<PAGE> 1
As filed with the Securities and Exchange Commission on August 28, 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
NON-EMPLOYEE DIRECTORS'
1995 NON-STATUTORY STOCK OPTION 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
Title of Amount maximum maximum Amount of
shares to be to be offering price aggregate registration
registered registered per share (1) offering price (1) fee
--------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.0015 Par Value 100,000 Shares $12.69 $1,269,000 $437.59
==================================================================================================
</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 August 22, 1995 as reported by the Nasdaq
National Market System.
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<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 Non-Employee Directors' 1995 Non-Statutory Employee Stock Option
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
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<PAGE> 3
or officer of the corporation, against liability incurred in connection with
such proceeding, including any 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
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<PAGE> 4
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.
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
II-3
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<PAGE> 5
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.
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
<C> <S>
4.1(1) --Tech Data Corporation Non-Employee Directors' 1995 Non-Statutory Stock Option 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.
24-1(1) --Consent of Schifino & Fleischer, P.A., appears in its opinion filed as Exhibit 5 hereto.
24-2(1) --Consent of Price Waterhouse LLP.
25(1) --Power of Attorney included on signature page.
</TABLE>
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<PAGE> 6
----------------
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.
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
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<PAGE> 7
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 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 28th
day of August, 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.
Signature Title Date
--------- ----- ----
/s/ Steven A. Raymund Chairman of the Board of Directors; August 28, 1995
---------------------- Chief Executive Officer
Steven A. Raymund
/s/ A. Timothy Godwin President; Chief Operating Officer; August 28, 1995
--------------------- Director
A. Timothy Godwin
/s/ Jeffery P. Howells Senior Vice President of Finance; August 28, 1995
---------------------- Chief Financial Officer
Jeffery P. Howells (principal financial officer)
/s/ Joseph B. Trepani Vice President and Worldwide August 28, 1995
---------------------- Controller; (principal accounting
Joseph B. Trepani officer)
/s/ Charles E. Adair Director August 28, 1995
----------------------
Charles E. Adair
/s/ Daniel M. Doyle Director August 28, 1995
----------------------
Daniel M. Doyle
/s/ Donald F. Dunn Director August 28, 1995
----------------------
Donald F. Dunn
/s/ Lewis J. Dunn Director August 28, 1995
----------------------
Lewis J. Dunn
/s/ Edward C. Raymund Director; Chairman Emeritus August 28, 1995
----------------------
Edward C. Raymund
/s/ John Y. Williams Director August 28, 1995
----------------------
John Y. Williams
II-7
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<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Page
Number Description Number
------- ----------- ------
<S> <C> <C>
4.1 Tech Data Corporation Non-Employee Directors'
1995 Non-Statutory Stock Option 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.
24-1 Consent of Schifino & Fleischer, P.A., appears in its
opinion filed as Exhibit 5 hereto.
24-2 Consent of Price Waterhouse LLP.
25 Power of Attorney included on signature page.
</TABLE>
<PAGE> 1
Exhibit 4.1
TECH DATA CORPORATION
NON-EMPLOYEE DIRECTORS'
1995 NON-STATUTORY STOCK OPTION PLAN
SECTION 1. PURPOSE
This 1995 Non-Statutory Stock Option Plan (the "Plan") is intended as an
incentive for members of the Board of Directors of Tech Data Corporation, a
Florida corporation (the "Company"), who are not employed by the Company or
its Subsidiaries (as hereinafter defined), to enable such persons ("Optionee"
or "Optionees") to acquire or increase a proprietary interest in the success
of the Company.
SECTION 2. OPTIONS TO BE GRANTED AND ADMINISTRATION
2.1 Options to the Granted. Options granted under the Plan shall be
Non-statutory Options. It is intended that this Plan be considered a "formula
plan" as contemplated by Rule 16b-3, promulgated under the Securities Exchange
Act of 1934, as amended (the "Act"). This Plan may be amended from time to
time by the Board to the extent necessary in order for transactions under the
Plan to be exempt from Section 16(b) of the Act.
