-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, piYXvKickHExgbHwEjdW848pnHGUpRhxKN1ajXX7EgzSVdv42fvG6wdduoBD+Xqg dgC3bX4ic6+r4POlWFGD9Q== 0000950144-95-001775.txt : 19950623 0000950144-95-001775.hdr.sgml : 19950623 ACCESSION NUMBER: 0000950144-95-001775 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19950622 EFFECTIVENESS DATE: 19950711 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: TECH DATA CORP CENTRAL INDEX KEY: 0000790703 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-COMPUTER & PERIPHERAL EQUIPMENT & SOFTWARE [5045] IRS NUMBER: 591578329 STATE OF INCORPORATION: FL FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 033-60479 FILM NUMBER: 95548596 BUSINESS ADDRESS: STREET 1: 5350 TECH DATA DR CITY: CLEARWATER STATE: FL ZIP: 34620 BUSINESS PHONE: 8135397429 MAIL ADDRESS: STREET 1: 5350 TECH DATA DRIVE CITY: CLEARWATER STATE: FL ZIP: 34620 S-8 1 TECH DATA CORPORATION FORM S-8 1 As filed with the Securities and Exchange Commission on June 22, 1995 REGISTRATION NO. 33- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------------------ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------------------ TECH DATA CORPORATION (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) ------------------------------------ FLORIDA NO. 59-1578329 (State of Incorporation) (I.R.S. Employer Identification Number) 5350 TECH DATA DRIVE CLEARWATER, FLORIDA 34620 (813)539-7429 (ADDRESS AND TELEPHONE NUMBER OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) ------------------------------------ TECH DATA CORPORATION 1995 EMPLOYEE STOCK PURCHASE PLAN STEVEN A. RAYMUND CHAIRMAN AND CHIEF EXECUTIVE OFFICER TECH DATA CORPORATION 5350 TECH DATA DRIVE, CLEARWATER, FLORIDA 34620 (813)539-7429 (Name, Address and Telephone Number of Agent for Service) COPY TO: FRANK N. FLEISCHER, ESQ. SCHIFINO & FLEISCHER, P.A. ONE TAMPA CITY CENTER, SUITE 2700 TAMPA, FLORIDA 33602 (813)223-1535 ------------------------------------
CALCULATION OF REGISTRATION FEE ==================================================================================================================================== Proposed Proposed Amount maximum maximum Amount of Title of shares to be offering price aggregate registration to be registered registered per share (1) offering price (1) fee - ------------------------------------------------------------------------------------------------------------------------------------ Common Stock, $.0015 Par Value 1,000,000 Shares $10.75 $10,750,000 $3,707 ====================================================================================================================================
(1) Estimated solely for the purpose of calculating the registration fee and computed pursuant to Rule 457(h) and based upon the average of the high and low sale prices on June 15, 1995 as reported by the Nasdaq National Market System. ================================================================================ 2 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. By this reference, the following documents filed or to be filed by Tech Data Corporation (the "Company") with the Securities and Exchange Commission (the "Commission") are incorporated into and made a part of this Registration Statement: 1. The Company's Annual Report on Form 10-K for the fiscal year ended January 31, 1995, as filed with the Commission on April 18, 1995 2. The Company's Quarterly Report on Form 10-Q for the quarter ended April 30, 1995, as filed with the Commission on June 14, 1995. 3. The description of the Company's Common Stock set forth on pages 15 and 16 of the Company's Prospectus dated April 23, 1986, as filed with the Commission under Rule 424(b) of the Securities Act of 1933, as amended, which was a part of the Company's Registration Statement on Form S-1 (Registration Statement No. 33-4135) and which was incorporated by reference in the Company's Registration Statement on Form 8-A as filed with the Commission under the Securities Exchange Act of 1934, as amended (File No. 0-14625). 4. All documents filed by the Company with the Commission subsequent to the date of this Registration Statement under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated into and made a part of this Registration Statement from the date of filing of such documents with the Commission. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. The validity of the Common Stock issuable by the Company under the Company's 1995 Employee Stock Purchase Plan will be passed upon for the Company by Schifino & Fleischer, P.A., Tampa, Florida. Members of such firm do not own any shares of the Company's outstanding Common Stock. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The Florida Business Corporation Act, as amended (the "Florida Act"), provides that, in general, a business corporation may indemnify any person who is or was a party to any proceeding (other than an action by, or in the right of, the corporation) by reason of the fact that he or she is or was a director or officer of the corporation, against liability incurred in connection with such proceeding, including any II-1 3 appeal thereof, provided certain standards are met, including that such officer or director acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the corporation, and provided further that, with respect to any criminal action or proceeding, the officer or director had no reasonable cause to believe his or her conduct was unlawful. In the case of proceedings by or in the right of the corporation, the Florida Act provides that, in general, a corporation may indemnify any person who was or is a party to any such proceeding by reason of the fact that he or she is or was a director or officer of the corporation against expenses and amounts paid in settlement actually and reasonably incurred in connection with the defense or settlement of such proceeding, including any appeal thereof, provided that such person acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the corporation, except that no indemnification shall be made in respect of any claim as to which such person is adjudged liable unless a court of competent jurisdiction determines upon application that such person is fairly and reasonably entitled to indemnity. To the extent that any officers or directors are successful on the merits or otherwise in the defense of any of the proceedings described above, the Florida Act provides that the corporation is required to indemnify such officers or directors against expenses actually and