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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
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(Mark one)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934 (FEE REQUIRED)
For the fiscal year ended January 31, 1996
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934 (NO FEE REQUIRED)
For the transition period from to
Commission file number 0-14625
TECH DATA CORPORATION
(Exact name of registrant as specified in its charter)
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Florida No. 59-1578329
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(State or other jurisdiction (I.R.S. Employer Identification Number)
of incorporation or organization)
5350 Tech Data Drive, Clearwater, FL 34620
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(Address of principal executive offices) (Zip Code)
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Registrant's telephone number including area code: (813) 539-7429
Securities registered pursuant to Section 12(g) of the Act:
Common stock, par value $.0015 per share.
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or shorter period
that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days.
Yes X No
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Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of regulation S-K is not contained herein, and will not be contained
to the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference to Part III of this Form 10-K or any
amendment to this Form 10-K. [__]
Aggregate market value of the voting stock held by non-affiliates
of the registrant as of March 31,
1996: $558,900,000.
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date.
Class Outstanding at March 31, 1996
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Common stock, par value $.0015 per share 37,944,785
DOCUMENTS INCORPORATED BY REFERENCE
The registrant's Proxy Statement for use at the Annual Meeting of
Shareholders on June 25, 1996 is incorporated by reference in Part III
of this Form 10-K to the extent stated herein.
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PART I
ITEM 1. Business
(a) General development of business
Tech Data Corporation (the "Company" or "Tech Data") was
incorporated in 1974 to market data processing supplies such as tape,
disk packs, and custom and stock tab forms for mini and mainframe
computers directly to end users. In the middle of fiscal 1984, the
Company began marketing certain of its products to the newly emerging
market of microcomputer dealers. By the end of fiscal 1984, the Company
had withdrawn entirely from end-user sales, broadened its product line
to include hardware products, and completed its transition to a
wholesale distributor. The Company has since continually expanded its
product lines and customer base.
On May 31, 1989, the Company entered the Canadian market through
the acquisition of a distributor subsequently named Tech Data Canada
Inc. ("Tech Data Canada"). Tech Data Canada serves customers in all
Canadian provinces and carries many of the same products offered by the
Company.
On March 24, 1994, the Company completed the non-cash exchange of
1,144,000 shares of its common stock for all of the outstanding capital
stock of Softmart International, S.A. (subsequently named
Tech Data France, SNC)("Tech Data France"), a privately-held distributor
of personal computer products based in Paris, France. Tech Data France is
the largest French wholesale distributor of microcomputer products,
representing leading manufacturers and publishers such as Apple, Compaq,
Hewlett-Packard, Lotus and Microsoft. The acquisition was accounted for
as a pooling-of-interests effective February 1, 1994; however, due to the
immaterial size of the acquisition in relation to the consolidated
financial statements, prior period financial statements were not
restated.
(b) Financial information about industry segments
The Company operates in only one business segment.
(c) Narrative description of business
General
The Company is a leading distributor of microcomputer-related
hardware and software products to value-added resellers ("VARs"),
corporate resellers and retailers throughout the United States,
France, Canada, Latin America and the Caribbean. The Company
purchases its products directly from manufacturers and publishers
in large quantities, maintains a stocking inventory of more than
25,000 products and sells to an active base of over 50,000
customers. The Company offers manufacturers of microcomputer hardware
and publishers of software the ability to reach customers on a cost-
efficient basis.
The Company provides its customers with leading products in
systems, networking, mass storage, peripherals and software from more
than 600 manufacturers and publishers such as Apple, Bay Networks,
Canon, Compaq, Computer Associates, Cisco, Corel, Digital Equipment,
Epson, Hewlett-Packard, IBM, Intel, Kingston, Lotus, Microsoft, NEC
Technologies, Novell, Okidata, Quarterdeck, Seagate, SCO, Symantec,
3Com, Toshiba and U.S. Robotics.
The Company delivers products throughout the United States, France,
Canada, Latin America and the Caribbean from its ten distribution
centers in Miami, Florida; Atlanta, Georgia; Paulsboro, New Jersey; Ft.
Worth, Texas; South Bend, Indiana; Ontario, California; Union City,
California; Mississauga, Ontario (Canada); Richmond, British Columbia
(Canada); and Bobigny (Paris), France. Locating distribution centers
near its customers enables the Company to deliver products on a timely
basis, thereby reducing customers' need to invest in inventory.
2
To complement its distribution activities, the Company maintains a
staff of technical advisers who assist customers by telephone either for
free or on a user-fee basis. The Company offers educational and
promotional seminars on the products sold by the Company in various
cities around the United States, France, Canada, and Latin America. The
Company also provides advertising and other marketing assistance to its
customers using funds and materials provided by manufacturers and
publishers.
Industry
The microcomputer products industry has proven to be well-suited
for wholesale distribution. The large number and diversity of resellers
makes it cost efficient for manufacturers and publishers to rely on
wholesale distributors to assume responsibility for at least some
portion of their distribution, credit, marketing and support
requirements. Similarly, due to the large number of microcomputer
product manufacturers and publishers, VARs, computer resellers and
retailers often cannot efficiently establish direct purchasing
relationships and instead rely on wholesale distributors, such as Tech
Data, to satisfy a significant portion of their product, financing,
marketing and technical support needs.
As a result of the use of open systems and off-the-shelf
components, hardware and software products are increasingly viewed as
commodities. The resulting price competition has prompted
manufacturers and publishers to rely on more cost-efficient methods of
distribution. This, coupled with shorter product life cycles, has
benefited distributors like Tech Data, which offer vendors an efficient
mechanism for marketing, distributing and supporting their products.
The Company has a competitive advantage over certain other distributors
who do not have the low cost structure to compete on the basis of
price and service and who do not have adequate access to capital to
finance their growth.
The rates of growth of the wholesale distribution segment of the
microcomputer industry and the Company continue to outpace that of the
microcomputer industry as a whole for three principal reasons.
First, more manufacturers and publishers are using the wholesale
distribution channel as declining product prices, coupled with rising
selling costs, make it difficult for manufacturers and publishers to
efficiently deal directly with VARs, corporate resellers and retailers.
Second, the Company believes that customers are increasingly relying on
wholesale distributors such as Tech Data for inventory management and
credit rather than stocking large inventories themselves and maintaining
credit lines to finance working capital needs. Third, consolidation in
the wholesale distribution industry continues as access to financial
resources and economies of scale become more critical and as certain
manufacturers and publishers limit the number of authorized distributors
for their respective products.
Business Strategy
To maintain its leadership position in wholesale distribution, the
Company's business strategy includes the following main elements:
Customer focus. The Company has historically focused its
marketing on VARs, who integrate proprietary software with products
provided by manufacturers and distributors. VARs currently represent
approximately 70% of the Company's total sales with franchisees,
corporate resellers and retailers accounting for the balance.
Management expects total industry sales to VARs to remain one of the
fastest growing segments of the microcomputer industry as businesses
of all sizes increasingly rely on VARs. Accordingly, management expects
more manufacturers and publishers to utilize Tech Data to supply
products to the VAR market. Recently, Tech Data also has sought to
increase its market share with retailers and computer
superstores (such as CompUSA and Computer City), corporate resellers
(such as CompuCom Systems and InaCom) and franchisees and other
affiliates of companies such as Intelligent Electronics and MicroAge.
Operating efficiencies and economies of scale. The Company's
operations are structured to realize operating efficiencies both for
itself and its customers, to benefit from economies of scale in product
purchasing, financing and working capital management, and to provide an
efficient distribution system focusing on ease of order placement, speed
of delivery, facilitation of product returns and reduction of freight
costs.
3
Products. The Company's objective is to offer its customers a
broad assortment of leading technology products. Management believes
that the Company provides manufacturers and publishers an efficient
channel through which to access VARs, corporate resellers and retailers,
thereby eliminating direct selling expenses and direct credit
risk. Currently the Company offers more than 25,000 products from more
than 600 manufacturers and publishers. By offering a broad product
assortment, customers are able to more efficiently procure
product from a single source and aggregate their purchases.
Vendor Relations
Due to the proliferation of relatively small VARs and computer
dealers which purchase a limited volume of products from any single
manufacturer, it is more cost efficient for most manufacturers to rely
upon distributors, such as Tech Data, rather than to maintain their own
sales forces to market, distribute and support products. The Company's
market presence and financial condition have enabled it to obtain
vendor contracts with leading manufacturers and publishers to purchase
large quantities of products that the Company sells at competitive
prices.
The Company sells products for manufacturers and publishers
generally on a nonexclusive basis. The Company's supplier agreements
are believed to be in the form customarily used by each manufacturer
and typically contain provisions which allow termination by either party
upon 60 days notice. Such agreements generally contain stock rotation
and price protection provisions which reduce, in part, the Company's
risk of loss due to slow-moving inventory, vendor price reductions,
product updates or obsolescence. See "Management's Discussion and
Analysis of Financial Condition and Results of Operations - Asset
Management." Virtually none of the Company's supplier agreements
requires it to sell a specified quantity of products or restricts the
Company from selling similar products manufactured by competitors.
Consequently, the Company has the flexibility to terminate or curtail
sales of one product line in favor of another product line as a result
of technological change, pricing considerations, customer demand and
vendor distribution policies. No single vendor accounted for more than
10% of the Company's net sales during fiscal 1996, 1995 or 1994.
In addition to providing manufacturers and publishers with one of
the largest bases of VARs in the United States, France, Canada, Latin
America and the Caribbean, the Company also offers manufacturers
and publishers the opportunity to participate in a number of special
promotions, training programs and marketing services targeted to the
needs of its customers.
From time to time, the demand for certain products sold by the
Company exceeds the supply available from the manufacturer or publisher.
The Company then receives an allocation of the products available.
Management believes that the Company's ability to compete is not
adversely affected by these periodic shortages and the resulting
allocations.
Products and Customers
The Company sells computer-related hardware and software products
such as networks, disk drives, microcomputers, printers, terminals,
operating systems and application software purchased directly from
manufacturers and publishers in large quantities for sale to an active
customer base of more than 50,000 VARs, corporate resellers and
retailers. The Company pursues a strategy of expanding its product line
to offer its customers a broad assortment of products.
The Company's VAR customers typically do not have the resources to
establish a large number of direct purchasing relationships or stock
significant product inventories. These resellers generally have annual
revenues of less than $5 million and rely on distributors as their
principal source of computer products and financing. Corporate
resellers and retailers, on the other hand, often establish direct
relationships with manufacturers and publishers for their more popular
products, but utilize distributors for slower-moving products from
numerous smaller manufacturers and publishers and for fill-in orders of
fast moving products. The Company's backlog of orders is not considered
material to an understanding of its business. No single customer
accounted for more than 4% of the Company's net sales during fiscal
1996, 1995 or 1994.
4
Sales and Marketing
Currently, the Company's sales force consists of approximately 40
field sales representatives and 650 inside telemarketing sales
representatives. Field sales representatives are located in major
metropolitan areas. Each field representative is supported by a team of
inside telemarketing sales representatives covering a designated
territory. Territories with no field representation are serviced
exclusively by the inside telemarketing sales representatives.
Customers rely upon the Company's product catalogs and frequent mailings
as sources for product information, including prices.
Customers typically call their inside sales representative toll-
free to place orders for same-day or next-day shipment. The Company's
on-line computer system allows the inside sales representative to
check for current stocking levels in each of the seven United States
distribution centers. Likewise, inside sales representatives in Canada
and France can check on stocking levels in the two Canadian and one
French distribution center, respectively. Through "Tech Data On-Line",
the Company's proprietary electronic on-line system, customers can gain
remote access to the Company's data processing system to check product
availability and pricing and to place an order. Certain of the
Company's larger customers have available electronic data interchange
("EDI") services whereby orders, order acknowledgments, invoices,
inventory status reports, price catalogs and other industry standard EDI
transactions are consummated on-line which improves efficiency and timeliness
for both the Company and the customer. Assuming adequate stock and available
customer credit, customer orders received by 5:00 p.m. local time will
generally be shipped that same day from the distribution facility
nearest the customer. The Company's centralized, processing capability
generally permits a customer located within 250 miles of a distribution
center to receive goods by inexpensive UPS ground service the next day.
The Company provides comprehensive training to its field and inside
sales representatives regarding technical characteristics of products
and the Company's policies and procedures. Each new sales
representative attends a six-week course given by the Company. In
addition, the Company's ongoing training program is supplemented by
product seminars offered by manufacturers and publishers.
Competition
The Company operates in a market characterized by intense
competition. Competition within the industry is based on product
availability, price, delivery and various types of support provided by
the distributor to the reseller. The Company believes that it is
equipped to compete effectively with other distributors in these areas.
Major competitors include Ingram Micro, Inc., Merisel, Inc. and a
variety of other competitors. Some of the Company's competitors are
larger and have greater resources than the Company.
The Company also faces competition from manufacturers and
publishers who can offer customers lower prices than the Company. The
Company, nevertheless, believes that in the majority of cases,
manufacturers and publishers choose to sell products though distributors
rather than directly because of the relatively small volume and high
selling costs associated with numerous small orders. Management
also believes that the Company's prompt delivery of products and
efficient handling of returns provide an important competitive advantage
over manufacturers' and publishers' efforts to market their products
directly.
Employees
On January 31, 1996, the Company had approximately 2,625 full-time
employees. The Company enjoys excellent relations with its employees,
all of whom are non-union.
(d) Financial information about foreign and domestic operations
and export sales
The geographic areas in which the Company operates are the United
States (United States including exports to Latin America and the
Caribbean) and International (France and Canada). See Note 10 of Notes
to Consolidated Financial Statements regarding the geographical
distribution of the Company's net sales, operating income and
identifiable assets.
5
Executive Officers
Steven A. Raymund, Chief Executive Officer and Chairman of the
Board of Directors, age 40, has been employed by the Company since 1981,
serving as Chief Executive Officer since January 1986 and as Chairman of
the Board of Directors since April 1991. He has a B.S. Degree in
Economics from the University of Oregon and a Masters Degree from the
Georgetown University School of Foreign Service.
A. Timothy Godwin, Vice Chairman, President, Chief Operating Officer
and Director, age 46, joined the Company in July 1989 as Senior Vice
President of Finance and assumed the responsibilities of Chief
Financial Officer in November 1989. He was appointed to the Board of
Directors in March 1991 and was promoted to the position of President
and Chief Operating Officer in November 1991. In September 1995,
Mr. Godwin was appointed Vice Chairman. Prior to joining the Company,
Mr. Godwin was employed by Price Waterhouse from 1974 to June 1989, most
recently as audit partner from July 1987 to June 1989. Mr. Godwin is a
Certified Public Accountant and holds a B.S. Degree in Accounting from
the University of West Florida.
Peggy K. Caldwell, Senior Vice President of Sales and Marketing,
age 50, joined the Company in May 1992 as Senior Vice President of
Marketing and in February 1996 was appointed to the position of Senior
Vice President of Sales and Marketing. Prior to joining the Company,
she was employed by International Business Machines Corporation for 25
years, most recently serving in a variety of senior management positions
in the National Distribution Division. Ms. Caldwell holds a B.S. Degree
in Mathematics and Physics from Bucknell University.
Lawrence W. Hamilton, Senior Vice President of Human Resources, age
38, joined the Company in August 1993 as Vice President of Human
Resources and was promoted to Senior Vice President in March 1996.
Prior to joining the Company, he was employed by Bristol-Myers Squibb
Company from 1985 to August 1993, most recently as Vice President -
Human Resources and Administration of Linvatec Corporation (a division
of Bristol-Myers Squibb Company). Mr. Hamilton holds a B.A. Degree in
Political Science from Fisk University and a Masters of Public
Administration, Labor Policy from the University of Alabama.
Jeffery P. Howells, Senior Vice President of Finance and Chief
Financial Officer, age 39, joined the Company in October 1991 as Vice
President of Finance and assumed the responsibilities of Chief Financial
Officer in March 1992. In March 1993, he was promoted to Senior Vice
President of Finance and Chief Financial Officer. From June 1991
through September 1991 he was employed as Vice President of Finance of
Inex Vision Systems. From 1979 to May 1991 he was employed by Price
Waterhouse, most recently as a Senior Audit Manager. Mr. Howells is a
Certified Public Accountant and holds a B.B.A. Degree in Accounting from
Stetson University.
James T. Pollard, Senior Vice President of Logistics and Chief
Information Officer, age 49, joined the Company in October 1993. Prior
to joining the Company, he was employed by Florida Power Corporation
from September 1990 through September 1993, most recently as
Director - Information Services. From November 1984 to September 1990
he was employed by Southern California Gas Company as Senior Vice
President. Mr. Pollard holds a B.S. Degree in Business Finance from the
University of Utah and a Masters in Business Administration Degree from
the University of South Florida.
Patrick O. Connelly, Vice President of Worldwide Credit Services,
age 50, joined the Company in August 1994. Prior to joining the
Company, he was employed by Unisys Corporation for nine years as
Worldwide Director of Credit. Mr. Connelly holds a B.A. Degree
in History and French from the University of Texas at Austin.
Charles V. Dannewitz, Vice President of Taxes, age 41, joined the
Company in February 1995. Prior to joining the Company, he was employed
by Price Waterhouse for 13 years, most recently as a Tax Partner. Mr.
Dannewitz is a Certified Public Accountant and holds a B.S. Degree in
Accounting from Illinois Wesleyan University.
6
Bruce D. Eden, Vice President of MIS, age 53, joined the Company in
January 1994 as Director of Information Technology. In February 1995,
he was promoted to Vice President of MIS. Prior to joining the Company,
Mr. Eden was engaged as an independent consultant from February 1993 to
December 1993. From March 1987 to February 1993 Mr. Eden was employed
by Pacific Enterprises as Director of Information Systems. Mr. Eden
holds a B.A. Degree in Economics from CUNY.
Yuda Saydun, Vice President and General Manager - Latin America,
age 43, joined the Company in May 1993. Prior to joining the Company,
he was employed by American Express Travel Related Services Company,
Inc. from 1982 to May 1993, most recently as Division Vice President,
Cardmember Marketing. Mr. Saydun holds a B.S. Degree in Political and
Diplomatic Sciences from Universite Libre de Bruxelles and a Masters of
Business Administration Degree, Finance/Marketing from U.C.L.A.
Arthur W. Singleton, Vice President, Treasurer and Secretary, age
35, joined the Company in January 1990 as Director of Finance and was
appointed Treasurer and Secretary in April 1991. In February 1995, he
was promoted to Vice President, Treasurer and Secretary. Prior to
joining the Company, Mr. Singleton was employed by Price Waterhouse from
1982 to December 1989, most recently as an Audit Manager. Mr. Singleton
is a Certified Public Accountant and holds a B.S. Degree in Accounting
from Florida State University.
Joseph B. Trepani, Vice President and Worldwide Controller, age 35,
joined the Company in March 1990 as Controller and held the position of
Director of Operations from October 1991 through January 1995. In
February 1995, he was promoted to Vice President and Worldwide
Controller. Prior to joining the Company, Mr. Trepani was Vice
President of Finance for Action Staffing, Inc. from July 1989 to
February 1990. From 1982 to June 1989, he was employed by Price
Waterhouse. Mr. Trepani is a Certified Public Accountant and holds a
B.S. Degree in Accounting from Florida State University.
David R. Vetter, Vice President and General Counsel, age 37, joined
the Company in June 1993. Prior to joining the Company, he was employed
by the law firm of Robbins, Gaynor & Bronstein, P.A. from 1984 to June
1993, most recently as a partner. Mr. Vetter is a member of the Florida
Bar and holds a B.A. Degree in English and Economics from Bucknell
University and a J.D. Degree from the University of Florida.
ITEM 2. Properties
Tech Data's executive offices, located in Clearwater, Florida, is
owned by the Company. In addition, the Company leases distribution centers in
Miami, Florida; Atlanta, Georgia; Paulsboro, New Jersey; Ft.
Worth, Texas; South Bend, Indiana; Ontario, California; Union City,
California; Mississauga, Ontario (Canada); Richmond, British Columbia
(Canada); and Bobigny (Paris), France. The Company also operates training
centers in eleven cities in the U.S. and Canada.
During fiscal 1996, the Company completed a 75,000 square foot
administration building on its main Clearwater campus and expanded its
South Bend, Miami, Paulsboro, Mississauga, Richmond and Atlanta
distribution centers. The facilities of the Company are substantially
utilized, well-maintained and are adequate to conduct the Company's
current business.
ITEM 3. Legal Proceedings
There are no material legal proceedings pending against the
Company.
ITEM 4. Submission of Matters to a Vote of Security Holders
There have been no matters submitted to a vote of security holders
during the last quarter of the fiscal year ended January 31, 1996.
7
PART II
ITEM 5. Market for the Registrant's Common Stock and Related
Shareholder Matters
The Company's common stock is traded on the Nasdaq National Market
tier of The Nasdaq Stock Market under the symbol TECD. The Company has
not paid cash dividends since fiscal 1983. The Board of Directors does
not intend to institute a cash dividend payment policy in the
foreseeable future. The table below presents the quarterly high and low
sales prices for the Company's common stock as reported by the Nasdaq
Stock Market. The approximate number of shareholders as of
January 31, 1996 was 15,000.
Sales Price
----------------
High Low
Fiscal year 1996 ------- -------
- ----------------
Fourth quarter $17 7/8 $11 1/4
Third quarter 14 3/4 11 1/8
Second quarter 15 1/4 8 1/4
First quarter 14 1/4 9 5/8
Fiscal year 1995
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Fourth quarter $20 $11 3/8
Third quarter 20 15
Second quarter 19 1/4 14
First quarter 22 1/8 16 1/4
8
ITEM 6. Selected Financial Data
FIVE YEAR FINANCIAL SUMMARY
(In thousands, except per share data)
Year ended January 31,
------------------------------------------------------
1996 1995 1994 1993 1992
---------- ---------- ---------- -------- --------
Income statement data:
Net sales $3,086,620 $2,418,410 $1,532,352 $978,862 $646,961
Cost and expenses: ---------- ---------- ---------- -------- --------
Cost of products sold 2,867,226 2,219,122 1,397,967 885,292 579,766
Selling, general and
administrative expenses 163,790 127,951 79,390 57,556 44,089
--------- --------- --------- -------- -------
3,031,016 2,347,073 1,477,357 942,848 623,855
--------- --------- --------- -------- -------
Operating profit 55,604 71,337 54,995 36,014 23,106
Interest expense 20,086 13,761 5,008 3,973 4,078
--------- --------- --------- -------- -------
Income before income taxes 35,518 57,576 49,987 32,041 19,028
Provision for income taxes 13,977 22,664 19,774 12,259 7,141
--------- --------- --------- -------- -------
Net income $ 21,541 $ 34,912 $ 30,213 $ 19,782 $ 11,887
========== ========== ========== ======== ========
Net income per common share* $ .56 $ .91 $ .83 $ .63 $ .44
========== ========== ========== ======== ========
Dividends per common share -- -- -- -- --
========== ========== ========== ======== ========
Weighted average common
shares outstanding* 38,138 38,258 39,590 31,402 26,966
========== ========== ========== ======== ========
Balance sheet data:
Working capital $ 201,704 $ 182,802 $ 165,366 $ 89,344 $ 78,445
Total assets 1,043,879 784,429 506,760 326,885 200,476
Revolving credit loans 283,100 304,784 153,105 89,198 36,708
Long-term debt 9,097 9,682 9,467 9,638 9,818
Shareholders' equity 285,698 260,826 213,326 115,047 94,565
_________
* Amounts have been adjusted to reflect the two-for-one stock split
declared on March 21, 1994.
