TECH DATA CORP : Other Events (form 8-K)
February 04, 2020 at 06:09 am EST
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): February 3, 2020
TECH DATA CORPORATION
(Exact name of registrant as specified in its charter)
| | | | | Florida |
| 0-14625 |
| 59-1578329 | (State of Incorporation) |
| (Commission File Number) |
| (IRS employer Identification No.) | | 5350 Tech Data Drive | Clearwater, Florida, 33760 | (Address of principal executive offices) | 727-539-7429
(Registrant’s telephone number)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | ☒ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) | Securities registered pursuant to Section 12(b) of the Act:
| | | | | Title of each class |
| Trading symbol |
| Name of each exchange which registered | Common stock, par value $.0015 per share |
| TECD |
| NASDAQ | Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 8.01 |
Other Events | Tech Data Corporation (the “Company”) previously announced its entry into that certain Agreement and Plan of Merger with Tiger Midco, LLC (“Parent”) and Tiger Merger Sub Co. (“Merger Sub”), dated as of November 12, 2019, as amended on November 27, 2019 by Amendment No. 1 to the Agreement and Plan of Merger (as further amended or modified from time to time, the “Merger Agreement”). The Merger Agreement provides, among other things and subject to the terms and conditions set forth therein, that Merger Sub will be merged with and into the Company (the “Merger”), with the Company continuing as the surviving corporation and as a wholly owned subsidiary of Parent.
In connection with the Merger, the Company filed with the U.S. Securities and Exchange Commission (the “SEC”) a definitive proxy statement (the “Proxy Statement”) on January 10, 2020. As disclosed in the Proxy Statement, between December 19, 2019 and January 10, 2020, the date of the Proxy Statement, three lawsuits relating to the Merger were filed—one purported class action complaint brought on behalf of a putative class of the Company’s shareholders and two individual shareholder complaints. The purported class action complaint was filed in the United States District Court for the District of Delaware: Post v. Tech Data Corporation et al, Case No. 1:19-cv-02352-UNA, filed on December 24, 2019. One individual shareholder complaint was filed in the Thirteenth Judicial Circuit Court of Florida: Drulias v. Hume, et al., Case No. 19-CA-012837, filed on December 19, 2019. The other individual shareholder complaint was filed in the United States District Court for the Southern District of New York: Franks v. Tech Data Corporation et al, Case No. 1:20-cv-00174, filed on January 8, 2020.
Following the filing of the Proxy Statement and prior to the filing of this Current Report on Form 8-K, two additional individual shareholder complaints were filed in the United States District Court for the Southern District of New York, alleging substantially similar claims: Laufer v. Tech Data Corporation et al, Case No. 1:20-cv-00311, filed on January 13, 2020, and St. Germain v. Tech Data Corporation et al, Case No. 1:20-cv-00722, filed on January 27, 2020 (the foregoing two matters, together with the three lawsuits described in the foregoing paragraph, are collectively referred to as the “Litigation”). In addition, on January 16, 2020, the Company received a letter on behalf of an alleged shareholder, Steven Makowsky, in connection with the Merger, also alleging material omissions or misstatements in the Proxy Statement.
The Company believes that the claims referenced above are without merit and no supplemental disclosure is required under applicable law. However, in order to moot the plaintiffs’ unmeritorious disclosure claims in the Litigation, to avoid the risk of the Litigation delaying or adversely affecting the Merger and to minimize the costs, risks and uncertainties inherent in litigation, without admitting any liability or wrongdoing, the Company has determined to voluntarily supplement the Proxy Statement as described in this Current Report on Form 8-K. In light of the supplemental disclosures, plaintiffs in the Drulias, Post, Franks, Laufer, and St. Germain actions have agreed to dismiss their individual claims with prejudice. Nothing in this Current Report on Form 8-K shall be deemed an admission of the legal necessity or materiality under applicable laws of any of the disclosures set forth herein. To the contrary, the Company specifically denies all allegations in the Litigation that any additional disclosure was or is required, and believes that the supplemental disclosures contained herein are immaterial.
These supplemental disclosures will not affect the consideration to be paid in connection with the Merger or the timing of the special meeting of Company shareholders to be held at 10:00 a.m., Eastern Time, on February 12, 2020, at the Raymund Center, 5350 Tech Data Drive, Clearwater, Florida 33760.
Supplemental Disclosure to Proxy Statement in Connection with the Litigation
The following disclosure in this Current Report on Form 8-K supplements the disclosures contained in the Proxy Statement and should be read in conjunction with the disclosures contained in the Proxy Statement, which in turn should be read in its entirety.
The following disclosure supplements and restates the second paragraph under the heading “Background of the Merger”, beginning on page 36 of the Proxy Statement:
In late March 2018, a representative of Apollo contacted Mr. Robert Dutkowsky, Tech Data’s Chairman and then-Chief Executive Officer, to discuss the possibility of an investment by the Apollo Funds in Tech Data and to propose a preliminary meeting. During the following week, in early April, Mr. Dutkowsky informed Mr. Charles E. Adair, Tech Data’s lead independent director, of the call from Apollo. Mr. Adair agreed that Mr. Dutkowsky should accept the meeting with Apollo to get additional information regarding Apollo’s interest. The Board was informed of Apollo’s outreach at a meeting on April 3, 2018. On April 19, 2018, Tech Data entered into a Confidentiality Agreement with Apollo containing customary standstill provisions. Throughout April and May 2018, at the direction of Messrs. Dutkowsky and Adair, representatives of Tech Data engaged with Apollo and provided certain limited diligence information in response to Apollo’s requests, in order to assist Apollo in determining whether to make a proposal for an investment in Tech Data. During this time, Mr. Dutkowsky regularly updated Mr. Adair regarding the discussions and diligence requests from Apollo.
The following disclosure supplements and restates the seventh paragraph under the heading “Background of the Merger”, beginning on page 37 of the Proxy Statement:
On July 27, 2018, the Board met and formed a transaction committee comprised of directors Charles E. Adair, Harry J. Harczak, Jr., Thomas Morgan and Patrick Sayer to oversee discussions with Apollo and any other indications of interest in Tech Data that may be received and to make recommendations to the Board. The Board determined that the creation of a transaction committee was in the best interests of the Company for several reasons including, but not limited to, the ability to have Tech Data’s lead independent director and a subset of its other independent directors supervise a potential sale process without requiring the input of the full Board in day-to-day decisionmaking. The Board also adopted a protocol for management’s interaction with potential bidders, including Apollo, should the Board decide to move forward with discussions, including instructing management not to discuss any post-transaction
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