reasonably incurred in connection therewith. However, the Florida Act further provides that, in general, indemnification or advancement of expenses shall not be made to or on behalf of any officer or director if a judgment or other final adjudication establishes that his or her actions, or omissions to act, were material to the cause of action so adjudicated and constitute: (i) a violation of the criminal law, unless the director or officer had reasonable cause to believe his or her conduct was lawful or had no reasonable cause to believe it was unlawful; (ii) a transaction from which the director or officer derived an improper personal benefit; (iii) in the case of a director, a circumstance under which the director has voted for or assented to a distribution made in violation of the Florida Act or the corporation's articles of incorporation; or (iv) willful misconduct or a conscious disregard for the best interests of the corporation in a proceeding by or in the right of the corporation to procure a judgment in its favor or in a proceeding by or in the right of a shareholder. The Company's By-Laws include the following provisions: ARTICLE NINE INDEMNIFICATION "9.1 Under the circumstances prescribed in Section 9.3 and 9.4, the Corporation shall indemnify and hold harmless any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he is or was a Director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a Director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (include attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in a manner which he reasonably believed to be in or not opposed to the best interest of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. II-2 4 9.2 Under the circumstances prescribed in Section 9.3 and 9.4, the Corporation shall indemnify and hold harmless any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was a Director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a Director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation; except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the Corporation, unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person if fairly and reasonably entitled to indemnify for such expenses that the court shall deem proper. 9.3 To the extent that a Director, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Sections 9.1 and 9.2, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorney's fees) actually and reasonably incurred by him in connection therewith. 9.4 Except as provided in Section 9.3 and except as may be ordered by a court, any indemnification under Sections 9.1 and 9.2 shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the Director, officer, employee or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in Sections 9.1 and 9.2. Such a determination shall be made (1) by the Board of Directors by a majority vote of a quorum consisting of Directors who were not parties to such action, suit or proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested Directors so directs, by independent legal counsel in a written opinion, or (3) by the affirmative vote of a majority of the shares entitled to vote thereon owned by persons who were not parties to such action, suit or proceeding. 9.5 Expenses, including attorneys' fees, incurred in defending a civil or criminal action, suit, or proceeding may be paid by the Corporation in advance of the final disposition of such action, suit, or proceeding upon a preliminary determination following one of the procedures set forth in Section 9.4 that the Director, officer, employee or agent met the applicable standard of conduct set forth in Section 9.1 or Section 9.2 or as authorized by the Board of Directors in the specific case and, in either event, upon receipt of an undertaking by or on behalf of the Director, officer, employee, or agent to repay such amount unless it shall ultimately be determined that he is entitled to be indemnified by the Corporation as authorized in this Section. 9.6 The Corporation shall have the power to make any other or further indemnification of any of its Directors, officers, employees, or agents, under any By-Law, agreement, vote of shareholders or disinterested Directors, or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, except an indemnification against gross negligence or willful misconduct. 9.7 The indemnification provided by this Article Nine shall continue as to a person who has ceased to be a Director, employee or agent and shall inure to the benefit of the heirs, executors or administrators of such a person. II-3 5 9.8 The Corporation may purchase and maintain insurance on behalf of any person who is or was a Director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a Director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against any liability asserted against himself and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of this Article Nine. 9.9 If any expenses or other amounts are paid by way of indemnification, otherwise than by court order or action by the shareholder or by an insurance carrier pursuant to insurance maintained by the Corporation, the Corporation shall, not later than the next annual meeting of shareholders unless such meeting is held within three months from the date of such payment, and, in any event, within 15 months from the date of such payment, deliver personally or send by first class mail to its shareholders of record at the time entitled to vote for the election of Directors a statement specifying the persons paid, the amounts paid, and the nature and status at the time of such payment of the litigation or threatened litigation." ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES. The exhibit numbers on the following list correspond to the numbers in the exhibit table required pursuant to Item 601 of Regulation S-K:
Exhibit Number Description ------ ----------- 4.1(1) -- Tech Data Corporation 1995 Employee Stock Purchase Plan 4.2(2) -- Articles of Incorporation of the Company as amended to April 23, 1986. 4.3(3) -- Articles of Amendment to Articles of Incorporation of the Company filed on August 27, 1987. 4.4(4) -- Articles of Amendment to Articles of Incorporation of the Company filed on July 15, 1993. 4.5(5) -- By-Laws of the Company as amended to March 28, 1995. 5(1) -- Opinion of Schifino & Fleischer, P.A. 23-1(1) -- Consent of Schifino & Fleischer, P.A., appears in its opinion filed as Exhibit 5 hereto. 23-2(1) -- Consent of Price Waterhouse LLP. 24(1) -- Power of Attorney included on signature page.
