As filed with the Securities and Exchange Commission on December 29, 1999
REGISTRATION NO. 333-
================================================================================
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 59-1578329
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
5350 TECH DATA DRIVE
CLEARWATER, FLORIDA 33760
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
----------------------
TECH DATA CORPORATION 401(K) SAVINGS PLAN
(FULL TITLE OF THE PLAN)
----------------------
JEFFERY P. HOWELLS
EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
5350 TECH DATA DRIVE
CLEARWATER, FLORIDA 33760
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(727) 539-7429
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
----------------------
PLEASE SEND COPIES OF COMMUNICATIONS TO:
LINA ANGELICI, 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 EACH CLASS OF TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED (1)(2) PER UNIT (3) OFFERING PRICE (3) FEE
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.0015 Par Value 500,000 Shares $23.9063 $11,953,150 $3,322.98
====================================================================================================================
</TABLE>
(1) The amount being registered includes an indeterminate number of shares of
Common Stock which may be issuable as a result of stock splits, stock
dividends and anti-dilution provisions and other terms, in accordance with
Rule 416(a) under the Securities Act of 1933, as amended.
(2) In addition, pursuant to Rule 416(c) under the Securities Act, this
Registration Statement also covers an indeterminate amount of interests to
be offered and sold pursuant to the Tech Data Corporation 401(k) Savings
Plan.
(3) Estimated solely for the purpose of calculating the registration fee. Such
estimate has been computed in accordance with Rule 457(h) based upon the
average of the high and low price of the Common Stock on the Nasdaq
National Market System on December 28, 1999, namely $23.9063.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE PROSPECTUS
As permitted by Rule 428 under the Securities Act of 1933, as amended
(the "Securities Act"), this Registration Statement omits the information
specified in Part I of Form S-8. The documents containing the information
specified in Part I will be delivered to the participants in the plan covered by
this Registration Statement as required by Rule 428(b). Such documents are not
being filed with the Securities and Exchange Commission (the "Commission") as
part of this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 under the Securities Act.
I-1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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/A for the fiscal year
ended January 31, 1999, as filed with the Commission on June
1, 1999.
2. The Company's Annual Report on Form 10-K for the fiscal year
ended January 31, 1999, as filed with the Commission on May 3,
1999.
3. The Company's Quarterly Report on Form 10-Q for the quarter
ended October 31, 1999, as filed with the Commission on
December 15, 1999.
4. The Company's Quarterly Report on Form 10-Q for the quarter
ended July 31, 1999, as filed with the Commission on September
14, 1999.
5. The Company's Quarterly Report on Form 10-Q for the quarter
ended April 30, 1999, as filed with the Commission on June 14,
1999.
6. The Company's Definitive Proxy Statement for the 1999 Annual
Meeting of Shareholders, as filed with the Commission on May
25, 1999.
7. 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).
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1943, as amended (the "Exchange
Act"), subsequent to the date of this Registration Statement and prior to the
filing of a post-effective amendment to this Registration Statement which
indicates that all securities offered hereby have been sold or which deregisters
all securities remaining unsold, shall be deemed to be incorporated by reference
in this Registration Statement and to be a part hereof from the date of filing
of such documents. Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable. The Company's Common Stock is registered under Section
12 of the Exchange Act.
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<PAGE>
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the Common Stock issuable by the Company under its
401(k) Savings 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 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 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
II-2
<PAGE>
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 contenders 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 this 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 indemnity 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 attorneys' 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
II-3
<PAGE>
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, no later than the next annual meeting of shareholders unless
such a 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."
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Company, the Company 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
Company of expenses incurred or paid by a director, officer or controlling
person of the Company 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 Company undertakes, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, to submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
agrees to be governed by the final adjudication of such issue.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
II-4
<PAGE>
ITEM 8. EXHIBITS
Registrant will submit the Plan to the Internal Revenue Service (the
"IRS"), in order to qualify the Plan. The registrant hereby undertakes to
submit, in a timely manner, all future amendments to the Plan, if any, and to
make all changes required by the IRS in order to maintain qualification of the
Plan.
EXHIBIT NO. DESCRIPTION OF EXHIBITS
----------- -----------------------
4.1(1) Tech Data Corporation 401(k) Savings 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 November 28,
1995.
4.6(6) Specimen of Certificate of the registrant's Common
Stock, par value $.0015 per share.
5(1) Opinion of Schifino & Fleischer, P.A., regarding
legality of the securities.
23.1(1) Consent of Schifino & Fleischer, P.A., appears in
its opinion filed as Exhibit 5 hereto.
23.2(1) Consent of PricewaterhouseCoopers LLP, independent
accountants.
24(1) Powers of Attorney, included on signature pages.
- --------------------------------
(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, 1996, File
No. 0-14625.
(6) Incorporated by reference to the Exhibit included in the
Company's Registration Statements on Form S-8, File No.
33-41074.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or 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 events 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; and
II-5
<PAGE>
(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 with or furnished to the Securities and Exchange
Commission by the registrant pursuant to section 13 or section 15(d) of
the Exchange Act that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act 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.
(c) 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 Securities 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
against the registrant 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 Securities Act and will be governed by the final adjudication
of such issue.
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<PAGE>
SIGNATURES
THE REGISTRANT. 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
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Clearwater, State of Florida, on this December
29, 1999.
TECH DATA CORPORATION
(Registrant)
/s/ STEVEN A. RAYMUND
------------------------------------------
Steven A. Raymund
Chairman of the Board of Directors and
Chief Executive Officer
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.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Jeffery P. Howells or Arthur W.
Singleton, either of them, his true and lawful attorney-in-fact and agent, with
full power and in any and all capacities, to sign this registration statement
and any and all amendments (including post-effective amendments) to this
registration statement, and to file such registration statement and all such
amendments or supplements, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agents, full power and authority to do and perform
each and every act and thing requisite or necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, thereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute, may lawfully do or cause to be done by virtue thereof.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ STEVEN A. RAYMUND Chairman of the Board of Directors; December 29, 1999
- ------------------------- Chief Executive Officer
Steven A. Raymund
/s/ JEFFERY P. HOWELLS Director; Executive Vice President December 29, 1999
- ------------------------- and Chief Financial Officer;
Jeffery P. Howells (principal financial officer)
/s/ JOSEPH B. TREPANI Senior Vice President and Corporate December 29, 1999
- ------------------------- Controller;(principal accounting officer)
Joseph B. Trepani
/s/ ARTHUR W. SINGLETON Vice President, Treasurer and Secretary December 29, 1999
- -------------------------
Arthur W. Singleton
/s/ CHARLES E. ADAIR Director December 29, 1999
- -------------------------
Charles E. Adair
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/s/ MAXIMILIAN ARDELT Director December 29, 1999
- -------------------------
Maximilian Ardelt
/s/ JAMES M. CRACCHIOLO Director December 29, 1999
- -------------------------
James M. Cracchiolo
/s/ DANIEL M. DOYLE Director December 29, 1999
- -------------------------
Daniel M. Doyle
/s/ EDWARD C. RAYMUND Director; Chairman Emeritus December 29, 1999
- ------------------------
Edward C. Raymund
/s/ DAVID M. UPTON Director December 29, 1999
- -------------------------
David M. Upton
/s/ JOHN Y. WILLIAMS Director December 29, 1999
- -------------------------
John Y. Williams
</TABLE>
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<PAGE>
THE PLAN. Pursuant to the requirements of the Securities Act of 1933, the
persons who administer the employee benefit plan have duly caused this
registration statement to be signed on behalf of such plan by the undersigned,
thereunto duly authorized, in the City of Clearwater, State of Florida, on this
29th day of December, 1999.
TECH DATA CORPORATION
401(K) SAVINGS PLAN
By: /s/ STEVEN A. RAYMUND
-----------------------------------------
Steven A. Raymund
Chairman of the Board of Directors and
Chief Executive Officer
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<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION OF EXHIBITS
----------- -----------------------
4.1(1) Tech Data Corporation 401(k) Savings 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 November 28,
1995.
4.6(6) Specimen of Certificate of the registrant's Common
Stock, par value $.0015 per share.
5(1) Opinion of Schifino & Fleischer, P.A., regarding
legality of the securities.
23.1(1) Consent of Schifino & Fleischer, P.A., appears in
its opinion filed as Exhibit 5 hereto.
23.2(1) Consent of PricewaterhouseCoopers LLP, independent
accountants.
24(1) Powers of Attorney, included on signature pages.
- ------------------------
(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, 1996, File
No. 0-14625.
(6) Incorporated by reference to the Exhibit included in the
Company's Registration Statements on Form S-8, File No.
33-41074.
EXHIBIT 4.1
TECH DATA CORPORATION
401(K) SAVINGS PLAN
EFFECTIVE
AS OF
JANUARY 1, 2000
KALISH & WARD
TAMPA, FL
COPYRIGHT (C) 1999
<PAGE>
TECH DATA CORPORATION
401(K) SAVINGS PLAN
ARTICLE TITLE PAGE
- ------- ----- ----
I DEFINITIONS......................................................I-1
II NAME AND PURPOSE OF THE PLAN AND THE TRUST.....................II-14
III PLAN ADMINISTRATOR.............................................III-1
IV ELIGIBILITY AND PARTICIPATION...................................IV-1
V CONTRIBUTIONS TO THE TRUST.......................................V-1
VI PARTICIPANTS'ACCOUNTS AND ALLOCATION OF CONTRIBUTIONS...........VI-1
VII BENEFITS UNDER THE PLAN........................................VII-1
VIII FORM AND PAYMENT OF BENEFITS..................................VIII-1
IX HARDSHIP AND OTHER DISTRIBUTIONS................................IX-1
X INVESTMENT FUNDS AND LOANS TO PARTICIPANTS.......................X-1
XI TRUST FUND AND EXPENSES OF ADMINISTRATION.......................XI-1
XII AMENDMENT AND TERMINATION......................................XII-1
XIII MISCELLANEOUS.................................................XIII-1
<PAGE>
TECH DATA CORPORATION
401(K) SAVINGS PLAN
Tech Data Corporation (the "Company") hereby establishes the Tech Data
Corporation 401(k) Savings Plan (the "Plan") effective for all purposes as of
January 1, 2000, except as otherwise set forth herein.
W I T N E S S E T H:
WHEREAS, the Company established the Tech Data Corporation Retirement
Savings Plan effective May 1, 1987;
WHEREAS, the Company established the Tech Data Corporation Employee
Stock Ownership Plan effective February 1, 1984;
WHEREAS, the Company desires to establish this 401(k) profit sharing
plan into which the Tech Data Corporation Retirement Savings Plan and the Tech
Data Corporation Employee Stock Ownership Plan will be merged; and
WHEREAS, the officers of the Company have been authorized and directed
by the Board of Directors to adopt this Plan.
NOW, THEREFORE, in consideration of the premises, it is agreed as
follows:
ARTICLE I
DEFINITIONS
(a) "ACCOUNT" or "ACCOUNTS" shall mean a Participant's Elective
Contribution Account, Matching Contribution Account, Nonelective Contribution
Account, Qualified Nonelective Contribution Account, Rollover Contribution
Account, ESOP Merger Account, Retirement Savings Plan Merger Account, Transfer
Contribution Account and/or such other accounts as may be established by the
Plan Administrator.
(b) "ACTUAL CONTRIBUTION PERCENTAGE" shall mean, with respect to a
group of Participants for the Plan Year, the average of the Actual Contribution
Ratios (calculated separately for each member of the group) of each Participant
who is a member of such group.
(c) "ACTUAL CONTRIBUTION RATIO" shall mean the ratio of the amount of
matching contributions (including elective and qualified nonelective
contributions, if any,
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<PAGE>
treated as matching contributions) made on behalf of a Participant for a Plan
Year to the Participant's compensation for the Plan Year taken into account for
nondiscrimination testing purposes under Section 401(m) of the Code.
(1) Qualified nonelective contributions, if any, may be
treated as matching contributions for this purpose only if such
contributions are nonforfeitable when made, subject to the same
distribution restrictions that apply to the Participant's elective
contributions and satisfy the requirements of Section 1.401(m)-1(b)(5)
of the Treasury Regulations.
(2) (A) Compensation taken into account for purposes of this
paragraph must satisfy Section 414(s) of the Code.
(B) An Employer may limit the period for which
compensation is taken into account to that portion of the Plan
Year in which the Employee was a Participant so long as this
limit is applied uniformly to all eligible Employees under the
Plan for the Plan Year.
(3) (A) If no matching contributions, qualified nonelective
contributions or elective contributions are taken into account
with respect to an eligible Employee, the Actual Contribution
Ratio of the Employee is zero.
(B) For this purpose, an "eligible Employee" is any
Employee who is directly or indirectly eligible to receive an
allocation of matching contributions (including matching
contributions derived from forfeitures) under the Plan for a
Plan Year as described in Section 1.401(m)-1(f)(4) of the
Treasury Regulations.
(d) "ACTUAL DEFERRAL PERCENTAGE" shall mean, with respect to a group of
Participants for the Plan Year, the average of the Actual Deferral Ratios
(calculated separately for each member of the group) of each Participant who is
a member of such group
(e) "ACTUAL DEFERRAL RATIO" shall mean the ratio of the amount of
elective contributions (including qualified nonelective contributions, if any,
treated as elective contributions) made on behalf of a Participant for a Plan
Year to the Participant's compensation for the Plan Year taken into account for
nondiscrimination testing purposes under Section 401(k) of the Code.
(1) Qualified nonelective contributions, if any, may be
treated as elective contributions for this purpose only if such
contributions are nonforfeitable when made, subject to the same
distribution restrictions that apply to a Participant's elective
contributions and satisfy the requirements of Section 1.401(k)-1(b)(5)
of the Treasury Regulations.
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(2) (A) Compensation taken into account for purposes of this
paragraph must satisfy Section 414(s) of the Code.
(B) An Employer may limit the period for which
compensation is taken into account to that portion of the Plan
Year in which the Employee was a Participant so long as this
limit is applied uniformly to all eligible Employees under the
Plan for the Plan Year.
(3) (A) If an eligible Employee makes no elective
contributions, and no qualified nonelective contributions are
treated as elective contributions, the Actual Deferral Ratio
of the Employee is zero.
(B) For this purpose, an "eligible Employee" is any
Employee who is directly or indirectly eligible to make a cash
or deferred election into the Plan for all or a portion of the
Plan Year as described in Section 1.401(k)-1(g)(4) of the
Treasury Regulations.
(f) "AFFILIATE" shall mean, with respect to an Employer, any
corporation other than such Employer that is a member of a controlled group of
corporations, within the meaning of Section 414(b) of the Code, of which such
Employer is a member; all other trades or businesses (whether or not
incorporated) under common control, within the meaning of Section 414(c) of the
Code, with such Employer; any service organization other than such Employer that
is a member of an affiliated service group, within the meaning of Section 414(m)
of the Code, of which such Employer is a member; and any other organization that
is required to be aggregated with such Employer under Section 414(o) of the
Code. For purposes of determining the limitations on Annual Additions, the
special rules of Section 415(h) of the Code shall apply.