9
ITEM 7. Management's Discussion and Analysis of Financial Condition and
Results of Operations
The following table sets forth the percentage of cost and expenses to net
sales derived from the Company's Consolidated Statement of Income for each of
the three preceding fiscal years.
Percentage of net sales
Year Ended January 31,
------------------------
Net sales 100.0% 100.0% 100.0%
Cost and expenses: ----- ----- -----
Cost of products sold 92.9 91.7 91.2
Selling, general and administrative expenses 5.3 5.3 5.2
----- ----- -----
98.2 97.0 96.4
----- ----- -----
Operating profit 1.8 3.0 3.6
Interest expense .6 .6 .3
----- ----- -----
Income before income taxes 1.2 2.4 3.3
Provision for income taxes .5 .9 1.3
----- ----- -----
Net income .7% 1.5% 2.0%
===== ===== =====
Fiscal Years Ended January 31, 1996 and 1995
Net sales increased 27.6% to $3.09 billion in fiscal 1996 compared
to $2.42 billion in the prior year. This increase is attributable to
the addition of new product lines and the expansion of existing product
lines combined with increases in the Company's market share. The rate
of growth in fiscal year 1996 is lower than the rate of growth in the
prior year as the Company continued to recover from the effects of the
business interruptions caused by the conversion to a new computer system
in December 1994. The Company's international sales in fiscal 1996 were
approximately 14% of consolidated net sales.
The cost of products sold as a percentage of net sales increased
from 91.7% in fiscal 1995 to 92.9% in fiscal 1996. This increase is a
result of competitive market prices, the Company's strategy of lowering
selling prices in order to gain market share and to pass on the benefit
of operating efficiencies to its customers, as well as certain freight
concessions made with customers in order to ensure timely delivery
of product during the first and second quarters of fiscal 1996.
Selling, general and administrative expenses increased from $128.0
million in fiscal 1995 to $163.8 million in fiscal 1996, and as a
percentage of net sales were 5.3% in fiscal 1996 and fiscal 1995. The
dollar value increase in selling, general and administrative expenses is
primarily a result of expanded employment and increases in other
administrative expenses needed to support the increased volume of
business, as well as expenses associated with the new computer system.
As a result of the factors described above, operating profit in
fiscal 1996 decreased 22.1% to $55.6 million, or 1.8% of net sales,
compared to $71.3 million, or 3.0% of net sales, in fiscal 1995.
Interest expense increased due to an increase in the Company's
average outstanding indebtedness, combined with increases in short-term
interest rates on the Company's floating rate indebtedness.
Net income in fiscal 1996 decreased 38.3% to $21.5 million, or $.56
per share, compared to $34.9 million, or $.91 per share, in the prior
year.
In 1995, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards No. 123, "Accounting for Stock-Based
Compensation" ("FAS 123"), which is effective for the Company's fiscal
year ending January 31, 1997. FAS 123 encourages, but does not require,
companies to recognize compensation expense based on the fair value of
grants of stock, stock options and other equity investments to
employees. Although expense recognition for employee stock-based
10
compensation is not mandatory, FAS 123 requires that companies not
adopting must disclose the pro forma effect on net income and earnings
per share. The Company will continue to apply prior accounting
rules and make pro forma disclosures in fiscal 1997.
Fiscal Years Ended January 31, 1995 and 1994
Net sales increased 57.8% to $2.42 billion in fiscal 1995 compared
to $1.53 billion in the prior year. This increase is attributable to
the addition of new product lines and the expansion of existing product
lines combined with an increase in the Company's customer base. This
increase is partially offset by lower than anticipated sales growth in
the fourth quarter of fiscal 1995 due to business interruptions caused
by the December 1994 computer system conversion. Fiscal 1995 also
includes the results for the two companies that were acquired at the
beginning of the year (U.S. Software Resource, Inc. and Softmart
International, S.A.). The Company's international sales in fiscal 1995
were approximately 13% of consolidated net sales.
The cost of products sold as a percentage of net sales increased
from 91.2% in fiscal 1994 to 91.7% in fiscal 1995. This increase is a
result of the Company's strategy of lowering selling prices in order
to gain market share and to pass on the benefit of operating
efficiencies to its customers.
Selling, general and administrative expenses increased from $79.4
million in fiscal 1994 to $128.0 million in fiscal 1995, and increased
as a percentage of net sales to 5.3% in fiscal 1995 compared to 5.2%
in the prior year. The increase in selling, general and administrative
expenses is primarily a result of expanded employment and increases in
other administrative expenses needed to support the increased volume of
business. Additionally, the increase in selling, general and
administrative expenses as a percentage of sales in fiscal 1995 is
attributable to the lower than anticipated fourth quarter sales growth
due to business interruptions caused by the computer system conversion.
Operating profit in fiscal 1995 increased 29.7% to $71.3 million,
or 3.0% of net sales, compared to $55.0 million, or 3.6% of net sales,
in fiscal 1994. The decline in operating profit as a percentage of
sales in fiscal 1995 is attributable to the Company's strategy of
targeting return on shareholders' equity as opposed to a stated
operating profit margin. Additionally, the decline in the operating
profit margin was impacted by the lower than anticipated sales growth in
the fourth quarter of fiscal 1995 caused by the computer system
conversion.
Interest expense increased due to an increase in the Company's
average outstanding indebtedness, combined with increases in short-term
interest rates on the Company's floating rate indebtedness.
Net income in fiscal 1995 increased 15.6% to $34.9 million, or $.91
per share, compared to $30.2 million, or $.83 per share, in the prior
year.
Impact of Inflation
The Company has not been adversely affected by inflation as
technological advances and competition within the microcomputer industry
have generally caused prices of the products sold by the Company to
decline. Management believes that any price increases could be passed
on to its customers, as prices charged by the Company are not set by
long-term contracts.
Liquidity and Capital Resources
Net cash provided by operating activities of $47.3 million in
fiscal 1996 was primarily attributable to the Company's effort to
increase its use of trade indebtedness to finance increases in
inventories and accounts receivable.
Net cash used in investing activities of $26.4 million in fiscal
1996 was a result of the Company making capital expenditures for
computer system development and expansion of the capacity of its office
facilities and distribution centers. The Company expects to make
capital expenditures of approximately $25 million during fiscal 1997 to
further expand its office facilities and distribution centers.
11
Net cash used in financing activities of $20.2 million in fiscal
1996 reflects the use of cash generated from operating activities to
reduce borrowings under the Company's revolving credit loans.
In October 1995, the Company increased the amount that may be
borrowed under its Receivables Securitization Program from $200 million
to $250 million. The Company currently maintains domestic and
foreign revolving credit loan agreements (including the Receivables
Securitization Program) with a total of nine financial institutions
providing for maximum short-term borrowings of approximately
$450 million, of which $283.1 million was outstanding.
The Company has historically relied upon cash generated from
operations, bank credit lines, trade credit from its vendors and
proceeds from public offerings of its common stock to satisfy its
capital needs and finance its growth. Management believes that cash
from operations, available and obtainable bank credit lines and trade
credit from its vendors will be sufficient to satisfy its working
capital and capital expenditure needs for the year ending January 31,
1997.
Asset Management
The Company manages its inventories by maintaining sufficient
quantities to achieve high order fill rates while at the same time
attempting to stock only those products in high demand with a rapid
turnover rate. Inventory balances will fluctuate as the Company adds
new product lines and when appropriate, makes large purchases and cash
purchases from manufacturers and publishers when the terms of such
purchases are considered advantageous. The Company's contracts with most
of its vendors provide price protection and stock return privileges to
reduce the risk of loss to the Company due to manufacturer price
reductions and slow moving or obsolete inventory. In the event of a
vendor price reduction, the Company generally receives a credit for
products in inventory. In addition, the Company has the right to return
a certain percentage of purchases, subject to certain limitations.
Historically, price protection and stock return privileges as well as
the Company's inventory management procedures have helped to reduce the
risk of loss of carrying inventory.
The Company attempts to control losses on credit sales by closely
monitoring customers' creditworthiness through its computer system which
contains detailed information on each customer's payment history and
other relevant information. In addition, the Company participates in a
national credit association which exchanges credit rating information on
mutual customers. Customers who qualify for credit terms are typically
granted net 30-day payment terms. The Company also sells products on a
prepay, credit card, cash on delivery and floorplan basis.
Comments on Forward-Looking Information
In connection with the "safe harbor" provisions of the Private
Securities Litigation Reform Act of 1995, the Company filed a Form 8-K
with the Securities Exchange Commission on March 26, 1996 outlining
cautionary statements identifying important factors that could cause the
Company's actual results to differ materially from those projected in
forward-looking statements made by, or on behalf of, the Company. Such
forward-looking statements, as made within Items 1 and 7 of this Form 10-K,
should be considered in conjunction with the information included within
the Form 8-K.
12
ITEM 8. Financial Statements
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
To the Board of Directors and Shareholders of Tech Data Corporation:
In our opinion, the accompanying consolidated balance sheet and the
related consolidated statements of income, of changes in shareholders'
equity and of cash flows present fairly, in all material respects, the
financial position of Tech Data Corporation and its subsidiaries at
January 31, 1996 and 1995, and the results of their operations and their
cash flows for each of the three years in the period ended January 31,
1996, in conformity with generally accepted accounting principles.
These financial statements are the responsibility of the Company's
management; our responsibility is to express an opinion on these
financial statements based on our audits. We conducted our audits of
these statements in accordance with generally accepted auditing
standards which require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial
statements, assessing the accounting principles used and significant
estimates made by management, and evaluating the overall financial
statement presentation. We believe that our audits provide a
reasonable basis for the opinion expressed above.
PRICE WATERHOUSE LLP
Tampa, Florida
March 15, 1996
REPORT OF MANAGEMENT
To Our Shareholders:
The management of Tech Data Corporation is responsible for the
preparation, integrity and objectivity of the consolidated financial
statements and related financial information contained in this Annual
Report. The financial statements have been prepared by the Company in
accordance with generally accepted accounting principles and, in the
judgment of management, present fairly and consistently the Company's
financial position and results of operations. The financial
statements and other financial information in this report include
amounts that are based on management's best estimates and judgments
and give due consideration to materiality.
The Company maintains a system of internal accounting controls to
provide reasonable assurance that assets are safeguarded and that
transactions are executed in accordance with management's authorization
and recorded properly to permit the preparation of financial statements
in accordance with generally accepted accounting principles. The
design, monitoring and revisions of the system of internal accounting
controls involves, among other things, management's judgment with
respect to the relative cost and expected benefits of specific control
measures.
The Audit Committee of the Board of Directors is responsible for
recommending to the Board, subject to shareholder approval, the
independent certified public accounting firm to be retained each year.
The Audit committee meets periodically with the independent accountants
and management to review their performance and confirm that they are
properly discharging their responsibilities. The independent
accountants have direct access to the Audit Committee to discuss the
scope and results of their work, the adequacy of internal accounting
controls and the quality of financial reporting.
Steven A. Raymund Jeffery P. Howells
Chairman of the Board Directors Senior Vice President of Finance
and Chief Executive Officer and Chief Financial Officer
March 15, 1996
13
TECH DATA CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
(In thousands, except share amounts)
January 31,
--------------------------
1996 1995
---------- ----------
ASSETS
Current assets:
Cash and cash equivalents $ 1,154 $ 496
Accounts receivable, less allowance
of $22,669 and $16,580 445,202 309,846
Inventories 465,422 364,531
Prepaid and other assets 39,010 21,850
---------- --------
Total current assets 950,788 696,723
Property and equipment, net 61,610 51,042
Excess of cost over acquired net assets, net 6,376 10,061
Other assets, net 25,105 26,603
---------- --------
$1,043,879 $784,429
========== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Revolving credit loans $ 283,100 $304,784
Current portion of long-term debt 519 542
Accounts payable 433,374 194,213
Accrued expenses 32,091 14,382
-------- --------
Total current liabilities 749,084 513,921
Long-term debt 9,097 9,682
-------- --------
758,181 523,603
-------- --------
Commitments and contingencies (Note 8)
Shareholders' equity:
Preferred stock, par value $.02; 226,500 shares
authorized and issued; liquidation
preference $.20 per share 5 5
Common stock, par value $.0015; 100,000,000
shares authorized; 37,930,655
and 37,807,794 issued and outstanding 57 57
Additional paid-in capital 130,045 127,947
Retained earnings 153,310 131,769
Cumulative translation adjustment 2,281 1,048
---------- --------
Total shareholders' equity 285,698 260,826
---------- --------
$1,043,879 $784,429
========== ========
The accompanying Notes to Consolidated Financial Statements are an
integral part of these financial statements.
14
TECH DATA CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF INCOME
(In thousands, except per share amounts)
Year ended January 31,
----------------------------------
1996 1995 1994
---------- ---------- ----------
Net sales $3,086,620 $2,418,410 $1,532,352
Cost and expenses: ---------- ---------- ----------
Cost of products sold 2,867,226 2,219,122 1,397,967
Selling, general and administrative expenses 163,790 127,951 79,390
---------- ---------- ----------
3,031,016 2,347,073 1,477,357
---------- ---------- ----------
Operating profit 55,604 71,337 54,995
Interest expense 20,086 13,761 5,008
---------- ---------- ----------
Income before income taxes 35,518 57,576 49,987
Provision for income taxes 13,977 22,664 19,774
---------- ---------- ---------
Net income $ 21,541 $ 34,912 $ 30,213
========== ========== ==========
Net income per common share $ .56 $ .91 $ .83
========== ========== ==========
Weighted average common shares outstanding 38,138 38,258 36,590
========== ========== ==========
CONSOLIDATED STATEMENT OF CHANGES IN SHAREHOLDERS' EQUITY
(In thousands)
Additional Cumulative Total
Preferred Stock Common Stock Paid-In Retained Translation Shareholders'
Shares Amount Shares Amount Capital Earnings Adjustment Equity
------- ------- ------- ------- -------- -------- ---------- ------------
Balance-January 31, 1993 227 $5 31,120 $46 $ 58,033 $ 56,963 $ - $115,047
Issuance of common stock
for stock options exercised
and related tax benefit 227 1,701 1,701
Issuance of common stock net
of offering costs 5,200 8 66,357 66,365
Net income 30,213 30,213
--- -- ------ --- --------- -------- --------- --------
Balance-January 31, 1994 227 5 36,547 54 126,091 87,176 213,326
Issuance of common stock
in business combination 1,144 3 9,681 9,684
Issuance of common stock
for stock options exercised
and related tax benefit 117 1,856 1,856
Net income 34,912 34,912
Translation adjustments 1,048 1,048
--- -- ------ --- ------- -------- --------- -------
Balance-January 31, 1995 227 5 37,808 57 127,947 131,769 1,048 260,826
Issuance of common stock
for stock options exercised
and related tax benefit 123 2,098 2,098
Net income 21,541 21,541
Translation adjustments 1,233 1,233
--- -- ------ --- -------- -------- ------ --------
Balance-January 31, 1996 227 $5 37,931 $57 $130,045 $153,310 $2,281 $285,698
=== == ====== === ======== ======== ====== ========
The accompanying Notes to Consolidated Financial Statements
are an integral part of these financial statements.
15
TECH DATA CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CASH FLOWS
(In thousands)
Year ended January 31,
----------------------------------
1996 1995 1994
---------- ---------- -----------
Cash flows from operating activities:
Cash received from customers $2,933,831 $2,326,613 $1,437,239
Cash paid to suppliers and employees (2,854,653) (2,382,799) (1,515,940)
Interest paid (20,276) (13,584) (5,128)
Income taxes paid (11,628) (27,974) (18,835)
---------- ---------- ----------
Net cash provided by (used in) operating activities 47,274 (97,744) (102,664)
---------- ---------- ----------
Cash flows from investing activities:
Acquisition of business, net of cash acquired (9,360)
Expenditures for property and equipment (23,596) (21,351) (12,224)
Software development costs (2,826) (18,696) (7,274)
---------- ---------- ----------
Net cash used in investing activities (26,422) (40,047) (28,858)
---------- ---------- ----------
Cash flows from financing activities:
Proceeds from issuance of common stock 2,098 1,859 68,066
Net (repayments) borrowings from revolving credit loans (21,684) 136,019 63,907
Principal payments on long-term debt (608) (1,058) (164)
Proceeds from long-term debt 789
---------- ---------- ----------
Net cash (used in) provided by financing activities (20,194) 137,609 131,809
---------- ---------- ----------
Net increase (decrease) in cash and cash equivalents 658 (182) 287
Cash and cash equivalents at beginning of year 496 678 391
---------- ---------- ----------
Cash and cash equivalents at end of year $ 1,154 $ 496 $ 678
---------- ---------- ----------
Reconciliation of net income to net cash provided by
(used in) operating activities:
Net income $ 21,541 $ 34,912 $ 30,213
---------- ---------- ----------
Adjustments to reconcile net income to net cash provided by
(used in) operating activities:
Depreciation and amortization 17,364 9,110 5,557
Provision for losses on accounts receivable 17,433 17,768 11,346
Loss on disposal of fixed assets 603 1,237 842
Deferred income taxes (5,603) (1,739) (752)
Changes in assets and liabilities:
(Increase) in accounts receivable (152,789) (90,600) (95,113)
(Increase) in inventories (100,891) (132,940) (66,979)
(Increase) decrease in prepaid and other assets (7,254) 2,645 (5,631)
Increase in accounts payable 239,161 62,132 10,483
Increase (decrease) in accrued expenses 17,709 (269) 7,370
---------- ---------- ----------
Total adjustments 25,733 (132,656) (132,877)
---------- ---------- ----------
Net cash provided by (used in) operating activities $ 47,274 $ (97,744) $ (102,664)
=========== ========== ==========
The accompanying Notes to Consolidated Financial Statements are an
integral part of these financial statements.
16
TECH DATA CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
Principles of consolidation
The consolidated financial statements include the accounts of Tech
Data Corporation and its subsidiaries (the "Company"), all of which are
wholly-owned. All significant intercompany accounts and transactions
have been eliminated in consolidation.
Method of accounting
The Company prepares its financial statements in conformity with
generally accepted accounting principles. These principles require
management to make estimates and assumptions that affect the reported
amounts of assets and liabilities and disclosure of contingent assets
and liabilities at the date of the financial statements and the reported
amounts of revenues and expenses during the reporting period. Actual
results could differ from those estimates.
Revenue recognition
Sales are recorded upon shipment. The Company allows its customers
to return product for exchange or credit subject to certain limitations.
Provision for estimated losses on such returns are recorded at the time
of sale (see product warranty below). Funds received from vendors for
marketing programs and product rebates are accounted for as a reduction
of selling, general and administrative expenses or product cost
according to the nature of the program.
Inventories
Inventories (consisting of computer related hardware and software
products) are stated at the lower of cost or market, cost being
determined on the first-in, first-out (FIFO) method.
Property and equipment
Property and equipment are stated at cost. Depreciation is
computed over the estimated economic lives using the following methods:
Method Years
------------- ---------
Buildings and improvements Straight-line 31.5 - 39
Furniture, fixtures and equipment Accelerated and
straight-line 3 - 7
Expenditures for renewals and improvements that significantly add
to productive capacity or extend the useful life of an asset are capitalized.
Expenditures for maintenance and repairs are charged to operations when
incurred. When assets are sold or retired, the cost of the asset and the
related accumulated depreciation are eliminated from the accounts and any
gain or loss is recognized at such time.
17
TECH DATA CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
Excess of cost over acquired net assets
The excess of cost over acquired net assets is being amortized on a
straight-line basis over 15 years. Amortization expense was $654,000,
$682,000, and $31,000 in 1996, 1995 and 1994, respectively. The accumulated
amortization of goodwill is approximately $1,481,000 and $827,000 at
January 31, 1996 and 1995, respectively. In fiscal 1996, the Company
settled a liability related to a previous acquisition and therefore recorded
a $3,000,000 reduction in goodwill. The Company evaluates, on a regular
basis, whether events and circumstances have occurred that indicate the
carrying amount of goodwill may warrant revision or may not be recoverable.
At January 31, 1996, the net unamortized balance of goodwill is not
considered to be impaired.
Capitalized deferred software costs
Deferred software costs are included in other assets and represent
internal development costs and payments to vendors for the design, purchase
and implementation of the computer software for the Company's operating and
financial systems. Such deferred costs, are being amortized over seven years
with amortization expense of $4,253,000 and $329,000 in 1996 and 1995,
respectively. The accumulated amortization of such costs was $4,582,000
and $329,000 at January 31, 1996 and 1995, respectively.
Product warranty
The Company does not offer warranty coverage. However, to maintain
customer goodwill, the Company facilitates vendor warranty policies by
accepting for exchange (with the Company's prior approval) defective products
within 60 days of invoicing. Defective products received by the Company are
subsequently returned to the vendor for credit or replacement.
Income taxes
Income taxes are accounted for under the liability method. Deferred
taxes reflect the tax consequences on future years of differences between the
tax bases of assets and liabilities and their financial reporting amounts.
Foreign currency translation
The assets and liabilities of foreign operations are translated at
the exchange rates in effect at the balance sheet date, with the related
translation gains or losses reported as a separate component of shareholders'
equity. The results of foreign operations are translated at the weighted
average exchange rates for the year. Gains or losses resulting from
foreign currency transactions are included in the statement of income.
Concentration of credit risk
The Company sells its products to a large base of value-added resellers
("VARs"), corporate resellers and retailers throughout the United States,
France, Canada, Latin America and the Caribbean. The Company performs
ongoing credit evaluations of its customers and generally does not require
collateral. The Company makes provisions for estimated credit losses at the
time of sale.
Disclosures about fair value of financial instruments
Financial instruments that are subject to fair value disclosure
requirements are carried in the consolidated financial statements at amounts
that approximate fair value.
18
TECH DATA CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
Net income per common share
Net income per common share is based on the weighted average number
of shares of common stock and common stock equivalents outstanding during
each period.
Cash management system
Under the Company's cash management system, disbursements cleared
by the bank are reimbursed on a daily basis from the revolving credit loans.
As a result, checks issued but not yet presented to the bank are not
considered reductions of cash or accounts payable. Included in accounts
payable
are $69,789,000 and $23,127,000 at January 31, 1996 and 1995, respectively,
for which checks are outstanding.
Statement of cash flows
Short-term investments which have an original maturity of ninety
days or less are considered cash equivalents in the statement of cash flows.
The effect of changes in foreign exchange rates on cash balances is not
material. See Note 9 of Notes to Consolidated Financial Statements regarding
the non-cash exchange of common stock in connection with a business
combination.
Fiscal year
The Company and its subsidiaries operate on a fiscal year that ends on
January 31, except for the Company's French subsidiary which operates on a
fiscal year that ends on December 31.