______________________ 1. Filed herewith. 2. Incorporated by reference to the Exhibits included in the Company's Registration Statement on Form S-1, File No. 33-4135. 3. Incorporated by reference to the Exhibits included in the Company's Registration Statement on Form S-1, File No. 33-21997. II-4 6 4. Incorporated by reference to the Exhibits included in the Company's Form 10-K for the year ended January 31, 1994, File No. 0-14625. 5. Incorporated by reference to the Exhibits included in the Company's Form 10-K for the year ended January 31, 1995, File No. 0-14625. ITEM 9. UNDERTAKINGS. The undersigned registrant hereby undertakes: (1) To file, during any period in which offers of sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or event arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission II-5 7 such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. [Balance of page intentionally left blank] II-6 8 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this amendment to the Registration Statement to be signed on its behalf by the undersigned thereunto duly authorized, in the City of Clearwater and State of Florida, on the 21st day of June, 1995. TECH DATA CORPORATION By /s/ Steven A. Raymund --------------------------------------- Steven A. Raymund, Chairman of the Board of Directors; Chief Executive Officer POWER OF ATTORNEY Each person whose signature to this Registration Statement appears below hereby appoints Jeffery P. Howells and Arthur W. Singleton, or either of them, as his attorney-in-fact to sign on his behalf individually and in the capacity stated below and to file all amendments and post-effective amendments to this Registration Statement, and any and all instruments or documents filed as a part of or in connection with this Registration Statement or the amendments thereto, and the attorney-in-fact, or either of them, may make such changes and additions to this Registration Statement as the attorney-in-fact, or either of them, may deem necessary or appropriate. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ Steven A. Raymund Chairman of the Board of Directors; June 21, 1995 - ----------------------------------- Chief Executive Officer Steven A. Raymund /s/ A. Timothy Godwin President; Chief Operating Officer; June 21, 1995 - ----------------------------------- Director A. Timothy Godwin /s/ Jeffery P. Howells Senior Vice President of Finance; June 21, 1995 - ----------------------------------- Chief Financial Officer Jeffery P. Howells (principal financial officer) /s/ Joseph B. Trepani Vice President and Worldwide June 21, 1995 - ----------------------------------- Controller; (principal accounting officer) Joseph B. Trepani /s/ Charles E. Adair Director June 21, 1995 - ----------------------------------- Charles E. Adair /s/ Daniel M. Doyle Director June 21, 1995 - ----------------------------------- Daniel M. Doyle /s/ Donald F. Dunn Director June 21, 1995 - ----------------------------------- Donald F. Dunn /s/ Lewis J. Dunn Director June 21, 1995 - ----------------------------------- Lewis J. Dunn /s/ Edward C. Raymund Director; Chairman Emeritus June 21, 1995 - ----------------------------------- Edward C. Raymund /s/ John Y. Williams Director June 21, 1995 - ----------------------------------- John Y. Williams
II-7 9 EXHIBIT INDEX
Exhibit Page Number Description Number - ------ ----------- ------ 4.1 Tech Data Corporation 1995 Employee Stock Purchase Plan 4.2 Articles of Incorporation of the Company as amended to April 23, 1986. * 4.3 Articles of Amendment to Articles of Incorporation of the Company filed on August 27, 1987. * 4.4 Articles of Amendment to Articles of Incorporation of the Company filed on July 15, 1993. * 4.5 By-Laws of the Company as amended to March 28, 1995 * 5 Opinion of Schifino & Fleischer, P.A. 23-1 Consent of Schifino & Fleischer, P.A., appears in its opinion filed as Exhibit 5 hereto. 23-2 Consent of Price Waterhouse LLP. 24 Power of Attorney included on signature page.