(g) "ANNUAL ADDITIONS" shall mean, with respect to a Limitation Year,
the sum of:
(1) the amount of Employer contributions (including elective
contributions) allocated to the Participant under any defined
contribution plan maintained by an Employer or an Affiliate;
(2) the amount of the Employee's contributions (other than
rollover contributions, if any) to any contributory defined
contribution plan maintained by an Employer or an Affiliate;
(3) any forfeitures allocated to the Participant under any
defined contribution plan maintained by an Employer or an Affiliate;
and
(4) amounts allocated to an individual medical account, as
defined in Section 415(l)(2) of the Code that is part of a pension or
annuity plan maintained by an Employer or an Affiliate, and amounts
derived from contributions that are attributable to post-retirement
medical benefits allocated to the separate account
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of a key employee (as defined in Section 419A(d)(3) of the Code) under
a welfare benefit plan (as defined in Section 419(e) of the Code)
maintained by an Employer or an Affiliate; provided, however, the
percentage limitation set forth in paragraph (e)(1) of Article VI shall
not apply to: (A) any contribution for medical benefits (within the
meaning of Section 419A(f)(2) of the Code) after separation from
service which is otherwise treated as an "Annual Addition," or (2) any
amount otherwise treated as an "Annual Addition" under Section
415(l)(1) of the Code.
(h) "BOARD OF DIRECTORS" and "BOARD" shall mean, if applicable, the
board of directors of the Company or, when required by the context, the board of
directors of an Employer other than the Company.
(i) "CODE" shall mean the Internal Revenue Code of 1986, as amended, or
any successor statute. Reference to a specific section of the Code shall include
a reference to any successor provision.
(j) "COMPANY" shall mean Tech Data Corporation and its successors.
(k) "COMPENSATION" shall mean wages within the meaning of Section
3401(a) of the Code and all other payments of compensation to an Employee by the
Employer (in the course of the Employer's trade or business) for which the
Employer is required to furnish the Employee a written statement under sections
6041(d), 6051(a)(3) and 6052 of the Code (wages, tips and other compensation as
reported on Form W-2).
(1) (A) Compensation must be determined without regard to any
rules under Section 3401(a) of the Code that limit the
remuneration included in wages based on the nature or location
of the employment of the services performed.
(B) Compensation shall also include elective
contributions made on behalf of a Participant to this Plan or
salary reduction contribution made pursuant to a plan
described in Section 125 of the Code.
(C) Compensation shall exclude fringe benefits (cash and
noncash), reimbursements or other expense allowances, moving
expenses, deferred compensation and welfare benefits.
(2) To the extent required by law, no Compensation in excess
of the $150,000 limit under Section 401(a)(17) of the Code (as adjusted
in accordance with law) shall be taken into account for any Employee.
(3) For purposes of crediting contributions pursuant to
Article VI with respect to any Plan Year, no Compensation paid by an
Employer with respect to an Employee prior to the Employee's first day
of participation shall be taken into account.
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(l) "EFFECTIVE DATE" of this Plan shall mean January 1, 2000, except as
otherwise set forth herein.
(m) "ELECTIVE CONTRIBUTION ACCOUNT" shall mean an account established
pursuant to paragraph (b) of Article VI with respect to contributions made under
salary reduction arrangements pursuant to Article V.
(n) "EMPLOYEE" shall mean:
(1) any person employed by an Employer other than:
(A) a member of a collective bargaining unit if
retirement benefits were a subject of good faith bargaining
between such unit and an Employer; provided, however, that
this subparagraph (A) shall not apply to a member of a
collective bargaining unit if such unit and Employer agree
that the member shall participate in the Plan;
(B) a non-resident alien who does not receive earned
income from sources within the United States;
(C) an individual whose employment status has not
been recognized by completion of Internal Revenue Service Form
W-4 and who is not initially treated as a common law employee
of an Employer on the payroll records of an Employer; or
(D) leased employees.
(2) For purposes of this paragraph, the term "leased employee"
means any person (other than an Employee of the Employer) who, pursuant
to an agreement between the Employer and any other person ("leasing
organization"), has performed services for the Employer (or for the
Employer and one or more Affiliates) on a substantially full time basis
for a period of at least one year and the individual's services are
performed under the primary direction or control of such Employer.
(o) "EMPLOYER" shall mean the Company and any Affiliate that adopts
this Plan with the consent of the Company.
(p) "EMPLOYER SECURITIES" shall mean common stock, any other type of
stock or any marketable obligation (as defined in Section 407(e) of ERISA)
issued by the Company or any Affiliate of the Company; provided, however, that
if Employer Securities are purchased with borrowed funds, Employer Securities,
to the extent required by Section 4975 of the Code, shall only include:
(1) such securities that are readily tradable on an
established securities market, or
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(2) if none of the stock of an Employer (or any Affiliate of
such Employer other than a member of an affiliated service group that
includes such Employer) is readily tradable on an established
securities market, common stock issued by the Employer having a
combination of voting power and dividend rights equal to or in excess
of (A) that class of common stock of the Employer or any Affiliate
having the greatest voting power, and (B) that class of common stock of
the Employer or any Affiliate having the greatest dividend rights, or
(3) noncallable preferred stock that is convertible at any
time into stock meeting the requirements of subparagraph (1) or (2)
(whichever is applicable), if such conversion is at a reasonable price
(determined pursuant to Treasury Regulation ss.54.4975-11(d)(5) as of
the date of acquisition by the Trustee).
(q) "ENTRY DATE" shall mean the first day of each month.
(r) "ESOP MERGER ACCOUNT" shall mean an account established pursuant to
paragraph (b) of Article VI with respect to each Participant for whom assets
from the Tech Data Corporation Employee Stock Ownership Plan have been merged
into this Plan.
(s) (1) "HIGHLY COMPENSATED EMPLOYEE" shall mean any Employee:
(A) who was a 5% owner (as defined in Section 416 of
the Code) of an Employer during the Plan Year or the
immediately preceding Plan Year; or
(B) whose Section 415 Compensation was more than
$80,000 (adjusted under such regulations as may be issued by
the Secretary of the Treasury) for the preceding Plan Year
and, if elected by the Employer, was a member of the "top paid
group" for such preceding year; provided, that as used herein,
"top paid group" shall mean all Employees who are in the top
20% of the Employer's work force on the basis of Section 415
Compensation paid during the year; provided, further, that for
purposes of determining the number of Employees in the top
paid group, Employees described in Section 414(q)(5) of the
Code shall be excluded.
(2) In determining who is a Highly Compensated Employee,
Employees who are nonresident aliens and who receive no earned income
(within the meaning of Section 911(d)(2) of the Code) from an Employer
constituting United States source income (within the meaning of Section
861(a)(3) of the Code) shall not be treated as Employees.
(3) For purposes of determining who is a Highly Compensated
Employee, an Employer and any Affiliate shall be taken into account as
a single Employer.
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(4) For purposes of this paragraph, the determination of
Section 415 Compensation shall be based only on Section 415
Compensation that is actually paid and shall be made by including
elective or salary reduction contributions to a plan described in
Section 125 of the Code, a plan described in Section 401(k) of the
Code, a simplified employee pension described in Section 408(k) of the
Code or a plan described in Section 403(b) of the Code.
(5) The term "Highly Compensated Employee" shall also mean any
former Employee who separated from service (or was deemed to have
separated from service) prior to the Plan Year, performs no service for
an Employer during the Plan Year, and was an actively employed Highly
Compensated Employee in the separation year or any Plan Year ending on
or after the date the Employee attained age 55.
(t) "HOUR OF SERVICE" shall mean:
(1) (A) an hour for which an Employee is paid, or entitled to
payment, for the performance of duties for an Employer or an Affiliate;
(B) an hour for which an Employee is paid, or entitled to
payment, by an Employer or an Affiliate on account of a period of time
during which no duties are performed (irrespective of whether the
employment relationship has terminated) due to vacation, holiday,
illness, incapacity (including disability), lay-off, jury duty,
military duty, severance or leave of absence. Notwithstanding the
preceding,
(i) no more than 501 Hours of Service shall be
credited under this subparagraph (i) to an Employee on account
of any single continuous period during which the Employee
performs no duties (whether or not such period occurs in a
single Plan Year);
(ii) an hour for which an Employee is directly or
indirectly paid, or entitled to payment, on account of a
period during which no duties are performed shall not be
credited to the Employee if such payment is made or due under
a plan maintained solely for the purpose of complying with
applicable workmen's compensation, or unemployment
compensation or disability insurance laws; and
(iii) an hour shall not be credited for a payment
which solely reimburses an Employee for medical or medically
related expenses incurred by the Employee; and
(C) an hour for which back pay, irrespective of mitigation
of damages, is either awarded or agreed to by an Employer or an
Affiliate; provided, that the same Hour of Service shall not be
credited both under subparagraph (1)(A) or subparagraph (1)(B), as the
case may be, and
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under this subparagraph (1)(C). Crediting of an Hour of Service for
back pay awarded or agreed to with respect to periods described in
subparagraph (1)(B) shall be subject to the limitations set forth in
that section.
The definition set forth in this subparagraph (1) is subject to the special
rules contained in Department of Labor Regulations Sections 2530.200b-2(b) and
(c), and any regulations amending or superseding such sections, which special
rules are hereby incorporated in the definition of "Hour of Service" by this
reference.
(2) (A) Notwithstanding the other provisions of this "Hour of
Service" definition, in the case of an Employee who is absent
from work for any period by reason of her pregnancy, by reason
of the birth of a child of the Employee, by reason of the
placement of a child with the Employee in connection with the
adoption of such child by the Employee or for purposes of
caring for such child for a reasonable period beginning
immediately following such birth or placement, the Employee
shall be treated as having those Hours of Service described in
subparagraph (2)(B).
(B) The Hours of Service to be credited to an Employee
under the provisions of subparagraph (2)(A) are the Hours of
Service that otherwise would normally have been credited to
such Employee but for the absence in question or, in any case
in which the Plan is unable to determine such hours, eight
Hours of Service per day of such absence; provided, however,
that the total number of hours treated as Hours of Service
under this subparagraph (2) by reason of any such pregnancy or
placement shall not exceed 501 hours.
(C) The hours treated as Hours of Service under this
subparagraph (2) shall be credited only in the Plan Year in
which the absence from work begins, if the crediting is
necessary to prevent a One Year Break in Service in such Plan
Year or, in any other case, in the immediately following Plan
Year.
(D) Credit shall be given for Hours of Service under this
subparagraph (2) solely for purposes of determining whether a
One Year Break in Service has occurred for participation or
vesting purposes; credit shall not be given hereunder for any
other purposes (including, without limitation, benefit
accrual).
(E) Notwithstanding any other provision of this
subparagraph (2), no credit shall be given under this
subparagraph (2) unless the Employee in question furnishes to
the Plan Administrator such timely information as the Plan
Administrator may reasonably require to establish that the
absence
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from work is for reasons referred to in subparagraph (2)(A)
and the number of days for which there was such an absence.
(u) "KEY EMPLOYEE" shall mean any Employee or former Employee who is at
any time during the Plan Year (or was at any time during the four preceding Plan
Years) (1) an officer of an Employer (within the meaning of Section 416(i)(1) of
the Code) having an aggregate annual compensation from the Employer and its
Affiliates in excess of 50% of the amount in effect under Section 415(b)(1)(A)
of the Code for any such Plan Year, (2) one of the ten Employees owning (or
considered as owning) the largest interests in an Employer, owning more than a
1/2% interest in the Employer, and having an aggregate annual compensation from
the Employer and its Affiliates of more than the limitation in effect under
Section 415(c)(1)(A) of the Code for the calendar year that includes the last
day of the Plan Year (if two Employees have equal interests in an Employer, the
Employee having the greater annual compensation from the Employer shall be
deemed to have a larger interest), (3) a 5% owner of an Employer (within the
meaning of Section 416(i)(1)(B) of the Code) or (4) a 1% owner of an Employer
(within the meaning of Section 416(i)(1)(B) of the Code) having an aggregate
annual compensation from the Employer and its Affiliates of more than $150,000.
For purposes of this paragraph the term "compensation" shall mean an Employee's
Section 415 Compensation. The determination of Section 415 Compensation shall be
based only on Section 415 Compensation that is actually paid and shall be made
by including elective or salary reduction contributions to a plan described in
Section 125 of the Code, a plan described in Section 401(k) of the Code, a
simplified employee pension described in Section 408(k) of the Code or a plan
described in Section 403(b) of the Code.
(v) "LIMITATION YEAR" shall mean the Plan Year.
(w) "MATCHING CONTRIBUTION ACCOUNT" shall mean an account established
pursuant to paragraph (b) of Article VI with respect to matching contributions
to this Plan on behalf of a Participant by an Employer pursuant to Article V.
(x) "NON-HIGHLY COMPENSATED EMPLOYEE" shall mean, with respect to any
Plan Year, an Employee or former Employee who is not a Highly Compensated
Employee.
(y) "NON-KEY EMPLOYEE" shall mean, with respect to any Plan Year, an
Employee or former Employee who is not a Key Employee (including any such
Employee who formerly was a Key Employee).
(z) "NONELECTIVE CONTRIBUTION ACCOUNT" shall mean an account
established pursuant to paragraph (b) of Article VI with respect to Employer
nonelective contributions made pursuant to Article V.
(aa) "NORMAL RETIREMENT DATE" shall mean the date on which a
Participant attains the age of 65 years.
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(bb) "ONE YEAR BREAK IN SERVICE" shall mean a Plan Year in which an
Employee has 500 or fewer Hours of Service, and it shall be deemed to occur on
the last day of any such Plan Year. For eligibility purposes, "One Year Break in
Service" shall also mean the initial consecutive 12-month period described in
the "Year of Service" definition in which an Employee has 500 or fewer Hours of
Service, and it shall be deemed to occur on the last day of such consecutive
12-month period.
(cc) "PARTICIPANT" shall mean any eligible Employee of an Employer who
has become a Participant under the Plan and shall include any former employee of
an Employer who became a Participant under the Plan and who still has a balance
in an Account under the Plan.
(dd) "PLAN" shall mean the 401(k) plan as herein set forth, as it may
be amended from time to time.
(ee) "PLAN ADMINISTRATOR" shall mean the Company.
(ff) "PLAN YEAR" shall mean the 12-month period ending on December 31.
(gg) "QUALIFIED JOINT AND SURVIVOR ANNUITY" shall mean:
(1) in the case of a Participant who has a spouse, an
immediate annuity for the life of the Participant with a survivor
annuity for the life of his spouse that is 50% (or, at the election of
the Participant, 100%) of the amount of the annuity payable during the
joint lives of the Participant and his spouse; provided, however, that
such annuity shall be the actuarial equivalent of the benefit that
would otherwise be paid to the Participant; and
(2) in the case of any other Participant, an immediate annuity
for the life of the Participant.
(hh) "QUALIFIED NONELECTIVE CONTRIBUTION ACCOUNT" shall mean an account
established pursuant to paragraph (b) of Article VI with respect to qualified
nonelective contributions made by an Employer pursuant to Article V.
(ii) "QUALIFIED PRERETIREMENT SURVIVOR ANNUITY" shall mean a survivor
annuity for the life of the surviving spouse of the Participant equal to the
death benefit provided in paragraph (d) of Article VII and that begins within a
reasonable time following the death of the Participant.
(jj) "RETIREMENT SAVINGS PLAN MERGER ACCOUNT" shall mean an account
established pursuant to paragraph (b) of Article VI with respect to each
participant for whom assets from the Tech Data Corporation Retirement Savings
Plan have been merged into this Plan.
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(kk) "ROLLOVER CONTRIBUTION ACCOUNT" shall mean an account established
pursuant to paragraph (b) of Article VI with respect to rollover contributions
made pursuant to V.
(ll) "SECTION 415 COMPENSATION" shall mean:
(1) Wages, salaries, and fees for professional services and
other amounts received (without regard to whether or not an amount is
paid in cash) for personal services actually rendered in the course of
employment with the Employer to the extent that the amounts are
includable in gross income (including, but not limited to, commissions
paid salesmen, compensation for services on the basis of a percentage
of profits, commissions on insurance premiums, tips, bonuses, fringe
benefits, and reimbursements or other expense allowances under a
nonaccountable plan (as described in Section 1.62-2(c) of the Income
Tax Regulations), any elective deferral (as defined in Section
402(g)(3) of the Code), and any amount which is contributed or deferred
by the Employer at the election of the Employee and which is not
includable in the gross income of the Employee by reason of Sections
125 or 457 of the Code.