2.2 Appointment and Proceedings of Committee. The Board of Directors
of the Company (the "Board") may appoint an Option Committee (the "Committee")
which shall consist of at least two members of the Board. The Board may from
time to time appoint members of the Committee in substitution for or in
addition to members previously appointed, and may fill vacancies, however
caused, in the Committee. The Committee shall select one of its members as
its chairman and shall hold its meetings at such times and places as it shall
deem advisable. If the Committee consists of only two members, both members
shall be required for a quorum and all actions of the Committee shall require
concurrence by both members. If the Committee consists of more than two
members, then a majority of its members shall constitute a quorum, and all
actions of the Committee shall be taken by a majority of its members. Any
action may be taken by a written instrument signed by all of the members, and
any action so taken shall be as fully effective as if it had been taken by a
vote of a majority of the members (or both members if there are only two
Committee Members) at a meeting duly called and held.
2.3 Administration by the Committee. This Plan shall be administered
by the Committee. The Committee shall have full and final authority to
operate, manage and administer the Plan on behalf of the Company. Subject to
the provisions of this Plan and the approval of the Board, the Committee shall
have the power to interpret the Plan, to prescribe, amend and rescind rules
and regulations relating to the Plan, and to exercise the administrative and
ministerial powers of the Board with regard to aspects of the Plan. The
interpretation and construction by the Committee of any provisions of the Plan
or of any option granted hereunder and the exercise of any power delegated to
it hereunder shall be final, unless otherwise determined by the Board. No
member of the Board or the Committee shall be liable for any action or
determination made in good faith with respect to the Plan or any option
granted hereunder.
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<PAGE> 2
SECTION 3. STOCK
3.1 Shares Subject to Plans. The stock subject to the options granted
under the Plan shall be shares of the Company's authorized but unissued common
stock, par value $.0015 per share ("Common Stock"). The total number of
shares that may be issued pursuant to options granted under the Plan shall not
exceed an aggregate of 100,000 shares of Common Stock.
3.2 Lapsed or Unexercised Options. Whenever any outstanding option
under the Plan expires, is canceled or is otherwise terminated (other than by
exercise), the shares of Common Stock allocable to the unexercised portion of
such option shall be restored to the Plan and be available for the grant of
other options under the Plan.
SECTION 4. ELIGIBILITY
4.1 Initial Grant of Options. On the date of appointment to the Board,
each eligible Optionee shall be granted an option to purchase at the "fair
market value" from the Company an aggregate of 5,000 shares of Common Stock.
The option shall vest and become exercisable at the rate of 20% per year after
the expiration of the first year following the date on which the option is
granted and shall be exercisable in full only after the expiration of five (5)
years following the date the option is granted.
4.2 Annual Grant of Options. On the date of the annual stockholders
meeting of the Company, each eligible Optionee shall be granted an option to
purchase at the "fair market value" from the Company an aggregate of 1,000
shares of Common Stock. The option shall vest and become exercisable one year
from the date of grant.
4.3 Eligible Optionees. Options shall be granted to each member of the
Board who, as of the date of grant, (i) is not an employee of the Company or a
Subsidiary, (ii) is appointed, elected, re-elected or otherwise continues to
serve on the Board, and (iii) with respect to annual grants under Section 4.2
above, has served on the Board for at least six (6) months.
SECTION 5. TERMS OF THE OPTION AGREEMENTS
5.1 Mandatory Terms. Each option agreement shall contain such provisions
as the Board or the Committee shall from time to time deem appropriate, and
shall include provisions relating to the method of exercise, payment of
exercise price, adjustments on changes in the Company's capitalization and the
effect of a merger, consolidation, liquidation, sale or other disposition of
or involving the Company. Option agreements shall include the following
provisions:
5.1.1 Expiration. Notwithstanding any other provision of the Plan
or of any option agreement, each option shall expire on the tenth anniversary
of the date on which the option was granted.