EX-4.1 2 1995 EMPLOYEE STOCK PURCHASE PLAN 1 EXHIBIT 4.1 TECH DATA CORPORATION 1995 EMPLOYEE STOCK PURCHASE PLAN ARTICLE I NAME AND PURPOSE 1.1 Name. The name of this Plan is the "Tech Data Corporation 1995 Employee Stock Purchase Plan." 1.2 Purpose and Construction. The Plan is intended to provide a method whereby employees of Tech Data Corporation and certain other related corporations will have an opportunity to acquire a proprietary interest in Tech Data Corporation through the purchase of shares of its common stock. It is intended for this Plan to qualify as an "employee stock purchase plan" under Section 423 of the Internal Revenue Code of 1986, as amended (the "Code"). The provisions of the Plan shall be construed so as to extend and limit participation in a manner consistent with the requirements of the Code. ARTICLE II DEFINITIONS OF TERMS 2.1 General Definitions. The following words and phrases, when used in the Plan, unless otherwise specifically defined or unless the context clearly otherwise requires, shall have the following respective meanings: (a) Accumulation Period. The period beginning on the first day following an Exercise Date and ending upon the immediately succeeding Exercise Date. The initial Accumulation Period under the Plan shall begin on July 1, 1995 and end on July 31, 1995. (b) Board. The Board of Directors of Tech Data Corporation. (c) Business Day. Any day that the exchange upon which the Common Stock is then traded is open for business. (d) Committee. The Employee Stock Purchase Plan Committee as appointed by the Board. (e) Common Stock. The Company's common stock, $.0015 par value. (f) Company. Tech Data Corporation. (g) Effective Date. July 1, 1995. However, in order to remain effective, the Plan must be approved by the shareholders of the Company within one year before or after the approval by the Board. (h) Employee. Any person who is regularly and actively employed by the Employer; provided, however, that the term "Employee" does not include any person whose customary employment is 20 hours or less per week or whose customary employment is for not more than five months in any calendar year. 2 (i) Employer. The Committee may from time to time designate the corporations whose employees may be offered Options under the Plan. Designations of participating corporations shall be made from time to time by the Committee from among a group of corporations consisting of the Company and its Parents or Subsidiaries. The group of corporations from among which such designations shall be permitted shall include those corporations which may become Parents or Subsidiaries after the adoption and approval of this Plan. (j) Entry Date. Each January 1, April 1, July 1 and October 1. There shall be a special Entry Date of July 1, 1995, in connection with the initial commencement of the Plan. (k) Exercise Date. The last Business Day of each month. The initial Exercise Date under the Plan shall be July 31, 1995. (l) Fair Market Value. The last reported sales price at which shares of the Common Stock were traded or, if the Common Stock was not traded on a specified date, the last reported sales price on the date nearest preceding such date. (m) Officer. The president, principal financial officer, principal accounting officer (or, if there is no such accounting officer, the controller), any vice-president in charge of a principal business unit, division or function (such as sales, administration or finance), any other officer who performs a policy-making function, or any other person who performs similar policy-making functions for the Company, its Parents or Subsidiaries, or as otherwise defined in Rule 16a-1(f), promulgated under the Securities and Exchange Act of 1934, as amended. (n) Option. An option granted under the Plan to purchase Shares. (o) Option Date. The last Business Day of each month of every year on which the Board grants Options under the Plan. The initial Option Date under the Plan shall be July 31, 1995. (p) Parent. Any corporation (other than the Company) in an unbroken chain of corporations ending with the Company if, at the time of the grant of an Option, each of the corporations (other than the Company) owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. (q) Participant. An eligible Employee who has elected to participate in the Plan. (r) Plan. The Tech Data Corporation 1995 Employee Stock Purchase Plan, including all amendments and supplements thereto. (s) Share. A share of Common Stock. (t) Subsidiary. Any corporation (other than the Company) in an unbroken chain of corporations beginning with the Company if, at the time of the grant of an Option, each of the corporations, other than the last corporation in the unbroken chain, owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. 2 3 2.2 Other Definitions. In addition to the above definitions, certain words and phrases used in the Plan may be defined in other portions of the Plan. ARTICLE III ELIGIBILITY AND PARTICIPATION 3.1 Initial Eligibility. An Employee who has completed ninety (90) days of employment shall be eligible to participate under the Plan on or after the first Entry Date following the completion of the Employee's initial ninety (90) days of employment. For purposes of determining eligibility, employment by an entity which is acquired by the Employer or whose assets are acquired by the Employer shall not be treated as employment by the Employer unless the Board shall make a determination otherwise. 