(2) Section 415 Compensation shall exclude the following:
(A) Employer contributions (except as set forth in
subparagraph (1) above) to a plan of deferred compensation
which are not includable in the Employee's gross income for
the taxable year in which contributed, or Employer
contributions (except as set forth in subparagraph (1) above)
under a simplified employee pension or any distributions from
a plan of deferred compensation; provided, however, that any
amounts received by an Employee pursuant to an unfunded
non-qualified plan are permitted to be considered as Section
415 Compensation in the year the amounts are includable in the
gross income of the Employee;
(B) Amounts realized from the exercise of a
non-qualified stock option, or when restricted stock (or
property) held by the Employee either becomes freely
transferable or is no longer subject to a substantial risk of
forfeiture; and
(C) Amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified stock option.
(mm) "TOP HEAVY PLAN" shall mean this Plan if the aggregate account
balances (not including voluntary rollover contributions made by any Participant
from an unrelated plan) of the Key Employees and their beneficiaries for such
Plan Year exceed 60% of the aggregate account balances (not including voluntary
rollover contributions made by any Participant from an unrelated plan) for all
Participants and
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their beneficiaries. Such values shall be determined for any Plan Year as of the
last day of the immediately preceding Plan Year (or, for the first Plan Year,
the last day of the first Plan Year). The account balances on any determination
date shall include the aggregate distributions made with respect to Participants
during the five-year period ending on the determination date. For the purposes
of this definition, the aggregate account balances for any Plan Year shall
include the account balances and accrued benefits of all retirement plans
qualified under Section 401(a) of the Code with which this Plan is required to
be aggregated to meet the requirements of Section 401(a)(4) or 410 of the Code
(including terminated plans that would have been required to be aggregated with
this Plan) and all plans of an Employer or an Affiliate in which a Key Employee
participates; and such term may include (at the discretion of the Plan
Administrator) any other retirement plan qualified under Section 401(a) of the
Code that is maintained by an Employer or an Affiliate, provided the resulting
aggregation group satisfies the requirements of Sections 401(a) and 410 of the
Code. All calculations shall be on the basis of actuarial assumptions that are
specified by the Plan Administrator and applied on a uniform basis to all plans
in the applicable aggregation group. The account balance of any Participant
shall not be taken into account if:
(1) he is a Non-Key Employee for any Plan Year, but was a Key
Employee for any prior Plan Year, or
(2) he has not performed any service for an Employer during
the five-year period ending on the determination date.
(nn) "TRANSFER CONTRIBUTION ACCOUNT" shall mean an account established
pursuant to paragraph (b) of Article VI with respect to direct transfers made to
this Plan from another qualified plan pursuant to Article V.
(oo) "TRUST" shall mean the trust established by the Trust Agreement.
(pp) "TRUST AGREEMENT" shall mean the agreement providing for the Trust
Fund, as it may be amended from time to time.
(qq) "TRUST FUND" shall mean the trust fund established under the Trust
Agreement from which the amounts of supplementary compensation provided for by
the Plan are to be paid or are to be funded.
(rr) "TRUSTEE" shall mean the individual, individuals or corporation
designated as trustee under the Trust Agreement.
(ss) "VALUATION DATE" shall mean the last day of each Plan Year and/or
each day securities are traded on a national stock exchange.
(tt) "YEAR OF SERVICE" shall mean for all purposes of this Plan except
for purposes of Article IV, a Plan Year during which an Employee completes 1,000
or more Hours of Service.
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(1) For purposes of Article IV, the consecutive 12-month
period beginning with the date of the Employee's first Hour of Service
for his Employer or any Affiliate thereof if, during such consecutive
12-month period, the Employee completes 1,000 Hours of Service;
provided, however, that if, during such consecutive 12-month period,
the Employee does not complete 1,000 Hours of Service, then "Year of
Service" shall mean any Plan Year beginning after the date of the
Employee's first Hour of Service during which the Employee completes
1,000 or more Hours of Service. In either event, for purposes of
Article IV, the Year of Service is not completed until the end of the
consecutive 12-month period or the Plan Year, as the case may be,
without regard to when during the period that the 1,000 Hours of
Service are completed.
(2) For purposes of Article VII, an Employee's "Years of
Service" shall not include the following:
(A) Any Year of Service prior to a One Year Break in
Service, but only prior to such time as the Participant has
completed a Year of Service after such One Year Break in
Service.
(B) (i) In the case of a Participant who has no
vested interest in the balance of his Accounts (other than the
Rollover Contribution Account), Years of Service before any
period of consecutive One Year Breaks in Service shall not be
required to be taken into account if the number of consecutive
One Year Breaks in Service equals or exceeds the greater of
five (5) or the aggregate number of Years of Service completed
by the Participant prior to such period of consecutive One
Year Breaks in Service.
(ii) For purposes of this subparagraph (2)(B),
any Years of Service not required to be taken into account by
reason of the application of this subparagraph shall not be
taken into account in applying this subparagraph (2)(B) to a
subsequent period of One Year Breaks in Service.
(3) For purposes of eligibility and vesting, an Employee shall be
credited with service he earned with a predecessor employer in calculating the
Employee's Years of Service. For purposes of this subparagraph, the term
"predecessor employer" shall mean an entity that is acquired by or merged with
the Company or otherwise becomes an Affiliated Employer. The term "predecessor
employer" shall also include GE Capital Information Technology Systems-North
America, Inc. ("GE") with respect to Employees hired by the Employer from GE in
the Frederick, Maryland Distribution and Configuration facility.
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ARTICLE II
NAME AND PURPOSE OF THE PLAN AND THE TRUST
(a) NAME OF PLAN. A 401(k) plan is hereby established in accordance
with the terms hereof and shall be known as the "TECH DATA CORPORATION 401(K)
SAVINGS PLAN."
(b) EXCLUSIVE BENEFIT. This Plan has been established for the sole
purpose of providing benefits to the Participants and enabling them to share in
the growth of their Employer. Except as otherwise permitted by law, in no event
shall any part of the principal or income of the Trust be paid to or reinvested
in any Employer or be used for or diverted to any purpose whatsoever other than
for the exclusive benefit of the Participants and their beneficiaries.
(c) RETURN OF CONTRIBUTION. Notwithstanding the foregoing provisions of
paragraph (b), any contribution made by an Employer to this Plan by a mistake of
fact may be returned to the Employer within one year after the payment of the
contribution; and any contribution made by an Employer that is conditioned upon
the deductibility of the contribution under Section 404 of the Code (each
contribution shall be presumed to be so conditioned unless the Employer
specifies otherwise) may be returned to the Employer if the deduction is
disallowed and the contribution is returned (to the extent disallowed) within
one year after the disallowance of the deduction.
(d) PARTICIPANTS' RIGHTS. The establishment of this Plan shall not be
considered as giving any Employee, or any other person, any legal or equitable
right against any Employer, any Affiliate, the Plan Administrator, the Trustee
or the principal or the income of the Trust, except to the extent otherwise
provided by law. The establishment of this Plan shall not be considered as
giving any Employee, or any other person, the right to be retained in the employ
of any Employer or any Affiliate.
(e) QUALIFIED PLAN. This Plan and the Trust are intended to qualify
under the Code as a tax-qualified employees' plan and trust as described in
Sections 401(a) and 501(a) of the Code.
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ARTICLE III
PLAN ADMINISTRATOR
(a) ADMINISTRATION OF THE PLAN. The Plan Administrator shall control
and manage the operation and administration of the Plan, except with respect to
investments. The Plan Administrator shall have no duty with respect to the
investments to be made of the funds in the Trust except as may be expressly
assigned to it by the terms of the Trust Agreement.
(b) POWERS AND DUTIES. The Plan Administrator shall have complete
control over the administration of the Plan herein embodied, with all powers
necessary to enable it to carry out its duties in that respect. Not in
limitation, but in amplification of the foregoing, the Plan Administrator shall
have the power and discretion to interpret or construe this Plan and to
determine all questions that may arise as to the status and rights of the
Participants and others hereunder.
(c) DIRECTION OF TRUSTEE. It shall be the duty of the Plan
Administrator to direct the Trustee with regard to the allocation and the
distribution of the benefits to the Participants and others hereunder.
(d) SUMMARY PLAN DESCRIPTION AND REPORTS. The Plan Administrator shall
prepare or cause to be prepared a summary plan description (if required by law)
and such periodic and annual reports as are required by law.
(e) DISCLOSURE. The Plan Administrator shall from time to time furnish
to each Participant a statement containing the value of his interest in the
Trust Fund and such other information as may be required by law.
(f) CONFLICT IN TERMS. The Plan Administrator shall notify each
Employee, in writing, as to the existence of the Plan and Trust and the basic
provisions thereof. In the event of any conflict between the terms of this Plan
and the Trust Agreement and any explanatory booklet or other description, this
Plan and the Trust Agreement shall control.
(g) RECORDS. The Plan Administrator shall keep a complete record of all
its proceedings as such Plan Administrator and all data necessary for the
administration of the Plan. All of the foregoing records and data shall be
located at the principal office of the Plan Administrator.
(h) FINAL AUTHORITY. Except to the extent otherwise required by law,
the decision of the Plan Administrator in matters within its jurisdiction shall
be final, binding and conclusive upon each Employer and each Employee, member
and beneficiary and every other interested or concerned person or party.
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(i) CLAIMS.
(1) Claims for benefits under the Plan may be made by a
Participant or a beneficiary of a Participant on forms supplied by the
Plan Administrator. Written notice of the disposition of a claim shall
be furnished to the claimant by the Plan Administrator within ninety
(90) days after the application is filed with the Plan Administrator,
unless special circumstances require an extension of time for
processing, in which event action shall be taken as soon as possible,
but not later than one hundred eighty (180) days after the application
is filed with the Plan Administrator; and, in the event that no action
has been taken within such ninety (90) or one hundred eighty (180) day
period, the claim shall be deemed to be denied for the purposes of
subparagraph (2). In the event that the claim is denied, the denial
shall be written in a manner calculated to be understood by the
claimant and shall include the specific reasons for the denial,
specific references to pertinent Plan provisions on which the denial is
based, a description of the material information, if any, necessary for
the claimant to perfect the claim, an explanation of why such material
information is necessary and an explanation of the claim review
procedure.
(2) If a claim is denied (either in the form of a written
denial or by the failure of the Plan Administrator, within the required
time period, to notify the claimant of the action taken), a claimant or
his duly authorized representative shall have sixty (60) days after the
receipt of such denial to petition the Plan Administrator in writing
for a full and fair review of the denial, during which time the
claimant or his duly authorized representative shall have the right to
review pertinent documents and to submit issues and comments in
writing. The Plan Administrator shall promptly review the claim and
shall make a decision not later than sixty (60) days after receipt of
the request for review, unless special circumstances require an
extension of time for processing, in which event a decision shall be
rendered as soon as possible, but not later than one hundred twenty
(120) days after the receipt of the request for review. If such an
extension is required because of special circumstances, written notice
of the extension shall be furnished to the claimant prior to the
commencement of the extension. The decision of the review shall be in
writing and shall include specific reasons for the decision, written in
a manner calculated to be understood by the claimant, with specific
references to the Plan provisions on which the decision is based.
(j) APPOINTMENT OF ADVISORS. The Plan Administrator may appoint such
accountants, counsel (who may be counsel for an Employer), specialists and other
persons that it deems necessary and desirable in connection with the
administration of this Plan. The Plan Administrator, by action of its Board of
Directors, may designate one or more of its employees to perform the duties
required of the Plan Administrator hereunder.
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ARTICLE IV
ELIGIBILITY AND PARTICIPATION
(a) ELIGIBILITY AND PARTICIPATION.
(1) Any Employee of an Employer shall be eligible to become a
Participant in the Plan upon completing one Year of Service and
attaining 18 years of age.
(2) Upon completion of the age and service requirements
described above, an Employee shall enter the Plan as a Participant, if
he is still an Employee of an Employer, on the first Entry Date
concurring therewith or occurring thereafter. An Employee who has
completed the age and service requirements prior to becoming an
Employee of an Employer shall enter the Plan as a Participant on the
date he becomes an Employee of an Employer (or, if later, on the first
Entry Date following the completion of his eligibility requirements).
(b) FORMER EMPLOYEES.
(1) An Employee who ceases to be a Participant and who
subsequently reenters the employ of an Employer shall be eligible again
to become a Participant on the date of his reemployment.
(2) An Employee who satisfies the eligibility requirements set
forth above and who terminates employment with the Employer prior to
becoming a Participant will become a Participant on the later of the
Entry Date on which he would have entered the Plan had he not
terminated employment or the date of his reemployment.
(3) An Employee who incurs a One Year Break in Service prior
to satisfying the eligibility requirements set forth above shall be
eligible to become a Participant upon completion of such requirements.
(c) CHANGE IN EMPLOYMENT CLASSIFICATION.
(1) A Participant who ceases to be an Employee will no longer
actively participate in the Plan after the date he ceases to be an
Employee. If such individual subsequently resumes his status as an
Employee, he shall be eligible again to become an active Participant on
the date of his reemployment, regardless of whether such date is a
normal Entry Date. This requirement is satisfied if such Employee is
permitted to commence or resume, as the case may be, making elective
contributions no later than the beginning of the first payroll period
commencing after the date he resumes his status as an Employee.
(2) If an individual who is employed by an Employer but who is
not an Employee becomes an Employee, such Employee shall enter the Plan
as an
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active Participant on the later of (1) the date the individual becomes
an Employee or (2) the Entry Date on which he would have entered the
Plan had he been an Employee throughout his employment with the
Employer. If the Employee must enter the Plan as an active Participant
on the date the he becomes an Employee, then he must be permitted to
commence making elective contributions no later than the beginning of
the first payroll period commencing after the date he becomes an
Employee.
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ARTICLE V
CONTRIBUTIONS TO THE TRUST
(a) PARTICIPANTS' ELECTIVE CONTRIBUTIONS.
(1) The Employer shall contribute to the Trust, on behalf of
each Participant, an elective contribution as specified in a written
salary reduction agreement (if any) between the Participant and such
Employer; provided, however, that such contribution for a Participant
shall not exceed the lesser of
(A) $7,000 or the amount specified in Section 402(g) of
the Code (as adjusted in accordance with law) with respect to
any calendar year, or
(B) 17% of the Participant's Compensation for such Plan
Year.
(2) (A) The minimum deferral percentage made on behalf of a
Participant electing to make a contribution for any Plan Year
shall be 1% of his Compensation.
(B) Deferrals made on behalf of a Participant shall be in
whole percentages.
(3) If a Participant's elective contributions, together with
any elective contributions by the Participant to any other
plans intended to qualify under Sections 401(k), 403(b) or 457
of the Code, exceed the limitation set forth in paragraph
(a)(1) of this Article V, the Plan Administrator shall refund
to such Participant the portion of such excess deferrals that
are attributable to elective contributions to the Plan, plus
the earnings thereon. The Plan Administrator may use any
reasonable method for computing the income allocable to such
excess deferrals, provided that the method does not violate
Section 401(a)(4) of the Code, is used consistently for all
Participants and for all corrective distributions under the
Plan for the Plan Year, and is used by the Plan for allocating
income to Participants' Accounts. Any such refund shall be
made on or before April 15 of the Plan Year following the Plan
Year in which the excess deferral is made. The amount of
excess deferrals that may be distributed under this paragraph
(a)(3) with respect to a Participant for any taxable year
shall be reduced by any excess contributions previously
distributed pursuant to paragraph (a)(7) with respect to such
Participant for the Plan Year ending with or within such
taxable year.
