Pre-Effective Amendment to Registration of Securities Issued in a Business-Combination Transaction — Form S-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-4/A Tech Data Corporation HTML 412K
9: CORRESP ¶ Comment-Response or Other Letter to the SEC 4 9K
2: EX-1.1 EX-1.1 Dealer Manager Agreement 23 110K
3: EX-4.(C) Ex- 4.C Form of Indenture 89 405K
4: EX-5.1 EX-5.1 Grayrobinson Opinion & Consent 2 11K
5: EX-8.1 EX-8.1 Grayrobinson Tax Opinion 2 10K
6: EX-23.1 EX-23.1 Ernst & Young Consent 1 6K
7: EX-25.1 EX-25.1 Form of T-1 5 18K
8: EX-99.1 EX-99.1 Form of Letter of Transmittal 16 81K
Delayed-Release ‘CORRESP’ — Comment-Response or Other Letter to the SEC
Document Table of Contents
SUITE 2200
201 N. FRANKLIN STREET (33602)
POST OFFICE BOX 3324 CLERMONT
(GRAY ROBINSON LOGO) TAMPA, FL 33601-3324 JACKSONVILLE
ATTORNEYS AT LAW TEL 813-273-5000 KEY WEST
FAX 813-273-5145 LAKELAND
gray-robinson.com MELBOURNE
NAPLES
ORLANDO
TALLAHASSEE
TAMPA
813-273-5135
FFLEISCHER@GRAY-ROBINSON.COM
December 8, 2004
Michael Pressman
Office of Mergers and Acquisitions
Securities and Exchange Commission
Washington, DC 20549-0303
Re: Tech Data Corporation
Schedule TO-I filed November 16, 2004
File No. 5-37498
Form S-4 filed November 16, 2004
File No. 333-120552
Dear Mr. Pressman:
This letter is in response to your letter of comment (the "letter of
comment") dated December 1, 2004 related to the above-reference filing for Tech
Data Corporation (the "Registrant"). We will specifically respond herein by
numbered paragraph to corresponding numbered paragraphs in your letter of
comment.
SCHEDULE TO-I
1. We have filed Amendment Number 1 to Schedule TO to specifically refer
in Item 3 thereof under the caption "Identity and Background of Filing
Person" that the information included in Item 1, subsection entitled
"Executive Officer" in Tech Data's Annual Report on Form 10-K for the
fiscal year ended January 31, 2004 is incorporated by reference. The
executive officers of the Registrant are set forth in that Item 1.
REGISTRATION STATEMENT
GENERAL
2. The Registrant offered $250 million of its 2% Convertible Subordinated
Debentures due 2021 (the "existing debentures") to "Qualified
Institutional Buyers" as defined in Rule 144A under the Securities Act
of 1933, as amended (the "1933 Act") and outside the United States in
accordance with Regulation S under the 1933 Act on December 5, 2001.
The initial purchasers of the existing debentures were Salomon Smith
Barney (now Citigroup Global Markets Inc.) and Banc of America
Securities LLC. The initial purchasers were granted an over allotment
option to purchase up to $50 million in principal amount of additional
existing debentures. (Only $40 million of the over allotment option was
exercised.) The Registrant filed a Registration Statement on Form S-3
to register existing debentures in the principal amount of $290 million
Mr. Michael Pressman
December 8, 2004
Page 2
pursuant to a registration rights agreement with the initial
purchasers. That Registration Statement became effective on June 6,
2002.
COVER PAGE
3. We acknowledge the Staff's comment. However, we respectfully submit
that specifying the amount of common stock issuable upon conversion of
the new debentures in the registration fee table and the cover table is
not required or applicable under the terms of the new debentures. The
new debentures will require us to settle all conversions for a
combination of cash and shares, if any, in lieu of only shares. Cash
paid will equal the lesser of the principal amount of the new
debentures and their conversion value. Shares of our common stock will
be issued only if the closing sale price of our common stock exceeds
the conversion price during the "applicable conversion reference
period" as described in the Prospectus.
4. We acknowledge the Staff's comment, and have revised the legend on the
cover page of the prospectus accordingly. We supplementally advise the
Staff that the prospectus as initially filed was not subject to
completion but rather contained all the required information, including
pricing information, in order to effectively commence the exchange
offer. Please see the cover page.
5. In response to the Staff's comment, we have included on the cover page
a brief description of our reasons for undertaking the exchange offer.
Please see the cover page.
SUMMARY, PAGE 3
6. In response to the Staff's comment, we have revised the disclosure to
include the additional detail requested in the summary section. Please
see page 9, subcaption "Accounting Treatment."
SUMMARY OF CERTAIN DIFFERENCES BETWEEN THE EXISTING DEBENTURES AND THE NEW
DEBENTURES, PAGE 7
7. In response to the Staff's comment, we have revised the disclosure in
the summary section to highlight the differences in risks between the
existing and new debentures. Please see page 10, subcaption "Risks
associated with the existing debentures and the new debentures."