3.2 Leave of Absence. For purposes of participation in the Plan, a person on leave of absence shall be deemed to be an Employee for the first 90 days of such leave of absence and such person's employment shall be deemed to have terminated at the close of business on the 90th day of such leave of absence unless such person shall have returned to active employment prior to the close of business on such 90th day. Termination by the Employer of any person's leave of absence, other than termination of such leave of absence on return to active employment shall terminate a person's employment for all purposes of the Plan and shall terminate such person's participation in the Plan and right to exercise any option. 3.3 Restriction on Participation. Notwithstanding any provision of the Plan to the contrary, no Employee shall be eligible to participate in the Plan if immediately after the grant, such person would own stock, and/or hold outstanding options to purchase stock, possessing five percent (5%) or more of the total combined voting power or value of all classes of stock of the Company or of any Parent or Subsidiary (for purposes of this paragraph, the rules of Section 424(d) of the Code shall apply in determining stock ownership of any person). 3.4 Commencement of Participation. An eligible Employee may become a participant by completing the forms provided by the Employer (including the "Purchase Order Form" and the "Payroll Deduction Authorization Form" and/or the "Lump-sum Purchase Authorization Form", collectively referred to herein as the "Participation Forms") and filing them with the individual designated by the Committee as the Stock Purchase Plan Coordinator (the "Coordinator") on or before the date set therefor by the Committee. 3.5 Participation Forms. The Participation Forms which eligible Employees must complete, sign and deliver to the Employer in order to participate in the Plan shall include the following: (a) A specification of the fixed dollar amount to be deducted from the compensation payable to the Employee in each payroll period. (b) A direction that the maximum possible number of Shares be purchased on the Exercise Date, except to the extent the Employee shall have notified the Employer in writing (in accordance with the requirements of Section 7.4 of the Plan) to the contrary prior to the Exercise Date. 3 4 (c) A specification of the exact name of the Employee to whom the Stock purchased is to be registered. (d) An agreement that (i) the Shares acquired under the Plan shall be purchased and initially held in the name of the Plan, the Company or its designee on behalf of the Participants under the Plan, and (ii) the Shares acquired under the Plan shall remain in a safekeeping location maintained by the Company or its designee on behalf of the Participants for a period of two years from the Option Date so that the Company will be able to monitor compliance with the provisions of the Plan governing disposition of Shares. (e) An agreement that the Employee will not dispose of any Shares acquired under the Plan within one year after the Exercise Date. This agreement may be waived by the Committee if a sale of said Shares within one year from the Exercise Date is necessary to enable the Employee to meet immediate and material financial needs if such financial hardship cannot be met by other reasonably available resources of the Employee. Such a waiver shall be valid only if and when the Employee makes written application to the Committee and if the Employee receives written approval from the Committee. If an Employee who has acquired Shares under the Plan dies within one year after the Exercise Date and his estate or beneficiary(ies) applies for a waiver of the provision of such agreement for any reason, such a waiver shall be approved by the Committee. (f) An agreement that the Employee will inform the Company of any disposition of any Shares acquired under the Plan within two years from the Option Date pertaining to such Shares. (g) A designation of the Beneficiary(ies) to whom the balance in the Employee's account is to be paid in the event of his/her death. ARTICLE IV SHARES TO BE OFFERED 4.1 Number of Shares. The number of Shares for which Options may be granted under the Plan shall be 1,000,000. Such Shares may be authorized but unissued Shares, Shares held in the treasury, or both. 4.2 Reusage. If an Option expires or is terminated, surrendered or cancelled without having been fully exercised, the Shares covered by such Option which were not purchased shall again be available for issuance under the Plan. 4.3 Adjustments. In the event that prior to the transfer of all of the Shares which may be issued in accordance with this Plan, there shall be any increases or reductions in the number of shares of Common Stock of the Company outstanding by reason of any one or more stock dividends, stock splits, stock constrictions or any other material change in the capital structure of the Company by way of reclassification, reorganization or recapitalization, the aggregate number of Shares which may be issued under this Plan and the number of Shares which may be purchased under each Option then or thereafter in effect and the purchase price paid therefor shall be proportionately and equitably adjusted. 