(4) (A) Any salary reduction agreement shall be executed and
in effect prior to the end of the pay period to which it
applies. Any such agreement may be revised by the Participant,
in accordance with rules and procedures established by the
Plan Administrator.
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(B) A salary reduction agreement may be executed with
respect to a bonus provided the amount of any such bonus is
not "currently available" to an Employee on the date such
salary reduction agreement is executed. For this purpose, an
amount is not currently available to an Employee if there is a
significant limitation or restriction on the Employee's right
to receive the amount currently or if the Employee may under
no circumstances receive the amount before a particular time
in the future.
(5) A Participant may suspend further elective contributions
to the Plan at any time, provided the request for such suspension is
received by the Plan Administrator prior to the first day of the first
pay period to which such suspension applies. Any Participant who
suspends further contributions relating to periodic pay may resume
making elective contributions to the Plan by providing notice in
accordance with rules and procedures established by the Plan
Administrator.
(6) (A) The Plan Administrator may establish such other rules
and procedures regarding Participant salary reduction
agreements and elective contributions as it deems necessary,
which rules and procedures shall be applied in a uniform,
nondiscriminatory manner.
(B) The Plan Administrator shall have the right to require
any Participant to reduce his elective contributions under any
such agreement, or to refuse deferral of all or part of the
amount set forth in such agreement, if necessary to comply
with the requirements of this Plan and the Code.
(7) (A) In the event that the elective contributions of Highly
Compensated Employees exceed the limitations set forth in
paragraph (e), such excess (plus the earnings thereon),
determined as set forth in subparagraph (7)(B) below, may be
distributed to the Highly Compensated Employees described in
subparagraph (7)(C), below, on or before the 15th day of the
third month after the close of the Plan Year to which the
excess contributions relate. Notwithstanding the preceding
sentence, the Plan Administrator shall in no event delay the
distribution of any excess elective contributions (plus the
earnings thereon) beyond the date that is 12 months after the
close of the Plan Year to which the excess contributions
relate.
(B) (i) The amount of such excess for the Plan Year shall
be equal to the amount by which the Actual Deferral Ratio of
the Highly Compensated Employee with the highest Actual
Deferral Ratio for the Plan Year would be reduced to the
extent required to
a. enable the arrangement to satisfy the
limitations set forth in paragraph (e), or
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b. cause such Highly Compensated Employee's
Actual Deferral Ratio to equal the Actual Deferral
Ratio of the Highly Compensated Employee with the
next highest Actual Deferral Ratio.
This process shall be repeated until the arrangement satisfies
the limitations set forth in paragraph (e).
(ii) For each Highly Compensated Employee described
in subparagraph (7)(B)(i) above, the amount of such excess
shall be deemed to equal
a. the total elective contributions, plus
qualified nonelective contributions, if any, that are
treated as elective contributions, on behalf of the
Participant (determined prior to the application of
this paragraph (a)(7)), minus
b. the amount determined by multiplying the
Participant's Actual Deferral Ratio (determined after
application of this paragraph (a)(7)) by his
compensation used in determining such ratio.
(C) The elective contributions of the Highly
Compensated Employee with the highest dollar amount of
elective contributions for the Plan Year shall be reduced by
an amount equal to the excess elective contributions
determined under subparagraph (7)(B). The reduced amount shall
be distributed to such Highly Compensated Employee in
accordance with subparagraph (7)(A); provided, further, that
such Highly Compensated Employee's elective contributions
shall be reduced to a level that is equal to the elective
contributions of the Highly Compensated Employee with the next
highest dollar amount of elective contributions. Thereafter,
the elective contributions of the Highly Compensated Employees
with the same dollar amounts of elective contributions shall
be reduced on an equal basis by an amount equal to any
additional excess elective contributions determined under
subparagraph (7)(B) above, which reduced amounts shall be
distributed to such Highly Compensated Employees in accordance
with subparagraph (7)(A). For purposes of this subparagraph,
elective contributions shall include amounts treated as
elective contributions.
(D) The amount of excess elective contributions that
may be distributed under this paragraph (a)(7) with respect to
a Participant for a Plan Year shall be reduced by any excess
deferrals previously distributed to such Participant under
paragraph (a)(3) for the Participant's taxable year ending
with or within such Plan Year.
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(E) The Plan Administrator may use any reasonable
method for computing the income allocable to excess
contributions, provided that the method does not violate
Section 401(a)(4) of the Code, is used consistently for all
Participants and for all corrective distributions under the
Plan for the Plan Year, and is used by the Plan for allocating
income to Participants' Accounts.
(b) MATCHING CONTRIBUTIONS.
(1) (A) Each Employer, in its discretion, may contribute to
the Trust a matching contribution on behalf of each
Participant for whom an elective contribution is made during
the Plan Year.
(B) Such matching contribution shall be equal to a
discretionary percentage of the amount of the elective
contribution made to the Plan by the Participant per payroll
period. The discretionary percentage of the matching
contribution shall be determined by the Employer.
(C) No matching contribution shall be made with respect to
a Participant's elective contribution per payroll period that
exceeds a specified percentage of his Compensation for such
payroll period as determined by the Employer.
(2) No matching contribution shall be made for the portion of
a Participant's elective contribution (A) that is subject to the refund
requirements of paragraphs (a)(3) and (a)(7) or (B) that exceeds the
limitations of paragraph (e) of Article VI.
(3) Any matching contribution made by an Employer on account
of an elective contribution that has been refunded pursuant to
paragraph (a)(3) or paragraph (a)(7), above, or distributed to satisfy
the limitations set forth in paragraph (e) of Article VI shall be
forfeited and used as an additional matching contribution for the Plan
Year in which the forfeiture occurs.
(4) In the event that the matching contributions of Highly
Compensated Employees exceed the limitations of paragraph (e):
(A) The nonvested portion of such excess (including
earnings thereon), if any, determined as set forth in
subparagraph (4)(C) below, shall be forfeited and used as an
additional matching contribution for the Plan Year in which
the forfeiture occurs.
(B) The vested portion of such excess (including earnings
thereon), if any, determined as set forth in subparagraph
(4)(C) below, shall be distributed to the Highly Compensated
Employees described in subparagraph (4)(F) below, on or before
the 15th day of the third month after the close of the Plan
Year to which the matching contributions relate.
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<PAGE>
Notwithstanding the preceding sentence, the Plan Administrator
shall in no event delay the distribution of any excess
matching contributions (plus the earnings thereon) beyond the
date that is 12 months after the close of the Plan Year to
which the excess contributions relate.
(C) The amount of such excess for the Plan Year shall be
equal to the amount determined by the following leveling
method, under which the Actual Contribution Ratio of the
Highly Compensated Employee with the highest Actual
Contribution Ratio would be reduced to the extent required to
(i) enable the Plan to satisfy the
limitations set forth in paragraph (e), or
(ii) cause such Highly Compensated
Employee's Actual Contribution Ratio to equal the
Actual Contribution Ratio of the Highly Compensated
Employee with the next highest Actual Contribution
Ratio.
This process shall be repeated until the Plan satisfies the
limitations set forth in paragraph (e). For each Highly
Compensated Employee, the amount of such excess is equal to
the total matching contributions, plus elective contributions
and qualified nonelective contributions, if any, treated as
matching contributions, on behalf of the Employee (determined
prior to the application of this paragraph (b)(4)(C)) minus
the amount determined by multiplying the Employee's Actual
Contribution Ratio (determined after application of this
paragraph (b)(4)(C)) by his compensation used in determining
such ratio.
(D) In determining the amount of such excess, Actual
Contribution Ratios shall be rounded to the nearest
one-hundredth of one percent of the Employee's compensation.
(E) In no case shall the amount of such excess with
respect to any Highly Compensated Employee exceed the amount
of matching contributions on behalf of such Highly Compensated
Employee for such Plan Year.
(F) The matching contributions of the Highly Compensated
Employee with the highest dollar amount of matching
contributions for the Plan Year shall be reduced by an amount
equal to the excess matching contributions determined in
accordance with subparagraph (4)(C) above. The reduced amount
shall be either forfeited or distributed to such Highly
Compensated Employee in accordance with subparagraphs (4)(A)
and (B) above, provided, further, that such Highly Compensated
Employee's matching contributions shall be reduced to a level
that is equal to the
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matching contributions of the Highly Compensated Employee with
the next highest dollar amount of matching contributions.
Thereafter, the matching contributions of the Highly
Compensated Employees with the same dollar amounts of matching
contributions shall be reduced on an equal basis by an amount
equal to any additional excess matching contributions
determined in accordance with subparagraph (4)(C) above, which
reduced amounts shall be either forfeited or distributed to
such Highly Compensated Employees in accordance with
subparagraphs (4)(A) and (B) above. For purposes of this
subparagraph, matching contributions shall include amounts
treated as matching contributions.
(G) The Plan Administrator may use any reasonable
method for computing the income allocable to excess
contributions, provided that the method does not violate
Section 401(a)(4) of the Code, is used consistently for all
Participants and for all corrective distributions under the
Plan for the Plan Year, and is used by the Plan for allocating
income to Participants' Accounts.
(c) NONELECTIVE CONTRIBUTIONS. An Employer, in its discretion, may make
nonelective contributions to the Nonelective Contribution Accounts of
Participants.
(d) QUALIFIED NONELECTIVE CONTRIBUTIONS. An Employer, in its
discretion, may make qualified nonelective contributions to the Qualified
Nonelective Contribution Accounts of Participants.
(e) ACTUAL DEFERRAL PERCENTAGE AND ACTUAL CONTRIBUTION PERCENTAGE
TESTS. The amounts contributed as elective and matching contributions shall be
limited as follows:
(1) The Actual Deferral Percentage for the group of eligible
Highly Compensated Employees for the Plan Year shall bear a
relationship to the Actual Deferral Percentage for all other eligible
Employees for the preceding Plan Year (or the current Plan Year if
elected by the Employer and the Plan is amended to reflect such
election; provided, however, that if such an election is made, it may
not be changed except as provided by the Secretary) which meets either
of the following tests:
(A) The Actual Deferral Percentage for the
group of eligible Highly Compensated Employees for a
Plan Year shall not exceed the Actual Deferral
Percentage for the group of all other eligible
Employees multiplied by 1.25, or
(B) The excess of the Actual Deferral
Percentage for the group of eligible Highly
Compensated Employees for a Plan Year over the Actual
Deferral Percentage for the group of all other
eligible Employees shall not exceed two (2)
percentage points (or
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such lesser amount as may be required by the
Secretary of the Treasury, through regulations or
otherwise); and the Actual Deferral Percentage for
the group of eligible Highly Compensated Employees
shall not exceed the Actual Deferral Percentage for
the group of all other eligible Employees, multiplied
by 2.0.
(2) (A) The Actual Contribution Percentage for the group of
eligible Highly Compensated Employees for a Plan Year shall
not exceed the greater of:
(i) 125% of the Actual Contribution
Percentage for the group of all other eligible
Employees for the preceding Plan Year, or
(ii) The lesser of 200% of the Actual
Contribution Percentage for the group of all other
eligible Employees for the preceding Plan Year, or
the Actual Contribution Ratio for the group of all
other eligible Employees for the preceding Plan Year,
plus two (2) percentage points (or such lesser amount
as may be required by the Secretary of the Treasury,
through regulations or otherwise).
(B) The Actual Contribution Percentage for the group of
eligible Employees who are not Highly Compensated Employees
may be determined on the basis of the current Plan Year rather
than the preceding Plan Year if the Employer so elects;
provided, however, that if such an election is made, it may
not be changed except as provided by the Secretary.
(3) (A) For purposes of this paragraph (e), if two or more
plans of an Employer to which elective contributions or
matching contributions are made are elected by the Employer to
be treated as one Plan for purposes of Section 410(b)(6) of
the Code, such plans shall be treated as a single plan for
purposes of determining the Actual Deferral Percentage and the
Actual Contribution Percentage.
(B) (1) The Actual Deferral Ratio of a Highly Compensated
Employee who is eligible to participate in more than one cash
or deferred arrangement maintained by an Employer shall be
determined by treating all such cash or deferred arrangements
in which the Employee is eligible to participate (other than
arrangements that may not be permissively aggregated) as a
single arrangement.
(2) The Actual Contribution Ratio of a Highly Compensated
Employee who is eligible to participate in more than one plan
of an Employer to which Employee or matching
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contributions are made shall be determined by treating all
such plans (other than arrangements that may not be
permissively aggregated) as a single plan.
(4) (A) An elective contribution will be taken into account in
determining the Actual Deferral Percentage only if it relates
to Compensation that either would have been received by the
Employee in the Plan Year but for the Employee's election to
defer under the cash or deferred arrangement or is
attributable to services performed by the Employee in the Plan
Year and, but for the Employee's election to defer, would have
been received by the Employee within 2 1/2 months after the
close of the Plan Year.
(B) An elective contribution will be taken into
account in determining the Actual Deferral Percentage only if
it is allocated to the Participant as of a date within that
Plan Year; and provided further, that such allocation shall
not be contingent on participation or performance of services
and that such elective contribution shall be paid to the Trust
no later than twelve (12) months after the Plan Year to which
the contribution relates.
(5) If the Plan Administrator determines, in accordance with
the provisions of Section 1.401(m)-2 of the Treasury
Regulations, that a multiple use of the alternative limitation
has occurred, such multiple use shall be corrected by reducing
the Actual Contribution Percentage of Highly Compensated
Employees in the manner described in Section 1.401(m)-2(c) of
the Treasury Regulations and paragraph (b) of this Article V.
The provisions of Section 1.401(m)-2 of the Treasury
Regulations are incorporated herein by reference.
(f) FORM AND TIMING OF CONTRIBUTIONS. Payments on account of the
contributions due from an Employer for any Plan Year shall be made in cash or
Employer Stock. Such payments may be made by a contributing Employer at any
time, but payment of the Employer contributions for any Plan Year shall be
completed on or before the time prescribed by law, including extensions thereof,
for filing such Employer's federal income tax return for its taxable year with
which or within which such Plan Year ends. Payment of any elective contribution
must be made as soon as is administratively feasible following the date on which
the contribution is withheld from a Participant's pay, but in any case, no later
than the fifteenth business day of the month following the month in which the
contribution is withheld from a Participant's pay.
(g) ROLLOVER CONTRIBUTIONS AND DIRECT TRANSFERS.
(1) With the consent of the Plan Administrator and in such
manner as prescribed by the Plan Administrator, the Trustee may accept:
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(A) a rollover contribution (as defined in the
applicable sections of the Code) on behalf of an Employee, and
(B) a direct transfer from a trustee of another
qualified plan in which an Employee is or was a participant.
(2) Any Transfer Contribution Account, ESOP Merger Account or
Retirement Savings Plan Merger Account that would cause this Plan to be
a transferee plan within the meaning of Section 401(a)(11)(B)(iii)(III)
of the Code shall be accounted for separately, and shall be subject to
the requirements of Sections 401(a)(11) and 417 of the Code.
(h) NO DUTY TO INQUIRE. The Trustee shall have no right or duty to
inquire into the amount of any contribution made by an Employer or any
Participant or the method used in determining the amount of any such
contribution, or to collect the same, but the Trustee shall be accountable only
for funds actually received by it.
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ARTICLE VI
PARTICIPANTS' ACCOUNTS AND ALLOCATION OF CONTRIBUTIONS
(a) COMMON FUND. The assets of the Trust shall constitute a common fund
in which each Participant shall have an undivided interest.