NOTE 2 - PROPERTY AND EQUIPMENT:
January 31,
-----------------
1996 1995
------- --------
(In thousands)
Land $ 3,898 $ 3,629
Buildings and improvements 27,802 21,296
Furniture, fixtures and equipment 58,721 44,669
Construction in progress 1,778 1,755
------- --------
92,199 71,349
Less-accumulated depreciation (30,589) (20,307)
------- --------
$61,610 $51,042
======= =======
NOTE 3 - REVOLVING CREDIT LOANS:
The Company has an agreement (the "Receivables Securitization
Program") with a financial institution that allows the Company to transfer an
undivided interest in a designated pool of accounts receivable on an ongoing
basis to provide borrowings up to a maximum of $250,000,000 (increased from
$200,000,000 in October 1995). As collections reduce accounts receivable
balances included in the pool, the Company may transfer interests in new
receivables to bring the amount available to be borrowed up to the
$250,000,000 maximum. The Company pays interest on advances under the
Receivables Securitization Program at a designated commercial paper rate, plus
an agreed-upon spread. At January 31, 1996, the Company had a $250,000,000
outstanding balance under this program which is included in the balance sheet
caption "Revolving Credit Loans". This agreement expires December 31, 1996.
19
TECH DATA CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
The Company currently maintains domestic and foreign revolving
credit loan agreements (including the Receivables Securitization Program)
witha total of nine financial institutions which provide for maximum
short-term borrowings of approximately $450,000,000. At January 31, 1996 the
weighted average interest rate on all short-term borrowings was 5.8%. The
Company can fix the interest rate for periods of 30 to 180 days under various
interest rate options. The credit agreements contain warranties and covenants
that must be complied with on a continuing basis, including the maintenance of
certain financial ratios. At January 31, 1996, the Company was in compliance
with all such covenants.
NOTE 4 - LONG-TERM DEBT:
January 31,
-----------------
1996 1995
------- --------
(In thousands)
Mortgage note payable, interest at 10.25%,
principal and interest of $85,130 payable
monthly, balloon payment due 2005. $9,005 $9,099
Mortgage note payable funded through Industrial
Revenue Bond, interest at 7.5%, principal
and interest payable quarterly, through 1999. 282 368
Other note payable 329 757
------ ------
9,616 10,224
Less - current maturities (519) (542)
------ ------
$9,097 $9,682
====== ======
Principal maturities of long-term debt at January 31, 1996 for the
succeeding five fiscal years are as follows: 1997 - $519,000;
1998 - $201,000; 1999 - $213,000; 2000 - $162,000; 2001 - $155,000.
Mortgage notes payable are secured by property and equipment with
an original cost of approximately $12,000,000. The Industrial Revenue Bond
contains covenants which require the Company to maintain certain financial
ratios with which the Company was in compliance at January 31, 1996.
NOTE 5 - INCOME TAXES (In thousands):
Deferred income taxes reflect the net tax effects of temporary
differences between the carrying amounts of assets and liabilities for
financial reporting purposes and the amounts used for income tax
purposes. Significant components of the Company's deferred tax
liabilities and assets are as follows:
January 31,
-----------------
1996 1995
-------- --------
Deferred tax liabilities:
Accelerated depreciation $ 4,046 $ 2,158
Deferred revenue 3,164 5,324
Other - net 1,378 486
-------- --------
Total deferred tax liabilities 8,588 7,968
-------- --------
Deferred tax assets:
Accruals not currently deductible 2,947 2,472
Reserves not currently deductible 14,447 9,741
Capitalized inventory cost 1,144 760
Other - net 338 7
-------- --------
Total deferred tax assets 19,203 12,980
-------- --------
Net deferred tax assets (included in $10,615 $ 5,012
prepaid and other assets) ======= ========
20
TECH DATA CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
Significant components of the provision for income taxes are as
follows:
January 31,
-----------------------------
1996 1995 1994
------- ------- -------
Current:
Federal $15,107 $19,670 $17,179
State 2,932 3,748 3,347
Foreign 1,541 985
------- ------- -------
Total current 19,580 24,403 20,526
Deferred: ------- ------- -------
Federal (4,656) (1,677) (627)
State (625) (62) (125)
Foreign (322)
------- ------- -------
Total deferred (5,603) (1,739) (752)
------- ------- -------
$13,977 $22,664 $19,774
======= ======= =======
The reconciliation of income tax attributable to continuing operations
computed at the U.S. federal statutory tax rates to income tax expense
is as follows:
January 31,
-----------------------------
1996 1995 1994
------- ------- -------
Tax at U.S. statutory rates 35.0% 35.0% 35.0%
State income taxes, net of federal tax benefit 4.2 4.2 4.2
Other - net .2 .2 .4
---- ---- ----
39.4% 39.4% 39.6%
==== ==== ====
The components of pretax earnings are as follows:
January 31,
----------------------------
1996 1995 1994
------- ------- -------
United States $33,164 $55,155 $49,987
Foreign 2,354 2,421 -
------- ------- -------
$35,518 $57,576 $49,987
======= ======= =======
21
TECH DATA CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
NOTE 6 - EMPLOYEE BENEFIT PLANS:
Stock Option Plans
In August 1985, the Board of Directors adopted the 1985 Incentive
Stock Option Plan (the "1985 Plan"), which covers an aggregate of 1,050,000
shares of common stock. The options were granted to certain officers and
key employees at or above fair market value; accordingly, no compensation
expense has been recorded with respect to these options. Options are
exercisable beginning two years from the date of grant only if the grantee
is an employee of the Company at that time. No options may be granted under
the 1985 Plan after July 31, 1995.
In June 1990, the shareholders approved the 1990 Incentive and Non-
Statutory Stock Option Plan (the "1990 Plan") which covers an aggregate of
5,000,000 shares (as amended in June 1994) of common stock. The 1990 Plan
provides for the granting of incentive and non-statutory stock options,
stock appreciation rights ("SARs") and limited stock appreciation rights
("Limited SARs") at prices determined by the stock option committee, except
for incentive stock options which are granted at the fair market value of the
stock on the date of grant. Incentive options granted under the 1990 Plan
become exercisable over a five year period while the date of exercise of
non-statutory options is determined by the stock option committee. As of
January 31, 1996, no SARs or Limited SARs had been granted under the 1990
Plan. Options granted under the 1985 Plan and the 1990 Plan expire 10 years
from the date of grant, unless a shorter period is specified by the stock
option committee.
In June 1995, the shareholders approved the 1995 Non-Employee
Director's Non-Statutory Stock Option Plan. Under this plan, the Company
grants non-employee members of its Board of Directors stock options upon
their initial appointment to the board and then annually each year
thereafter. Stock options granted to members upon their initial appointment
vest and become exercisable at a rate of 20% per year. Annual awards vest and
become exercisable one year from the date of grant. The number of shares
subject to options under this plan cannot exceed 100,000 and the options
expire 10 years from the date of grant.
A summary of the status of the Company's stock option plans is as
follows:
January 31, January 31, January 31,
1996 1995 1994
------------------- ------------------ ------------------
Weighted Weighted Weighted
Average Average Average
Shares Exercise Shares Exercise Shares Exercise
Price Price Price
------------------- ------------------- -------------------
Outstanding at beginning of year 2,644,056 $15.62 1,515,956 $11.02 842,360 $ 6.13
Granted 1,683,450 12.91 1,372,500 19.94 979,000 13.21
Exercised (79,800) 8.53 (116,900) 5.83 (226,804) 2.76
Canceled (1,166,596) 18.45 (127,500) 15.02 (78,600) 9.86
---------- ------ --------- ------ -------- -------
Outstanding at year end 3,081,110 13.31 2,644,056 15.62 1,515,956 11.02
========== ====== ========= ====== ========= =======
Options exercisable at year end 494,460 180,660 127,960
Available for grant at year end 1,785,000 2,351,000 1,596,000
22
TECH DATA CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
In 1995, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards No. 123, "Accounting for Stock-Based
Compensation" ("FAS 123"), which is effective for the Company's fiscal year
ending January 31, 1997. FAS 123 encourages, but does not require, companies
to recognize compensation expense based on the fair value of grants of stock,
stock options and other equity investments to employees. Although expense
recognition for employee stock-based compensation is not mandatory, FAS 123
requires that companies not adopting must disclose pro forma net income and
earnings per share. The Company will continue to apply the prior accounting
rules and make pro forma disclosures in 1997.
Stock Ownership and Retirement Savings Plan
In February 1984, the Company established an employee stock
ownership plan (the "ESOP") covering substantially all U.S. employees. The
ESOP provides for distribution of vested percentages of the Company's common
stock to participants. Such benefit becomes fully vested after seven years of
qualified service. The Company also offers its U.S. employees a retirement
savings plan pursuant to section 401(k) of the Internal Revenue Code which
provides for the Company to match 50% of the first $1,000 of each
participant's
deferrals annually. Contributions to these plans are made in amounts
approved annually by the Board of Directors. Aggregate contributions made
by the Company to these plans were $1,659,000, $1,268,000 and $829,000 for
1996, 1995 and 1994, respectively.
Employee Stock Purchase Plan
Under the 1995 Employee Stock Purchase Plan, approved in June 1995,
the Company is authorized to issue up to 1,000,000 shares of common stock
to eligible employees. Under the terms of the plan, employees can choose to
have a fixed dollar amount deducted from their compensation to purchase the
Company's common stock and/or elect to purchase shares once per calendar
quarter. The purchase price of the stock is 85% of the market value on the
exercise date and employees are limited to a maximum purchase of $25,000
fair market value each calendar year. Since plan inception, the Company has
sold 43,061 shares. All shares purchased under this plan must be retained
for a period of one year.
NOTE 7 - CAPITAL STOCK:
Each outstanding share of preferred stock is entitled to one vote
on all matters submitted to a vote of shareholders, except for matters
involving mergers, the sale of all Company assets, amendments to the
Company's charter and exchanges of Company stock for stock of another
company which require approval by a majority of each class of capital stock.
In such matters, the preferred and common shareholders will each vote as
a separate class.
23
TECH DATA CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
NOTE 8 - COMMITMENTS AND CONTINGENCIES:
Operating leases
The Company leases distribution facilities and certain equipment
under noncancelable operating leases which expire at various dates through
2005. Future minimum lease payments under all such leases
for the succeeding five fiscal years are as follows: 1997 - $7,921,000;
1998 - $6,892,000; 1999 - $4,080,000; 2000 - $3,671,000; 2001 - $3,252,000
and $7,296,000 thereafter. Rental expense for all operating leases amounted
to $7,547,000, $6,500,000 and $4,490,000 in 1996, 1995 and 1994,
respectively.
NOTE 9 - ACQUISITIONS:
On March 24, 1994, the Company completed the non-cash exchange of
1,144,000 shares of its common stock for all of the outstanding capital
stock of Softmart International, S.A. (subsequently named Tech Data, SNC), a
privately-held distributor of microcomputer products based in Paris, France.
The acquisition was accounted for as a pooling-of-interests effective
February 1, 1994, however, due to the immaterial size of the acquisition
in relation to the consolidated financial statements, prior period financial
statements were not restated. In connection with the issuance of the
1,144,000 shares of common stock, the Company recorded an adjustment of
$9,681,000 to beginning retained earnings.
NOTE 10 - SEGMENT INFORMATION:
The Company is engaged in one business segment, the wholesale
distribution of microcomputer hardware and software products. The
geographic areas in which the Company operates are the United States
(United States including exports to Latin America and the Caribbean) and
International (France and Canada). The geographical distribution of net
sales, operating income and identifiable assets are as follows
(in thousands):
United States International Eliminations Consolidated
1996 ------------- ------------- ------------ ------------
Net sales to unaffiliated customers $2,654,750 $431,870 $ - $3,086,620
========== ======== =========== ==========
Operating income $ 48,419 $ 7,185 $ - $ 55,604
========== ======== =========== ==========
Identifiable assets $ 868,910 $174,969 $ - $1,043,879
========== ======== =========== ==========
1995
Net sales to unaffiliated customers $2,104,637 $313,773 $ - $2,418,410
========== ======== =========== ==========
Operating income $ 65,349 $ 5,988 $ - $ 71,337
========== ======== =========== ==========
Identifiable assets $ 677,910 $109,703 $ (3,184) $ 784,429
========== ======== =========== ==========
24
TECH DATA CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued)
NOTE 11 - UNAUDITED INTERIM FINANCIAL INFORMATION:
Quarter ended
------------------------------------------------------
April 30 July 31 October 31 January 31
----------- --------- ------------- ------------
Fiscal year 1996 (In thousands, except per share amounts)
Net sales $633,460 $708,836 $843,286 $901,038
Gross profit 46,216 50,113 58,685 64,380
Net income 1,849 3,448 7,042 9,202
Net income per common share .05 .09 .18 .24
Quarter ended
------------------------------------------------------
April 30 July 31 October 31 January 31
----------- --------- ------------- ------------
Fiscal year 1995 (In thousands, except per share amounts)
Net sales $530,469 $569,655 $658,341 $659,945
Gross profit 45,157 47,778 53,815 52,538
Net income 9,225 9,603 10,295 5,789
Net income per common share .24 .25 .27 .15
ITEM 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure
None.
25
PART III
ITEM 10. Directors and Executive Officers of the Registrant
The information required by Item 10 relating to executive officers
of the registrant is included under the caption "Executive Officers" of
Item 1 of this Form 10-K. The information required by Item 10 relating to
Directors of the registrant is incorporated herein by reference to the
registrant's definitive proxy statement for the 1996 Annual Meeting of
Shareholders. However, the information included in such definitive proxy
statement under the subcaption entitled "Grant Date Present Value" in
the table entitled "Option Grants in Last Fiscal Year", the information
included under the caption entitled "Compensation Committee Report on
Executive Compensation", and the information included in the "Stock
Price Performance Graph" shall not be deemed incorporated by reference
in this Form 10-K and shall not otherwise be deemed filed under the
Securities Act of 1933, as amended, or under the Securities Exchange Act
of 1934, as amended. The definitive proxy statement for the 1996 Annual
Meeting of Shareholders will be filed with the Commission prior to
May 31, 1996.
ITEMS 11, 12 and 13.
The information required by Items 11, 12 and 13 is incorporated herein
by reference to the registrant's definitive proxy statement for the 1996
Annual Meeting of Shareholders. However, the information included in such
definitive proxy statement under the subcaption entitled "Grant Date Present
Value" in the table entitled "Option Grants in Last Fiscal Year", the
information included under the caption entitled "Compensation Committee
Report on Executive Compensation", and the information included in the
"Stock Price Performance Graph" shall not be deemed incorporated by
reference in this Form 10-K and shall not otherwise be deemed filed
under the Securities Act of 1933, as amended, or under the Securities
Exchange Act of 1934, as amended. The definitive proxy statement for the
1996 Annual Meeting of Shareholders will be filed with the Commission prior
to May 31, 1996.
PART IV
ITEM 14. Exhibits, Financial Statement Schedule, and Reports on Form 8-K
(a) Listed below are the financial statements and the schedule
filed as part of this report:
Financial Statements Page
Report of Independent Certified Public Accountants 13
Consolidated Balance Sheet at January 31, 1996 and 1995 14
Consolidated Statement of Income for the three years
ended January 31, 1996 15
Consolidated Statement of Changes in Shareholders' Equity
for the three years ended January 31, 1996 15
Consolidated Statement of Cash Flows for the three years ended
January 31, 1996 16
Notes to Consolidated Financial Statements 17
Financial Statement Schedule
Report of Independent Certified Public Accountants on Financial
Statement Schedule 29
Schedule II. -- Valuation and qualifying accounts 30
All schedules and exhibits not included are not applicable, not
required or would contain information which is shown in the financial
statements or notes thereto.
(b) The Company was not required to file a report on Form 8-K
during the fiscal year ended January 31, 1996.
26
(c) the exhibit numbers on the following list correspond to the
numbers in the exhibit table required
pursuant to Item 601 of Regulation S-K.
3-A(1) -- Articles of Incorporation of the Company as amended
to April 23, 1986.
3-B(2) -- Articles of Amendment to Articles of Incorporation
of the Company filed on August 27, 1987.
3-C(3) -- By-Laws of the Company as amended to November 28, 1995.
3-F(9) -- Articles of Amendment to Articles of Incorporation of the
Company filed on July 15, 1993.
10-F(4) -- Incentive Stock Option Plan, as amended, and form of
option agreement.
10-G(10) -- Employee Stock Ownership Plan as amended December 16, 1994.
10-V(5) -- Employment Agreement between the Company and Edward C.
Raymund dated as of January 31, 1991.
10-W(5) -- Irrevocable Proxy and Escrow Agreement dated April 5, 1991.
10-X(6) -- First Amendment to the Employment Agreement between the
Company and Edward C. Raymund dated November 13, 1992.
10-Y(6) -- First Amendment in the nature of a Complete Substitution
to the Irrevocable Proxy and Escrow Agreement dated
November 13, 1992.
10-Z(7) -- 1990 Incentive and Non-Statutory Stock Option Plan.
10-AA(7) -- Non-Statutory Stock Option Grant Form.
10-BB(7) -- Incentive Stock Option Grant Form.
10-CC(8) -- Employment Agreement between the Company and Steven A.
Raymund dated February 1, 1992.
10-EE(10) -- Retirement Savings Plan as amended January 26, 1994.
10-FF(9) -- Revolving Credit and Reimbursement Agreement dated
December 22, 1993.
10-GG(9) -- Transfer and Administration Agreement dated
December 22, 1993.
10-HH(10) -- Amendments (Nos. 1-4) to the Transfer and Administration
Agreement.
10-II(10) -- Amended and Restated Revolving Credit and Reimbursement
Agreement dated July 28, 1994, as amended.
10-JJ(10) -- Revolving Foreign Currency Agreement dated August 4, 1994,
as amended.
10-KK(3) -- Amendments (Nos. 5,6) to the Transfer and Administration
Agreement.
10-LL(3) -- Amendments (Nos. 3-5) to the Amended and Restated Revolving
Credit and Reimbursement Agreement dated July 28, 1994,
as amended.
10-MM(3) -- Amendments (Nos. 3-5) to the Revolving Foreign Currency
Agreement dated August 4, 1994, as amended.
10-NN(12) -- Non-Employee Directors' 1995 Non-Statutory Stock Option Plan
10-OO(12) -- 1995 Employee Stock Purchase Plan
10-PP(3) -- Employment Agreement between the Company and A. Timothy Godwin
dated as of December 5, 1995.
21(3) -- Subsidiaries of Registrant.
99-A(11) -- Cautionary Statement For Purposes of the "Safe Harbor"
Provisions of the Private Securities Litigation Reform Act
of 1995.
- --------------
27
(1) Incorporated by reference to the Exhibits included in the Company's
Registration Statement on Form S-1, File No. 33-4135.
(2) Incorporated by reference to the Exhibits included in the Company's
Registration Statement on Form S-1, File No. 33-21997.
(3) Filed herewith.
(4) Incorporated by reference to the Exhibits included in the
Company's Registration Statement on Form S-8, File No. 33-21879.
(5) Incorporated by reference to the Exhibits included in the
Company's Form 10-Q for the quarter ended July 31, 1991,
File No. 0-14625.
(6) Incorporated by reference to the Exhibits included in the Company's
Form 10-Q for the quarter ended October 31, 1992, File No. 0-14625.
(7) Incorporated by reference to the Exhibits included in the
Company's Registration Statement on Form S-8, File No. 33-41074.
(8) Incorporated by reference to the Exhibits included in the
Company's Form 10-K for the year ended January 31, 1993, File
No. 0-14625.
(9) 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.
(10) 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.
(11) Incorporated by reference to the Exhibits included in the
Company's Form 8-K filed on March 26, 1996, File No. 0-14625.
(12) Incorporated by reference to the Exhibits included in the Company's
Definitive Proxy Statement for the 1995 Annual Meeting of Shareholders.
28
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS ON
FINANCIAL STATEMENT SCHEDULE
To the Board of Directors
of Tech Data Corporation
Our audits of the consolidated financial statements referred to in
our report dated March 15, 1996 appearing on page 13 of this Form 10-K of
Tech Data Corporation also included an audit of the Financial
Statement Schedule listed in Item 14 of this Form 10-K. In our opinion,
this Financial Statement Schedule presents fairly, in all material respects,
the information set forth therein when read in conjunction with the related
consolidated financial statements.
PRICE WATERHOUSE LLP
Tampa, Florida
March 15, 1996
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the
Prospectus constituting part of the Registration Statements on Form S-8
(Nos. 33-21879 and 33-41074) and Form S-3 (No. 33-75788) of Tech Data
Corporation of our report dated March 15, 1996 appearing on page 13 of this
Form 10-K. We also consent to the incorporation by reference of our report
on the Financial Statement Schedule appearing above.
PRICE WATERHOUSE LLP
Tampa, Florida
April 16, 1996
29
TECH DATA CORPORATION AND SUBSIDIARIES
VALUATION AND QUALIFYING ACCOUNTS
(In thousands)
Additions Balance
Balance at Charged to at end
beginning cost and of
Description of period expenses Other(1) Deductions period
- ----------- --------- ---------- ------- ---------- ------
Allowance for doubtful accounts
receivable and sales returns:
January 31,
1996 $16,580 $17,433 $4,538 $(15,882) $22,669
1995 8,580 18,965 920 (11,885) 16,580
1994 5,791 11,346 441 (8,998) 8,580
__________
(1) Represents bad debt recoveries.
30
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the registrant has duly caused this
report to be signed on its behalf by the undersigned, thereunto duly
authorized on the 16th day of April 1996.
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 Annual Report on Form 10-K
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 Annual Report on Form 10-K, and any and all
instruments or documents filed as a part of or in connection with this Annual
Report on Form 10-K or the amendments thereto, and the attorney-in-fact, or
either of them, may make such changes and additions to this Annual Report on
Form 10-K as the attorney-in-fact, or either of them, may deem necessary or
appropriate.
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
Signature Title Date
------------- ------------- --------
/s/ STEVEN A. RAYMUND Chairman of the Board of April 16, 1996
- ------------------------ Directors; Chief Executiver
Steven A. Raymund Officer
/s/ A. TIMOTHY GODWIN Vice Chairman; President; April 16, 1996
- ------------------------ Chief Operating Officer;
A. Timothy Godwin Director
/s/ JEFFERY P. HOWELLS Senior Vice President of April 16, 1996
- ------------------------ Finance; Chief Financial
Jeffery P. Howells Officer; (principal financial
officer)
/s/ JOSEPH B. TREPANI Vice President and Worldwide April 16, 1996
- ----------------------- Controller; (principal
Joseph B. Trepani accounting officer)
/s/ CHARLES E. ADAIR Director April 16, 1996
- ----------------------
Charles E. Adair
/s/ DANIEL M. DOYLE Director April 16, 1996
- ---------------------
Daniel M. Doyle
/s/ DONALD F. DUNN Director April 16, 1996
- --------------------
Donald F. Dunn
/s/ LEWIS J. DUNN Director April 16, 1996
- --------------------
Lewis J. Dunn
/s/ EDWARD C. RAYMUND Director; Chairman Emeritus April 16, 1996
- ---------------------
Edward C. Raymund
/s/ JOHN Y. WILLIAMS Director April 16, 1996
- ---------------------
John Y. Williams
31
EX-3.C
2
TECH DATA CORPORATION BYLAWS AS AMENDED TO NOV 28, 1995
EXHIBIT 3-C
AMENDMENT TO BYLAWS
OF
TECH DATA CORPORATION
The Bylaws of TECH DATA CORPORATION were amended at the fourth quarter
1995 meeting of the Board of Directors held on March 28, 1995.