4 5 4.4 Ownership of Shares. No one shall, by any reason of this Plan or of any Option granted or the exercise of rights under any such Option, have any interest in Shares of the Company nor any rights of, or status as, a stockholder of the Company unless and until (i) any such Option has been exercised, (ii) shares of Common Stock shall have been paid for in full and allocated to the Participant's stock purchase account, and (iii) all of the applicable provisions of this Plan and of the Option granted shall have been complied with. Purchased Shares shall be registered in the name of the Plan, the Company or its designee and held on behalf of and in the name of the Participants. Stock certificates shall not be issued to Participants for the Shares held on their behalf, but all rights accruing to an owner of record of such Shares, including, without limitation, voting rights, shall belong to the Participant for whose account such Shares are held. Notwithstanding the foregoing, a Participant may elect, at Participant's expense, to receive a stock certificate after the purchase price for the Shares has been paid in full subject to the terms and conditions of the Plan. ARTICLE V PAYROLL DEDUCTIONS AND CONTRIBUTIONS 5.1 Amount of Contributions. The Board shall specify the maximum dollar contribution amount, including both payroll deductions and lump-sum contributions, which shall never exceed $25,000 (the "Maximum Amount") of the fair market value of Common Stock of the Company per calendar year. 5.2 Payroll Deductions. At the time the Participant files the Participation Forms, the Participant may designate a fixed dollar amount which the Participant shall elect to have deducted by the Employer from compensation otherwise payable to the Participant during an Accumulation Period. The minimum fixed dollar payroll deduction amount per payroll period shall be $10.00. 5.3 Lump-sum Contributions. In connection with or as an alternative to the payroll deduction method of accumulating funds for the purchase of Shares as described in Section 5.1 above, Participants may also elect to purchase Shares once per calendar quarter by presenting a personal check and properly executed Participation Forms to the Coordinator no later than March 20, June 20, September 20, and December 20 for the purchase of Shares on the next succeeding Exercise Date. There shall be a special lump-sum contribution date of July 20, 1995, in connection with the initial commencement of the Plan. 5.4 Participant's Account. Payment for Shares may be made through payroll deductions from the Participant's compensation, such deductions to be authorized by a Participant in the Participation Forms, or lump-sum contributions. A stock purchase account shall be set up on the books of the Company or its designee in the name of each Participant. The amount of all payroll deductions and lump-sum contributions (including any rollovers of account balances from the Company's prior stock purchase plan) shall be credited to the respective stock purchase accounts of the Participants on such books. 5.5 Dividends. Cash dividends paid by the Company on Shares owned by the Participants and held by the Company or its designee under the Plan shall be credited to the respective stock purchase accounts of the Participants in accordance with their interests in the Shares with respect to which the dividends are paid. 5 6 5.6 Changes in Payroll Deductions. Each Participant's Participation Forms shall remain in effect for each Accumulation Period subsequent thereto until the Participant either (a) ceases future contributions to his stock purchase account in accordance with Section 7.4 of the Plan; or (b) revises his/her payroll deduction contributions to the Plan, by completing new Participation Forms. Changes in payroll deduction contributions to the Plan shall be permitted only twice per year, on January 1 and July 1. ARTICLE VI GRANTING OF OPTIONS 6.1 Nature of Options. Each Option granted shall be exercisable only on its Exercise Date and only if the person to whom the Option is granted is then employed by the Employer. Options under the Plan shall be granted on a monthly basis. No Employee shall be granted an Option which permits his/her rights to purchase stock under all employee stock purchase plans (as defined in Section 423(b) of the Code) of the Company and its Parents and Subsidiaries to accrue at a rate which exceeds $25,000 of fair market value of such stock, determined at the time such Option is granted, for each calendar year in which such Option is outstanding. 6.2 Number of Option Shares and Other Terms. At least annually, the Board will determine all of the terms and conditions pertaining to the Options to be granted under the Plan for the next twelve (12) months, which terms and conditions shall include, but not be limited to, the following: (a) The number of Shares to be offered, which in no event shall exceed the maximum number of Shares then available under the provisions of ARTICLE IV of the Plan. (b) The offering period, including the Option Date, Exercise Date and Accumulation Period (in no event shall an Option be exercisable after the expiration of five (5) years from the date each Option is granted). (c) The corporations designated to participate under the Plan. (d) The price per Share for which Common Stock will be sold to Participants who exercise Options, which price shall not be less than 85% of the Common Stock's Fair Market Value on the Exercise Date. ARTICLE VII EXERCISE OF OPTION 7.1 Automatic Exercise. Each Participant's Option to purchase Shares will be automatically exercised for him/her on each Exercise Date for the number of Shares, including fractional shares to the fourth decimal, which the accumulated funds as of the Exercise Date will purchase at the applicable Option price, subject to the limitations set forth in the Plan and subject to allotment in accordance with Section 7.2. The Employer or its designee will report to each Participant the number of Shares purchased by him/her and the cost of such Shares on a monthly basis. 