(b) ESTABLISHMENT OF ACCOUNTS.
(1) The Plan Administrator shall establish and maintain with
respect to each Participant an account, designated as a Nonelective
Contribution Account, Elective Contribution Account, Matching
Contribution Account and Qualified Nonelective Contribution Account.
(2) (A) For each Participant who has been credited with a
rollover contribution or a transfer from another qualified
plan pursuant to Article V, the Plan Administrator shall
establish and maintain a Rollover Contribution Account or a
Transfer Contribution Account.
(B) In the case of a direct transfer of assets from
another plan, the protected benefits (within the meaning of
Section 411(d)(6) of the Code) attributable to the transferor
plan shall apply to the assets in the Participant's Transfer
Contribution Account.
(3) The Plan Administrator shall establish and maintain an
ESOP Merger Account and/or a Retirement Savings Plan Merger Account for
each Participant for whom assets from the Tech Data Corporation
Employee Stock Ownership Plan and/or the Tech Data Corporation
Retirement Savings Plan have been merged into this Plan.
(4) The Plan Administrator may establish such additional
Accounts as are necessary to reflect a Participant's interest in the
Trust Fund.
(c) INTERESTS OF PARTICIPANTS. The interest of a Participant in the
Trust Fund shall be the vested balance remaining from time to time in his
Accounts after making the adjustments required in paragraph (d).
(d) ADJUSTMENTS TO ACCOUNTS. Subject to the provisions of paragraph
(e), the Accounts of a Participant shall be adjusted from time to time as
follows:
(1) FIRST, the value of a Participant's Accounts shall be
converted into units or shares.
(2) NEXT, contributions made on each Valuation Date shall be
credited in accordance with the following and shall be used to purchase
additional units or shares:
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(A) The Elective Contribution Account of a
Participant shall be credited with any elective contributions
not previously credited.
(B) The Matching Contribution Account of a
Participant shall be credited with any matching contributions
made by his Employer not previously credited.
(C) The Nonelective Contribution Account of a
Participant shall be credited with his share of the
nonelective contribution not previously credited, if any, made
by his Employer with respect to the Plan Year to which such
contribution relates. The amount of the nonelective
contribution credited to a Participant shall be the amount
that bears the same ratio to the total of such nonelective
contributions as the Participant's Compensation bears to the
total Compensation of all Participants who are entitled to
share in the nonelective contributions for the Plan Year.
(i) A Participant shall not be entitled to
share in the nonelective contribution for a Plan Year
unless (a) the Plan Year constitutes a Year of
Service for such Participant and he is employed by
his Employer on the last day of the Plan Year, or (b)
his employment is terminated during the Plan Year as
a result of retirement, disability or death.
(ii) a. I. In the event that the
requirements set forth in subparagraph (i) above
would cause this Plan to fail to satisfy the coverage
requirement described in subparagraph (ii)a.II.
below, a Participant shall be entitled to share in
the nonelective contribution if he satisfies the
requirements of subparagraph (ii)b. below.
II. In order to satisfy the
coverage requirement of this subparagraph
(ii)a.II. for the Plan Year, the Plan's
ratio percentage (as described in
subparagraph (ii)a.III. below) with respect
to the Employer contribution for the Plan
Year shall be at least seventy percent
(70%).
III. For purposes of this
subparagraph (ii)a., "ratio percentage"
shall mean the percentage (rounded to the
nearest hundredth of a percentage point)
determined by dividing the percentage of the
Non-Highly Compensated Employees (as defined
below) who benefit under the Plan by the
percentage of the Highly Compensated
Employees who benefit under the Plan.
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<PAGE>
1. For purposes of
determining the ratio
percentage applicable to
any contribution made
pursuant to Article V and
allocated pursuant to
Article VI, the percentage
of the Non-Highly
Compensated Employees who
benefit under the Plan
shall be determined by
dividing the number of
Non-Highly Compensated
Employees who are
Participants in the Plan
and are entitled to share
in the applicable
contribution under the Plan
by the total number of
Non-Highly Compensated
Employees who have met the
service requirements of
paragraph (b) of Article
IV. The percentage of the
Highly Compensated
Employees who benefit under
the Plan shall be
determined by dividing the
number of Highly
Compensated Employees who
are Participants in the
Plan and are entitled to
share in the applicable
contribution under the Plan
by the total number of
Highly Compensated
Employees who have met the
service requirements of
paragraph (b) of Article
IV.
2. The Plan's
ratio percentage shall be
determined as of the last
day of the Plan Year,
taking into account all
Employees who were
Employees on any day during
the Plan Year.
b. If this Plan would otherwise fail to
satisfy the requirements of subparagraph (ii)a. for
the Plan Year, a Participant shall be entitled to
share in the Employer nonelective contribution
credited if the following requirements are satisfied:
I. he is a Non-Highly
Compensated Employee;
II. he completes more than
500 Hours of Service during such
Plan Year, regardless of whether he
is employed by his Employer on the
last day of the Plan Year; and
III. the crediting of a
share of the contribution to the
Participant is required by this
subparagraph (ii)b.III. The number
of Participants
VI-3
<PAGE>
required to be credited with a
contribution by this subparagraph
(ii)b.III. (the "Required Number of
Participants"), when added to the
Non-Highly Compensated Employees who
are eligible to be credited with a
contribution pursuant to the
provisions of subparagraph (C)(i),
shall be equal to the minimum number
of Non-Highly Compensated Employees
who are required to be credited with
an Employer contribution under the
Plan during the Plan Year in order
to satisfy the minimum coverage
requirement of subparagraph (ii)a. A
Participant will be credited with a
contribution under this subparagraph
(ii)b.III. if the Participant is
among the Required Number of
Participants paid the lowest
Compensation by his Employer for the
Plan Year (determined without regard
to those Participants who are
entitled to be credited with a
contribution pursuant to
subparagraph (C)(i) above).
(D) The Qualified Nonelective Contribution Account of
a Participant shall be credited with his share of the
qualified nonelective contribution made by his Employer not
previously credited as follows:
(i) The amount of the qualified nonelective
contribution shall be credited first to the
Participant who is a Non-Highly Compensated Employee
and whose eligible Compensation as described in
paragraph (k) of Article I for the Plan Year is the
lowest of all Plan Participants in an amount that
does not exceed the limitations on Annual Additions
described in paragraph (e) of this Article; provided,
further, that if any qualified nonelective
contributions remain to be credited, then such
qualified nonelective contributions shall be credited
to the Non-Highly Compensated Employee whose eligible
Compensation as described in paragraph (k) of Article
I for the Plan Year is the second lowest of all Plan
Participants in the same manner as the first level of
crediting and such crediting process shall continue
until all of the qualified nonelective contributions
are credited; provided, however, that a Participant
who is a Highly Compensated Employee shall not be
eligible to be credited with qualified nonelective
contributions.
(ii) Adequate accounting procedures shall be
established so that portions credited to the
Qualified Nonelective Contribution Account and used
to determine the Actual Contribution Percentage and
the Actual Deferral Percentage may be separately
identified.
VI-4
<PAGE>
(E) The Rollover Contribution Account and Transfer
Contribution Account of a Participant shall be credited with
any rollover or transfer contributions not previously
credited.
(F) Elective, Employer (matching and nonelective) and
qualified nonelective contributions shall be attributable to
the Plan Year with respect to which such contributions relate.
(3) FINALLY, the amount of distributions, withdrawals or
transfers between investment funds, or other fees not previously
charged to the Participant's Accounts shall be charged to the
appropriate Accounts of the Participant and the number of units or
shares equal in value to the amount paid from the Participant's
Accounts shall be deducted from the Participant's outstanding units or
shares.
(4) For each Plan Year in which this Plan is a Top Heavy Plan,
a Participant who is employed by an Employer on the last day of such
Plan Year and who is a Non-Key Employee for such Plan Year shall be
entitled to receive a combined credit of contributions and forfeitures
to his Nonelective Contribution Account and his Qualified Nonelective
Contribution Account equal in the aggregate to at least three percent
(3%) of his Section 415 Compensation (or, if less, the highest
percentage of such Section 415 Compensation credited to a Key
Employee's Account hereunder, as well as his employer contribution
accounts under any other defined contribution plan maintained by such
Employer or an Affiliate, including any elective contribution to any
plan subject to Section 401(k) of the Code), except to the extent such
a contribution is made by an Employer or an Affiliate on behalf of the
Employee for the Plan Year to any other defined contribution plan
maintained by such Employer or Affiliate.
(5) The Plan Administrator also may adopt such additional
accounting procedures as are necessary to accurately reflect each
Participant's interest in the Trust Fund, which procedures shall be
effective upon approval by the Employer. All such procedures shall be
applied in a consistent and nondiscriminatory manner.
(e) LIMITATION ON ALLOCATION OF CONTRIBUTIONS.
(1) Notwithstanding anything contained in this Plan to the
contrary, the aggregate Annual Additions to a Participant's Accounts
under this Plan and under any other defined contribution plans
maintained by an Employer or an Affiliate for any Limitation Year shall
not exceed the lesser of $30,000 (as adjusted under Section 415(d) of
the Code) or 25% of the Participant's Section 415 Compensation for such
Plan Year.
VI-5
<PAGE>
(2) In the event that the Annual Additions, under the normal
administration of the Plan, would otherwise exceed the limits set forth
above for any Participant, or in the event that any Participant
participates in both a defined benefit plan and a defined contribution
plan maintained by any Employer or any Affiliate and the aggregate
annual additions to and projected benefits under all of such plans,
under the normal administration of such plans, would otherwise exceed
the limits provided by law, then the Plan Administrator shall take such
actions, applied in a uniform and nondiscriminatory manner, as will
keep the annual additions and projected benefits for such Participant
from exceeding the applicable limits provided by law. Excess Annual
Additions shall be disposed of as provided in subparagraph (3).
Adjustments shall be made to this Plan, if necessary to comply with
such limits, before any adjustments may be made to other plans.
(3) If as a result of the allocation of forfeitures, a
reasonable error in estimating a Participant's Section 415
Compensation, a reasonable error in determining the amount of elective
contributions that may be made with respect to any Participant under
the limits of Section 415 of the Code, or other circumstances permitted
under Section 415 of the Code, the Annual Additions attributable to
Employer contributions for a particular Participant would cause the
limitations set forth in this paragraph (e) to be exceeded, the excess
amount shall be deemed first to consist of elective contributions,
which excess shall be returned to the Participant. Any remaining excess
amount shall be used to reduce Employer contributions for the next Plan
Year (and succeeding Plan Years, as necessary) for that Participant if
that Participant is covered by the Plan as of the end of the Plan Year.
If the Participant is not covered by the Plan as of the end of the Plan
Year, such excess amount shall be held unallocated in a suspense
account for the Plan Year and reallocated among the Participants as of
the end of the next Plan Year to all of the Participants in the Plan in
the same manner as an Employer contribution under the terms of
paragraph (d) of this Article VI before any further Employer
contributions are allocated to the Accounts of the Participants, and
such allocations shall be treated as Annual Additions to the Accounts
of the Participants. In the event that the limits on Annual Additions
for any Participant would be exceeded before all of the amounts in the
suspense account are allocated among the Participants, then such excess
amounts shall be retained in the suspense account to be reallocated as
of the end of the next Plan Year and any succeeding Plan Years until
all amounts in the suspense account are exhausted.
(f) EXERCISE OF VOTING AND OTHER RIGHTS. Any voting and other rights
with respect to shares of Employer Securities held as part of each Participant's
Accounts, or a part of any suspense account within the Trust Fund shall be
exercised as follows:
(1) (A) If any Employer does not have a registration-type
class of securities, as defined in Section 409(e) of the Code,
each Participant who is an Employee of such Employer shall be
entitled to direct the Trustee as
VI-6
<PAGE>
to the exercise of any voting rights, attributable to shares
allocated to his Accounts, with respect to the approval or
disapproval of any corporate merger or consolidation,
recapitalization, reclassification, liquidation, dissolution,
or sale of substantially all assets of a trade or business.
(B) If any Employer has a registration-type security,
as defined in Section 409(e) of the Code, any voting and other
rights with respect to Employer Securities (including
fractional shares) allocated to any Participant's Accounts
shall be exercised by the Trustee in accordance with
instructions received from such Participant.
(C) In connection with the exercise of the rights set
forth in subparagraphs (A) and (B) above, the Trustee shall
notify each Participant at least thirty (30) days prior to the
date upon which such rights are to be exercised; provided,
however, that the Trustee shall not be under any obligation to
notify the Participants sooner that it receives such
information as a security holder of record. In the event the
notice received by the Trustee makes it impossible for the
Trustee to comply with such thirty (30) day notice
requirement, the Trustee shall notify the Participants
regarding the exercise of such rights as soon as practicable.
The notification shall include all information distributed to
the security holders of record by the Employer regarding the
exercise of such rights.
(D) Any voting and other rights with respect to Employer
Securities (including fractional shares) held by the Trustee
that are not allocated to the Participants' Accounts shall be
exercised by the Trustee in its discretion.
VI-7
<PAGE>
ARTICLE VII
BENEFITS UNDER THE PLAN
(a) RETIREMENT BENEFIT
(1) A Participant shall be entitled to a retirement benefit
upon his Normal Retirement Date. Until a Participant actually retires
from the employ of his Employer, his retirement benefit shall not be
paid and he shall continue to be treated in all respects as a
Participant.
(2) Upon the retirement of a Participant as provided in
subparagraph (1), such Participant shall be entitled to a retirement
benefit paid in accordance with Article VIII in an amount equal to 100%
of the balance in his Accounts as of the date of distribution of his
benefit.
(b) DISABILITY BENEFIT
(1) In the event a Participant's employment with his Employer
is terminated by reason of his total and permanent disability, such
Participant shall be entitled to a disability benefit paid in
accordance with Article VIII in an amount equal to 100% of the balance
in his Accounts as of the date of distribution of his benefit.
(2) Total and permanent disability shall mean a medically
determinable physical or mental impairment of a Participant which can
be expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than twelve (12) months and
which renders him unable to engage in any substantial gainful activity.
The disability of a Participant will be deemed to have occurred only
when certified by a physician who is acceptable to the Plan
Administrator and only if such proof is received by the Administrator
within sixty (60) days after the date of the termination of such
Participant's employment.
(c) TERMINATION OF EMPLOYMENT BENEFIT
(1) In the event a Participant's employment with his Employer
is terminated for reasons other than retirement, total and permanent
disability or death, such Participant shall be entitled to a
termination of employment benefit paid in accordance with Article VIII
in an amount equal to his vested interest in the balance in his
Accounts as of the date of distribution of his benefit.
(2) (A) A Participant's vested interest in his Matching
Contribution Account and his Nonelective Contribution Account
shall be a percentage of the balance of such Accounts as of
the applicable Valuation Date, based upon such Participant's
Years of Service as of the date of the termination of his
employment, as follows:
VII-1
<PAGE>
TOTAL NUMBER OF YEARS OF SERVICE VESTED INTEREST
-------------------------------- ---------------
Less than 1 Year of Service 0%
1 year, but less than 2 years 25%
2 years, but less than 3 years 50%
3 years, but less than 4 years 75%
4 or more years 100%
(B) Notwithstanding the foregoing, a Participant shall be
100% vested in his Matching Contribution Account and his
Nonelective Contribution Account upon attaining his Normal
Retirement Date if he is still an Employee. A Participant's
vested interest in his Elective Contribution Account,
Qualified Nonelective Contribution Account, Retirement Savings
Plan Merger Account and his Rollover Contribution Account
shall be 100% regardless of the number of his Years of
Service.