1. The first sentence of Section 3.2 of Article Three - Directors
shall be and hereby is amended to read as follows:
ARTICLE THREE
DIRECTORS
"3.2 Number of Directors; Quorum. The Board of Directors shall
consist of eight members."
AMENDMENT TO BYLAWS
OF
TECH DATA CORPORATION
The Bylaws of TECH DATA CORPORATION were amended at the second quarter
1995 meeting of the Board of Directors held on August 22, 1994.
1. The first sentence of Section 3.2 of Article Three - Directors
shall be and hereby is amended to read as follows:
ARTICLE THREE
DIRECTORS
"3.2 Number of Directors; Quorum. The Board of Directors shall
consist of seven members."
AMENDMENT TO BYLAWS
OF
TECH DATA CORPORATION
The Bylaws of TECH DATA CORPORATION were amended at the regular quarterly
meeting of the Board of Directors held on March 20, 1992.
1. The first section of Section 3.2 of Article Three - Directors
shall be amended to read as follows:
ARTICLE THREE
DIRECTORS
"3.2 Number of Directors; Quorum. The Board of Directors shall
consist of six members."
AMENDMENT TO BYLAWS
OF
TECH DATA CORPORATION
The Bylaws of TECH DATA CORPORATION were amended at the regular quarterly
meeting of the Board of Directors held on August 19, 1991.
1. The first section of Section 3.2 of Article Three - Directors
shall be amended to read as follows:
ARTICLE THREE
DIRECTORS
"3.2 Number of Directors; Quorum. The Board of Directors shall
consist of seven members."
AMENDMENT TO BYLAWS
OF
TECH DATA CORPORATION
The Bylaws of TECH DATA CORPORATION were amended at the regular quarterly
meeting of the Board of Directors held on March 19, 1991.
1. The first section of Section 3.2 of Article Three - Directors
shall be amended to read as follows:
ARTICLE THREE
DIRECTORS
"3.2 Number of Directors; Quorum. The Board of Directors shall
consist of six members."
2. The section 3.4 of Article Three Directors shall be deleted in its
entirety and amended to read as follows:
"3.4 Vacancies. The Directors may fill the place of any Director
that may become vacant prior to the expiration of his term, such appointment
by the Directors to continue until the expiration of the term of the Director
whose place has become vacant and until a successor is elected. The Directors
may also fill the place of any Director position newly created, such
appointment by the Directors to continue until the next annual meeting of
shareholders and until a successor is elected."
AMENDMENT TO BYLAWS
OF
TECH DATA CORPORATION
The Bylaws of TECH DATA CORPORATION were amended at the regular quarterly
meeting of the Board of Directors held on November 27, 1989.
1. The first section of Section 3.2 of Article Three - Directors
shall be amended to read as follows:
ARTICLE THREE
DIRECTORS
"3.2 Number of Directors; Quorum. The Board of Directors shall
consist of five members."
AMENDMENT TO BYLAWS
OF
TECH DATA CORPORATION
The Bylaws of TECH DATA CORPORATION were amended at the regular quarterly
meeting of the Board of Directors held on March 17, 1988.
1. The first section of Section 3.2 of Article Three - Directors
shall be amended to read as follows:
ARTICLE THREE
DIRECTORS
"3.2 Number of Directors; Quorum. The Board of Directors shall
consist of six members."
BY-LAWS
OF
TECH DATA CORPORATION
ARTICLE ONE
OFFICES
The Corporation shall at all times maintain a registered office in the
State of Florida and a registered agent at that address but may have other
offices located within or outside the State of Florida as the Board of
Directors may determine.
ARTICLE TWO
SHAREHOLDERS MEETINGS
2.1 Annual Meeting. A meeting of shareholders of the Corporation
shall be held annually, within five months of the end of each fiscal year of
the Corporation. The annual meeting shall be held at such time and place and
on such date as the Directors shall determine from time to time and as shall
be specified in the notice of the meeting. In no case may an annual meeting
be more than thirteen months after the preceding annual meeting.
2.2 Special Meetings. Special meetings of the shareholders may be
called at any time by the Directors, the President or any holder or holders of
as much as ten percent of the outstanding capital stock of the Corporation.
Special meetings shall be held at such a time and place and on such date as
shall be specified in the notice of the meeting.
2.3 Place. Annual or special meetings of shareholders may be held
within or without the State of Florida.
2.4 Notice. Notice of annual or special shareholders meetings stating
the place, day and hour of the meeting shall be given in writing not less than
ten nor more than sixty days before the date of the meeting, either mailed to
the last known address or personally given to each shareholder. Notice of any
special meeting of shareholders shall state the purpose or purposes for which
the meeting is called. The notice of any meeting at which amendments to
or restatements of the Articles of Incorporation, merger or consolidation of
the Corporation, or the disposition of corporate assets requiring shareholder
approval are to be considered shall state such purpose, and shall further
comply with all requirements of law. Notice of a meeting may be waived by an
instrument in writing executed before or after the meeting. The waiver
need not specify the purpose of the meeting or the business transacted.
2.5 Quorum. At all meetings of shareholders, a majority of the
outstanding shares of stock shall constitute a quorum for the transaction of
business, and no resolution or business shall be transacted without the
favorable vote of the holders of a majority of the shares represented at
the meeting and entitled to vote. A lesser number may adjourn from day to
day, and shall announce the time and place to which the meeting is adjourned.
Notice of any adjourned meeting need only be given by announcement at the
meeting at which the adjournment is taken.
2.6 Proxies, Required Vote. At every meeting of the shareholders,
including meetings of shareholders for the election of Directors, any
shareholder having the right to vote shall be entitled to vote in person or by
proxy, but no proxy shall be voted after eleven months from its date, unless
said proxy provides for a longer period. Each shareholder shall have one vote
for each share of stock having voting power, registered in his name on the
books of the Corporation. If a quorum is present, the affirmative vote of the
majority of the shares represented at the meeting and entitled to vote on the
subject matter shall be the act of the shareholders, except as otherwise
provided by law, by the Articles of Incorporation, or by these By-Laws.
2.7 Presiding Officer and Secretary. At every meeting of
shareholders, the Chairman of the Board, or in his absence or if there be none
the President, or in his absence a Vice President, or, if none be present, the
appointee of the meeting, shall preside. The Secretary, or in his absence an
Assistant Secretary, or if none be present, the appointee of the presiding
officer of the meeting, shall act as Secretary to the meeting.
2.8 Shareholder List. The officer or agent having charge of the
stock transfer books of the Corporation shall produce for inspection of any
shareholder at, and continuously during, every meeting of the shareholder, a
complete alphabetical list of shareholders showing the address and share
holdings of each shareholder. If the record of shareholders readily
shows such information, it may be produced in lieu of such a list.
2.9 Action in Lieu of Meeting. Any action to be taken at a meeting
of the shareholders of the Corporation, or any action that may be taken at a
meeting of the shareholders, may be taken without a meeting, without prior
notice, and without a vote if a consent in writing, setting
forth the action so taken, shall be signed by the holders of outstanding stock
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted. If any class of shares is entitled to
vote thereon as a class, such written consent shall be required of the holders
of a majority of the shares of each class of shares entitled to vote as a
class thereon and of the total shares entitled to vote thereon.
Within 10 days after obtaining such authorization by written consent,
notice must be given to those shareholders who have not consented in writing.
The notice shall fairly summarize the material features of the authorized
action and, if the action be a merger, consolidation, or sale or exchange of
assets for which dissenters rights are provided by law, the notice
shall contain a clear statement of the rights of shareholders dissenting
therefrom.
2
ARTICLE THREE
DIRECTORS
3.1 Management. Subject to these By-Laws, or any lawful agreement
between the shareholders, the full and entire management of the affairs and
business of the Corporation shall be vested in the Board of Directors, which
shall have and exercise all of the powers that may be exercised or performed
by the Corporation.
3.2 Number of Directors; Quorum. The Board of Directors shall
consist of five members. A majority of said Directors shall constitute a
quorum for the transaction of business. All resolutions adopted and all
business transacted by the Board of Directors shall require the
affirmative vote of a majority of the Directors present at the meeting.
3.3 Classification of Board of Directors. The directors are hereby
divided into three classes, each class to consist, as nearly as may be, of
one-third of the number of directors then constituting the whole board. The
term of office of those of the first class shall expire at the
annual meeting next ensuing. The term of office of the second class shall
expire one year thereafter. The term of office of the third class shall
expire two years thereafter. At each succeeding annual election, the
directors elected shall be chosen for a full term of three years to
succeed those whose terms expire. A Director need not be a shareholder.
3.4 Vacancies. The Directors may fill the place of any Director that
may become vacant prior to the expiration of his term, such appointment by the
Directors to continue until the expiration of the term of the Director whose
place has become vacant and until a successor is elected.
3.5 Election of Directors. Directors shall be elected at the annual
meeting of shareholders, at a special meeting in lieu of the annual meeting of
shareholders, or by written consent pursuant to Section 2.9 hereof. The
Directors shall serve until their successors are elected. If the annual
election of Directors is not held on the date designated therefor, the
Directors shall cause such election to be held as soon thereafter as
convenient.
3.6 Removal. Any Director may be removed from office, with or
without cause upon the majority vote of the shareholders, at a meeting with
respect to which notice of such purpose is given.
3.7 Resignation. Any Director may resign at any time either orally
at any meeting of the Board of Directors or by so advising the Chairman of the
Board, if any, or the President or by giving written notice to the
Corporation. A Director who resigns may postpone the effectiveness of
his resignation to a future date or upon the occurrence of a future event
specified in a written tender of resignation. If no time of effectiveness is
specified therein, a resignation shall be effective upon tender. A vacancy
shall be deemed to exist at the time a resignation is tendered, and the Board
of Directors or the shareholders may, then or thereafter, elect
to appoint a successor to take office when the resignation by its terms
becomes effective.
3.8 Compensation. Directors may be allowed such compensation for
attendance at regular or special meetings of the Board of Directors and of any
special or standing committees thereof as may be determined from time to time
by resolution of the Board of Directors.
3
ARTICLE FOUR
COMMITTEES
4.1 Executive Committee.
(a) The Board of Directors may by resolution adopted by a majority of
the entire Board designate an Executive Committee of two or more Directors.
Each member of the Executive Committee shall hold office until the first
meeting of the Board of Directors after the annual meeting of shareholders
next following his election and until his successor is elected and qualified,
or until his death, resignation or removal, or until he shall cease to be a
Director.
(b) During the intervals between the meetings of the Board of
Directors, the Executive Committee may exercise all the authority of the Board
of Directors; provided, however, that the Executive Committee shall not have
the power to amend or repeal any resolution of the Board of directors that by
its terms shall not be subject to amendment or repeal by the Executive
Committee, and the Executive Committee shall not have the authority of the
Board of Directors to (1) recommend amending the Articles of Incorporation or
amend the By-Laws of the Corporation; (2) adopt a plan of merger or
consolidation; (3) adopt a plan to sell, lease, exchange or otherwise dispose
of all or substantially all the property and assets of the Corporation; or (4)
adopt a plan for the voluntary dissolution of the Corporation; and shall not
have the authority of the Board of directors to revoke any of the foregoing
acts by the Board of Directors.
(c) The Executive Committee shall meet from time to time on call of
the Chairman of the Board or the President or of any two or more members of
the Executive Committee. Meetings of the Executive Committee may be held at
such place or places, within or without the State of Florida, as the Executive
Committee shall determine or as may be specified or fixed in the respective
notices or waivers of such meetings. The Executive Committee may fix its own
rules of procedures, including provision for notice of its meetings. It shall
keep a record of its proceedings and shall report these proceedings to the
Board of Directors at the meeting thereof held next after they have been
taken, and all such proceedings shall be subject to revision or alteration by
the Board of Directors except to the extent that action shall have been taken
pursuant to or in reliance upon such proceedings prior to any such revision or
alteration.
(d) The Executive Committee shall act by majority vote of its
members; provided, however, that contracts or transactions of and by the
Corporation in which officers or Directors of the Corporation are interested
shall require the affirmative vote of a majority of the disinterested
members of the Executive Committee, at a meeting of the Executive Committee at
which the material facts as to the interest and as to the contract or
transaction are disclosed or known to the members of the Executive Committee
prior to the vote.
(e) Members of the Executive Committee may participate in committee
proceedings by means of conference telephone or similar communications
equipment by means of which all persons participating in the proceedings can
hear each other, and such participation shall constitute presence in person at
such proceedings.
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(f) The Board of Directors, by resolution adopted in accordance with
paragraph (a) of this section, may designate one or more Directors as
alternate members of the Executive Committee who may act in the place and
stead of any absent member or members at any meeting of said committee.
4.2 Other Committees. The Board of Directors, by resolution adopted
by a majority of the entire Board, may designate one or more additional
committees, each committee to consist of two or more of the Directors of the
Corporation, which shall have such name or names and shall have and may
exercise such powers of the Board or Directors, except the powers denied the
Executive Committee, as may be determined from time to time by the Board of
Directors. Such committees shall provide for their own rules of procedure,
subject to the same restrictions thereon as provided above for the Executive
Committee.
4.3 Removal. The Board of Directors shall have power at any time to
remove any member of any committee, with or without cause, and to fill
vacancies in and to dissolve any such committee.
ARTICLE FIVE
MEETINGS OF THE BOARD OF DIRECTORS
5.1 Time and Place. Meetings of the Board of Directors may be held
at any place either within or without the State of Florida. The Board of
Directors shall meet immediately following the close of the annual meeting of
shareholders at the place thereof, or at such place and time as shall be fixed
by the consent in writing of all the Directors. In any such case, no notice
of such meeting to the Directors shall be necessary in order to legally
constitute the meeting. If in lieu of an annual meeting the shareholders act
by written consent, then the Board shall meet as soon as is reasonably
practicable after such consent is duly filed with the Corporation, at the call
of the Chairman of the Board, if any, or by the President or by at least
one-third of the Directors then in office at such time and place as shall be
specified by written notice thereof given to each Director either by personal
delivery or by mail, telegram, or cablegram at least two days before the
meeting.
5.2 Regular Meetings. Regular meetings of the Board of Directors may
be held without notice at such time and place, within or without the State of
Florida, as shall be determined by the Board of Directors from time to time.
5.3 Special Meetings; Notice. Special meetings of the Board of
Directors may be called by the Chairman of the Board or the President on not
less than two days' written notice by mail, telegram, cablegram or personal
delivery to each Director and shall be called by the Chairman of the Board,
the President or the Secretary in like manner and on like notice on the
written request of any two or more Directors. Any such special meeting shall
be held at such time and place, within or without the State of Florida, as
shall be stated in the notice of meeting. No notice of any meeting of the
Board of Directors need state the purposes thereof.
5.4 Waiver of Notice. Notice of any meeting may be waived by an
instrument in writing executed before or after the meeting.
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5.5 Quorum. At all meetings of the Board of Directors, the presence
of a majority of the authorized number of Directors, shall be necessary and
sufficient to constitute a quorum for the transaction of business. Directors
may participate in any meeting by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting by means of such
communications equipment shall constitute the presence in person at such
meeting. The act of a majority of the Directors present at any meeting at
which there is a quorum shall be the act of the Board of Directors, except as
may be otherwise specifically provided by law, the Articles of Incorporation,
or these By-Laws. In the absence of a quorum a majority of the Directors
present at any meeting may adjourn the meeting from time to time until a
quorum is present. Notice of any adjourned meeting need only be given by
announcement at the meeting at which the adjournment is taken.
5.6 Action In Lieu of Meeting. Any action required or permitted to
be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting if a written consent setting forth the action
so taken is signed by all members of the Board of Directors or of such
committee, as the case may be, and such written consent is filed with the
minutes of the proceedings of the Board of Directors or of such committee and
any further requirements of law pertaining to such consents have been complied
with.
5.7 Interested Directors and Officers. An interested Director or
officer is one who is a party to a contract or transaction with the
Corporation or who is an officer or Director of, or has a financial interest
in, another corporation, partnership or association that is a party to a
contract or transaction with the Corporation. Contracts and transactions
between the Corporation and one or more interested Directors or officers shall
not be void or voidable solely because of the involvement or vote of such
interested persons as long as (i) the contract or transaction is
approved in good faith by the Board of Directors or appropriate committee by
the affirmative votes of a majority of disinterested Directors, even if the
disinterested Directors be less than a quorum, at a meeting of the Board or
committee at which the material facts as to the interested person or persons
and the contract or transaction are disclosed or known to the Board or
committee prior to the vote; or (ii) the contract or transaction is approved
in good faith by the shareholders after the material facts as to the
interested person or persons and the contract or transaction have been
disclosed to them; or (iii) the contract or transaction is fair as to the
Corporation as to the time it is authorized, approved or ratified by the
Board, committee, or shareholders. Interested Directors may be counted in
determining the presence of a quorum at a meeting of the Board or committee
which authorizes the contract or transaction.
ARTICLE SIX
OFFICERS, AGENTS AND EMPLOYEES
6.1 General Provisions. The officers of the Corporation shall be a
President, a Secretary, and a Treasurer, and may include a Chairman of the
Board, a Vice Chairman of the Board, one or more Vice Presidents, one or more
Assistant Secretaries, and one or more Assistant Treasurers. The officer
shall be elected by the Board of Directors at the first meeting of the Board
of Directors after the annual meeting of the shareholders in each year or
shall be appointed as provided in these By-Laws. The Board of Directors may
elect other officers, agents or employees, who shall have such authority and
perform such duties as may be prescribed by the Board of Directors. All
officers shall hold office until the meeting of the Board of Directors
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following the next annual meeting of the shareholders after their election or
appointment and until their successors shall have been elected or appointed
and shall have qualified. Any two or more offices may be held by the same
person, except the offices of President and Secretary. Any officer, agent or
employee of the Corporation may be removed by the Board of Directors with or
without cause. Such removal without cause shall be without prejudice to such
person's contract rights, if any, but the election or appointment of any
person as an officer, agent or employee of the Corporation shall not of itself
create contract rights. The compensation of officers, agents and employees
elected by the Board of Directors shall be fixed by the Board of Directors,
but this power may be delegated to any officer, agent or employee as to
persons under his direction or control. The Board of Directors may require an
officer, agent or employee to give security for the faithful performance of
his duties.
6.2 Powers and Duties of the Chairman of the Board, the Vice-Chairman
of the Board and the President. The powers and duties of the Chairman of the
Board, the Vice- Chairman of the Board and the President, subject to the
supervision and control of the Board of Directors, shall be those usually
appertaining to their respective offices and whatever other powers and duties
are prescribed by these By-Laws or by the Board of Directors.
(a) The Chairman of the Board shall preside at all meetings of the
Board of Directors and at all meetings of the shareholders.
(b) Vice-Chairman of the Board shall, in the absence or disability of
the Chairman, perform the duties of the Chairman.
(c) The President shall, unless otherwise provided by the Board of
Directors, be the Chief Executive Officer of the Corporation. He shall have
general charge of the business and affairs of the Corporation and shall keep
the Board of Directors fully advised. He shall employ and discharge employees
and agents of the Corporation, except such as shall be elected by the Board
of Directors, and he may delegate these powers. He shall have such powers and
perform such duties as generally pertain to the office of the President, as
well as such further powers and duties as may be prescribed by the Board of
Directors. The President may vote the shares or other securities of any other
domestic or foreign Corporation of any type or kind that may at any time be
owned by the Corporation, may execute any shareholder's or other consents in
respect thereof and may in his discretion delegate such powers by executing
proxies, or otherwise, on behalf of the Corporation. The Board of Directors,
by resolution from time to time, may confer like powers upon any other person
or persons.
6.3 Powers and Duties of Vice Presidents. Each Vice President shall
have such powers and perform such duties as the Board of Directors or the
President may prescribe and shall perform such other duties as may be
prescribed by these By-Laws. In the absence or inability to act of the
President, unless the Board of Directors shall otherwise provide, the Vice
President who has served in that capacity for the longest time and who shall
be present and able to act, shall perform all duties and may exercise any of
the powers of the President. The performance of any such duty by a Vice
President shall be conclusive evidence of his power to act.
6.4 Powers and Duties of the Secretary. The Secretary shall have
charge of the minutes of all proceedings of the shareholders and of the Board
of Directors and shall keep the minutes of all their meetings at which he is
present. Except as otherwise provided by these By-Laws he shall attend to the
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giving of all notices to shareholders and Directors. He shall have charge of
the seal of the Corporation, shall attend to its use on all documents the
execution of which on behalf of the Corporation under its seal is duly
authorized and shall attest the same by his signature whenever required. He
shall have charge of the record of shareholders of the Corporation, of all
written requests by shareholders that notices be mailed to them at an address
other than their addresses on the record of shareholders, and of such other
books and papers as the Board of Directors may direct. Subject to the control
of the Board of Directors, he shall have all such powers and duties as
generally are incident to the position of Secretary or as may be assigned to
him by the President or the Board.
6.5 Powers and Duties of the Treasurer. The Treasurer shall have
charge of all funds and securities of the Corporation, shall endorse the same
for deposit or collection when necessary and deposit the same to the credit of
the Corporation in such banks or depositories as the Board of Directors may
authorize. He may endorse all commercial documents requiring endorsements for
or on behalf of the Corporation and may sign all receipts and all commercial
documents requiring endorsement for or on behalf of the Corporation and may
sign all receipts and vouchers for payments made to the Corporation. He shall
have all such powers and duties as generally are incident to the position of
Treasurer or as may be assigned to him by the President or by the Board of
Directors.
6.6 Appointment, Powers and Duties of Assistant Secretaries.
Assistant Secretaries may be appointed by the President or elected by the
Board of Directors. In the absence or inability of the Secretary to act, any
Assistant Secretary may perform all the duties and exercise all the powers of
the Secretary. The performance of any such duty shall be conclusive evidence
of his power to act. An Assistant Secretary shall also perform such other
duties as the Secretary of the Board of Directors may assign to him.
6.7 Appointment, Powers and Duties of Assistant Treasurers. Assistant
Treasurers may be appointed by the President or elected by the Board of
Directors. In the absence or inability of the Treasurer to act, an Assistant
Treasurer may perform all the duties and exercise all the powers of the
Treasurer. The performance or any such duty shall be conclusive evidence of
his power to act. An Assistant Treasurer shall also perform such other duties
as the President of the Board of Directors may assign to him.
6.8 Delegation of Duties. In case of the absence of any officer of
the Corporation, or for any other reason that the Board of Directors may deem
sufficient, the Board of Directors (or in case of Assistant Secretaries or
Assistant Treasurers only, the President) may confer for the time being the
powers and duties, or any of them, of such officer upon any other officer, or
elect or appoint any new officer to fill a vacancy created by death,
resignation, retirement or termination of any officer. In such latter event,
such new officer shall serve until the next annual election of officers.