6 7 7.2 Allotment of Shares. In the event that, on any Exercise Date, the aggregate funds and Shares available for the purchase of Shares, pursuant to the provisions of Section 7.1, would purchase a greater number of Shares than the number of Shares then available for purchase under the Plan on such Exercise Date, the Company shall issue to each Participant, on a pro rata basis, such number of Shares as, when taken together with the Shares issued to all other Participants, will result in the issuance of Shares totaling no more than the number of Shares then remaining available for issuance under the Plan on such Exercise Date. 7.3 Nontransferability. No funds credited to a Participant's stock purchase account nor any rights with regard to the exercise of an Option or to receive Shares under the Plan may be assigned, transferred, pledged or otherwise disposed of in any way by a Participant other than by will or the laws of descent and distribution. Options under the Plan shall be exercisable during a Participant's lifetime only by the Participant, his/her guardian or legal representative. Each Participant shall agree in the Participation Forms to notify the Company or its designee of any transfer of Shares within two years of the Exercise Date on which such Shares were purchased. 7.4 Withdrawal from the Plan. A Participant may cease future contributions to his/her stock purchase account, effective for the next payroll period, by submitting a notice to the Company or its designee no later than five (5) business days prior to the beginning date of such payroll period. Any Participant who withdraws from the Plan may not thereafter participate for a period of six (6) months following the effective date of withdrawal. Notwithstanding a Participant's notice that future contributions will cease, the funds in the Participant's stock purchase account will nevertheless be used to purchase Shares at the next Exercise Date. Fractional share balances which have been credited to the Participant's stock purchase account will be converted into cash, and any remaining cash balance will then be refunded to the Participant. 7.5 Rights on Retirement, Death or Termination of Employment. In the event of a Participant's retirement, death or termination of employment, no payroll deduction shall be taken from any compensation due and owing to the Participant at such time, and only the deductions or contributions made prior to such date of retirement, death or termination shall be used to purchase Shares. All full Shares standing to the Participant's credit will be transferred to the former Employee or, in the event of the Participant's death, the person or persons to whom such rights pass by will or the laws of descent and distribution including the Participant's estate during the period of administration, within thirty (30) days following the request therefor. Fractional share balances which have been credited to the Participant's stock purchase account will be converted into cash, and any remaining cash balance will also be paid to the former Employee or his representative. An Employee of a Subsidiary or a Parent which ceases to be a Subsidiary or a Parent shall be deemed to have terminated his/her employment for purposes of this Section 7.5 as of the date such corporation ceases to be a Subsidiary or a Parent, as the case may be, unless, as of such date, the Employee shall become an Employee of the Company or any Subsidiary or Parent designated as a participating corporation under the Plan. 7.6 Periodic Statements and Certificates. Each Participant will receive a statement from the Company or its designee on a monthly basis reflecting the number of Shares purchased for his/her account, and a Participant may, subject to the terms of the Plan, request delivery of certificates for full Shares reflected on his/her account. A Participant will be required to pay any administrative fees associated with issuance of the certificates. Such certificates for Shares will be issued and delivered upon request as soon as practicable, in the name of the Participant. The Company may designate any entity to maintain the accounts and records required under the Plan. 7 8 7.7 Purchases and Sales by Officers. With respect to purchases of Shares by Officers, such Officers shall hold such Shares for a period of not less than six (6) months following the applicable Exercise Date. ARTICLE VIII ADMINISTRATION 8.1 Committee. The Board shall appoint an Employee Stock Purchase Plan Committee, composed of such persons as the Board shall from time to time determine to administer the Plan subject to the control and direction of the Board. Subject to the action and control of the Board: (i) the Committee shall have the power from time to time to establish suitable rules and procedures for administering the Plan, and (ii) all decisions of the Committee pertaining to the interpretation, construction or application of the Plan or any option granted or rules promulgated by the Committee shall be final and conclusive. Neither any member of the Committee nor of the Board shall be liable for any decision made or action taken in good faith. The Committee shall from time to time designate an individual who shall serve as the Employee Stock Purchase Plan Coordinator to assist in the ongoing administration of the Plan. ARTICLE IX AMENDMENT AND TERMINATION 9.1 Power of Board. Except as hereinafter provided, the Board shall have the sole right and power to amend the Plan at any time and from time to time. 9.2 Limitation. The Board may not amend the Plan, without approval of the shareholders of the Company: (a) in a manner which would cause the Plan to fail to meet the requirements of Sections 423 of the Code; (b) in a manner which materially increases the total number of shares which may be issued pursuant to options granted under the Plan; (c) in a manner which materially modifies the requirements as to eligibility for participation in the Plan; or (d) in a manner which materially increases the benefits accruing to Participants under the Plan. 9.3 Term. The Plan shall commence as of the Effective Date and, subject to the terms of the Plan including those requiring approval by the shareholders of the Company, shall continue in full force and effect until terminated. 