(C) A Participant's vested interest in his ESOP Merger
Account shall be a percentage of the balance of such Accounts
as of the applicable Valuation Date, based upon such
Participant's Years of Service as of the date of the
termination of his employment, as follows:
TOTAL NUMBER OF YEARS OF SERVICE VESTED INTEREST
-------------------------------- ---------------
Less than 3 Years of Service 0%
3 years, but less than 4 years 20%
4 years, but less than 5 years 40%
5 years, but less than 6 years 60%
6 years, but less than 7 years 80%
7 or more years 100%
(D) Notwithstanding the provisions of paragraph
(c)(2)(C), above, for any Plan Year in which this Plan is a
Top Heavy Plan, a Participant's vested interest in his ESOP
Merger Account shall be a percentage of the balance of his
ESOP Merger Account based upon such Participant's Years of
Service as of the date of the termination of his employment,
as follows:
TOTAL NUMBER OF YEARS OF SERVICE VESTED INTEREST
-------------------------------- ---------------
Less than 2 Years of Service 0%
2 years, but less than 3 years 20%
3 years, but less than 4 years 40%
4 years, but less than 5 years 60%
5 years, but less than 6 years 80%
6 or more years 100%
VII-2
<PAGE>
(E) If at any time this Plan ceases to be a Top Heavy
Plan after being a Top Heavy Plan for one or more Plan Years,
such change from being a Top Heavy Plan shall be treated as if
it were an amendment to the Plan's vesting schedule for
purposes of paragraph 1 of Article XII.
(F) Notwithstanding the foregoing, a Participant
shall be 100% vested in his ESOP Merger Account upon attaining
his Normal Retirement Date if he is still an Employee.
(3) If the termination of employment results in five
consecutive One Year Breaks in Service, then upon the occurrence of
such five consecutive One Year Breaks in Service, the nonvested
interest of the Participant in his Matching Contribution Account,
Nonelective Contribution Account and ESOP Merger Account as of the
Valuation Date concurring with the date of his termination of
employment shall be deemed to be forfeited. Such forfeited amount shall
be used to reduce his Employer's contributions (other than elective
contributions) under Article V. If the Participant is later reemployed
by an Employer or an Affiliate, the unforfeited balance, if any, in his
Matching Contribution Account, Nonelective Contribution Account and
ESOP Merger Account that has not been distributed to such Participant
shall be set aside in a separate account, and such Participant's Years
of Service after any five consecutive One Year Breaks in Service
resulting from such termination of employment shall not be taken into
account for the purpose of determining the vested interest of such
Participant in the balance of his Matching Contribution Account,
Nonelective Contribution Account and ESOP Merger Account that accrued
before such five consecutive One Year Breaks in Service.
(4) (A) Notwithstanding any other provision of this paragraph
(c), if at any time a Participant is less than 100% vested in his
Accounts and, as a result of his termination of employment, he receives
his entire vested termination of employment benefit pursuant to the
provisions of Article VIII, and the distribution of such benefit is
made not later than the close of the fifth Plan Year following the Plan
Year in which such termination occurs (or such longer period as may be
permitted by the Secretary of the Treasury, through regulations or
otherwise), then upon the occurrence of such distribution, the
non-vested interest of the Participant in his Accounts shall be deemed
to be forfeited. Such forfeited amount shall be used to reduce his
Employer's contributions (other than elective contributions) under
Article V.
(B) If a Participant is not vested as to any portion of
his Accounts, he will be deemed to have received a distribution
immediately following his termination of employment. Upon the
occurrence of such deemed distribution, the non-vested interest of the
Participant in his Accounts shall be deemed to be forfeited. Such
forfeited amount shall be used to reduce
VII-3
<PAGE>
his Employer's contributions (other than elective contributions) under
Article V.
(C) If a Participant whose interest is forfeited under
this subparagraph (4) is reemployed by an Employer prior to the
occurrence of five consecutive One Year Breaks in Service commencing
after his distribution, then such Participant shall have the right to
repay to the Trust, before the date that is the earlier of (1) five
years after the Participant's resumption of employment, or (2) the
close of a period of five consecutive One Year Breaks in Service, the
full amount of the termination of employment benefit previously
distributed to him. If the Participant elects to repay such amount to
the Trust within the time periods prescribed herein, or if a non-vested
Participant whose interest was forfeited under this subparagraph (4) is
reemployed by an Employer prior to the occurrence of five consecutive
One Year Breaks in Service, the non-vested interest of the Participant
previously forfeited pursuant to the provisions of this subparagraph
(4) shall be restored to the Accounts of the Participant, such
restoration to be made from forfeitures of non-vested interests and, if
necessary, by contributions of his Employer, so that the aggregate of
the amounts repaid by the Participant and restored by the Employer
shall not be less than the Account balances of the Participant at the
time of forfeiture unadjusted by any subsequent gains or losses.
(d) DEATH BENEFIT
(1) In the event of the death of a Participant, the
Participant's beneficiary shall be entitled to a death benefit paid in
accordance with Article VIII in an amount equal to 100% of the balance
in his Accounts as of the date of distribution of his benefit.
(2) Subject to the provisions of Article VIII, at any time and
from time to time, each Participant shall have the unrestricted right
to designate a beneficiary to receive his death benefit and to revoke
any such designation. Each designation or revocation shall be evidenced
by written instrument filed with the Plan Administrator, signed by the
Participant and bearing the signature of a witness to his signature. In
the event that a Participant has not designated a beneficiary or
beneficiaries, or if for any reason such designation shall be legally
ineffective, or if such beneficiary or beneficiaries shall predecease
the Participant, then the personal representative of the estate of such
Participant shall be deemed to be the beneficiary designated to receive
such death benefit, or if no personal representative is appointed for
the estate of such Participant, then his next of kin under the statute
of descent and distribution of the state of such Participant's domicile
at the date of his death shall be deemed to be the beneficiary or
beneficiaries to receive such death benefit.
VII-4
<PAGE>
(3) Notwithstanding the foregoing, except as provided in
paragraph (c) of Article VIII with respect to the Retirement Savings
Plan Merger Account, if the Participant is married as of the date of
his death, the Participant's surviving spouse shall be deemed to be his
designated beneficiary and shall receive the full amount of the death
benefit attributable to the Participant unless the spouse consents or
has consented to the Participant's designation of another beneficiary.
Any such consent to the designation of another beneficiary must
acknowledge the effect of the consent, must be witnessed by a Plan
representative or by a notary public and shall be effective only with
respect to that spouse. A spouse's consent shall be a restricted
consent (which may not be changed as to the beneficiary unless the
spouse consents to such change in the manner described herein).
Notwithstanding the preceding provisions of this subparagraph (3), a
Participant shall not be required to obtain spousal consent to his
designation of another beneficiary if (A) the Participant is legally
separated or the Participant has been abandoned, and the Participant
provides the Plan Administrator with a court order to such effect, or
(B) the spouse cannot be located.
VII-5
<PAGE>
ARTICLE VIII
PAYMENT OF BENEFITS
(a) TIME OF BENEFIT PAYMENT.
(1) The distribution of the retirement, disability,
termination of employment or death benefit to which a Participant is
entitled under paragraph (a), (b), (c) or (d) of Article VII shall
commence as soon as administratively practicable following the
Participant's retirement, disability, death or termination of
employment.
(2) Notwithstanding the foregoing, in the case of a
Participant's ESOP Merger Account, the distribution of the retirement,
disability, termination of employment or death benefit to which a
Participant is entitled under paragraph (a), (b), (c) or (d) of Article
VII which is attributable to his ESOP Merger Account shall commence not
later than the date provided for in this subparagraph (2).
(A) The distribution of the retirement, disability or
death benefit to which a Participant is entitled under
paragraph (a), (b) or (d) of Article VII shall commence within
the 12 month period following the close of the Plan Year in
which the Participant's employment with an Employer terminates
on or after his Normal Retirement Date, disability or death,
as the case may be.
(B) The distribution of the termination of employment
benefit to which a Participant is entitled under paragraph (c)
of Article VII shall commence within the 12 month period
following the close of the Plan Year that is the fifth Plan
Year following the Plan Year in which the Participant's
termination of employment occurs, except that this
subparagraph (2)(B) shall not apply if the Participant is
reemployed by an Employer before the first day of such fifth
Plan Year.
(3) (A) Notwithstanding the foregoing provisions of this
paragraph (and except as otherwise provided in paragraph (c) of this
Article with respect to any Retirement Savings Plan Merger Account), no
distribution shall be made of the retirement, disability or termination
of employment benefit to which a Participant is entitled under
paragraph (a), (b) or (c) of Article VII prior to his Normal Retirement
Date unless the value of his benefit attributable to Employer
contributions and Employee contributions, if any, determined at the
time of distribution, does not exceed $5,000, or unless the Participant
consents to the distribution.
(B) In the event that a Participant does not consent to a
distribution of a benefit in excess of $5,000 to which he is entitled
under paragraph (a), (b) or (c) of Article VII, the amount of his
benefit shall be paid
VIII-1
<PAGE>
to the Participant not later than sixty (60) days after the last day of
the Plan Year in which the Participant reaches his Normal Retirement
Date.
(4) Notwithstanding anything contained herein to the contrary,
any distribution paid to a Participant (or, in the case of a death
benefit, to his beneficiary or beneficiaries) pursuant to this
paragraph shall commence not later than the earlier of:
(A) the 60th day after the last day of the Plan Year
in which the Participant's employment is terminated or, if
later, in which occurs the Participant's Normal Retirement
Date; or
(B) April 1 of the calendar year immediately
following
(i) the calendar year in which the
Participant reaches age 70-1/2, or
(ii) if later, the calendar year in which
the Participant retires; provided, however, that this
subparagraph (4)(B)(ii) shall not apply in the case
of a Participant who is a 5% owner (as defined in
Section 416 of the Code) with respect to the Plan
Year ending in the calendar year in which the
Participant attains age 70-1/2.
(5) If a distribution is one to which Sections 401(a)(11) and
417 of the Code do not apply, such distribution may commence less than
30 days after the notice required under Section 1.411(a)-11(c) of the
Income Tax Regulations is given, provided that:
(A) the Plan Administrator clearly informs the
Participant that the Participant has a right to a period of at
least 30 days after receiving the notice to consider the
decision of whether or not to elect a distribution (and, if
applicable, a particular distribution option), and
(B) the Participant, after receiving the notice,
affirmatively elects a distribution.
(b) FORM OF BENEFIT PAYMENT. Except as otherwise provided in paragraph
(c) of this Article with respect to the Retirement Savings Plan Merger Account,
the form of benefit payment shall be determined by the Participant or, in the
case the Participant has died, his beneficiary or beneficiaries. The options
are:
(1) (A) A lump sum distribution in cash or Employer
Securities to the extent permitted by paragraph (d)
of this Article; or
(B) (i) In the case of a distribution from the
Participant's ESOP Merger Account, a distribution
consisting of substantially
VIII-2
<PAGE>
equal annual or more frequent payments over a period
not longer than the greater of (i) five years, or
(ii) in the case of a Participant with a benefit the
value of which exceeds $500,000, five years plus one
additional year (but not more than five additional
years) for each $100,000 or fraction thereof by which
such benefit exceeds $500,000. The dollar amounts
contained in this subparagraph (B) shall be adjusted
by the Secretary pursuant to Section 409(o)(2) of the
Code.
(ii) The portion of the Accounts of a
Participant, or, in the case such Participant is
dead, of his beneficiary or beneficiaries, that is
not needed to make annual payments during the then
current Plan Year shall remain a part of the Trust
Fund and shall participate in the net increase or net
decrease in the value of said Trust Fund as provided
therein.
(2) Notwithstanding the provisions of subparagraph (1)(B)
above:
(A) In the case of a retirement, disability or
termination of employment benefit, in no event shall payments
extend beyond the life expectancy of the Participant or the
joint life expectancy of the Participant and his designated
beneficiary. If the Participant dies before receiving the
entire amount payable to him, the balance shall be paid to his
designated beneficiary or, if there is none, to the
beneficiary specified Article VII; in each case the balance
shall be distributed at least as rapidly as under the method
being used prior to the Participant's death.
(B) In the case of a death benefit,
(i) payment to the designated beneficiary
shall begin within one year following the
Participant's death (unless the designated
beneficiary is the Participant's surviving spouse, in
which case such benefit shall begin no later than the
date the Participant would have reached age 70-1/2)
and shall not, in any event, extend beyond the life
expectancy of the designated beneficiary, and
(ii) payment to a non-designated beneficiary
shall be totally distributed within five years from
the date of the Participant's death.
(C) (A) Notwithstanding the foregoing, payments under
any of the options described in this paragraph shall
satisfy the incidental death benefit requirements and
all other applicable provisions of Section 401(a)(9)
of the Code, the regulations issued thereunder
VIII-3
<PAGE>
(including Prop. Reg. Section 1.401(a)(9)-2), and
such other rules thereunder as may be prescribed by
the Commissioner.
(D) For purposes of distributions required
to commence pursuant to Section 401(a)(9) of the
Code, life expectancies shall not be recalculated.
(c) RETIREMENT SAVINGS PLAN MERGER ACCOUNTS, SPECIAL DISTRIBUTION
REQUIREMENTS. Notwithstanding the provisions of paragraphs (a) or (b) of this
Article, any amounts attributable to a Retirement Savings Plan Merger Account to
which a Participant is entitled under paragraph (a), (b), (c) or (d) of Article
VII shall be subject to the requirements of this paragraph (c).
(1) No distribution shall be made of (1) the retirement,
disability or termination of employment benefit attributable to
Retirement Savings Plan Merger Account to which a Participant is
entitled under paragraph (a), (b) or (c) of Article VII or (2) the
death benefit attributable to Retirement Savings Plan Merger Account to
which a Participant's spouse is entitled under paragraph (d) of Article
VII and which is payable in the form of a Qualified Preretirement
Survivor Annuity, prior to the Participant's Normal Retirement Date
unless the value of his aggregate benefit does not (and did not at the
time of any prior distribution) exceed $5,000, or unless the
Participant and his spouse consent to the distribution. Notwithstanding
the foregoing, no consent of a Participant's spouse is needed for the
distribution of benefit attributable to his Retirement Savings Plan
Merger Account to which a Participant is entitled if such distribution
is made in the form of a Qualified Joint and Survivor Annuity. If the
Participant is unable to obtain spousal consent with respect to the
distribution of the Participant's Retirement Savings Plan Merger
Account, the Participant may elect a distribution of his entire benefit
attributable to his Accounts under the Plan other than his Retirement
Saving Plan Merger Account.
(2) In the case of a Participant entitled to a distribution of
benefits attributable to his Retirement Savings Plan Merger Account who
is living on his Annuity Starting Date, any benefit attributable to his
Retirement Savings Plan Merger Account and payable pursuant to
paragraph (a), (b) or (c) of Article VII before his Annuity Starting
Date shall be paid in the form having the effect of a Qualified Joint
and Survivor Annuity, unless the Participant elects in writing to waive
the Qualified Joint and Survivor Annuity.
(A) Any such election with respect to the
Participant's Retirement Savings Plan Merger Account shall be
invalid and shall not take effect unless:
(i) it is made by the Participant and
received by the Plan Administrator during the 90-day
period ending on the Annuity Starting Date; and
VIII-4
<PAGE>
(ii) in the case of Participant who has a
spouse, the spouse consents or has consented in
writing to such election, such consent acknowledges
the effect of such election and such consent is
witnessed by a representative of the Plan or a notary
public; or the Participant or his beneficiary
establishes to the satisfaction of the Plan
Administrator that the consent otherwise required may
not be obtained because there is no spouse, because
the spouse cannot be located or because of such other
circumstances as may be prescribed by the Secretary
of the Treasury. Any consent by a spouse shall only
be effective with respect to such spouse. A spouse's
consent may be either a restricted consent (which may
not be changed as to either the beneficiary or the
form of payment unless the spouse consents to such
change in the manner described herein) or a blanket
consent (which acknowledges that the spouse has the
right to limit consent only to a specific beneficiary
or a specific form of payment, and that the spouse
voluntarily elects to relinquish one or both of such
rights).