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ARTICLE SEVEN
CAPITAL STOCK
7.1 Certificates. The interest of each shareholder shall be
evidenced by a certificate or certificates representing shares of the
Corporation in such form as the Board of Directors may from time to time adopt
which shall be numbered and entered in the books of the Corporation as
they are issued. Each certificate representing shares shall set forth upon
the face thereof the following:
(a) the name of this Corporation;
(b) that the Corporation is organized under the laws of the State of
Florida;
(c) the name or names of the person or persons to whom the
certificate is issued;
(d) the number and class of shares, and the designation of the
series, if any, that the certificate represents; and
(e) the par value of each share represented by such certificate, or a
statement that the shares are without par value.
Every certificate shall also set forth or fairly summarize upon the face
or back of the certificate, or shall state that the Corporation will furnish
to any shareholder upon request and without charge, a full statement of:
(a) The designations, preferences, limitations, and relative rights
of the shares of each class or series authorized to be issued;
(b) The variations in the relative rights and preferences between the
shares of each such series, and whether the same have been fixed and
determined; and
(c) The authority of the Board of Directors to fix and determine the
relative rights and preferences of subsequent series.
Each certificate shall be signed by the President or a Vice President and
the Secretary or an Assistant Secretary and may be sealed with the seal of the
Corporation or a facsimile thereof. If a certificate is manually signed by a
transfer agent or registrar, other than the Corporation itself or an employee
of the Corporation, the signature of any such officer of the Corporation may
be a facsimile In case any officer or officers who shall have signed, or
whose facsimile signature or signatures shall have been used on, any such
certificate or certificates shall cease to be such officer or officers of the
Corporation, whether because of death, resignation or otherwise, before
such certificate or certificates shall have been delivered by the Corporation,
such certificate or certificates may nevertheless be delivered as though the
person or persons who signed such certificate or certificates or whose
facsimile signature shall have been used thereon had not ceased to be such
officer or officers.
7.2 Shareholder List The Corporation shall keep or cause to be kept
a record of the shareholders of the Corporation that readily shows, in
alphabetical order or by alphabetical index, and by classes or series of
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stock, if any, the names of the shareholders entitled to vote, with the
address of and the number of shares held by each. Said record shall be
presented and kept open at all meetings of the shareholders.
7.3 Transfer of Shares. Transfer of stock shall be made on the books
of the Corporation only by the person named in the certificate, or by power of
attorney lawfully constituted in writing, and upon surrender of the
certificate thereof, or in the case of a certificate alleged to have been
lost, stolen or destroyed, upon compliance with the provisions of Section 7.7
of these By-Laws.
7.4 Record Dates. (a) For the purpose of determining shareholders
entitled to notice of or to vote at any meeting of shareholders or any
adjournment thereof, or entitled to receive payment of any dividend, or in
order to make a determination of shareholders for any other proper purpose,
the Board or Directors may provide that the stock transfer books shall be
closed for a stated period but not to exceed sixty days. If the stock
transfer books shall be closed for the purpose of determining shareholders
entitled to notice of or to vote at a meeting of shareholders, such books
shall be closed for at least ten days immediately preceding such meeting.
(b) In lieu of closing the stock transfer books, the Board of
Directors may fix in advance a date as the record date for any such
determination of shareholders, such date to be not more than sixty days and,
in case of a meeting of shareholders, not less than ten days, prior to the
date on which the particular action requiring such determination of
shareholders is to be taken.
7.5 Registered Owner. The Corporation shall be entitled to treat the
holder of record of any share of stock of the Corporation as the person
entitled to vote such share, to receive any dividend or other distribution
with respect to such share, and for all other purposes and accordingly shall
not be bound to recognize any equitable or other claim or to interest in such
share on the part of any other person, whether or not it shall have express or
other notice thereof, except as otherwise provided by law.
7.6 Transfer Agent and Registrars. The Board of Directors may
appoint one or more transfer agents or one or more registrars and may require
each stock certificate to bear the signature or signatures of a transfer agent
or a registrar or both.
7.7 Lost Certificates. Any person claiming a certificate of stock to
be lost, stolen or destroyed shall make an affidavit or affirmation of the
fact in such manner as the Board of Directors may require and shall, if the
Directors so require, give the Corporation a bond of indemnity in form and
amount and with one or sureties satisfactory to the Board of Directors,
whereupon an appropriate new certificate may be issued in lieu of the
certificate alleged to have been lost, stolen or destroyed.
7.8 Fractional Shares or Scrip. The Corporation may, when and if
authorized so to do by its Board of Directors, issue certificates for
fractional shares or scrip in order to effect share transfers, share
distributions or reclassifications, mergers, consolidations or
reorganization. Holders of fractional shares shall be entitled, in proportion
to their fractional holdings, to exercise voting rights, receive dividends and
participate in any of the assets of the Corporation in the event of
liquidation. Holders of scrip shall not, unless expressly authorized by
the Board of Directors, be entitled to exercise any rights of a shareholder of
10
the Corporation, including voting rights, dividend rights or the right to
participate in any assets of the Corporation in the event of liquidation. In
lieu of issuing fractional shares or scrip, the Corporation may pay in cash
the fair value of fractional interests as determined by the Board of
Directors; and the Board of Directors may adopt resolutions regarding rights
with respect to fractional shares or scrip as it may deem appropriate,
including without limitation the right for persons entitled to receive
fractional shares to sell such fractional shares or purchase such additional
fractional shares as may be needed to acquire one full share, or sell such
fractional share or scrip for the account of such persons.
ARTICLE EIGHT
BOOKS AND RECORDS; SEAL; ANNUAL STATEMENTS
8.1 Inspection of Books and Records. Any person who shall have been
a shareholder of record for at least six months immediately preceding his
demand or who shall be the holder of record of, or authorized in writing by
the holders of record of, or the holder of record of voting trust certificates
for, at least five percent of the outstanding shares of any class or series
of the Corporation, upon written demand stating the purpose thereof, shall
have the right to examine in person or by agent or attorney, at any reasonable
time or times, for any proper purpose, the books and records of account,
minutes and record of shareholders and to make extracts therefrom.
Any inspection authorized above may be denied to a shareholder if he has
within two years sold or offered for sale any list of shareholders or of
holders of voting trust certificates for shares of this Corporation or any
other corporation, has aided or abetted any person in procuring any list of
shareholders or of holders of voting trust certificates for any
such purpose, has improperly used any information secured through any prior
examination of the books and records of account, minutes, or record of
shareholders or of holders of voting trust certificates for shares of
this Corporation or any other corporation, or was not acting in good faith or
for a proper purpose in making his demand.
If the Secretary or a majority of the Board of Directors or members of
the Executive Committee of the Corporation find the request proper, the
Secretary shall notify the shareholder within thirty days after receipt of
said request of time, which shall not be more than thirty days after such
notification, and place at which the inspection may be conducted.
If said request is found by the Secretary, the Board of Directors or the
Executive Committee not to be proper, the Secretary shall so notify the
requesting shareholder within thirty days after receipt of the request. The
Secretary shall specify in said notice the basis for the rejection of the
shareholder's request.
The Secretary, the Board of Directors and the Executive Committee shall
at all times be entitled to rely on the corporate records in making any
determination hereunder.
8.2 Seal. The corporate seal shall be in such form as the Board of
Directors may from time to time determine. In the event it is inconvenient to
use such a seal at any time, the signature of the Corporation followed by the
word "Seal" enclosed in parentheses or scroll shall be deemed the seal of the
Corporation.
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8.3 Annual Statements. Not later than four months after the close of
each fiscal year, and in any case prior to the next annual meeting of
shareholders, the Corporation shall prepare:
(a) A balance sheet showing in reasonable detail the financial
condition of the Corporation as of the close of its fiscal year, and
(b) A profit and loss statement showing the results of its operations
during its fiscal year. Upon written request, the Corporation promptly shall
mail to any shareholder of record a copy of the most recent such balance sheet
and profit and loss statement.
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 (including
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.
9.2 Under the circumstances prescribed in Sections 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 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 or suit 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.
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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 Section 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 Section 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 he 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, officer, 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, of is or was serving at the request of the Corporation as a
Director, officer, employee or agent or 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 shareholders
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
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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.
ARTICLE TEN
NOTICES: WAIVERS OF NOTICE
10.1 Notices. Except as otherwise specifically provided in these By-
Laws, whenever under the provisions of these By-Laws notice is required to be
given to any shareholder, Director or officer, it shall not be construed to
mean personal notice, but such notice may be given by personal notice or by
cable or telegraph, or by mail by depositing the same in the post office or
letter box in a postpaid sealed wrapper, addressed to such shareholder,
officer or Director at such address as appears on the books of the
Corporation, and such notice shall be deemed to be given at the time when the
same shall be thus sent or mailed.
10.2 Waivers of Notice. Except as otherwise provided in these By-
Laws, when any notice whatever is required to be given by law, by the Articles
of Incorporation or by these By-Laws, a written waiver thereof, signed by the
person entitled to notice, whether before or after the time stated therein,
shall be deemed equivalent to notice. In the case of a shareholder, such
waiver of notice may be signed by the shareholders' attorney or proxy duly
appointed in writing.
ARTICLE ELEVEN
EMERGENCY POWERS
11.1 By-Laws. The Board of Directors may adopt emergency By-Laws,
subject to repeal or change by action of the shareholders, which shall,
notwithstanding any provision of law, the Articles of Incorporation or these
By-Laws, be operative during any emergency in the conduct of the business of
the Corporation resulting from an attack on the United States or on a locality
in which the Corporation conducts its business or customarily holds meetings
of its Board of Directors or its shareholders, or during any nuclear or atomic
disaster, or during the existence of any catastrophe, or other similar
emergency condition, as a result of which a quorum of the Board of Directors
or a standing committee thereof cannot readily be convened for action. The
emergency By-Laws may make any provision that may be practical and necessary
for the circumstances of the emergency.
11.2 Lines of Succession. The Board of Directors, either before or
during any such emergency, may provide, and from time to time modify, lines of
succession in the event that during such an emergency any or all officers or
agents of the corporation shall for any reason be rendered incapable of
discharging their duties.
11.3 Head Office. The Board of Directors, either before or during
any such emergency, may effective in the emergency, change the head office or
designate several alternative head offices or regional offices, or authorize
the officers to do so.
14
11.4 Period of Effectiveness. To the extent not inconsistent with
any emergency By-Laws so adopted, these By-Laws shall remain in effect during
any such emergency and upon its termination the emergency By-Laws shall cease
to be operative.
11.5 Notices. Unless otherwise provided in emergency By-Laws, notice
of any meeting of the Board of Directors during any such emergency may be
given only to such of the Directors as it may be feasible to reach at the
time, and by such means as may be feasible at the time, including publication,
radio or television.
11.6 Officers and Directors Pro Tempore. To the extent required to
constitute a quorum at any meeting of the Board of Directors during any such
emergency, the officers of the corporation who are present shall, unless
otherwise provided in the emergency By-Laws, be deemed, in order of rank and
within the same rank in order of seniority, Directors for such meeting.
11.7 Liability of Officers, Directors and Agents. No officer,
Director, agent or employee acting in accordance with any emergency By-Laws
shall be liable except for willful misconduct. No officer, Director, agent or
employee shall be liable for any action taken by him in good faith in such an
emergency in furtherance of the ordinary business affairs of the corporation
even though not authorized by the By-Laws then in effect.
ARTICLE TWELVE
CHECKS, NOTES, DRAFTS, ETC.
Checks, notes, drafts, acceptances, bills of exchange and other orders or
obligations for the payment of money shall be signed by such officer or
officers or person or persons as the Board of Directors by resolution shall
from time to time designate.
ARTICLE THIRTEEN
AMENDMENTS
The By-Laws of the Corporation may be altered or amended and new By-Laws
may be adopted by the shareholders at any annual or special meeting of the
shareholders or by the Board of Directors at any regular or special meeting of
the Board of Directors. The shareholders may provide by resolution that any
By-Law provision repealed, amended, adopted, or altered by them may not be
repealed, amended, adopted or altered by the Board of Directors. Action by
the shareholders with respect to By-Laws shall be taken by an affirmative vote
of a majority of all shares entitled to elect Directors, an action by the
Board of Directors with respect to By-Laws shall be taken by an affirmative
vote of a majority of all Directors then holding office.
15
EX-10.KK
3
AMENDMENTS 5,6 TO TRANSFER AND ADMINISTRATION AGREEMENT
EXHIBIT 10-KK
AMENDMENT NUMBER 5 TO
TRANSFER AND ADMINISTRATION AGREEMENT
AMENDMENT NUMBER 5 TO TRANSFER AND ADMINISTRATION
AGREEMENT (this "Amendment"), dated July 17, 1995, among TECH DATA
FINANCE, INC., a California corporation, as transferor (the "Transferor"),
TECH DATA CORPORATION, a Florida corporation ("Tech Data"), as collection
agent and as guarantor (in such capacities respectively, the "Collection
Agent" and the "Guarantor") and ENTERPRISE FUNDING CORPORATION, a Delaware
corporation (the "Company"), amending that certain Transfer and
Administration Agreement dated as of December 22, 1993 among the Transferor,
the Collection Agent, the Guarantor and the Company, as amended by
amendments dated as of May 19, 1994, August 18, 1994, October 10, 1994 and
as of January 31, 1995 (the "Original Agreement" and said agreement as
amended by this Amendment, the "Agreement").
WHEREAS, the Transferor and Tech Data have requested that the Company
agree to certain changes in certain financial covenants set forth in the
Original Agreement; and
WHEREAS, capitalized terms used herein shall have the meanings assigned
to such terms in the Original Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto agree as follows:
SECTION 1. Amendment to Original Agreement
(a) The text of Section 5.5 of the Original Agreement is hereby
deleted in its entirety and replaced with the following:
(a) Indebtedness to Total Capital. Tech Data shall not
permit the ratio of Consolidated Funded Indebtedness to
Consolidated Total Capital to exceed .60 to 1.00 at any time.
(b) EBIT to Interest Expense. Tech Data shall not permit
the ratio of Consolidated EBIT to Consolidated Interest Expense to
be less than 2.00 to 1.00 at any time. Capitalized terms used in
this Section 5.5 and not defined herein shall have those meanings
assigned in Exhibit N.
SECTION 2. Effective Date. The undersigned parties hereby agree that
this Amendment shall be effective as of July 31, 1995.
SECTION 3. Representations and Warranties. The Transferor hereby makes
to the Company, on and as of the date hereof, all of the representations and
warranties set forth in Section 3.1 of the Original Agreement. In addition,
the Collection Agent and the Guarantor hereby make to the Company, on the
date hereof, all the representations and warranties set forth in Section 3.3
of the Original Agreement.
SECTION 4. Amendment and Waiver. No provision hereof may be amended,
waived, supplemented, restated, discharged or terminated without the written
consent of the Transferor and the Company.
SECTION 5. Successors and Assigns. This Amendment shall bind, and the
benefits hereof shall inure to the parties hereof and their respective
successors and permitted assigns; provided, however, that the Transferor may
not assign any of its rights or delegate any of its duties under this
Amendment without the prior written consent of the Company.
SECTION 6. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE
TRANSFEROR HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW
YORK STATE COURT SITTING IN THE CITY OF NEW YORK FOR PURPOSES OF ALL LEGAL
PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
SECTION 7. Severability; Counterparts. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the
same instrument. Any provisions of this Amendment which are prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
2
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 8. Captions. The captions in this Amendment are for convenience
of reference only and shall not define or limit any of the terms or
provisions hereof.
SECTION 9. Ratification. Except as expressly affected by the provisions
hereof, the Original Agreement as amended by this Amendment shall remain in
full force and effect in accordance with its terms and is hereby ratified
and confirmed by the parties hereto. On and after the date hereof, each
reference in the Original Agreement to "this Agreement", "hereunder",
"herein" or words of like import shall mean and be a reference to the
Original Agreement as amended by this Amendment.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
3
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Amendment as of the date first written above.
ENTERPRISE FUNDING CORPORATION,
as Company
By: /s/ THOMAS S. DUNSTAN
-----------------------
Name: Thomas S. Dunstan
Title: Vice President
TECH DATA FINANCE, INC.,
as Transferor
By:/s/ ARTHUR W. SINGLETON
---------------------------
Name: Arthur W. Singleton
Title: Vice President
TECH DATA CORPORATION,
as Collection Agent and Guarantor
By: /s/ ARTHUR W. SINGLETON
Name: Arthur W. Singleton
Title: Vice President, Treasurer &
Secretary
4
AMENDMENT NUMBER 6 TO
TRANSFER AND ADMINISTRATION AGREEMENT
AMENDMENT NUMBER 6 TO TRANSFER AND
ADMINISTRATION AGREEMENT (this "Amendment"), dated as of
November 1, 1995, among TECH DATA FINANCE, INC., a
California corporation, as transferor (the "Transferor"),
TECH DATA CORPORATION, a Florida corporation ("Tech
Data"), as collection agent and as guarantor (in such
capacities respectively, the "Collection Agent" and the
"Guarantor") and ENTERPRISE FUNDING CORPORATION, a
Delaware corporation (the "Company"), amending that
certain Transfer and Administration Agreement dated as of
December 22, 1993 among the Transferor, the Collection
Agent, the Guarantor and the Company, as amended by
various amendments dated as of May 19, 1994, August 18,
1994, October 10, 1994, January 31, 1995 and July 17,
1995 (the "Original Agreement" and said agreement as
amended by this Amendment, the "Agreement").
WHEREAS, the Transferor has requested that the
Company agree to an increase in the Maximum Net
Investment under the Original Agreement and to an
extension of the Termination Date;
WHEREAS, on the terms and conditions set forth
herein, the Company has agreed to increase its Maximum
Net Investment under the Original Agreement and has
agreed to an extension of the Termination Date; and
WHEREAS, capitalized terms used herein shall
have the meanings assigned to such terms in the Original
Agreement;
NOW, THEREFORE, in consideration of the
premises and mutual covenants herein contained, the
parties hereto agree as follows:
SECTION 1. Amendment to Definitions.
(a) The definition of "Concentration Factor"
is hereby deleted in its entirety and replaced with the
following (solely for convenience of reference the
modified language in this definition is italicized):
""Concentration Factor" means for any
Designated Obligor (a) 2% of the Outstanding Balance
of all Eligible Receivables; provided however, that
for up to three (3) Designated Obligors at any one
time, 2.5% of the Outstanding Balance of all
Eligible Receivables at such time; provided further,
however, that with respect to any Designated Obligor
and its affiliates whose long term unsecured debt
obligations are rated at least "A1" by Moody's and
at least "A+" by Standard & Poor's and with respect
to which rating neither Moody's nor Standard &
Poor's shall have made a public announcement
anticipating a downgrading of such Designated
Obligor's long term unsecured debt obligations to a
rating less than the aforementioned ratings ("A1/A+
Rated Obligors") 5% of the Outstanding Balance of
all Eligible Receivables at such time, or (b) such
other greater amount determined by the Company in
the reasonable exercise of its good faith judgment
and disclosed in a written notice delivered to the
Transferor."
(b) The definition of "Loss Reserve" is hereby
amended by deleting the amount "15,000,000" in the text
of the last sentence thereof and replacing it with the
amount "20,000,000".
(c) The definition of "Maximum Net
Investment" is hereby deleted in its entirety and
replaced with the following:
""Maximum Net Investment" means
$200,000,000 or such larger amount, in no event to
exceed $250,000,000, as requested by the Transferor
upon five Business Days' prior written notice to the
Administrative Agent; provided that any increase in
the Maximum Net Investment shall be in increments of
not less than $25,000,000."
(d) The definition of "Maximum Percentage
Factor" is hereby deleted in its entirety and replaced
with the following:
""Maximum Percentage Factor" means 98%."
(e) The definition of "Termination Date" is
hereby amended by deleting therefrom the reference to
2
"December 31, 1995" and replacing such reference with
"December 31, 1996".
SECTION 2. Representations and Warranties.
The Transferor hereby makes to the Company, on and as of
the date hereof, all of the representations and
warranties set forth in Section 3.1 of the Original
Agreement. In addition, the Collection Agent and the
Guarantor hereby make to the Company, on the date hereof,
all the representations and warranties set forth in
Section 3.3 of the Original Agreement.
SECTION 3. Conditions Precedent. This
Amendment shall not become effective until the Company
shall have received the following:
(a) A copy of the Resolutions of the
Board of Directors of the Transferor and Tech Data
certified by its Secretary approving this Amendment and
the other documents to be delivered by the Transferor and
Tech Data hereunder;
(b) A Certificate of the Secretary of
the Transferor and Tech Data certifying (i) the names and
signatures of the officers authorized on its behalf to
execute this Amendment and any other documents to be
delivered by it hereunder (on which Certificates the
Company may conclusively rely until such time as the
Company shall receive from the Transferor and Tech Data a
revised Certificate meeting the requirements of this
clause (b)(i)) and (ii) a copy of the Transferor's and
Tech Data's By-Laws;
(c) An opinion of David Vetter, counsel
to Tech Data, with respect to certain corporate matters
and the enforceability of the Agreement as amended hereby
in form and substance acceptable to the Company;
(d) An opinion of Kindel & Anderson
L.L.P., counsel to the Transferor, addressing certain
corporate matters and the enforceability of the Agreement
as amended hereby in form and substance acceptable to the
Company; and
(e) A responsible officer's certificate
of the Transferor and Tech Data executed by Arthur W.
3
Singleton, Secretary of the Transferor and Tech Data,
respectively.
SECTION 4. Amendment and Waiver. No provision
hereof may be amended, waived, supplemented, restated,
discharged or terminated without the written consent of
the Transferor and the Company.
SECTION 5. Successors and Assigns. This
Amendment shall bind, and the benefits hereof shall inure
to the parties hereof and their respective successors and
permitted assigns; provided, however, the Transferor may
not assign any of its rights or delegate any of its
duties under this Amendment without the prior written
consent of the Company.
SECTION 6. Governing Law. THIS AMENDMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK. EACH OF THE TRANSFEROR
AND THE GUARANTOR HEREBY SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE
COURT SITTING IN THE CITY OF NEW YORK FOR PURPOSES OF ALL
LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS
AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 7. Severability; Counterparts. This
Amendment may be executed in any number of counterparts
and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an
original and all of which when taken together shall
constitute one and the same instrument. Any provisions
of this Amendment which are prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other
jurisdiction.
SECTION 8. Captions. The captions in this
Amendment are for convenience of reference only and shall
not define or limit any of the terms or provisions hereof.
4
SECTION 9. Ratification. Except as expressly
affected by the provisions hereof, the Original Agreement
as amended by this Amendment shall remain in full force
and effect in accordance with its terms and is hereby
ratified and confirmed by the parties hereto. On and
after the date hereof, each reference in the Original
Agreement to "this Agreement", "hereunder", "herein" or
words of like import shall mean and be a reference to the
Original Agreement as amended by this Amendment.
5
IN WITNESS WHEREOF, the parties hereto have
executed and delivered this Amendment as of the date
first written above.
