/her payroll deduction contributions to the Plan, by completing
new Participation Forms. Changes in payroll deduction contributions to the
Plan shall be permitted only twice per year, on January 1 and July 1.
ARTICLE VI
GRANTING OF OPTIONS
6.1 Nature of Options. Each Option granted shall be exercisable
only on its Exercise Date and only if the person to whom the Option is granted
is then employed by the Employer. Options under the Plan shall be granted on a
monthly basis. No Employee shall be granted an Option which permits his/her
rights to purchase stock under all employee stock purchase plans (as defined in
Section 423(b) of the Code) of the Company and its Parents and Subsidiaries to
accrue at a rate which exceeds $25,000 of fair market value of such stock,
determined at the time such Option is granted, for each calendar year in which
such Option is outstanding.
6.2 Number of Option Shares and Other Terms. At least annually,
the Board will determine all of the terms and conditions pertaining to the
Options to be granted under the Plan for the next twelve (12) months, which
terms and conditions shall include, but not be limited to, the following:
(a) The number of Shares to be offered, which in no event
shall exceed the maximum number of Shares then available under the
provisions of ARTICLE IV of the Plan.
(b) The offering period, including the Option Date,
Exercise Date and Accumulation Period (in no event shall an Option be
exercisable after the expiration of five (5) years from the date each
Option is granted).
(c) The corporations designated to participate under the
Plan.
(d) The price per Share for which Common Stock will be
sold to Participants who exercise Options, which price shall not be
less than 85% of the Common Stock's Fair Market Value on the Exercise
Date.
ARTICLE VII
EXERCISE OF OPTION
7.1 Automatic Exercise. Each Participant's Option to purchase
Shares will be automatically exercised for him/her on each Exercise Date for
the number of Shares, including fractional shares to the fourth decimal, which
the accumulated funds as of the Exercise Date will purchase at the applicable
Option price, subject to the limitations set forth in the Plan and subject to
allotment in accordance with Section 7.2. The Employer or its designee will
report to each Participant the number of Shares purchased by him/her and the
cost of such Shares on a monthly basis.
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7.2 Allotment of Shares. In the event that, on any Exercise Date,
the aggregate funds and Shares available for the purchase of Shares, pursuant
to the provisions of Section 7.1, would purchase a greater number of Shares
than the number of Shares then available for purchase under the Plan on such
Exercise Date, the Company shall issue to each Participant, on a pro rata
basis, such number of Shares as, when taken together with the Shares issued to
all other Participants, will result in the issuance of Shares totaling no more
than the number of Shares then remaining available for issuance under the Plan
on such Exercise Date.
7.3 Nontransferability. No funds credited to a Participant's
stock purchase account nor any rights with regard to the exercise of an Option
or to receive Shares under the Plan may be assigned, transferred, pledged or
otherwise disposed of in any way by a Participant other than by will or the
laws of descent and distribution. Options under the Plan shall be exercisable
during a Participant's lifetime only by the Participant, his/her guardian or
legal representative. Each Participant shall agree in the Participation Forms
to notify the Company or its designee of any transfer of Shares within two
years of the Exercise Date on which such Shares were purchased.
7.4 Withdrawal from the Plan. A Participant may cease future
contributions to his/her stock purchase account, effective for the next payroll
period, by submitting a notice to the Company or its designee no later than
five (5) business days prior to the beginning date of such payroll period. Any
Participant who withdraws from the Plan may not thereafter participate for a
period of six (6) months following the effective date of withdrawal.
Notwithstanding a Participant's notice that future contributions will cease,
the funds in the Participant's stock purchase account will nevertheless be used
to purchase Shares at the next Exercise Date. Fractional share balances which
have been credited to the Participant's stock purchase account will be
converted into cash, and any remaining cash balance will then be refunded to
the Participant.