(B) At least 30 days, but no more than 90 days before
the Annuity Starting Date, a Participant shall be provided a
form for the purpose of making the appropriate elections under
the foregoing provisions of this section paragraph (c)(2).
Accompanying such election form shall be a written explanation
of (i) the terms and conditions of a Qualified Joint and
Survivor Annuity; (ii) the Participant's right to make and the
effect of an election to waive the Qualified Joint and
survivor Annuity form of benefit; (iii) the material features,
and an explanation of the relative values of, the optional
forms of benefit available under the Plan; (iv) the rights of
a Participant's spouse; and (v) the right to make, and the
effect of, a revocation of a previous election to waive the
Qualified Joint and Survivor Annuity. Once an election is
made, it may be revoked in writing. Thereafter, another
election may be made; provided, however, that the new election
is received by the Administrator prior to the date on which
payment of benefits commences and the other provisions of this
paragraph (c)(2) are met with respect to such new election.
Notwithstanding the foregoing, a Participant can affirmatively
elect to receive payment of benefits prior to the expiration
of the aforementioned 30 day period if (i) the Plan
Administrator provides information to the Participant that
clearly indicates that the Participant has at least 30 days to
consider his election, (ii) the Participant is permitted to
revoke such election anytime prior to date payment of benefits
commence and (iii) the payment of benefits shall not commence
until at least the eighth (8th) day following the day the
Participant is provided with aforementioned election form and
written explanation regarding the payment of benefits.
VIII-5
<PAGE>
(3) If a Participant who is entitled to benefits attributable
to his Retirement Savings Plan Merger Account dies before his Annuity
Starting Date and has a spouse on the date of his death, any death
benefit attributable to his Retirement Savings Plan Merger Accounts
shall be paid in the form having the effect of a Qualified
Preretirement Survivor Annuity unless the Participant elects in writing
to waive the Qualified Preretirement Survivor Annuity and designate a
nonspouse beneficiary.
(A) Such election to waive the Qualified
Preretirement Survivor Annuity and designate a nonspouse
beneficiary shall be invalid and shall not take effect unless:
(i) it is made by the Participant and
received by the Plan Administrator during the period
that begins on the first day of the Plan Year in
which the Participant reaches age 35 (or if the
Participant's employment is terminated before he
attains age 35, the date on which such Participant's
employment is terminated) and that ends on the date
of the Participant's death (subject to such
regulations as may be issued by the Secretary of
Treasury)
(ii) the Participant's spouse consents or
has consented in writing to such election and to any
designation of a nonspouse beneficiary, such consent
acknowledges the effect of such election and such
consent is witnessed by a representative of the Plan
or a notary public; or the Participant or his
beneficiary establishes to the satisfaction of the
Plan Administrator that the consent otherwise
required may not be obtained because there is no
spouse, because the spouse cannot be located or
because of such other circumstances as may be
prescribed by the Secretary of the Treasury. Any
consent by a spouse shall only be effective with
respect to such spouse. A spouse's consent may be
either a restricted consent (which may not be changed
as to the beneficiary or (except as otherwise
permitted by law) form of payment unless the spouse
consents to such change in the manner described
herein) or a general consent (which acknowledges that
the spouse has the right to limit consent only to a
specific beneficiary or a specific form of payment,
and that the spouse voluntarily elects to relinquish
one or both of such rights).
(B) A Participant shall be provided a form for the
purpose of making the appropriate elections under the
foregoing provisions of this paragraph (c). Such form shall be
provided (subject to such regulations as may be issued by the
Secretary of the Treasury) during such of the following
periods as shall end last:
VIII-6
<PAGE>
(i) the period beginning with the first day
of the Plan Year in which the Participant attains age
32 and ending with the last day of the Plan Year
preceding the Plan Year in which the Participant
attains age 35;
(ii) a reasonable period after he becomes a
Participant; or
(iii) a reasonable period after his
employment is terminated in the case of a Participant
whose employment is terminated before he attains age
35.
(C) Accompanying such election form shall be a
written explanation of the terms and conditions and the
financial effect of the election and of the rights of the
Participant's spouse. Once an election is made, it may be
revoked in writing. Thereafter, another election may be made;
provided that the new election is received by the
Administrator prior to the Participant's death and the other
provisions of this paragraph (c) are met with respect to such
new election.
(D) If the Participant's death benefit attributable
to his Retirement Savings Plan Merger Account is payable to
his spouse as a Qualified Preretirement Survivor Annuity, or
if a spouse executes a restricted consent waiving a Qualified
Preretirement Survivor Annuity and consenting to the
designation of a nonspouse beneficiary, the spouse, or the
Participant's designated beneficiary, as the case may be, may
waive the annuity form of benefit after the Participant's
death and select an optional form of benefit as provided in
paragraph (c)(5).
(4) Notwithstanding paragraphs (c)(2) and (c)(3) of this
Article, any benefit attributable to a Participant's Retirement Savings
Plan Merger Account provided under this Plan that is not more than
$5,000 shall be paid in the form of a lump sum.
(5) In the case of any Participant to whom the provisions of
paragraphs (c)(2), (c)(3) and (c)(4) of this Article do not apply, the
manner of payment of his retirement, disability, death, or other
termination of employment benefit attributable to his Retirement
Savings Plan Merger Account shall be determined by such Participant or,
in case such Participant has died, his beneficiary or beneficiaries.
The options are:
(A) OPTION A - Such amount shall be paid in one lump
sum in cash.
(B) OPTION B - Such amount shall be paid in a life
annuity or a life annuity with a period certain.
VIII-7
<PAGE>
(6) The Participant (or his spouse) shall be permitted to
elect whether life expectancies will be recalculated for purposes of
distributions under paragraph (c)(5) of this Article. Such election
must be made by the Participant (or his spouse) no later than the date
that distributions are required to commence pursuant to Section
401(a)(9) of the Code. If the Participant (or his spouse) fails to make
such election, life expectancies shall not be recalculated.
(7) Notwithstanding the foregoing, payments under any of the
options described in paragraph (c)(5) of this Article shall satisfy the
incidental death benefit requirements and all other applicable
provisions of Section 401(a)(9) of the Code, the regulations issued
thereunder (including Prop. Reg. Section 1.401(a)(9)-2), and such other
rules thereunder as may be prescribed by the Commissioner.
(d) PROPERTY DISTRIBUTED. Notwithstanding paragraph (b) of this
Article, distribution of Participant's balance under his ESOP Merger Account
attributable to Employer Securities will be made in shares of Employer
Securities or in cash in the following manner:
(1) A Participant entitled to a distribution will be notified
in writing of his right to demand that all or any part of the
distribution be made in whole shares of Employer Securities, except for
cash in lieu of fractional shares. The Participant may, within thirty
(30) days following the date of the Plan Administrator's notification
of such right, notify the Plan Administrator in writing of his demand
that all or a specified portion of the distribution be made in whole
shares of Employer Securities. If the Participant exercises such right
of demand, the balance in the Participant's ESOP Merger Account under
the Plan, to the extent necessary to comply with such demand, shall be
used to acquire whole shares of Employer Securities for distribution at
the then Fair Market Value, with the value of fractional shares of
Employer Securities distributed in cash.
(2) In the absence of the timely exercise of such right as set
forth above, or if the Participant demands that less than all of such
distribution be made in whole shares of Employer Securities,
distribution of the Participant's benefit, or the portion thereof not
demanded in whole shares of Employer Securities, shall be made in whole
shares of Employer Securities, or in cash, or partially in shares of
Employer Securities or partially in cash, as determined by the Plan
Administrator.
(3) The right of a Participant to receive a distribution in
whole shares of Employer Securities pursuant to this paragraph (b)
shall not apply to the extent the Participant has exercised his right
to diversify his ESOP Merger Account pursuant to Article X.
(e) SHARE LEGEND. Shares of Employer Securities held or distributed by
the Trustee may include such legend restrictions on transferability as the
Company may
VIII-8
<PAGE>
reasonably require in order to assure compliance with applicable federal and
state securities laws.
(f) DISTRIBUTION FOR A MINOR BENEFICIARY. In the event a distribution
is to be made to a beneficiary who is a minor under the laws of the state in
which the beneficiary resides, the Plan Administrator may, in the Plan
Administrator's sole discretion, direct that such distribution be paid to the
legal guardian or custodian of such beneficiary as permitted by the laws of the
state in which said beneficiary resides. A payment to the legal guardian or
custodian of a minor beneficiary shall fully discharge the Trustee, Employer,
Plan Administrator, and Plan from further liability on account thereof.
(g) LOCATION OF PARTICIPANT OR BENEFICIARY UNKNOWN. In the event that
all, or any portion of the distribution payable to a Participant or his
beneficiary, hereunder shall remain unpaid after the Participant has incurred
five consecutive One Year Breaks in Service solely by reason of the inability of
the Plan Administrator, after sending a registered letter, return receipt
requested, to the last known address, and after further diligent effort, to
ascertain the whereabouts of such Participant or his Beneficiary, the amount so
distributable shall be treated as a forfeiture pursuant to the provisions of
Article VII. In the event a Participant or beneficiary of such Participant is
located subsequent to his benefit being forfeited, the amount forfeited
(unadjusted for gains and losses) shall be restored to the Participant's
Accounts. Such restoration shall be made from forfeitures occurring in the Plan
Year of the restoration and, if necessary, by contributions of his Employer.
(h) TRANSFER TO OTHER QUALIFIED PLANS. The Trustee, upon written
direction by the Plan Administrator, shall transfer some or all of the assets
held under the Trust to another plan or trust meeting the requirements of the
Code relating to qualified plans and trust, whether such transfer is made
pursuant to a merger or consolidation of this Plan with such other plan or trust
or for any other allowable purpose.
(i) DIRECT ROLLOVERS.
(1) Notwithstanding any provisions of the Plan to the contrary
that would otherwise limit a distributee's (as defined below) election
under this paragraph, a distributee may elect, at the time and in the
manner prescribed by the Plan Administrator, to have any portion of an
eligible rollover distribution (as defined below) paid directly to an
eligible retirement plan (as defined below) specified by the
distributee in a direct rollover (as defined below).
(2) For purposes of this paragraph, the following terms shall
have the following meanings:
(A) An "eligible rollover distribution" is any
distribution of all or any portion of the balance to the
credit of the distributee, except that an eligible rollover
distribution does not include: any distribution that is one of
a series of substantially equal periodic payments (not less
frequently than
VIII-9
<PAGE>
annually) made for the life (or life expectancy) of the
distributee or the joint lives (or joint life expectancies) of
the distributee and the distributee's designated beneficiary,
or for a specified period of ten years or more; any
distribution to the extent such distribution is required under
Code Section 401(a)(9), and the portion of any distribution
that is not includible in gross income (determined without
regard to the exclusion for net unrealized appreciation with
respect to employer securities) and any hardship distribution
described in Section 401(k)(2)(B)(i)(IV) of the Code.
(B) An "eligible retirement plan" is an individual
retirement account described in Code Section 408(a), an
individual retirement annuity described in Code Section
408(b), an annuity plan described in Code Section 403(a), or a
qualified trust described in Code Section 401(a), that accepts
the distributee's eligible rollover distribution. However, in
the case of an eligible rollover distribution to the surviving
spouse, an eligible retirement plan is an individual
retirement account or individual retirement annuity.
(C) A "distributee" includes an Employee or former
Employee. In addition, the Employee's or former Employee's
surviving spouse and the Employee's or former Employee's
spouse or former spouse who is the alternate payee under a
qualified domestic relations order, as defined in Code Section
414(p), are distributees with regard to the interest of the
spouse or former spouse.
(D) A "direct rollover" is a payment by the Plan to
the eligible retirement plan specified by the distributee.
VIII-10
<PAGE>
ARTICLE IX
HARDSHIP AND OTHER DISTRIBUTIONS
(a) HARDSHIP DISTRIBUTIONS. The Plan shall not permit hardship
distributions.
(b) DISTRIBUTIONS AFTER AGE 59 1/2. Upon reaching age 59 1/2, a
Participant may apply to the Plan Administrator (but not more than once during
any 12-month period) for a single sum distribution of any portion of his
Accounts; provided, however, that such distribution is only available from
Accounts which are 100% vested. In the case of the Retirement Savings Plan
Merger Account, the provisions of paragraph (c) of Article VIII shall apply.
(c) IN-SERVICE DISTRIBUTION OF ESOP MERGER ACCOUNT.
(1) Notwithstanding any other provisions of the Plan or the
Trust, each Qualified Participant in the Plan may elect within 90 days
after the close of each Plan Year in the Qualified Election Period (or
more frequently, if permitted by the Plan Administrator on a uniform,
nondiscriminatory basis) to receive a distribution of the value
(determined as of the preceding Valuation Date) of no more than 25% (in
whole multiples of 1%) of the number of shares of Employer Securities
allocated to his ESOP Merger Account.
(2) The amount that may be distributed pursuant to this
paragraph shall be determined by multiplying the number of shares of
Employer Securities credited to the Participant's ESOP Merger Account
(including shares of Employer Securities the value of which has been
previously distributed pursuant to this paragraph) by 25% or, with
respect to a Participant's final election, 50% reduced by the amount of
any prior distributions received by such Participant pursuant to this
paragraph.
(3) The Plan Administrator shall direct the Trustee to make
distributions under this paragraph to Qualified Participants pursuant
to their valid and timely elections within 180 days after the end of
the Plan Year to which such elections apply.
(4) Notwithstanding the foregoing, a Qualified Participant
shall not be entitled to make the election hereunder for a Plan Year
within the Qualified Election Period if the fair market value of his
Employer Securities Account as of the last day of such Plan Year is
less than $500.
(5) For purposes of this paragraph, the following definitions
shall apply:
(A) "QUALIFIED ELECTION PERIOD" shall mean the six
Plan Year period beginning with the first Plan Year in which
the Participant first becomes a Qualified Participant.
IX-1
<PAGE>
(B) "QUALIFIED PARTICIPANT" shall mean any
Participant who, prior to January 1, 2000, has attained age 55
and has been a Participant in the Tech Data Corporation
Employee Stock Ownership Plan for at least ten years.
IX-2
<PAGE>
ARTICLE X
INVESTMENT FUNDS AND LOANS TO PARTICIPANTS
(a) INVESTMENT FUNDS.
(1) Each Participant may direct the Plan Administrator to
invest up to 50% of the shares of Employer Securities allocated to his
ESOP Merger Account, determined as of January 1, 2000, and 100% of his
other Accounts in one or more investment funds that may be made
available from time to time. Notwithstanding the foregoing, a
Participant shall not be entitled to direct the investment of his ESOP
Merger Account until such time as the Participant is 100% vested in his
ESOP Merger Account. If a Participant is not 100% vested in his ESOP
Merger Account on January 1, 2000, then, within an administratively
practicable time after becoming 100% vested in his ESOP Merger Account,
the Participant will be entitled to direct the Plan Administrator to
invest up to 50% of the shares of Employer Securities allocated to his
ESOP Merger Account (determined as of the date the Participant becomes
100% vested in his ESOP Merger Account, or as soon as administratively
practicable thereafter) in one or more investment funds that may be
made available from time to time. For purposes of determining the
number of shares of Employer Securities allocated to a Participant's
ESOP Merger Account as of January 1, 2000, or if later, the date on
which the Participant becomes 100% vested in his ESOP Merger Account,
any shares of Employer Securities allocated to a Participant's ESOP
Merger Account attributable to contributions made by the Employer for
Plan Years prior to January 1, 2000 shall be included in the
Participant's ESOP Merger Account balance, even though such shares of
Employer Securities may not be allocated to the Participant's ESOP
Merger Account until after January 1, 2000. A Participant's Accounts
shall be divided into sub-accounts to properly account for the various
investment funds in which such Accounts are invested. Each sub-account
shall be adjusted as of each Valuation Date in accordance with Article
VI to account for distributions, withdrawals, loans, contributions and
forfeitures allocated to it and with respect to its share of the
income, loss, appreciation and depreciation of such investment fund.