5.1.2 Exercise. Each option shall be deemed exercised when (i) the
Company has received written notice of such exercise in accordance with the
terms of the option, and (ii) except in the event of loans to exercise options
as set forth in Section 5.1.3, full payment of the aggregate option price of
the shares of Common Stock as to which the option is exercised has been made.
Unless further limited by the Board or the Committee in any option, the option
price of any shares of Common Stock purchased shall be paid in cash, by
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<PAGE> 3
certified or official bank check, by money order, with shares of Common Stock
or by a combination of the above; provided further, however, that the Board or
the Committee in its sole discretion may accept a personal check in full or
partial payment of any shares of Common Stock. If the exercise price is paid
in whole or in part with shares, the value of the shares surrendered shall be
their fair market value on the date the option is exercised as determined in
accordance with Section 5.1.5 hereof.
5.1.3 Loans for Exercise of Options. The Company in its sole
discretion may, on an individual basis or pursuant to a general program
established in connection with this Plan, lend money to an optionee, guarantee
a loan to an optionee, or otherwise assist an optionee to obtain the cash
necessary to exercise all or a portion of an option granted hereunder or to
pay any tax liability of the optionee attributable to such exercise. If the
exercise price is paid in whole or in part with optionee's promissory note,
such note shall (i) provide for full recourse to the maker, (ii) be
collateralized by the pledge of the shares of Common Stock that the optionee
purchases upon exercise of such option, (iii) bear interest at the rate the
Company pays to its principal lender, from time to time, and (iv) contain such
other terms as the Board or the Committee shall reasonably require.
5.1.4 Events Causing Immediate Exercise. Unless otherwise provided
in any option, each outstanding option shall become immediately fully
exercisable:
5.1.4.1 if there occurs any transaction (which shall include
a series of transactions occurring within 60 days or occurring pursuant to a
plan), that has the result that stockholders of the Company immediately before
such transaction cease to own at least 51 percent of the voting stock of the
Company or of any entity that results from the participation of the Company in
a reorganization, consolidation, merger, liquidation or any other form of
corporate transaction;
5.1.4.2 if the stockholders of the Company shall approve a
plan of merger, consolidation, reorganization, liquidation or dissolution in
which the Company does not survive (unless the approved merger, consolidation,
reorganization, liquidation or dissolution is subsequently abandoned); or
5.1.4.3 if the stockholders of the Company shall approve a
plan for the sale, lease, exchange or other disposition of all or
substantially all the property and assets of the Company (unless such plan is
subsequently abandoned).
The Board or the Committee may accelerate the date on which any option
may be exercised and may accelerate the vesting of any shares of Common Stock
subject to any option, subject to the limitations of Section 16(b) of the Act.
5.1.5 Purchase Price. The purchase price per share of the Common
Stock under each option shall be not less than the fair market value of the
Common Stock on the date the option is granted.
For the purpose of the Plan, the "fair market value" per share of Common
Stock on any date of reference shall be (i) if the Common Stock is listed or
admitted for trading on any United States national securities exchange, or if
actual transactions are otherwise reported on a consolidated transaction
reporting system, the last reported sale price of Common Stock on such
exchange or reporting system, as reported in any newspaper of general
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<PAGE> 4
circulation; (ii) if the Common Stock is quoted on the National Association of
Securities Dealers Automated Quotations System ("NASDAQ") National Market
System, or any similar system of automated dissemination of quotations of
securities prices in common use, the last reported sale price of Common Stock
on such exchange or reporting system, as reported in any newspaper of general
circulation; or (iii) if neither clause (i) or (ii) is applicable, the mean
between the high bid and low asked quotations for the Common Stock as reported
by the National Quotation Bureau, Incorporated if at least two securities
dealers have inserted both bid and asked quotations for Common Stock on at
least five of the ten preceding days.