7.5 Rights on Retirement, Death or Termination of Employment. In
the event of a Participant's retirement, death or termination of employment, no
payroll deduction shall be taken from any compensation due and owing to the
Participant at such time, and only the deductions or contributions made prior
to such date of retirement, death or termination shall be used to purchase
Shares. All full Shares standing to the Participant's credit will be
transferred to the former Employee or, in the event of the Participant's death,
the person or persons to whom such rights pass by will or the laws of descent
and distribution including the Participant's estate during the period of
administration, within thirty (30) days following the request therefor.
Fractional share balances which have been credited to the Participant's stock
purchase account will be converted into cash, and any remaining cash balance
will also be paid to the former Employee or his representative. An Employee of
a Subsidiary or a Parent which ceases to be a Subsidiary or a Parent shall be
deemed to have terminated his/her employment for purposes of this Section 7.5
as of the date such corporation ceases to be a Subsidiary or a Parent, as the
case may be, unless, as of such date, the Employee shall become an Employee of
the Company or any Subsidiary or Parent designated as a participating
corporation under the Plan.
7.6 Periodic Statements and Certificates. Each Participant will
receive a statement from the Company or its designee on a monthly basis
reflecting the number of Shares purchased for his/her account, and a
Participant may, subject to the terms of the Plan, request delivery of
certificates for full Shares reflected on his/her account. A Participant will
be required to pay any administrative fees associated with issuance of the
certificates. Such certificates for Shares will be issued and delivered upon
request as soon as practicable, in the name of the Participant. The Company
may designate any entity to maintain the accounts and records required under
the Plan.
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7.7 Purchases and Sales by Officers. With respect to purchases of
Shares by Officers, such Officers shall hold such Shares for a period of not
less than six (6) months following the applicable Exercise Date.
ARTICLE VIII
ADMINISTRATION
8.1 Committee. The Board shall appoint an Employee Stock Purchase
Plan Committee, composed of such persons as the Board shall from time to time
determine to administer the Plan subject to the control and direction of the
Board. Subject to the action and control of the Board: (i) the Committee shall
have the power from time to time to establish suitable rules and procedures for
administering the Plan, and (ii) all decisions of the Committee pertaining to
the interpretation, construction or application of the Plan or any option
granted or rules promulgated by the Committee shall be final and conclusive.
Neither any member of the Committee nor of the Board shall be liable for any
decision made or action taken in good faith. The Committee shall from time to
time designate an individual who shall serve as the Employee Stock Purchase
Plan Coordinator to assist in the ongoing administration of the Plan.
ARTICLE IX
AMENDMENT AND TERMINATION
9.1 Power of Board. Except as hereinafter provided, the Board
shall have the sole right and power to amend the Plan at any time and from time
to time.
9.2 Limitation. The Board may not amend the Plan, without
approval of the shareholders of the Company:
(a) in a manner which would cause the Plan to fail to
meet the requirements of Sections 423 of the Code;
(b) in a manner which materially increases the total
number of shares which may be issued pursuant to options granted under
the Plan;
(c) in a manner which materially modifies the
requirements as to eligibility for participation in the Plan; or
(d) in a manner which materially increases the benefits
accruing to Participants under the Plan.
9.3 Term. The Plan shall commence as of the Effective Date and,
subject to the terms of the Plan including those requiring approval by the
shareholders of the Company, shall continue in full force and effect until
terminated.
9.4 Termination. The Plan may be terminated at any time by the
Board. Subject to the Board's right to amend the Plan, with shareholder
approval, to increase the number of Shares available for purchase under the
Plan, the Plan shall automatically terminate when all of the Shares available
for purchase have been sold. Upon termination of the Plan, and the exercise or
lapse of all outstanding
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Options, any balances remaining in each Participant's stock purchase account
shall be refunded to the Participant.
9.5 Effect. The amendment or termination of the Plan shall not
adversely affect any Options granted prior to such amendment or termination.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1 Headings. The headings contained in the Plan are included
only for convenience, and they shall not be construed as a part of the Plan or
in any respect affecting or modifying its provisions.
10.2 Number and Gender. The masculine and neuter, wherever used in
the Plan, shall refer to either the masculine, neuter or feminine; and, unless
the context otherwise requires, the singular shall include the plural and the
plural the singular.