(2) This Plan is intended to satisfy the requirements of an
"ERISA Section 404(c) Plan" providing Participants (and beneficiaries)
with the opportunity to exercise control over the investment of assets
held in their Accounts and to select, from a broad range of investment
funds, the manner in which some or all of the assets in their Accounts
are invested. The Trustee intends to select and offer investment funds
in accordance with Section 404(c) of ERISA and the regulations
thereunder.
(3) The Plan Administrator shall establish procedures
regarding Participant investment direction as are necessary, which
procedures shall be
X-1
<PAGE>
communicated to all Participants and applied in a uniform,
nondiscriminatory manner.
(4) Each investment fund shall be treated separately for
purposes of (A) crediting dividends, interest, and other income on the
investments in a particular investment fund, and all realized and
unrealized gains shall be credited to that fund, and (B) charging
brokerage commissions, taxes, and other charges and expenses in
connection with the investments in a particular investment fund, and
all realized and unrealized losses shall be charged to that fund. Other
charges or fees separately incurred and not charged to an investment
fund, and incurred as a result of an election made by a Participant
associated with the investment of his Accounts, shall be charged
against his Accounts in accordance with Article VI.
(5) Neither the Trustee, the Plan Administrator, nor any other
person shall be under any duty to question any election by a
Participant or to make any suggestions to him in connection therewith.
Any loss occasioned by a Participant's election or failure to change an
election of an investment fund shall not be the responsibility of the
Trustee, the Plan Administrator, or any other person. Nor shall the
Trustee or the Plan Administrator be liable to any Participant for
failure to make an investment in any investment fund elected by him if
in the exercise of due diligence the Trustee has not been able to
acquire satisfactory securities or other property for that fund
satisfying the specifications and parameters established by the Plan
Administrator and reasonable requirements as to price, terms, and other
conditions, or for inability to liquidate an investment in a fund
promptly upon receipt of a new election form from the Participant.
(b) LOANS TO PARTICIPANTS. Participant loans shall be available under
the Plan in accordance with a written loan policy adopted by the Plan
Administrator.
X-2
<PAGE>
ARTICLE XI
TRUST FUND AND EXPENSES OF ADMINISTRATION
(a) TRUSTEE. The Trust Fund shall be held by the Trustee, or by a
successor trustee or trustees, for use in accordance with the Plan under the
Trust Agreement. The Trust Agreement may from time to time be amended in the
manner therein provided. Similarly, the Trustee may be changed from time to time
in the manner provided in the Trust Agreement.
(b) EXPENSES OF ADMINISTRATION.
(1) (A) Unless otherwise paid or provided by the Company and
the other Employers, the assets of the Trust Fund shall be
used to pay all expenses of the administration of the Plan and
the Trust Fund, including the Trustee's compensation, the
compensation of any investment manager, the expense incurred
by the Plan Administrator in discharging its duties, all
income or other taxes of any kind whatsoever that may be
levied or assessed under existing or future laws upon or in
respect of the Trust Fund, and any interest that may be
payable on money borrowed by the Trustee for the purpose of
the Trust.
(B) (i) The Company and the other Employers may pay
the expenses of the Plan and the Trust Fund. Any such
payment by the Company or another Employer shall not
be deemed a contribution to this Plan.
(ii) To the extent the Company and/or the other
Employers pay expenses of the Plan and Trust Fund, the
Plan Administrator may direct the Trustee to reimburse
the Company and/or the other Employers from the Trust
Fund.
(2) Notwithstanding anything contained herein to the contrary,
no excise tax or other liability imposed upon the Trustee, the Plan
Administrator or any other person for failure to comply with the
provisions of any federal law shall be subject to payment or
reimbursement from the assets of the Trust.
(3) For its services, any corporate trustee shall be entitled
to receive reasonable compensation in accordance with its rate schedule
in effect from time to time for the handling of a retirement trust. Any
individual trustee shall be entitled to such compensation as shall be
arranged between the Company and the Trustee by separate instrument;
provided, however, that no person who is already receiving full-time
pay from any Employer or any Affiliate shall receive compensation from
the Trust Fund (except for the reimbursement of expenses properly and
actually incurred).
XI-1
<PAGE>
ARTICLE XII
AMENDMENT AND TERMINATION
(a) RESTRICTIONS ON AMENDMENT AND TERMINATION OF PLAN. It is the
present intention of the Company to maintain the Plan set forth herein
indefinitely. Nevertheless, the Company specifically reserves to itself the
right at any time, and from time to time, to amend or terminate this Plan in
whole or in part; provided, however, that no such amendment:
(1) shall have the effect of vesting in any Employer, directly
or indirectly, any interest, ownership or control in any of the present
or subsequent funds held subject to the terms of the Trust;
(2) shall cause or permit any property held subject to the
terms of the Trust to be diverted to purposes other than the exclusive
benefit of the Participants and their beneficiaries or for the
administrative expenses of the Plan Administrator and the Trust;
(3) shall (A) reduce any vested interest of a Participant on
the later of the date the amendment is adopted or the date the
amendment is effective, except as permitted by law, or (B) reduce or
restrict either directly or indirectly any benefit provided any
Participant prior to the date an amendment is adopted;
(4) shall reduce the Accounts of any Participant;
(5) shall amend any vesting schedule with respect to any
Participant who has at least three Years of Service at the end of the
election period described below, except as permitted by law, unless
each such Participant shall have the right to elect to have the vesting
schedule in effect prior to such amendment apply with respect to him,
such election, if any, to be made during the period beginning not later
than the date the amendment is adopted and ending no earlier than sixty
(60) days after the latest of the date the amendment is adopted, the
amendment becomes effective or the Participant is issued written notice
of the amendment by his Employer or the Plan Administrator; or
(6) shall increase the duties or liabilities of the Trustee
without its written consent.
(b) AMENDMENT OF PLAN. Subject to the limitations stated in paragraph
(a), the Company shall have the power to amend this Plan in any manner that it
deems desirable, and, not in limitation but in amplification of the foregoing,
it shall have the right to change or modify the method of allocation of
contributions hereunder, to change any provision relating to the administration
of this Plan and to change any provision relating to the distribution or
payment, or both, of any of the assets of the Trust.
XII-1
<PAGE>
(c) DISCONTINUANCE OF CONTRIBUTIONS.
(1) (A) Any Employer, in its sole and absolute discretion, may
permanently discontinue making contributions under this Plan
(with respect to all Employers if it is the Company, or with
respect to itself alone if it is an Employer other than the
Company) at any time without any liability whatsoever for such
permanent discontinuance.
(B) In the event an Employer decides to permanently
discontinue making contributions under this Plan, such
decision shall be evidenced by an appropriate resolution (of
the Board in the case of a corporate Employer) and a certified
copy of such resolution shall be delivered to the Plan
Administrator and the Trustee.
(2) (A) Upon the occurrence of any of the events described in
subparagraph (1) above, the affected Participants,
notwithstanding any other provisions of this Plan, shall have
fully vested interests in the amounts credited to their
respective Accounts at the time of such permanent
discontinuance of contributions. All such vested interests
shall be nonforfeitable.
(B) In the event there is a permanent discontinuance
of contributions under this Plan without formal documentation,
full vesting of the interests of the affected Participants in
the amounts credited to their respective Accounts will occur
as of the last day of the Plan Year in which a substantial
contribution was made to the Trust.
(d) TERMINATION PROCEDURE.
(1) (A) The Company, in its sole and absolute discretion, may
terminate this Plan and the Trust, completely or partially, at
any time without any liability for such complete or partial
termination.
(B) In the event the Company decides to terminate
this Plan and the Trust, such decision shall be evidenced by
an appropriate resolution and a certified copy of such
resolution shall be delivered to the Plan Administrator and
the Trustee.
(2) In the event the Plan is terminated, the affected
Participants, notwithstanding any other provisions of this Plan, shall
have fully vested interests in the amounts credited to their respective
Accounts at the time of such complete or partial termination of this
Plan and the Trust. All such vested interests shall be nonforfeitable.
(3) Following a termination, complete or partial, and after
payment of all expenses and adjustments of individual accounts to
reflect such expenses and other changes in the value of the Trust Fund
each affected Participant (or
XII-2
<PAGE>
the beneficiary of any such Participant) shall be entitled to receive,
provided that no successor plan has been established, a distribution of
the amounts then credited to his Accounts in accordance with the
provisions of Article VIII.
XII-3
<PAGE>
ARTICLE XIII
MISCELLANEOUS
(a) MERGER OR CONSOLIDATION. This Plan and the Trust may not be merged
or consolidated with, and the assets or liabilities of this Plan and the Trust
may not be transferred to, any other plan or trust unless each Participant would
receive a benefit immediately after the merger, consolidation or transfer, if
the plan and trust then terminated, that is equal to or greater than the benefit
the Participant would have received immediately before the merger, consolidation
or transfer if this Plan and the Trust had then terminated.
(b) ALIENATION.
(1) Except as provided in subparagraph (2), no Participant or
beneficiary of a Participant shall have any right to assign, transfer,
appropriate, encumber, commute, anticipate or otherwise alienate his
interest in this Plan or the Trust or any payments to be made
thereunder; no benefits, payments, rights or interests of a Participant
or beneficiary of a Participant of any kind or nature shall be in any
way subject to legal process to levy upon, garnish or attach the same
for payment of any claim against the Participant or beneficiary of a
Participant; and no Participant or beneficiary of a Participant shall
have any right of any kind whatsoever with respect to the Trust, or any
estate or interest therein, or with respect to any other property or
right, other than the right to receive such distributions as are
lawfully made out of the Trust, as and when the same respectively are
due and payable under the terms of this Plan and the Trust.
(2) (A) Notwithstanding the provisions of subparagraph (b)(1),
the Plan Administrator shall direct the Trustee to make payments
pursuant to a Qualified Domestic Relations Order as defined in Section
414(p) of the Code. This Plan shall permit distributions pursuant to a
Qualified Domestic Relations Order at any time.
(B) The Plan Administrator shall establish procedures
consistent with Section 414(p) of the Code to determine if any
order received by the Plan Administrator, or any other
fiduciary of the Plan, is a Qualified Domestic Relations
Order.
(3) Notwithstanding any provision of the Plan to the contrary,
an offset to a Participant's Accounts for an amount that the
Participant is ordered or required to pay the Plan with respect to a
judgment, order or decree issued, or a settlement entered into, on or
after August 5, 1997, shall be permitted in accordance with Sections
401(a)(13)(C) and (D) of the Code.
(c) ELECTRONIC MEDIA AND OTHER TECHNOLOGY. Notwithstanding any
provision of the Plan to the contrary, the Plan Administrator may use telephonic
media, electronic
XIII-1
<PAGE>
media or other technology in administering the Plan to the extent not prohibited
by applicable law, regulation or other pronouncement.
(d) WAIVER OF NOTICE. Any Participant, beneficiary or other person
entitled to notice under the Plan may waive the right to such notice to the
extent that such waiver is not inconsistent with applicable law, regulation or
other pronouncement
(e) USERRA REQUIREMENTS. This Plan shall comply with the requirements
of the Uniformed Services Employment and Reemployment Rights Act (USERRA) and
Section 414(u) of the Code, including the following:
(1) An individual reemployed under USERRA shall be treated as
not having incurred a break in service with Employer by reason of such
individual's qualified military service (as defined in Section 414(u)
of the Code).
(2) Each period of qualified military service served by an
individual is, upon reemployment, deemed to constitute service with the
Employer for purposes of vesting and the accrual of benefits under the
Plan.
(3) An individual reemployed under USERRA is entitled to
accrued benefits that are contingent on the making of, or derived from,
Employee contributions or elective deferrals only to the extent the
individual makes payment to the Plan with respect to such contributions
or deferrals; provided, however, that no such payment may exceed the
amount the individual would have been permitted or required to
contribute had the individual remained continuously employed by the
Employer throughout the period of qualified military service. Any
payment to the Plan under this subparagraph (3) shall be made during
the period beginning with the date of reemployment and whose duration
is 3 times the period of the qualified military service (but not
greater than 5 years).
(f) GOVERNING LAW. This Plan shall be administered, construed and
enforced according to the laws of the State of Florida, except to the extent
such laws have been expressly preempted by federal law.
(g) ACTION BY EMPLOYER. Whenever an Employer under the terms of this
Plan is permitted or required to do or perform any act, it shall be done and
performed, in the case of a corporate Employer, by the Board of Directors of
such Employer and shall be evidenced by proper resolution of such Board of
Directors of such Employer.
(h) ALTERNATIVE ACTIONS. In the event it becomes impossible for the
Company, another Employer, the Plan Administrator or the Trustee to perform any
act required by this Plan, then the Company, such other Employer, the Plan
Administrator or the Trustee, as the case may be, may perform such alternative
act that most nearly carries out the intent and purpose of this Plan.
(i) SEVERABILITY OF PROVISIONS. In the event that any provision of the
Plan shall be determined to be illegal, invalid or unenforceable, the remaining
provisions of
XIII-2
<PAGE>
the Plan shall be construed as though the illegal, invalid or unenforceable
provision is not part of the Plan.
(j) GENDER. Throughout this Plan, and whenever appropriate, the
masculine gender shall be deemed to include the feminine and neuter; the
singular, the plural; and vice versa.
IN WITNESS WHEREOF, this Plan has been executed and is effective as of
the dates first set forth above.
TECH DATA CORPORATION
By:__________________________________
By:__________________________________
"COMPANY"
XIII-3
EXHIBIT 5
SCHIFINO & FLEISCHER, P.A.
ATTORNEYS AT LAW
WILLIAM J. SCHIFINO TELEPHONE: (813)223-1535 ONE TAMPA CITY CENTER
FRANK N. FLEISCHER TELECOPIER: (813)223-3070 201 NORTH FRANKLIN STREET
LINA ANGELICI INTERNET: [email protected] SUITE 2700
AMY LETTELLEIR TAMPA, FLORIDA 33602
December 28, 1999
Securities and Exchange Commission
450 5th Street, N.W.
Judiciary Plaza
Washington, DC 20549
Re: Tech Data Corporation 401(k) Savings 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 500,000 shares of the Company's Common Stock under the
Company's 401(k) Savings 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.
<PAGE>
3. When the following events shall have occurred:
(1) the S-8 Registration Statement shall have become
effective in accordance with the Securities Act of
1933, as amended; and
(2) the consideration specified in the Plan
shall have been received;
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/ LINA ANGELICI
---------------------------------
Lina Angelici
For the Association
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of our report dated March 19, 1999, relating to the
financial statements, which appears in Tech Data Corporation's Annual Report on
Form 10-K for the year ended January 31, 1999. We also consent to the
incorporation by reference of our report dated March 19, 1999, relating to the
financial statement schedules, which appears in such Annual Report on Form 10-K.
PRICEWATERHOUSECOOPERS LLP
/s/ PricewaterhouseCoopers LLP
Tampa, Florida
December 29, 1999