5.1.6 Transferability of Options. Options granted under the Plan
and the rights and privileges conferred thereby may not be transferred,
assigned, pledged or hypothecated in any manner (whether by operation of law
or otherwise) other than by will or by applicable laws of descent and
distribution or pursuant to a qualified domestic relations order as defined by
the Internal Revenue Code of 1986, as amended, or Title I of the Employee
Retirement Income Security Act or Rules thereunder. Upon any attempt so to
transfer, assign, pledge, hypothecate or otherwise dispose of any option under
the Plan or any right or privilege conferred hereby, contrary to the
provisions of the Plan, or upon the sale or levy or any attachment or similar
process upon the rights and privileges conferred hereby, such option shall
thereupon terminate and become null and void.
5.1.7 Termination of Service or Death of Optionee. Except as may be
otherwise expressly provided in the terms and conditions of the option granted
to an Optionee, options granted hereunder shall terminate on the earlier to
occur of:
5.1.7.1 the date of removal from the Board;
5.1.7.2 the date of the expiration of the term thereof (the
"Expiration Date"); or
5.1.7.3 the termination of the Optionee as a member of the
Board by reason of voluntary resignation by the Optionee or the expiration of
the Optionee's elected or appointed term and other than the case of death of
the Optionee or disability of the Optionee within the meaning of Section
22(e)(3) of the Code ("disability"), the Optionee shall have the right, within
three (3) months after the date on which Optionee shall have ceased to be a
member of the Board, to exercise the unexercised portion of the options
granted to the extent, if any, that such options were exercisable by the
Optionee on the date of such termination.
In the event of the death of an Optionee while a member of the Board or
within three (3) months after the termination of the Optionee as a member of
the Board, except for termination pursuant to Section 5.1.7.1 above, such
option shall become immediately fully exercisable and shall terminate on the
earlier of the Expiration Date thereof or one year following the date of such
death. After the death of the Optionee, his executors, administrators or any
person or persons to whom his option may be transferred by will or by laws of
descent and distribution, shall have the right, at any time during such
period, to exercise the option.
If an Optionee's service on the Board terminates because of a disability,
the Optionee's option shall become immediately fully exercisable and shall
terminate on the earlier of the Expiration Date thereof or one year following
the termination of service on the Board.
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<PAGE> 5
5.1.8 Rights of Optionees. No Optionee shall be deemed for any
purpose to be the owner of any shares of Common Stock subject to any option
unless and until (i) the option shall have been exercised pursuant to the
terms thereof, (ii) the Company shall have issued and delivered the shares to
the Optionee, and (iii) the Optionee's name shall have been entered as a
stockholder of record on the books to the Company. Thereupon, the Optionee
shall have full voting, dividend and other ownership rights with respect to
such shares of Common Stock. No adjustment shall be made for dividends
(ordinary or extraordinary, whether in cash, securities or other property) or
distributions or other rights for which the record date is prior to the date
such shares of Common Stock are issued, except as expressly provided in
Section 6 hereof.
SECTION 6. ADJUSTMENT OF SHARES OF COMMON STOCK
6.1 Increase or Decrease of Outstanding Shares. If at any time while the
Plan is in effect or unexercised options are outstanding, there shall be any
increase or decrease in the number of issued and outstanding shares of Common
Stock through the declaration of a stock dividend or through any
recapitalization resulting in a stock split-up, combination or exchange of
shares of Common Stock, then and in such event (i) appropriate adjustment
shall be made in the maximum number of shares of Common Stock available for
grant under the Plan, so that the same percentage of the Company's issued and
outstanding shares of Common Stock shall continue to be subject to being so
optioned, (ii) appropriate adjustment shall be made in the number of shares
and the exercise price per share of Common Stock thereof then subject to any
outstanding option, so that the same percentage of the Company's issued and
outstanding shares of Common Stock shall remain subject to purchase at the
same aggregate exercise price, and (iii) appropriate adjustment shall be made
as to the number of shares of Common Stock to be subject to each future grant
under the Plan, so that the same percentage of the Company's number of shares
of Common Stock available under the Plan shall continue to be subject to each
option granted.