10.3 Governing Law. This Plan shall be construed and administered
in accordance with the laws of the State of Florida.
10.4 No Employment Contract. The adoption of the Plan shall not
confer upon any Employee any right to continued employment nor shall it
interfere in any way with the right of the Company, a Parent to a Subsidiary to
terminate the employment of any of its employees at any time.
10.5 Payment of Interest. No interest will be paid or allowed on
any money paid into the Plan or credited to the account of any Participant.
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EXHIBIT 5
SCHIFINO & FLEISCHER, P.A.
ATTORNEYS AT LAW
ONE TAMPA CITY CENTER
WILLIAM J. SCHIFINO SUITE 2700
FRANK N. FLEISCHER 201 NORTH FRANKLIN STREET
BONNIE J. PINZEL TAMPA, FLORIDA 33602-5174
CYNTHIA C. ELLIS TELEPHONE (813) 223-1535
TELECOPIER (813) 223-3070
June 21, 1995
Securities and Exchange Commission
450 5th Street, N.W.
Judiciary Plaza
Washington, DC 20549
Re: Tech Data Corporation
1995 Employee Stock Purchase Plan
Registration Statement on Form S-8
Ladies and Gentlemen:
We have represented Tech Data Corporation (the "Company") in
connection with the Company's Registration Statement on Form S-8 (the "S-8
Registration Statement") relating to the proposed public offering by the
Company (the "Offering") of up to 1,000,000 shares of the Company's Common
Stock under the Company's 1995 Employee Stock Purchase Plan (the "Plan"). This
opinion is being provided as Exhibit 5 to the S-8 Registration Statement.
In our capacity as counsel to the Company in connection with the
Registration Statement and the Offering, we have examined and are familiar
with: (1) the Company's Articles of Incorporation and bylaws, as currently in
effect, (2) the Plan, (3) the S-8 Registration Statement and (4) such other
corporate records and documents and instruments as in our opinion are necessary
or relevant as the basis for the opinions expressed below.
As to various questions of fact material to our opinion, we have
relied without independent investigation on statements or certificates of
officials and representatives of the Company, the Department of State of the
State of Florida and others. In all such examinations, we have assumed the
genuineness of all signatures on original and certified documents and the
conformity to original and certified documents of all copies submitted to us as
conformed, photostatic or other exact copies.
We express no opinion as to the law of any jurisdiction other than of
the State of Florida and the Federal laws of the United States of America.
Based upon and in reliance on the foregoing, we are of the opinion
that:
<PAGE> 2
1. The Company is a duly organized and existing corporation under
the laws of the State of Florida and its status is active.
2. The Plan has been duly and legally authorized by all required
corporate action.
3. When the following events shall have occurred:
a. the S-8 Registration Statement shall have become
effective in accordance with the Securities Act of
1933, as amended;
b. the options covering shares of Common Stock shall
have been granted and exercised as contemplated in
the Plan;
c. the consideration specified in the Plan and in the
instrument of grant covering options granted under
the Plan shall have been received; and
d. the certificates representing such shares shall have
been duly executed, counter-signed and issued by or
on behalf of the Company.
the shares of Common Stock so offered and sold in the Offering will be duly
authorized, validly issued, fully paid and non- assessable shares of the
capital stock of the Company.
This firm hereby consents to the filing of this opinion as an Exhibit
to the S-8 Registration Statement.
Very truly yours,
SCHIFINO & FLEISCHER, P.A.
/s/ Frank N. Fleischer
----------------------------
Frank N. Fleischer
For the Association
:lkm
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the
Registration Statement on Form S-8 of the Tech Data Corporation 1995 Employee
Stock Purchase Plan of our report dated March 21, 1995, which appear's in Tech
Data Corporation's Annual Report on Form 10-K for the year ended January 31,
1995.
/s/ Price Waterhouse
- --------------------
PRICE WATERHOUSE LLP
Tampa, Florida
June 21, 1995