9.4 Termination. The Plan may be terminated at any time by the Board. Subject to the Board's right to amend the Plan, with shareholder approval, to increase the number of Shares available for purchase under the Plan, the Plan shall automatically terminate when all of the Shares available for purchase have been sold. Upon termination of the Plan, and the exercise or lapse of all outstanding 8 9 Options, any balances remaining in each Participant's stock purchase account shall be refunded to the Participant. 9.5 Effect. The amendment or termination of the Plan shall not adversely affect any Options granted prior to such amendment or termination. ARTICLE X MISCELLANEOUS PROVISIONS 10.1 Headings. The headings contained in the Plan are included only for convenience, and they shall not be construed as a part of the Plan or in any respect affecting or modifying its provisions. 10.2 Number and Gender. The masculine and neuter, wherever used in the Plan, shall refer to either the masculine, neuter or feminine; and, unless the context otherwise requires, the singular shall include the plural and the plural the singular. 10.3 Governing Law. This Plan shall be construed and administered in accordance with the laws of the State of Florida. 10.4 No Employment Contract. The adoption of the Plan shall not confer upon any Employee any right to continued employment nor shall it interfere in any way with the right of the Company, a Parent to a Subsidiary to terminate the employment of any of its employees at any time. 10.5 Payment of Interest. No interest will be paid or allowed on any money paid into the Plan or credited to the account of any Participant. 9 EX-5 3 OPINION OF SCHIFINO & FLEISCHER 1 EXHIBIT 5 SCHIFINO & FLEISCHER, P.A. ATTORNEYS AT LAW ONE TAMPA CITY CENTER WILLIAM J. SCHIFINO SUITE 2700 FRANK N. FLEISCHER 201 NORTH FRANKLIN STREET BONNIE J. PINZEL TAMPA, FLORIDA 33602-5174 CYNTHIA C. ELLIS TELEPHONE (813) 223-1535 TELECOPIER (813) 223-3070 June 21, 1995 Securities and Exchange Commission 450 5th Street, N.W. Judiciary Plaza Washington, DC 20549 Re: Tech Data Corporation 1995 Employee Stock Purchase Plan Registration Statement on Form S-8 Ladies and Gentlemen: We have represented Tech Data Corporation (the "Company") in connection with the Company's Registration Statement on Form S-8 (the "S-8 Registration Statement") relating to the proposed public offering by the Company (the "Offering") of up to 1,000,000 shares of the Company's Common Stock under the Company's 1995 Employee Stock Purchase Plan (the "Plan"). This opinion is being provided as Exhibit 5 to the S-8 Registration Statement. In our capacity as counsel to the Company in connection with the Registration Statement and the Offering, we have examined and are familiar with: (1) the Company's Articles of Incorporation and bylaws, as currently in effect, (2) the Plan, (3) the S-8 Registration Statement and (4) such other corporate records and documents and instruments as in our opinion are necessary or relevant as the basis for the opinions expressed below. As to various questions of fact material to our opinion, we have relied without independent investigation on statements or certificates of officials and representatives of the Company, the Department of State of the State of Florida and others. In all such examinations, we have assumed the genuineness of all signatures on original and certified documents and the conformity to original and certified documents of all copies submitted to us as conformed, photostatic or other exact copies. We express no opinion as to the law of any jurisdiction other than of the State of Florida and the Federal laws of the United States of America. Based upon and in reliance on the foregoing, we are of the opinion that: 2 1. The Company is a duly organized and existing corporation under the laws of the State of Florida and its status is active. 2. The Plan has been duly and legally authorized by all required corporate action. 3. When the following events shall have occurred: a. the S-8 Registration Statement shall have become effective in accordance with the Securities Act of 1933, as amended; b. the options covering shares of Common Stock shall have been granted and exercised as contemplated in the Plan; c. the consideration specified in the Plan and in the instrument of grant covering options granted under the Plan shall have been received; and d. the certificates representing such shares shall have been duly executed, counter-signed and issued by or on behalf of the Company. the shares of Common Stock so offered and sold in the Offering will be duly authorized, validly issued, fully paid and non- assessable shares of the capital stock of the Company. This firm hereby consents to the filing of this opinion as an Exhibit to the S-8 Registration Statement. Very truly yours, SCHIFINO & FLEISCHER, P.A. /s/ Frank N. Fleischer ---------------------------- Frank N. Fleischer For the Association :lkm EX-23.2 4 CONSENT OF PRICE WATERHOUSE LLP 1 EXHIBIT 23.2 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in the Registration Statement on Form S-8 of the Tech Data Corporation 1995 Employee Stock Purchase Plan of our report dated March 21, 1995, which appear's in Tech Data Corporation's Annual Report on Form 10-K for the year ended January 31, 1995. /s/ Price Waterhouse - -------------------- PRICE WATERHOUSE LLP Tampa, Florida June 21, 1995 -----END PRIVACY-ENHANCED MESSAGE-----