ENTERPRISE FUNDING CORPORATION,
as Company
By: /s/ THOMAS S. DUNSTAN
----------------------
Name: Thomas S. Dunstan
Title: Vice President
TECH DATA FINANCE, INC.,
as Transferor
By:/s/ ARTHUR W. SINGLETON
------------------------
Name: Arthur W. Singleton
Title: Vice President
TECH DATA CORPORATION,
as Collection Agent and
Guarantor
By: /s/ ARTHUR W. SINGLETON
-------------------------
Name: Arthur W. Singleton
Title: Vice President,
Treasurer & Secretary
6
EX-10.LL
4
AMENDMENTS 3-5 TO AMENDED & RESTATED REVOLVING CREDIT AGMT
EXHIBIT 10-LL
AMENDMENT AGREEMENT NO. 3 TO
AMENDED AND RESTATED
REVOLVING CREDIT AND REIMBURSEMENT AGREEMENT
THIS AMENDMENT AGREEMENT made and entered into as of the
31st day of July, 1995, by and among TECH DATA CORPORATION,
a Florida corporation (herein called the "Borrower"), the
financial institutions who are signatories hereto (each herein
individually called a "Lender" and collectively the "Lenders"), and
NATIONSBANK OF FLORIDA, NATIONAL ASSOCIATION, as Agent for the Lenders
(herein called the "Agent"). Capitalized terms used herein and not otherwise
defined shall have the meanings set forth in the Agreement
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent and the Lenders have
entered into an Amended and Restated Revolving Credit and
Reimbursement Agreement dated July 28, 1994, as amended by
Amendment Agreement No. 1, Amendment Agreement No. 2 (as amended, the
"Agreement") whereby the Lenders party thereto have agreed to make loans
to the Borrower and to provide Letters of Credit and to create Acceptances
on behalf of the Borrower; and
WHEREAS, the Subsidiaries of the Borrower have guaranteed
payment of the Obligations pursuant to a Guaranty dated July
28, 1994, all as described in the Agreement and other Loan
Documents; and
WHEREAS, the Borrower has requested that the Agreement be
amended as hereinafter provided;
NOW, THEREFORE, the Borrower, the Lenders and the Agent do
hereby agree as follows:
1. The term "Agreement" as used herein and in Loan
Documents shall mean the Agreement as hereby amended and
modified. Unless the context otherwise requires, all terms
used herein without definition shall have the definition
provided therefor in the Agreement.
2. Section 9.04 of the Agreement is hereby amended, in its
entirety, effective July 31, 1995, so that as amended it shall read as
follows:
"9.04 EBIT to Interest Expense. Permit the ratio of
Consolidated EBIT to Consolidated Interest Expense to be less
than 2.0 to 1.00 at any time."
3. In order to induce the Lenders to enter into this
Amendment Agreement, the Borrower represents and warrants to
the Lenders as follows:
(a) The representations and warranties made by
Borrower in Article VII of the Agreement are true on and as of the date
hereof except that the financial statements referred to in Section
6.02(c) of the Agreement shall be those most recently furnished to
each Lender pursuant to Section 7.01; thereof;
(b) There has been no material change in the
condition, financial or otherwise, of the Borrower and its
Subsidiaries since the date of the most recent financial
reports of the Borrower received by each Lender under
Section 8.01 of the Agreement, other than changes in the ordinary
course of business, none of which has been a material
adverse change;
(c) The business and properties of the Borrower and
its Subsidiaries are not, and since the date of the most
recent financial report of the Borrower and its
Subsidiaries received by each Lender under Section 7.01
of the Agreement have not been adversely affected in any
substantial way as the result of any fire, explosion,
earthquake, accident, strike, lockout, combination of
workers, flood, embargo, riot, activities of armed forces,
war or acts of God or the public enemy, or cancellation or
loss of any major contracts; and
(d) No event has occurred and no condition exists
which, upon the consummation of the transaction
contemplated hereby, constitutes a Default or an Event of
Default on the part of the Borrower under the Agreement or
the Notes either immediately or with the lapse of time or
the giving of notice, or both.
4. Each of the Parent and its Subsidiaries has joined
in the execution of this Agreement for the purpose of consenting
hereto and hereby reaffirms its respective guaranty of payment
of the Obligations.
5. All instruments and documents incident to the
consummation of the transactions contemplated hereby shall be
satisfactory in form and substance to the Agent, the Lenders
and their counsel; the Agent shall have received copies of all
additional agreements, instruments and documents which they may
reasonably request in connection therewith, including copies of
resolutions of the Borrower authorizing the transactions
contemplated by this Amendment Agreement, such documents, when
appropriate, to be certified by appropriate corporate or
governmental authorities; and all proceedings of the Borrower
relating to the matters provided for herein shall be
satisfactory to the Agent, the Lenders and their counsel.
6. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation
to the subject matter hereof and supersedes any prior
negotiations and agreements among the parties relative to such subject
matter. No promise, conditions, representation or warranty, express or
4
implied, not herein set forth shall bind any party hereto, and
no one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto
acknowledges that, except as otherwise expressly stated in this
Agreement, no representations, warranties or commitments,
express or implied, have been made by any other party to the other.
None of the terms or conditions of this Amendment Agreement may be changed,
modified, waived or canceled orally or otherwise, except by writing,
signed by all the parties hereto, specifying such change, modification,
waiver or cancellation of such terms or conditions, or of any
preceding or succeeding breach thereof.
Except as hereby specifically amended, modified or
supplemented, the Agreement and all of the other Loan Documents
are hereby confirmed and ratified in all respects and shall
remain in full force and effect according to their respective
terms.
7. This Amendment Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
(Remainder of page left intentionally blank)
5
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment Agreement to be duly executed by their duly
authorized officers, all as of the day and year first above
written.
BORROWER:
WITNESS: TECH DATA CORPORATION
/s/ CAROL T. HACKNEY By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ NANCY DIFEO Title: Treasurer and Secretary
- --------------------------
GUARANTORS:
WITNESS: TECH DATA FINANCE, INC.
/s/ CAROL T. HACKNEY By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ NANCY DIFEO Title: Vice President, Chief
- -------------------------- Financial Officer and
Secretary
WITNESS: TECH DATA LATIN AMERICA, INC.
/s/ CAROL T. HACKNEY By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ NANCY DIFEO Title: Secretary and Treasurer
- --------------------------
WITNESS: TECH DATA FRANCE, INC.
/s/ CAROL T. HACKNEY By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ NANCY DIFEO Title: Vice President, Chief
- ------------------------- Financial Officer,
Secretary and Treasurer
WITNESS: TECH DATA FRANCE II, INC.
/s/ CAROL T. HACKNEY By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ NANCY DIFEO Title: Vice President, Chief
- ------------------------- Financial Officer,
Secretary and Treasurer
6
WITNESS: TECH DATA CONSIGNMENT, INC.
/s/ CAROL T. HACKNEY By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ NANCY DIFEO Title: Secretary and Treasurer
- --------------------------
WITNESS: TECH DATA EDUCATION, INC.
(formally known as Tech ata New York
Training Center, Inc.)
/s/ CAROL T. HACKNEY By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ NANCY DIFEO Title: Vice President, Chief
- ------------------------- Financial Officer,
WITNESS: BUYERS RESOURCE, INC.
/s/ CAROL T. HACKNEY By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ NANCY DIFEO Title: Secretary
- --------------------------
WITNESS: TECH DATA CANADA, INC.
/s/ CAROL T. HACKNEY By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ NANCY DIFEO Title: Secretary and Chief
- ------------------------- Financial Officer,
TECH DATA FRANCE
Societe en nom Collectif
By: TECH DATA FRANCE, INC., a
Florida Corporation
/s/ CAROL T. HACKNEY By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ NANCY DIFEO Title: Vice President and Chief
- ------------------------- Financial Officer,
AND
7
TECH DATA FRANCE II, INC., a
Florida Corporation
By: /s/ JEFFERY P. HOWELLS
--------------------------
Name: Jeffery P. Howells
Title: Vice President and Chief
Financial Officer
8
NATIONSBANK, NATIONAL ASSOCIATION
(SOUTH) in its capacity as Agent
By: /s/ NANCY J. PEARSON
------------------------
Name: Nancy J. Pearson
Title: Senior Vice President
NATIONSBANK, NATIONAL ASSOCIATION
(SOUTH) as Lender
By: /s/ NANCY J. PEARSON
------------------------
Name: Nancy J. Pearson
Title: Senior Vice President
9
BARNETT BANK OF PINELLAS COUNTY
By: /s/ MICHAEL S. CROWE
--------------------------
Name: Michael S. Crowe
Title: VP
10
NBD BANK
By: /s/ RICHARD C. ELLIS
--------------------------
Name: Richard C. Ellis
Title: VP
11
ROYAL BANK OF CANADA
By: /s/ MICHAEL A COLE
--------------------------
Name: Michael A. Cole
Title: Manager
12
BANK OF AMERICA, ILLINOIS
By: /s/ LAURENS F. SCHAAD, JR.
--------------------------
Name: Laurens F. Schaad, Jr.
Title: Vice President
13
SOUTHTRUST BANK OF ALABAMA, N.A.
By: /s/ JULIETTE S. STAPF
--------------------------
Name: Juliette S. Stapf
Title: Senior Vice President
14
AMENDMENT AGREEMENT NO. 4 TO
AMENDED AND RESTATED
REVOLVING CREDIT AND REIMBURSEMENT AGREEMENT
THIS AMENDMENT AGREEMENT made and entered into as of the
13th day of February, 1996, by and among TECH DATA CORPORATION,
a Florida corporation (herein called the "Borrower"), the
financial institutions who are signatories hereto (herein
individually called the "Lender" and collectively the
"Lenders"), and NATIONSBANK, NATIONAL ASSOCIATION (SOUTH)
(successor by merger of NationsBank of Florida, National
Association), as Agent for the Lenders (herein called the
"Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent and the Lenders have
entered into an Amended and Restated Revolving Credit and
Reimbursement Agreement dated July 28, 1994, as amended by
Amendment Agreement No. 1, Amendment Agreement No. 2 and
Amendment Agreement No. 3 (the "Agreement") whereby the Lenders
party thereto have agreed to make loans to the Borrower and to
provide Letters of Credit and to create Acceptances on behalf
of the Borrower; and
WHEREAS, the Subsidiaries of the Borrower have guaranteed
payment of the Obligations pursuant to a Guaranty dated July
28, 1994, all as described in the Agreement and other Loan
Documents; and
WHEREAS, the Borrower has requested that the Agreement be
amended as hereinafter provided;
NOW, THEREFORE, the Borrower, the Lenders and the Agent do
hereby agree as follows:
1. The term "Agreement" as used herein and in Loan
Documents shall mean the Agreement as hereby amended and
modified. Unless the context otherwise requires, all terms
used herein without definition shall have the definition
provided therefor in the Agreement.
2. Subject to the conditions hereof, the Agreement is
hereby amended, effective as of the date hereof, as follows:
(a) The definition of "Consolidated Asset Coverage
Ratio" in Section 1.01 is hereby amended in its entirety,
so that as amended it shall read as follows:
"'Consolidated Asset Coverage Ratio' means the
ratio of (A) the sum of (i) Remaining Accounts
Receivable, (ii) Receivables of Subsidiaries, (iii)
Inventory and (iv) Prepaid Inventory to (B) the sum
of, WITHOUT DUPLICATION, (i) the Revolving Credit
Debit Balance, (ii) outstanding Swing Line Loans,
(iii) outstanding Letters of Credit and Acceptances,
(iv) Indebtedness arising under the Softmart Foreign
Currency Agreement, (v) Indebtedness of TDC described
in Section 9.06(v), (vi) Indebtedness permitted under
Section 9.06(viii) and (xi), and (vii) accounts
payable of the Borrower and its Subsidiaries, all
determined on a consolidated basis in accordance with
Generally Accepted Accounting Principles applied on a
Consistent Basis;"
(b) Clause (viii) of Section 9.06 is hereby amended
in its entirety, so that as amended it shall read as
follows:
"(viii) unsecured Indebtedness of Borrower in
an aggregate outstanding principal amount at any time
not to exceed $50,000,000, of which $45,000,000 shall
be used for the sole purpose of providing Standby
Letters of Credit in favor of Compaq Computer
Corporation to support the purchase of Inventory;"
3. In order to induce the Lenders to enter into this
Amendment Agreement, the Borrower represents and warrants to
the Lenders as follows:
(a) The representations and warranties made by
Borrower in Article VII of the Agreement are true on and
as of the date hereto except that the financial statements
referred to in Section 7.02(c) shall be those most
recently furnished to each Lender pursuant to Section
8.01;
(b) There has been no material change in the
condition, financial or otherwise, of the Borrower and its
Subsidiaries since the date of the most recent financial
reports of the Borrower received by each Lender under
Section 8.01 thereof, other than changes in the ordinary
course of business, none of which has been a material
adverse change;
(c) The business and properties of the Borrower and
its Subsidiaries are not, and since the date of the most
recent financial report of the Borrower and its
Subsidiaries received by each Lender under Section 8.01
thereof have not been adversely affected in any
substantial way as the result of any fire, explosion,
earthquake, accident, strike, lockout, combination of
workers, flood, embargo, riot, activities of armed forces,
war or acts of God or the public enemy, or cancellation or
loss of any major contracts; and
(d) No event has occurred and no condition exists
which, upon the consummation of the transaction
contemplated hereby, constitutes a Default or an Event of
Default on the part of the Borrower under the Agreement or
the Notes either immediately or with the lapse of time or
the giving of notice, or both.
2
4. Each of the Subsidiaries of the Borrower have joined
in the execution of this Agreement for the purpose of consenting
hereto and hereby reaffirm their respective guaranty of payment
of the Obligations.
5. All instruments and documents incident to the
consummation of the transactions contemplated hereby shall be
satisfactory in form and substance to the Agent, the Lenders
and their counsel; the Agent shall have received copies of all
additional agreements, instruments and documents which they may
reasonably request in connection therewith, including copies of
resolutions of the Borrower authorizing the transactions
contemplated by this Amendment Agreement, such documents, when
appropriate, to be certified by appropriate corporate or
governmental authorities; and all proceedings of the Borrower
relating to the matters provided for herein shall be
satisfactory to the Agent, the Lenders and their counsel.
6. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation
to the subject matter hereof and supersedes any prior
negotiationsand agreements among the parties relative to such subject
matter. No promise, conditions, representation or warranty, express or
implied, not herein set forth shall bind any party hereto, and
no one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto
acknowledges that, except as in this Amendment Agreement
otherwise expressly stated, no representations, warranties or
commitments, express or implied, have been made by any other
party to the other. None of the terms or conditions of this
Amendment Agreement may be changed, modified, waived or
cancelled orally or otherwise, except by writing, signed by all
the parties hereto, specifying such change, modification,
waiver or cancellation of such terms or conditions, or of any
preceding or succeeding breach thereof.
Except as hereby specifically amended, modified or
supplemented, the Agreement and all of the other Loan Documents
are hereby confirmed and ratified in all respects and shall
remain in full force and effect according to their respective
terms.
3
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment Agreement to be duly executed by their duly
authorized officers, all as of the day and year first above
written.
BORROWER:
WITNESS: TECH DATA CORPORATION
/s/ NANCY DIFEO By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ SUSAN K. PLESO Title: Treasurer and Secretary
- --------------------------
GUARANTORS:
WITNESS: TECH DATA FINANCE, INC.
/s/ NANCY DIFEO By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ SUSAN K. PLESO Title: Vice President, Chief
- -------------------------- Financial Officer and
Secretary
WITNESS: TECH DATA LATIN AMERICA, INC.
/s/ NANCY DIFEO By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ SUSAN K. PLESO Title: Secretary and Treasurer
- --------------------------
WITNESS: TECH DATA FRANCE, INC.
/s/ NANCY DIFEO By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ SUSAN K. PLESO Title: Vice President, Chief
- ------------------------- Financial Officer,
Secretary and Treasurer
WITNESS: TECH DATA FRANCE II, INC.
/s/ NANCY DIFEO By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ SUSAN K. PLESO Title: Vice President, Chief
- ------------------------- Financial Officer,
Secretary and Treasurer
4
WITNESS: TECH DATA CONSIGNMENT, INC.
/s/ NANCY DIFEO By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ SUSAN K. PLESO Title: Secretary and Treasurer
- --------------------------
WITNESS: TECH DATA EDUCATION, INC.
/s/ NANCY DIFEO By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ SUSAN K. PLESO Title: Vice President, Chief
- ------------------------- Financial Officer,
WITNESS: BUYERS RESOURCE, INC.
/s/ NANCY DIFEO By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ SUSAN K. PLESO Title: Secretary
- --------------------------
WITNESS: TECH DATA CANADA, INC.
/s/ NANCY DIFEO By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ SUSAN K. PLESO Title: Secretary and Chief
- ------------------------- Financial Officer,
TECH DATA FRANCE
Societe en nom Collectif
By: TECH DATA FRANCE, INC., a
Florida Corporation
/s/ NANCY DIFEO By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ SUSAN K. PLESO Title: Vice President and Chief
- ------------------------- Financial Officer,
AND
TECH DATA FRANCE II, INC., a
Florida Corporation
By: /s/ JEFFERY P. HOWELLS
--------------------------
Name: Jeffery P. Howells
Title: Vice President and Chief
Financial Officer
5
TECH DATA FRANCE
Societe en nom Collectif
/s/ NANCY DIFEO By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ SUSAN K. PLESO Title: Director
- -------------------------
6
NATIONSBANK, NATIONAL ASSOCIATION
(SOUTH) in its capacity as Agent
By: /s/ NANCY J. PEARSON
------------------------
Name: Nancy J. Pearson
Title: Senior Vice President
NATIONSBANK, NATIONAL ASSOCIATION
(SOUTH) as Lender
By: /s/ NANCY J. PEARSON
------------------------
Name: Nancy J. Pearson
Title: Senior Vice President
7
BARNETT BANK OF PINELLAS COUNTY
By: /s/ MICHAEL S. CROWE
--------------------------
Name: Michael S. Crowe
Title: VP
8
NBD BANK
By: /s/ RICHARD C. ELLIS
--------------------------
Name: Richard C. Ellis
Title: VP
9
ROYAL BANK OF CANADA
By: /s/ STEPHEN S. HUGHES
--------------------------
Name: Steven S. Huges
Title: Senior Manager
10
BANK OF AMERICA, ILLINOIS
By: /s/ LAURENS F. SCHAAD, JR.
--------------------------
Name: Laurens F. Schaad, Jr.
Title: Vice President
11
SOUTHTRUST BANK OF ALABAMA, N.A.
By: /s/ MARK WELLNER
--------------------------
Name: Mark Wellner
Title: Vice President
12
AMENDMENT AGREEMENT NO. 5 TO
AMENDED AND RESTATED
REVOLVING CREDIT AND REIMBURSEMENT AGREEMENT
THIS AMENDMENT AGREEMENT made and entered into as of the
13th day of March, 1996, by and among TECH DATA CORPORATION, a
Florida corporation (herein called the "Borrower"), the
financial institutions who are signatories hereto (herein
individually called the "Lender" and collectively the
"Lenders"), and NATIONSBANK, NATIONAL ASSOCIATION (SOUTH)
(successor by merger of NationsBank of Florida, National
Association), as Agent for the Lenders (herein called the
"Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent and the Lenders have
entered into an Amended and Restated Revolving Credit and
Reimbursement Agreement dated July 28, 1994, as amended by
Amendment Agreement No. 1, Amendment Agreement No. 2, Amendment
Agreement No. 3 and Amendment Agreement No. 4 (the "Agreement")
whereby the Lenders party thereto have agreed to make loans to
the Borrower and to provide Letters of Credit and to create
Acceptances on behalf of the Borrower; and
WHEREAS, the Subsidiaries of the Borrower have guaranteed
payment of the Obligations pursuant to a Guaranty dated July
28, 1994, all as described in the Agreement and other Loan
Documents; and
WHEREAS, the Borrower has requested that the Agreement be
amended as hereinafter provided;
NOW, THEREFORE, the Borrower, the Lenders and the Agent do
hereby agree as follows:
1. The term "Agreement" as used herein and in Loan
Documents shall mean the Agreement as hereby amended and
modified. Unless the context otherwise requires, all terms
used herein without definition shall have the definition
provided therefor in the Agreement.
2. Subject to the conditions hereof, the Agreement is
hereby amended, effective January 31, 1996, as follows:
(a) Section 1.01 is hereby amended by adding a new
definition "Cash Equivalents" thereto immediately
preceding the definition "Closing Date" which shall read
as follows:
"'Cash Equivalents' means
(a) marketable obligations issued or
unconditionally guaranteed by the United States
government, in each case maturing within one year
after the date of acquisition thereof;
(b) marketable direct obligations issued by any
state of the United States or any political
subdivision of any such state maturing within 180
days after the date of acquisition thereof and, at
the time of acquisition, having a rating of A-1 or P-
1, or better, from Standard & Poor's division of
McGraw-Hill, Inc. ("Standard & Poor's") or Moody's
Investors Service, Inc., respectively;
(c) commercial paper maturing no more than 270
days after the date of acquisition thereof, issued by a
corporation organized under the laws of any state of the
United States or of the District of Columbia and, at the
time of acquisition, having a rating of A-1 or P-1, or
better, from Standard & Poor's or Moody's Investors
Service, Inc., respectively;
(d) time deposits, certificates of deposit or
Eurodollar deposit maturing within 90 days after the
date of acquisition thereof, issued by any commercial
bank that is either (i) a member of the Federal Reserve
System that has capital, surplus and undivided profits
(as shown on its most recent statement of condition)
aggregating not less than $400,000,000 and is rated A or
better by Moody's Investors Service, Inc. or Standard &
Poor's or (ii) a Lender;
(e) repurchase agreements entered into with any
Lender or any commercial bank of the nature referred to
in CLAUSE (D), secured by a fully perfected Lien in any
obligation of the type described in any of CLAUSES (A)
through (D), having a fair market value at the time such
repurchase agreement is entered into of not less than
100% of the repurchase obligation thereunder of such
Lender or other commercial bank; and
(f) money market funds not less than 75% of whose
investments are made up of securities described in
CLAUSES (A) THROUGH (E)."
(b) The definition of "Consolidated Asset Coverage
Ratio" in Section 1.01 is amended in its entirety so that as
amended it shall read as follows:
"'Consolidated Asset Coverage Ratio' means the
ratio of (A) the sum of, WITHOUT DUPLICATION, (i)
unrestricted cash and Cash Equivalents located in each
case within the United States, (ii) Remaining Accounts
Receivable, (iii) Receivables of Subsidiaries, (iv)
Inventory and (v) Prepaid Inventory to (B) the sum of
2
(i) the Revolving Credit Debit Balance, (ii) outstanding
Swing Line Loans, (iii) outstanding Letters of Credit
and Acceptances, (iv) Indebtedness arising under the
Softmart Foreign Currency Agreement, (v) Indebtedness of
TDC described in Section 9.06(v), (vi) Indebtedness
permitted under Section 9.06(viii) and (xi), and (vii)
accounts payable of the Borrower and its Subsidiaries,
all determined on a consolidated basis in accordance
with Generally Accepted Accounting Principals applied on
a Consistent Basis;"
(c) Section 9.13 is amended in its entirety so that as
amended it shall read as follows:
"9.13 CAPITAL EXPENDITURES. Make or become
committed to make, directly or indirectly, for any
Fiscal Year (on a non-cumulative basis, to the effect
that expenditures permitted but not made in any Fiscal
Year may not be made in any subsequent Fiscal Year)
expenditures for fixed or capital assets (including,
without limitation, Capital Leases) amounting in the
aggregate for the Borrower and its Subsidiaries to more
than (i) $42,000,000 during the Fiscal Year ending
January 31, 1995, (ii) $28,000,000 during the Fiscal
Year ending January 31, 1996 and (iii) $25,000,000
during any Fiscal Year thereafter."