6.2 Conversion of Shares. Except as otherwise expressly provided herein,
the issuance by the Company of shares of its capital stock of any class, or
securities convertible into shares of capital stock of any class, either in
connection with direct sale or upon the exercise of rights or warrants to
subscribe therefor, or upon conversion of shares or obligations of the Company
convertible into such shares or other securities, shall not affect, and no
adjustment by reason thereof shall be made with respect to the number of or
exercise price of shares of Common Stock then subject to outstanding options
granted under the Plan.
6.3 General. Without limiting the generality of the foregoing, the
existence of outstanding options granted under the Plan shall not affect in
any manner the right or power of the Company to make, authorize or consummate
(i) any or all adjustments, recapitalizations, reorganizations or other
changes in the Company's capital structure or its business; (ii) any merger or
consolidation of the Company; (iii) any issue by the Company of debt
securities, or preferred or preference stock that would rank above the shares
subject to outstanding options; (iv) the dissolution or liquidation of the
Company; (v) any sale, transfer or assignment of all or any part of the assets
or business of the Company; or (vi) any other corporate act or proceeding,
whether of a similar character or otherwise.
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<PAGE> 6
SECTION 7. AMENDMENT OF THE PLAN
The Board may not amend the Plan more than once every six months. In
addition, no amendment shall be effective unless approved by the stockholders
of the Company in accordance with applicable law and regulations at an annual
or special meeting held within 12 months before or after the date of adoption
of such amendment, in any instance in which such amendment would materially:
(i) increase the benefits of the Plan; (ii) increase the number of shares of
Common Stock as to which options may be granted under the Plan; or (iii)
change in substance the provisions of Section IV hereof relating to
eligibility to participate in the Plan.
Rights and obligations under any option granted before any amendment of
the Plan shall not be altered or impaired by such amendment, except with the
consent of the Optionee.
SECTION 8. NON-EXCLUSIVITY OF THE PLAN
Neither the adoption of the Plan by the Board nor the approval of the
Plan by the stockholders of the Company shall be construed as creating any
limitations on the power of the Board to adopt such other incentive
arrangements as it may deem desirable, including without limitation the
granting the stock options otherwise than under the Plan, and such
arrangements may be either applicable generally or only in specific cases.
SECTION 9. GOVERNMENT AND OTHER REGULATIONS; GOVERNING LAW
The obligation of the Company to sell and deliver shares of Common Stock
with respect to options granted under the Plan shall be subject to all
applicable laws, rules and regulations, including all applicable federal and
state securities laws, and the obtaining of all such approvals by
government agencies as may be deemed necessary or appropriate by the Board or
the Committee. If necessary, all shares sold under the Plan shall bear
appropriate legends. The Plan shall be governed by and construed in
accordance with the laws of the State of Florida.
SECTION 10. EFFECTIVE DATE OF PLAN
The effective date of the Plan shall be the later date on which it is
approved by the Board or by the stockholders of the Company.
SECTION 11. TERMINATION DATE OF PLAN
The Plan shall terminate on the ten-year anniversary of the effective
date of the Plan, and no options may be granted under the Plan thereafter.
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<PAGE> 1 EXHIBIT 5
August 25, 1995
Securities and Exchange Commission
450 5th Street, N.W.
Judiciary Plaza
Washington, DC 20549
Re:Tech Data Corporation
Non-Employee Directors' 1995 Non-Statutory Stock Option 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 100,000 shares of the Company's Common Stock under the
Company's Non-Employee Directors' 1995 Non-Statutory Stock Option 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:
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;
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<PAGE> 2
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
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<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 appears 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
August 24, 1995