8. In response to the Staff's comment, we have revised the disclosure
under the subcaption "Settlement Upon Conversion" discussing the means
by which the Registrant expects to finance the cash requirements
resulting from conversion of the new debentures. Please see page 7.
FORWARD LOOKING STATEMENTS, PAGE 13
9. In response to the Staff's comment, we have eliminated any reference to
the Private Securities Litigation Reform Act. Please see page 15.
10. In response to the Staff's comment, we have deleted the statement that
we have no obligation to update forward-looking information. Please see
page 15.
Mr. Michael Pressman
December 8, 2004
Page 3
SELECTED CONSOLIDATED FINANCIAL DATA, PAGE 16
11. The selected earnings per share data originally set forth on page 16 of
the Prospectus included in the Form S-4 filed on November 16, 2004 and
now on page 18 of the Prospectus dated the date hereof, includes "net
income (loss) per common share (basic and diluted)" and "weighted
average common shares outstanding: basic and diluted." Please note that
we have updated the financial data to October 31, 2004.
PURPOSE OF THE EXCHANGE OFFER, PAGE 18
12. In response to the Staff's comment, we have revised the disclosure to
include greater detail on the reasons underlying the exchange offer.
Please see page 20.
CONDITIONS FOR COMPLETION OF THE EXCHANGE OFFER, PAGE 22
13. In response to the Staff's comment, we have revised the opening
paragraph under "Legal Limitation" to remove any implication that the
Company reserves the right to conduct an illusory offer. Please see
page 26. We supplementally confirm to the Staff that we understand your
position with respect to an "illusory offer."
14. We acknowledge the Staff's comment. We respectfully submit that the
major hostilities, war or calamity condition set forth on page 25 is
already limited in its application. The condition can only be triggered
if the effect of any outbreak, escalation, declaration, calamity or
emergency has a reasonable likelihood to make it impractical or
inadvisable to proceed with completion of the exchange offer.
15. In response to the Staff's comment, we have added under this section in
the paragraph under the third bullet on the first half of page 25 and
in Instruction 8 of the Letter of Transmittal the following: "In the
event we waive a condition, it will be deemed waived for all holders of
the existing debentures."
ACCOUNTING TREATMENT, PAGE 23
16. This will confirm that the Company applied the guidelines in EITF Issue
No. 96-19 with respect to the accounting treatment for the exchange
transaction.
DEALER MANAGER, PAGE 23
17. In response to the Staff's comment, we have revised the disclosure to
include the amount of compensation of the dealer manger. Please see
page 26.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS, PAGE 45
18. In response to the Staff's comment, rather than referring to "certain"
tax consequences we refer to "material" tax consequences.
Mr. Michael Pressman
December 8, 2004
Page 4
19. In response to the Staff's comments, we have added a reference to the
fact that the discussion, in so far as it relates to matters of U.S.
federal income tax and regulations or legal conclusions with respect
thereto, constitutes the opinion of GrayRobinson, P.A., as to the
material U.S. federal income tax consequences to the holders of the
existing debentures of their exchange for the new debentures pursuant
to the exchange offer. In addition, we have revised the last two
sentences of the penultimate paragraph on page 49. We have also
included our tax opinion as Exhibit 8.1 to this Amendment.
WHERE YOU CAN FIND MORE INFORMATION
20. In response to the Staff's comment, we have deleted the statement
incorporating by reference all future filings.
EXHIBITS
21. We have included our legality opinion as Exhibit 5.1 to this Amendment.
CLOSING COMMENTS
Please be advised that the Registrant, as the "filing person,"
acknowledges that the Registrant is responsible for the following:
(1) The adequacy and accuracy of the disclosure in the Registration
Statement and Form TO;
(2) Staff comments or changes to disclosure in response to Staff
comments in the Registration Statement and Form TO filed November 16, 2004, as
amended, reviewed by the Staff do not foreclose the Securities and Exchange
Commission (the "Commission") from taking any action with respect to the
Registration Statement and Form TO;
(3) The Registrant may not assert Staff comments as a defense in any
proceeding initiated by the Commission or any person under the federal
securities laws of the United States.
If you have any additional comments or questions, you may contact me at
(813) 273-5135 or via facsimile at (813) 273-5145.
Very truly yours,
/s/ Frank N. Fleischer
Frank N. Fleischer
Dates Referenced Herein and Documents Incorporated by Reference
↑Top
Filing Submission 0000950144-04-011853 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)
Copyright © 2024 Fran Finnegan & Company LLC – All Rights Reserved.
About — Privacy — Redactions — Help —
Wed., May 15, 7:10:09.1pm ET 