3. In order to induce the Lenders to enter into this
Amendment Agreement, the Borrower represents and warrants to the
Lenders as follows:
(a) The representations and warranties made by Borrower
in Article VII of the Agreement are true on and as of the
date hereto except that the financial statements referred to
in Section 7.02(c) shall be those most recently furnished to
each Lender pursuant to Section 8.01;
(b) There has been no material change in the condition,
financial or otherwise, of the Borrower and its Subsidiaries
since the date of the most recent financial reports of the
Borrower received by each Lender under Section 8.01 thereof,
other than changes in the ordinary course of business, none
of which has been a material adverse change;
(c) The business and properties of the Borrower and its
Subsidiaries are not, and since the date of the most recent
financial report of the Borrower and its Subsidiaries
received by each Lender under Section 8.01 thereof have not
been adversely affected in any substantial way as the result
of any fire, explosion, earthquake, accident, strike,
lockout, combination of workers, flood, embargo, riot,
activities of armed forces, war or acts of God or the public
enemy, or cancellation or loss of any major contracts; and
3
(d) No event has occurred and no condition exists
which, upon the consummation of the transaction contemplated
hereby, constitutes a Default or an Event of Default on the
part of the Borrower under the Agreement or the Notes either
immediately or with the lapse of time or the giving of
notice, or both.
4. Each of the Subsidiaries of the Borrower have joined in
the execution of this Agreement for the purpose of consenting
hereto and hereby reaffirm their respective guaranty of payment of
the Obligations.
5. All instruments and documents incident to the
consummation of the transactions contemplated hereby shall be
satisfactory in form and substance to the Agent, the Lenders and
their counsel; the Agent shall have received copies of all
additional agreements, instruments and documents which they may
reasonably request in connection therewith, including copies of
resolutions of the Borrower authorizing the transactions
contemplated by this Amendment Agreement, such documents, when
appropriate, to be certified by appropriate corporate or
governmental authorities; and all proceedings of the Borrower
relating to the matters provided for herein shall be satisfactory
to the Agent, the Lenders and their counsel.
6. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to
the subject matter hereof and supersedes any prior negotiations
and agreements among the parties relative to such subject matter.
No promise, conditions, representation or warranty, express or
implied, not herein set forth shall bind any party hereto, and no
one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto
acknowledges that, except as in this Amendment Agreement otherwise
expressly stated, no representations, warranties or
commitments, express or implied, have been made by any other party
to the other. None of the terms or conditions of this Amendment
Agreement may be changed, modified, waived or canceled orally or
otherwise, except by writing, signed by all the parties hereto,
specifying such change, modification, waiver or cancellation of
such terms or conditions, or of any preceding or succeeding breach
thereof.
Except as hereby specifically amended, modified or
supplemented, the Agreement and all of the other Loan Documents
are hereby confirmed and ratified in all respects and shall remain
in full force and effect according to their respective terms.
4
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment Agreement to be duly executed by their duly authorized
officers, all as of the day and year first above written.
BORROWER:
WITNESS: TECH DATA CORPORATION
/s/ NANCY DIFEO By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ SUSAN K. PLESO Title: Treasurer and Secretary
- --------------------------
GUARANTORS:
WITNESS: TECH DATA FINANCE, INC.
/s/ NANCY DIFEO By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ SUSAN K. PLESO Title: Vice President, Chief
- -------------------------- Financial Officer and
Secretary
WITNESS: TECH DATA LATIN AMERICA, INC.
/s/ NANCY DIFEO By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ SUSAN K. PLESO Title: Secretary and Treasurer
- --------------------------
WITNESS: TECH DATA FRANCE, INC.
/s/ NANCY DIFEO By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ SUSAN K. PLESO Title: Vice President, Chief
- ------------------------- Financial Officer,
Secretary and Treasurer
WITNESS: TECH DATA FRANCE II, INC.
/s/ NANCY DIFEO By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ SUSAN K. PLESO Title: Vice President, Chief
- ------------------------- Financial Officer,
Secretary and Treasurer
5
WITNESS: TECH DATA CONSIGNMENT, INC.
/s/ NANCY DIFEO By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ SUSAN K. PLESO Title: Secretary and Treasurer
WITNESS: TECH DATA EDUCATION, INC.
/s/ NANCY DIFEO By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ SUSAN K. PLESO Title: Vice President, Chief
- ------------------------- Financial Officer,
WITNESS: BUYERS RESOURCE, INC.
/s/ NANCY DIFEO By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ SUSAN K. PLESO Title: Secretary
WITNESS: TECH DATA CANADA, INC.
/s/ NANCY DIFEO By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ SUSAN K. PLESO Title: Secretary and Chief
- ------------------------- Financial Officer,
TECH DATA FRANCE
Societe en nom Collectif
WITNESS: By: TECH DATA FRANCE, INC., a
Florida Corporation
/s/ NANCY DIFEO By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ SUSAN K. PLESO Title: Vice President and Chief
- ------------------------- Financial Officer,
AND
TECH DATA FRANCE II, INC., a
Florida Corporation
By: /s/ JEFFERY P. HOWELLS
--------------------------
Name: Jeffery P. Howells
Title: Vice President and Chief
Financial Officer
6
TECH DATA FRANCE
Societe en nom Collectif
/s/ NANCY DIFEO By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ SUSAN K. PLESO Title: Director
- -------------------------
7
NATIONSBANK, NATIONAL ASSOCIATION
(SOUTH) in its capacity as Agent
By: /s/ NANCY J. PEARSON
------------------------
Name: Nancy J. Pearson
Title: Senior Vice President
NATIONSBANK, NATIONAL ASSOCIATION
(SOUTH) as Lender
By: /s/ NANCY J. PEARSON
------------------------
Name: Nancy J. Pearson
Title: Senior Vice President
8
BARNETT BANK OF PINELLAS COUNTY
By: /s/ MICHAEL S. CROWE
--------------------------
Name: Michael S. Crowe
Title: VP
9
NBD BANK
By: /s/ RICHARD C. ELLIS
--------------------------
Name: Richard C. Ellis
Title: VP
10
ROYAL BANK OF CANADA
By: /s/ MICHAEL A COLE
--------------------------
Name: Michael A. Cole
Title: Manager
11
BANK OF AMERICA, ILLINOIS
By: /s/ LAURENS F. SCHAAD, JR.
--------------------------
Name: Laurens F. Schaad, Jr.
Title: Vice President
12
SOUTHTRUST BANK OF ALABAMA, N.A.
By: /s/ MARK WELLNER
--------------------------
Name: Mark Wellner
Title: Vice President
13
EX-10.MM
5
AMENDMENTS 3-5 TO REVOLVING FOREIGN CURRENCY AGREEMENT
EXHIBIT 10-MM
AMENDMENT AGREEMENT NO. 3
TO
REVOLVING FOREIGN CURRENCY AGREEMENT
THIS AMENDMENT AGREEMENT made and entered into as of the
31st day of July, 1995, by and among TECH DATA FRANCE, INC.
(successor by merger effective as of March 24, 1994 to Softmart
International, S.A.), Societe en nom Collectif incorporated under
French law (herein called the "Borrower"), the financial institutions
who are signatories hereto (herein individually called the "Lender" and
collectively the "Lenders"), and NATIONSBANK OF FLORIDA, NATIONAL
ASSOCIATION, as Agent for the Lenders (herein called the "Agent").
Capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the Agreement.
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent and the Lenders have entered into
a Revolving Foreign Currency Agreement dated August 4, 1994 as amended by
Amendment Agreement No. 1, Amendment Agreement No. 2 (as amended, the
"Agreement")whereby the Lenders party thereto have agreed to make loans
to the Borrower; and
WHEREAS, Tech Data Corporation the ultimate parent of the Borrower
(the "Parent") and its Subsidiaries have guaranteed payment of the
Obligations pursuant to Guaranty Agreements dated August 4, 1994, all as
described in the Agreement and other Loan Documents; and
WHEREAS, the Borrower has requested that the Agreement be amended
as hereinafter provided;
NOW, THEREFORE, the Borrower, the Lenders and the Agent do
hereby agree as follows:
1. The term "Agreement" as used herein and in Loan
Documents shall mean the Agreement as hereby amended and
modified. Unless the context otherwise requires, all terms used
herein without definition shall have the definition provided
therefor in the Agreement.
2. Section 8.04 of the Agreement is hereby amended in its
entirety, effective July 31, 1995, so that as amended it shall read
as follows:
"8.04 EBIT to Interest Expense. Permit the ratio of
Consolidated EBIT to Consolidated Interest Expense to be less
than 2.00 to 1.00 at any time."
3. In order to induce the Lenders to enter into this
Amendment Agreement, the Borrower represents and warrants to the
Lenders as follows:
(a) The representations and warranties made by
Borrower in Article VII of the Agreement are true on and as
of the date hereto except that the financial statements
referred to in Section 6.02(c) of the Agreement shall be those most
recently furnished to each Lender pursuant to Section 7.01 thereof;
(b) There has been no material change in the
condition, financial or otherwise, of the Borrower and its
Subsidiaries since the date of the most recent financial
reports of the Borrower received by each Lender under
Section 8.01 thereof of the Agreement, other than changes in the
ordinary course of business, none of which has been a material
adverse change;
(c) The business and properties of the Borrower and
its Subsidiaries are not, and since the date of the most
recent financial report of the Borrower and its
Subsidiaries received by each Lender under Section 7.01
of the Agreement have not been adversely affected in any
substantial way as the result of any fire, explosion, earthquake,
accident, strike, lockout, combination of workers, flood,
embargo, riot, activities of armed forces, war or acts of
God or the public enemy, or cancellation or loss of any
major contracts; and
(d) No event has occurred and no condition exists
which, upon the consummation of the transaction
contemplated hereby, constitutes a Default or an Event of
Default on the part of the Borrower under the Agreement or
the Notes either immediately or with the lapse of time or
the giving of notice, or both.
4. Each of the Parent and its Subsidiaries have joined in the
execution and Delivery of this Agreement for the purpose of consenting
hereto and hereby reaffirm their respective guaranty of payment of the
Obligations.
5. All instruments and documents incident to the
consummation of the transactions contemplated hereby shall be
satisfactory in form and substance to the Agent, the Lenders and
their counsel; the Agent shall have received copies of all
additional agreements, instruments and documents which they may
reasonably request in connection therewith, including copies of
resolutions of the Borrower authorizing the transactions
contemplated by this Amendment Agreement, such documents, when
appropriate, to be certified by appropriate corporate or
governmental authorities; and all proceedings of the Borrower
relating to the matters provided for herein shall be
satisfactory to the Agent, the Lenders and their counsel.
6. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to
the subject matter hereof and supersedes any prior negotiations
and agreements among the parties relative to such subject
matter. No promise, conditions, representation or warranty,
2
express or implied, not herein set forth shall bind any party
hereto, and no one of them has relied on any such promise,
condition, representation or warranty. Each of the parties
hereto acknowledges that, except as otherwise expressly stated
in this Agreement no representations, warranties or commitments,
express or implied, have been made by any other party hereto the
other. None of the terms or conditions of this Amendment Agreement may
be changed, modified, waived or canceled orally or otherwise, except
by writing, signed by all the parties hereto, specifying such change,
modification, waiver or cancellation of such terms or conditions, or of
any preceding or succeeding breach thereof.
Except as hereby specifically amended, modified or
supplemented, the Agreement and all of the other Loan Documents
are hereby confirmed and ratified in all respects and shall
remain in full force and effect according to their respective
terms.
7. This Amendment Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
3
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment Agreement to be duly executed by their duly
authorized officers, all as of the day and year first above
written.
BORROWER:
WITNESS: TECH DATA FRANCE
Societe en nom Collectif
/s/ CAROL T. HACKNEY By: /s/ JEFFERY P. HOWELLS
- -------------------------- ---------------------------
Name: Jeffery P. Howells
/s/ NANCY DIFEO Title: Director
- --------------------------
GUARANTORS:
WITNESS: TECH DATA CORPORATION
/s/ CAROL T. HACKNEY By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ NANCY DIFEO Title: Vice President, Treasurer and
- -------------------------- Secretary
WITNESS: TECH DATA FINANCE, INC.
/s/ CAROL T. HACKNEY By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ NANCY DIFEO Title: Vice President, Chief
- -------------------------- Financial Officer and
Secretary
WITNESS: TECH DATA LATIN AMERICA, INC.
/s/ CAROL T. HACKNEY By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ NANCY DIFEO Title: Secretary and Treasurer
- --------------------------
WITNESS: TECH DATA FRANCE, INC.
/s/ CAROL T. HACKNEY By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ NANCY DIFEO Title: Vice President, Chief
- ------------------------- Financial Officer,
Secretary and Treasurer
4
WITNESS: TECH DATA FRANCE II, INC.
/s/ CAROL T. HACKNEY By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ NANCY DIFEO Title: Vice President, Chief
- ------------------------- Financial Officer,
Secretary and Treasurer
WITNESS: TECH DATA CONSIGNMENT, INC.
/s/ CAROL T. HACKNEY By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ NANCY DIFEO Title: Secretary and Treasurer
- --------------------------
WITNESS: TECH DATA EDUCATION, INC.
(formally known as Tech ata New York
Training Center, Inc.)
/s/ CAROL T. HACKNEY By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ NANCY DIFEO Title: Vice President, Chief
- ------------------------- Financial Officer,
WITNESS: BUYERS RESOURCE, INC.
/s/ CAROL T. HACKNEY By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ NANCY DIFEO Title: Secretary
- --------------------------
WITNESS: TECH DATA CANADA, INC.
/s/ CAROL T. HACKNEY By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ NANCY DIFEO Title: Secretary and Chief
- ------------------------- Financial Officer,
5
TECH DATA FRANCE
Societe en nom Collectif
By: TECH DATA FRANCE, INC., a
Florida Corporation
/s/ CAROL T. HACKNEY By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ NANCY DIFEO Title: Vice President and Chief
- ------------------------- Financial Officer,
AND
TECH DATA FRANCE II, INC., a
Florida Corporation
By: /s/ JEFFERY P. HOWELLS
--------------------------
Name: Jeffery P. Howells
Title: Vice President and Chief
Financial Officer
6
NATIONSBANK, NATIONAL ASSOCIATION
(SOUTH) in its capacity as Agent
By: /s/ NANCY J. PEARSON
------------------------
Name: Nancy J. Pearson
Title: Senior Vice President
NATIONSBANK, NATIONAL ASSOCIATION
(SOUTH) as Lender
By: /s/ NANCY J. PEARSON
------------------------
Name: Nancy J. Pearson
Title: Senior Vice President
7
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By: /s/ DAVID M. CAWRSE
--------------------------
Name: David M/ Cawrse
Title: Authorized Signature
8
NBD BANK
By: /s/ RICHARD C. ELLIS
--------------------------
Name: Richard C. Ellis
Title: VP
9
BANQUE FRANCAISE du COMMERCE
EXTERIEUR
By: /s/ JEAN-NOEL GUETAT
--------------------------
Name: Jean-Noel Guetat
Title: Directeur
By: /s/ FRANCOIS CARRIERE
--------------------------
Name: Francois Carriere
Title: Fonde de Pouvoir
10
BANK OF AMERICA ILLINOIS
By: /s/ LAURENS F. SCHAAD, JR.
--------------------------
Name: Laurens F. Schaad, Jr.
Title: Vice President
11
AMENDMENT AGREEMENT NO. 4
TO
REVOLVING FOREIGN CURRENCY AGREEMENT
THIS AMENDMENT AGREEMENT made and entered into as of the
13th day of February, 1996, by and among TECH DATA FRANCE
(successor by merger effective as of March 24, 1994 to Softmart
International, S.A.), Societe en nom Collectif incorporated
under French law (herein called the "Borrower"), the financial
institutions who are signatories hereto (herein individually
called the "Lender" and collectively the "Lenders"), and
NATIONSBANK, NATIONAL ASSOCIATION (SOUTH) (successor by merger
of NationsBank of Florida, National Association), as Agent for
the Lenders (herein called the "Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent and the Lenders have
entered into a Revolving Foreign Currency Agreement dated August
4, 1994 as amended by Amendment Agreement No. 1, Amendment
Agreement No. 2 and Amendment Agreement No. 3 (the "Agreement")
whereby the Lenders party thereto have agreed to make loans to
the Borrower; and
WHEREAS, Tech Data Corporation the ultimate parent of the
Borrower (the "Parent") and its Subsidiaries have guaranteed
payment of the Obligations pursuant to Guaranty Agreements dated
August 4, 1994, all as described in the Agreement and other Loan
Documents; and
WHEREAS, the Borrower has requested that the Agreement be
amended as hereinafter provided;
NOW, THEREFORE, the Borrower, the Lenders and the Agent do
hereby agree as follows:
1. The term "Agreement" as used herein and in Loan
Documents shall mean the Agreement as hereby amended and
modified. Unless the context otherwise requires, all terms used
herein without definition shall have the definition provided
therefor in the Agreement.
2. Clause (viii) of Section 8.06 of the Agreement is
hereby amended in its entirety, so that as amended it shall read
as follows:
"(viii) unsecured Indebtedness of Parent in an
aggregate outstanding principal amount at any time not to
exceed $50,000,000, of which $45,000,000 shall be used for
the sole purpose of providing standby letters of credit
issued by NationsBank in favor of Compaq Computer
Corporation to support the purchase of Inventory;"
3. In order to induce the Lenders to enter into this
Amendment Agreement, the Borrower represents and warrants to the
Lenders as follows:
(a) The representations and warranties made by
Borrower in Article VII of the Agreement are true on and as
of the date hereto except that the financial statements
referred to in Section 6.02(c) shall be those most recently
furnished to each Lender pursuant to Section 7.01;
(b) There has been no material change in the
condition, financial or otherwise, of the Borrower and its
Subsidiaries since the date of the most recent financial
reports of the Borrower received by each Lender under
Section 8.01 thereof, other than changes in the ordinary
course of business, none of which has been a material
adverse change;
(c) The business and properties of the Borrower and
its Subsidiaries are not, and since the date of the most
recent financial report of the Borrower and its
Subsidiaries received by each Lender under Section 7.01
thereof have not been adversely affected in any substantial
way as the result of any fire, explosion, earthquake,
accident, strike, lockout, combination of workers, flood,
embargo, riot, activities of armed forces, war or acts of
God or the public enemy, or cancellation or loss of any
major contracts; and
(d) No event has occurred and no condition exists
which, upon the consummation of the transaction
contemplated hereby, constitutes a Default or an Event of
Default on the part of the Borrower under the Agreement or
the Notes either immediately or with the lapse of time or
the giving of notice, or both.
4. Each of the Parent and its Subsidiaries have joined in
the execution of this Agreement for the purpose of consenting
hereto and hereby reaffirm their respective guaranty of payment
of the Obligations.
5. All instruments and documents incident to the
consummation of the transactions contemplated hereby shall be
satisfactory in form and substance to the Agent, the Lenders and
their counsel; the Agent shall have received copies of all
additional agreements, instruments and documents which they may
reasonably request in connection therewith, including copies of
resolutions of the Borrower authorizing the transactions
contemplated by this Amendment Agreement, such documents, when
appropriate, to be certified by appropriate corporate or
governmental authorities; and all proceedings of the Borrower
relating to the matters provided for herein shall be
satisfactory to the Agent, the Lenders and their counsel.
2
6. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to
the subject matter hereof and supersedes any prior negotiations
and agreements among the parties relative to such subject
matter. No promise, conditions, representation or warranty,
express or implied, not herein set forth shall bind any party
hereto, and no one of them has relied on any such promise,
condition, representation or warranty. Each of the parties
hereto acknowledges that, except as in this Amendment Agreement
otherwise expressly stated, no representations, warranties or
commitments, express or implied, have been made by any other
party to the other. None of the terms or conditions of this
Amendment Agreement may be changed, modified, waived or
cancelled orally or otherwise, except by writing, signed by all
the parties hereto, specifying such change, modification, waiver
or cancellation of such terms or conditions, or of any preceding
or succeeding breach thereof.
Except as hereby specifically amended, modified or
supplemented, the Agreement and all of the other Loan Documents
are hereby confirmed and ratified in all respects and shall
remain in full force and effect according to their respective
terms.
3
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment Agreement to be duly executed by their duly
authorized officers, all as of the day and year first above
written.
BORROWER:
WITNESS: TECH DATA FRANCE
Societe en nom Collectif
/s/ CAROL T. HACKNEY By: /s/ JEFFERY P. HOWELLS
- -------------------------- ---------------------------
Name: Jeffery P. Howells
/s/ NANCY DIFEO Title: Director
- --------------------------
GUARANTORS:
WITNESS: TECH DATA CORPORATION
/s/ CAROL T. HACKNEY By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ NANCY DIFEO Title: Vice President, Treasurer and
- -------------------------- Secretary
WITNESS: TECH DATA FINANCE, INC.
/s/ CAROL T. HACKNEY By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ NANCY DIFEO Title: Vice President, Chief
- -------------------------- Financial Officer and
Secretary
WITNESS: TECH DATA LATIN AMERICA, INC.
/s/ CAROL T. HACKNEY By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ NANCY DIFEO Title: Secretary and Treasurer
- -------------------------- 4
WITNESS: TECH DATA FRANCE, INC.
/s/ CAROL T. HACKNEY By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ NANCY DIFEO Title: Vice President, Chief
- ------------------------- Financial Officer,
Secretary and Treasurer
WITNESS: TECH DATA FRANCE II, INC.
/s/ CAROL T. HACKNEY By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ NANCY DIFEO Title: Vice President, Chief
- ------------------------- Financial Officer,
Secretary and Treasurer
WITNESS: TECH DATA CONSIGNMENT, INC.
/s/ CAROL T. HACKNEY By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ NANCY DIFEO Title: Secretary and Treasurer
- --------------------------
WITNESS: TECH DATA EDUCATION, INC.
(formally known as Tech ata New York
Training Center, Inc.)
/s/ CAROL T. HACKNEY By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ NANCY DIFEO Title: Vice President, Chief
- ------------------------- Financial Officer,
WITNESS: BUYERS RESOURCE, INC.
/s/ CAROL T. HACKNEY By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ NANCY DIFEO Title: Secretary
- --------------------------
WITNESS: TECH DATA CANADA, INC.
/s/ CAROL T. HACKNEY By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ NANCY DIFEO Title: Secretary and Chief
- ------------------------- Financial Officer,
5
TECH DATA FRANCE
Societe en nom Collectif
By: TECH DATA FRANCE, INC., a
Florida Corporation
/s/ CAROL T. HACKNEY By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ NANCY DIFEO Title: Vice President and Chief
- ------------------------- Financial Officer,
AND
TECH DATA FRANCE II, INC., a
Florida Corporation
By: /s/ JEFFERY P. HOWELLS
--------------------------
Name: Jeffery P. Howells
Title: Vice President and Chief
Financial Officer
6
NATIONSBANK, NATIONAL ASSOCIATION
(SOUTH) in its capacity as Agent
By: /s/ NANCY J. PEARSON
------------------------
Name: Nancy J. Pearson
Title: Senior Vice President
NATIONSBANK, NATIONAL ASSOCIATION
(SOUTH) as Lender
By: /s/ NANCY J. PEARSON
------------------------
Name: Nancy J. Pearson
Title: Senior Vice President
7
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By: /s/ DAVID M. CAWRSE
--------------------------
Name: David M/ Cawrse
Title: Authorized Signature
8
NBD BANK
By: /s/ RICHARD C. ELLIS
--------------------------
Name: Richard C. Ellis
Title: VP
9
BANQUE FRANCAISE du COMMERCE
EXTERIEUR
By: /s/ JEAN-NOEL GUETAT
--------------------------
Name: Jean-Noel Guetat
Title: Directeur
By: /s/ FRANCOIS CARRIERE
--------------------------
Name: Francois Carriere
Title: Fonde de Pouvoir
10
BANK OF AMERICA ILLINOIS
By: /s/ LAURENS F. SCHAAD, JR.
--------------------------
Name: Laurens F. Schaad, Jr.
Title: Vice President
11
AMENDMENT AGREEMENT NO. 5
TO
REVOLVING FOREIGN CURRENCY AGREEMENT
THIS AMENDMENT AGREEMENT made and entered into as of the
13th day of March, 1996, by and among TECH DATA FRANCE
(successor by merger effective as of March 24, 1994 to Softmart
International, S.A.), Societe en nom Collectif incorporated
under French law (herein called the "Borrower"), the financial
institutions who are signatories hereto (herein individually
called the "Lender" and collectively the "Lenders"), and
NATIONSBANK, NATIONAL ASSOCIATION (SOUTH) (successor by merger
of NationsBank of Florida, National Association), as Agent for
the Lenders (herein called the "Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent and the Lenders have
entered into a Revolving Foreign Currency Agreement dated
August 4, 1994 as amended by Amendment Agreement No. 1,
Amendment Agreement No. 2, Amendment Agreement No. 3 and
Amendment Agreement No. 4 (the "Agreement") whereby the Lenders
party thereto have agreed to make loans to the Borrower; and
WHEREAS, Tech Data Corporation the ultimate parent of the
Borrower (the "Parent") and its Subsidiaries have guaranteed
payment of the Obligations pursuant to Guaranty Agreements
dated August 4, 1994, all as described in the Agreement and
other Loan Documents; and
WHEREAS, the Borrower has requested that the Agreement be
amended as hereinafter provided;
NOW, THEREFORE, the Borrower, the Lenders and the Agent do
hereby agree as follows:
1. The term "Agreement" as used herein and in Loan
Documents shall mean the Agreement as hereby amended and
modified. Unless the context otherwise requires, all terms
used herein without definition shall have the definition
provided therefor in the Agreement.
2. Subject to the conditions hereof, the Agreement is
hereby amended, effective January 31, 1996, as follows:
(a) Section 1.01 is hereby amended by adding a new
definition "Cash Equivalents" thereto immediately
preceding the definition "Charlotte Time" which shall read
as follows:
"'Cash Equivalents' means
(a) marketable obligations issued or
unconditionally guaranteed by the United States
government, in each case maturing within one year
after the date of acquisition thereof;
(b) marketable direct obligations issued by any
state of the United States or any political
subdivision of any such state maturing within 180
days after the date of acquisition thereof and, at
the time of acquisition, having a rating of A-1 or P-
1, or better, from Standard & Poor's division of
McGraw-Hill, Inc. ("Standard & Poor's") or Moody's
Investors Service, Inc., respectively;
(c) commercial paper maturing no more than 270
days after the date of acquisition thereof, issued by a
corporation organized under the laws of any state of the
United States or of the District of Columbia and, at the
time of acquisition, having a rating of A-1 or P-1, or
better, from Standard & Poor's or Moody's Investors
Service, Inc., respectively;
(d) time deposits, certificates of deposit or
Eurodollar deposit maturing within 90 days after the
date of acquisition thereof, issued by any commercial
bank that is either (i) a member of the Federal Reserve
System that has capital, surplus and undivided profits
(as shown on its most recent statement of condition)
aggregating not less than $400,000,000 and is rated A or
better by Moody's Investors Service, Inc. or Standard &
Poor's or (ii) a Lender;
(e) repurchase agreements entered into with any
Lender or any commercial bank of the nature referred to
in CLAUSE (D), secured by a fully perfected Lien in any
obligation of the type described in any of CLAUSES (A)
through (D), having a fair market value at the time such
repurchase agreement is entered into of not less than
100% of the repurchase obligation thereunder of such
Lender or other commercial bank; and
(f) money market funds not less than 75% of whose
investments are made up of securities described in
CLAUSES (A) THROUGH (E)."
(b) The definition of "Consolidated Asset Coverage
Ratio" in Section 1.01 is amended in its entirety so that as
amended it shall read as follows:
"'Consolidated Asset Coverage Ratio' means the
ratio of (A) the sum of (i) unrestricted cash and Cash
Equivalents located in each case within the United
States, (ii) Remaining Accounts Receivable, (iii)
Receivables of Subsidiaries of the Parent, (iv)
Inventory and (v) Prepaid Inventory to (B) the sum of,
without duplication, (i) outstanding Indebtedness under
the Parent Credit Agreement (including outstanding
letters of credit and acceptances), (ii) the Revolving
2
Credit Debit Balance, (iii) outstanding Indebtedness of
TDC permitted under a 30,000,000 Canadian Dollar
revolving credit facility, (iv) other Indebtedness of
the Parent and its Subsidiaries permitted under Section
8.06(viii), (ix) and (x), and (v) accounts payable of
the Parent and its Subsidiaries, all determined on a
consolidated basis in accordance with Generally Accepted
Accounting Principals applied on a Consistent Basis;"
(c) Section 8.13 is amended in its entirety so that as
amended it shall read as follows:
"8.13 CAPITAL EXPENDITURES. Make or become
committed to make, directly or indirectly, for any
Fiscal Year (on a non-cumulative basis, to the effect
that expenditures permitted but not made in any Fiscal
Year may not be made in any subsequent Fiscal Year)
expenditures for fixed or capital assets (including,
without limitation, Capital Leases) which when added to
those made by the Parent and its other Subsidiaries
amount in the aggregate for the Parent and its
Subsidiaries to more than (i) $42,000,000 during the
Fiscal Year ending January 31, 1995, (ii) $28,000,000
during the Fiscal Year ending January 31, 1996 and (iii)
$25,000,000 during any Fiscal Year thereafter."
3. In order to induce the Lenders to enter into this
Amendment Agreement, the Borrower represents and warrants to the
Lenders as follows:
(a) The representations and warranties made by Borrower in
Article VII of the Agreement are true on and as of the date
hereto except that the financial statements referred to in
Section 6.02(c) shall be those most recently furnished to each
Lender pursuant to Section 7.01;
(b) There has been no material change in the condition,
financial or otherwise, of the Borrower and its Subsidiaries
since the date of the most recent financial reports of the
Borrower received by each Lender under Section 8.01 thereof,
other than changes in the ordinary course of business, none of
which has been a material adverse change;
(c) The business and properties of the Borrower and its
Subsidiaries are not, and since the date of the most recent
financial report of the Borrower and its Subsidiaries received
by each Lender under Section 7.01 thereof have not been
adversely affected in any substantial way as the result of any
fire, explosion, earthquake, accident, strike, lockout,
combination of workers, flood, embargo, riot, activities of
armed forces, war or acts of God or the public enemy, or
cancellation or loss of any major contracts; and
3
(d) No event has occurred and no condition exists which,
upon the consummation of the transaction contemplated hereby,
constitutes a Default or an Event of Default on the part of
the Borrower under the Agreement or the Notes either
immediately or with the lapse of time or the giving of notice,
or both.
4. Each of the Parent and its Subsidiaries have joined in
the execution of this Agreement for the purpose of consenting
hereto and hereby reaffirm their respective guaranty of payment of
the Obligations.
5. All instruments and documents incident to the
consummation of the transactions contemplated hereby shall be
satisfactory in form and substance to the Agent, the Lenders and
their counsel; the Agent shall have received copies of all
additional agreements, instruments and documents which they may
reasonably request in connection therewith, including copies of
resolutions of the Borrower authorizing the transactions
contemplated by this Amendment Agreement, such documents, when
appropriate, to be certified by appropriate corporate or
governmental authorities; and all proceedings of the Borrower
relating to the matters provided for herein shall be satisfactory
to the Agent, the Lenders and their counsel.
6. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to
the subject matter hereof and supersedes any prior negotiations
and agreements among the parties relative to such subject matter.
No promise, conditions, representation or warranty, express or
implied, not herein set forth shall bind any party hereto, and no
one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto
acknowledges that, except as in this Amendment Agreement otherwise
expressly stated, no representations, warranties or commitments,
express or implied, have been made by any other party to the
other. None of the terms or conditions of this Amendment
Agreement may be changed, modified, waived or canceled orally or
otherwise, except by writing, signed by all the parties hereto,
specifying such change, modification, waiver or cancellation of
such terms or conditions, or of any preceding or succeeding breach
thereof.
Except as hereby specifically amended, modified or
supplemented, the Agreement and all of the other Loan Documents
are hereby confirmed and ratified in all respects and shall remain
in full force and effect according to their respective terms.
4
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment Agreement to be duly executed by their duly authorized
officers, all as of the day and year first above written.
BORROWER:
WITNESS: TECH DATA FRANCE
Societe en nom Collectif
/s/ NANCY DIFEO By: /s/ JEFFERY P. HOWELLS
- -------------------------- ---------------------------
Name: Jeffery P. Howells
/s/ SUSAN K. PLESO Title: Director
- --------------------------
GUARANTORS:
WITNESS: TECH DATA CORPORATION
/s/ NANCY DIFEO By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ SUSAN K. PLESO Title: Vice President, Treasurer and
- -------------------------- Secretary
WITNESS: TECH DATA FINANCE, INC.
/s/ NANCY DIFEO By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ SUSAN K. PLESO Title: Vice President, Chief
- -------------------------- Financial Officer and
Secretary
WITNESS: TECH DATA LATIN AMERICA, INC.
/s/ NANCY DIFEO By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ SUSAN K. PLESO Title: Secretary and Treasurer
- -------------------------- 5
WITNESS: TECH DATA FRANCE, INC.
/s/ NANCY DIFEO By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ SUSAN K. PLESO Title: Vice President, Chief
- ------------------------- Financial Officer,
Secretary and Treasurer
WITNESS: TECH DATA FRANCE II, INC.
/s/ NANCY DIFEO By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ SUSAN K. PLESO Title: Vice President, Chief
- ------------------------- Financial Officer,
Secretary and Treasurer
WITNESS: TECH DATA CONSIGNMENT, INC.
/s/ NANCY DIFEO By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ SUSAN K. PLESO Title: Secretary and Treasurer
- --------------------------
WITNESS: TECH DATA EDUCATION, INC.
/s/ NANCY DIFEO By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ SUSAN K. PLESO Title: Vice President, Chief
- ------------------------- Financial Officer,
WITNESS: BUYERS RESOURCE, INC.
/s/ NANCY DIFEO By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ SUSAN K. PLESO Title: Secretary
- --------------------------
WITNESS: TECH DATA CANADA, INC.
/s/ NANCY DIFEO By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ SUSAN K. PLESO Title: Secretary and Chief
- ------------------------- Financial Officer,
6
TECH DATA FRANCE
Societe en nom Collectif
By: TECH DATA FRANCE, INC., a
Florida Corporation
/s/ NANCY DIFEO By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ SUSAN K. PLESO Title: Vice President and Chief
- ------------------------- Financial Officer,
AND
TECH DATA FRANCE II, INC., a
Florida Corporation
By: /s/ JEFFERY P. HOWELLS
--------------------------
Name: Jeffery P. Howells
Title: Vice President and Chief
Financial Officer
7
NATIONSBANK, NATIONAL ASSOCIATION
(SOUTH) in its capacity as Agent
By: /s/ NANCY J. PEARSON
------------------------
Name: Nancy J. Pearson
Title: Senior Vice President
NATIONSBANK, NATIONAL ASSOCIATION
(SOUTH) as Lender
By: /s/ NANCY J. PEARSON
------------------------
Name: Nancy J. Pearson
Title: Senior Vice President
8
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By: /s/ DAVID M. CAWRSE
--------------------------
Name: David M/ Cawrse
Title: Authorized Signature
9
NBD BANK
By: /s/ RICHARD C. ELLIS
--------------------------
Name: Richard C. Ellis
Title: VP
10
BANQUE FRANCAISE du COMMERCE
EXTERIEUR
By: /s/ JEAN-NOEL GUETAT
--------------------------
Name: Jean-Noel Guetat
Title: Directeur
By: /s/ FRANCOIS CARRIERE
--------------------------
Name: Francois Carriere
Title: Fonde de Pouvoir
11
BANK OF AMERICA ILLINOIS
By: /s/ LAURENS F. SCHAAD, JR.
--------------------------
Name: Laurens F. Schaad, Jr.
Title: Vice President
12
EX-10.PP
6
EMPLOYMENT AGREEMENT
EXHIBIT 10-PP
EMPLOYMENT AGREEMENT
This Agreement is entered into this 5th day of December, 1995, by and
between Tech Data Corporation ("Tech Data") and A. Timothy Godwin ("Godwin").
WHEREAS, Godwin is President and Chief Operating Officer of Tech Data;
and
WHEREAS, Tech Data and Godwin envision an alteration of Godwin's
responsibilities and title within Tech Data for reasons which are mutually
agreeable to the parties; and
WHEREAS, Tech Data and Godwin wish to provide for the possible
eventuality of Godwin's leaving Tech Data in a manner which provides for his
future security, establishes the rights and benefits he is entitled to,
provides certainty and predictability to the company in the event of his
departure therefrom, and induces Godwin to accept a reassignment within the
company;
Therefore, in light of the foregoing and in consideration of the mutual
promises and covenants contained herein,
Tech Data and Godwin (collectively referred to as "the parties") agree as
follows:
1. Godwin will assume the position of Vice Chairman of Tech Data. The
duties and responsibilities will be mutually agreed upon between Godwin and
Tech Data. Future positions, duties and responsibilities may change as
mutually agreed upon.
2. The parties agree that should either of them be dissatisfied with
Godwin's new responsibilities or the performance thereof, either can trigger a
"Transition Period." The Transition Period will commence on the date written
notification is received by the non-initiating party. The Transition Period
will run for a mutually agreed upon period of time not less than thirty (30)
days and not to exceed ninety (90) days. Regardless of whether Tech Data or
Godwin initiates this Transition Period and regardless of the duration of the
Transition Period, Godwin's separation will be described both internally and
externally as a voluntary resignation. Also, regardless of whether Tech Data
or Godwin initiates this Transition Period, the resignation shall include the
resignation from the Board of Directors of Tech Data, should Godwin then be a
member of such Board.
3. During the Transition Period, Tech Data will pay to Godwin
compensation, including salary (plus pro rata bonus) and fringe benefits, in
the same amounts and at the same intervals as he had been receiving prior to
the commencement of the Transition Period.
4. Upon the conclusion of the Transition Period, the parties agree
that Godwin will commence a four year time period which will be described
herein as the "Notice Period." During the Notice Period, except as modified
or limited in the next paragraph (5) of this Agreement, the parties agree that
Godwin will remain on the Tech Data payroll as an employee with full medical
benefits, ESOP vesting, 401(k) participation and associated general employee
benefits. During the Notice Period, Tech Data will pay salary to Godwin under
the following schedule, with paychecks issuing with the same frequency as
previously and with statutory deductions in amounts to be designated by Godwin
consistent with federal law:
Year 1 $150,000
Year 2 $150,000
Year 3 $100,000
Year 4 $100,000
Total $500,000
2
5. Upon formal notification by Godwin that he has become a full-time
or part-time employee of another entity, corporate or otherwise, at any time
during the Notice Period, the foregoing schedule will accelerate, and payment
in full of all unpaid sums will be made within thirty (30) days of the date
Godwin formally terminates his employment with Tech Data. Likewise, payment by
Tech Data according to the foregoing salary schedule shall accelerate upon
the occurrence of Godwin's death during the Notice Period, and payment in full
of all unpaid sums shall be made within thirty (30) days of his death to his
wife, Maureen A. Godwin, unless Godwin has formally designated another
recipient subsequent to the date of this Agreement. In the event (a) Maureen
A. Godwin is not alive or has been adjudicated incompetent at the time of
Godwin's death, and (b) another recipient has not been formally designated to
Tech Data, the accelerated payment shall be made to the A. Timothy Godwin
Family Trust. In the event acceleration of payments occur under this
paragraph, other benefits due Godwin during the Notice Period will expire in
accordance with Tech Data's normal policy with regard to a terminating
employee and regulatory requirements (i.e., COBRA). Except as set forth in
this paragraph five (5), acceleration of payments will not take place on a
date earlier than the end of the fourth year of the Notice Period.
6. a. Except as provided for in subparagraph b., below,
notwithstanding and irrespective of paragraph five (5) (except in the case of
Godwin's death at which time all Stock Options immediately vest), Stock
Options will continue to vest at the established rate for a period of two (2)
years from the end of the Transition Period. At the conclusion of this two-
year period all unvested options will vest forward at the established exercise
price and must be exercised within one (1) year. Vested Stock Options not
3
exercised within the one (1) year period will expire.
b. Should Godwin become a full-time or part-time employee of
Ingram, Merisel, Avnet, Arrow, MicroAge, GBC or Computer 2000 within two (2)
years of the commencement of the Notice Period, Godwin will have one (1) year
from his date of employment to exercise options which have vested by that
date. Options not vested by that date will not vest forward. Vested options
not exercised within the one (1) year period will expire.
7. Godwin agrees to waive and release any and all claims, damages,
demands, legal actions, liabilities or litigation, actual or potential,
against Tech Data, its owners, officers, agents, employees, representatives,
subsidiaries, affiliates or related entities, successors and assigns arising
under Title VII of the Civil Rights Act of 1964, as amended, the Age
Discrimination and Employment Act, the Florida Human Rights Act, the Florida
Civil Rights Act of 1992, the Americans With Disabilities Act, any other
state or federal or local law, contract or common law doctrine arising out of
his employment or the separation therefrom, up to and including the date
of termination of Godwin's employment with Tech Data.
8. Tech Data agrees to waive and release any all claims, damages,
demands, legal actions, liabilities or litigation against Godwin, his heirs or
representatives, for any actions or liabilities of Godwin individually which
arose directly out of actions taken by him in the course and scope of his
employment with Tech Data.
9. The terms of this Agreement will not preclude either party from
seeking to enforce the terms of this Agreement in court.
4
10. Godwin shall hold in a fiduciary capacity for the benefit of Tech
Data all secret or confidential information, knowledge or data of Tech Data
obtained by Godwin during his employment with Tech Data, which is not
generally known to the public and shall not, after the termination of his
employment, communicate or divulge any such information, knowledge or
data to any person, firm, corporation, entity or group other than Tech Data or
persons, firms, corporations, entities or groups designated by Tech Data in
writing. Godwin further agrees that he will not remove from Tech Data or copy
any of its confidential information without the written permission of Tech
Data. The parties hereto agree that this paragraph shall survive the
termination of Godwin's employment with Tech Data.
11. Tech Data and Godwin agree that at no time from the effective
date of this Agreement forward, including beyond the conclusion of the
Transition Period, will they disparage each other in any way. This
prohibition includes employees, agents, representatives, business operations
and products of Tech Data and is not limited as to subject matter. It is also
agreed that any announcement regarding the present or future role of Godwin at
Tech Data, or any change in his role or function, will be the subject of a
mutually agreeable press release, and that neither Tech Data nor Godwin will
address this subject matter independently of the joint release. This
specifically applies to any communications with employees of Tech Data,
stockholders of Tech Data and/or the media.
12. The parties agree that the terms and conditions of this Agreement
shall remain confidential, and that the parties and their agents shall not
disclose, disseminate or publicize the same to any other persons, except as
follows:
(1) To governmental authorities to the extent necessary;
5
(2) In response to an order of a court of competent
jurisdiction; or
(3) In defense of any claim or legal proceeding.
13. In the case of any notice required or permitted to be given to
Godwin under this Agreement, it shall be sufficient if the notice is
personally given to Godwin, or mailed, by United States mail, to Godwin's last
known address. In the case of any notice required or permitted to be given to
Tech Data under this Agreement, it shall be sufficient if the notice is
personally given to the Chief Executive Officer or his designee or mailed by
United States mail to the Chief Executive Officer or his designee.
14. This Agreement may not be altered, amended, modified or
terminated except by an instrument in writing executed by authorized
representatives of the parties hereto.
15. This Agreement shall be governed by and construed in accordance
with the laws of the State of Florida.
16. The parties hereto agree that this Agreement sets forth the
entire agreement between the parties and that they have not relied upon any
representation or statement, written or oral, not set forth in this document.
17. The rights and obligations of each party under this Agreement
inure to the benefit of and shall be binding upon, the successors and assigns
of that party.
18. Godwin hereby acknowledges that he has been advised by Tech Data
to consult with an attorney before signing this Agreement, and that he has
executed this Agreement having had the benefit of advice of legal counsel.
6
19. No waiver of any term, provisions or condition of this Agreement,
whether by conduct or otherwise, in any one or more instances, shall be
deemed to be, or construed as, a further or continuing waiver of any such
term, provision or condition of this Agreement.
20. Should any of the provisions of this Agreement be determined to
be invalid by a court of competent jurisdiction, it is agreed that this shall
not affect the enforceability of any other provision hereof and the parties
shall negotiate the provision in good faith to effectuate its purpose and to
conform it to the law.
21. In the event that either party hereto is required to initiate or
defends any lawsuit or claim as a result of a breach of this Agreement, then
the prevailing party shall recover all expenses (including discovery and other
court costs and attorneys' fee) incurred by such person or entity in
initiating or defending the same.
22. This Agreement may be executed by the parties in separate
counterparts.
23. Each party hereto represents and agrees that it or he has
carefully read and fully understands all the provisions of this Agreement and
that it or he is voluntarily entering into this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
TECH DATA CORPORATION A. TIMOTHY GODWIN
By: /s/ STEVEN A. RAYMUND 12/10/95 By: /s/ A. TIMOTHY GODWIN 12/5/95
------------------------------------ -------------------------------
Steven A. Raymund, Date A. Timothy Godwin, Date
Chairman and Chief Executive Officer
7
EX-21
7
SUBSIDIARIES OF REGISTRANT
EXHIBIT 21
TECH DATA CORPORATION
SUBSIDIARIES OF THE REGISTRANT
State or other
Name of Percentage Jurisdiction of
Subsidiary Owned Incorporation
- ---------------------- ---------- ----------------
Tech Data Canada Inc. 100% Ontario, Canada
Tech Data Finance, Inc. 100% California
Tech Data France, SNC 100% France
EX-27
8
FINANCIAL DATA SCHEDULE
5
1,000
12-MOS
JAN-31-1996
FEB-01-1995
JAN-31-1996
1,154
0
467,871
22,669
465,422
950,788
61,610
0
1,043,879
749,084
0
0
5
57
285,636
1,043,879
3,086,620
3,086,620
2,867,226
3,031,016
0
0
20,086
35,518
13,977
21,541
0
0
0
21,541
.56
.56
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