Exhibit 10-BBe
2009 EQUITY INCENTIVE
PLAN
OF TECH DATA
CORPORATION
EFFECTIVE JUNE 10,
2009
2009 EQUITY INCENTIVE
PLAN
OF TECH DATA
CORPORATION
Tech Data Corporation (the
“Company”) has established the 2009 Equity Incentive
Plan of Tech Data Corporation (the “Plan”) to promote
the growth and profitability of the Company by strengthening its
ability to attract and retain selected executive officers,
employees and members of the Company’s Board, to reward and
motivate selected executive officers, employees and members of the
Company’s Board to achieve business objectives established to
promote the long-term growth, profitability and success of the
Company, and to better align the interests of selected executive
officers, employees and members of the Company’s Board with
the Company’s shareholders by encouraging ownership of the
Common Stock of the Company. The Plan authorizes the grant of stock
and cash incentive compensation in the form of stock options, stock
appreciation rights, restricted stock, restricted stock units,
performance awards and other stock-based awards.
For the purposes of the Plan, the
following terms shall have the following meanings:
“ADJUSTED NET INCOME”
means, with respect to any fiscal year of the Company, the amount
reported as “Net Income” in the audited Consolidated
Statement of Income of the Company and Subsidiaries for such year
(as set forth in the Company’s Annual Report to Shareholders
for such year), adjusted to exclude any of the following items:
(i) extraordinary items (as described in Accounting Principles
Board Opinion No. 30); (ii) gains or losses on the
disposition of discontinued operations; (iii) the cumulative
effects of changes in accounting principles; and (iv) any
applicable adjustments for calculating net income per diluted share
in accordance with generally accepted accounting
principles.
“AGGREGATE SHARE LIMIT”
means the maximum number of shares of Common Stock issuable under
the Plan and set forth in Section 4 of the Plan.
“ANNUAL NET INCOME PER DILUTED
SHARE” means, with respect to a fiscal year of the Company in
respect of which a determination thereof is being or to be made,
the Adjusted Net Income for such year divided by the applicable
weighted average number of diluted shares of Common Stock
outstanding during such year.
“AWARD” means a Stock
Option, SAR, Restricted Stock, Restricted Stock Unit, Performance
Award or Other-Stock-Based Award granted pursuant to the
Plan.
“AWARD AGREEMENT” means
any written or electronic agreement, contract or other instrument
or document evidencing an Award which may, but need not, be
executed or acknowledged by the Company and/or a
Participant.
“BENEFICIAL OWNER” means
a “beneficial owner” within the meaning of Rule 13d-3
under the Exchange Act.
“BOARD” means the Board
of Directors of the Company.
“CODE” means the
Internal Revenue Code of 1986, as amended and in effect from time
to time, or any successor statute thereto, together with the
published rulings, regulations and interpretations duly promulgated
thereunder.
“COMMITTEE” means the
Compensation Committee of the Board, or such other persons or
committee to which the Board has delegated any authority, as may be
appropriate and permitted under the Plan and applicable law. A
person may serve on the Committee only if he or she is (i) a
“non-employee director” within the meaning of Rule
16(b)-3 under the Exchange Act, and (ii) an “outside
director” within the meaning of Section 162(m) of the
Code.
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“COMMON STOCK” means the
common stock, par value of $.0015, of the Company, or any security
issued by the Company in substitution or exchange therefor or in
lieu thereof.
“COMPANY” means Tech
Data Corporation, a Florida corporation and subsidiaries, or any
successor corporation.
“COVERED EMPLOYEE” means
any person who is a “covered employee” within the
meaning of Section 162(m) of the Code.
“CUMULATIVE NET INCOME”
means, in respect of any Performance Period, the aggregate
cumulative amount of the Adjusted Net Income for the fiscal years
of the Company during such Performance Period.
“CUMULATIVE NET INCOME PER
DILUTED SHARE” means, in respect of any Performance Period,
the aggregate cumulative amount of the Annual Net Income Per
Diluted Share for the fiscal years of the Company during such
Performance Period.
“DIRECTOR” means a
member of the Board.
“DISABILITY” means:
(i) for a Participant granted an Incentive Stock Option, a
physical or mental condition that qualifies as a
“disability” within the meaning of
Section 22(e)(3) of the Code; (ii) for a Participant
granted an Award other than Incentive Stock Options and employed in
the United States, a physical or mental condition that qualifies as
a “disability” under the U.S. long-term disability plan
of the Company (irrespective of whether the Participant is eligible
to participate in such plan) and which prevents such Participant
from being in the full-time active employment of the Company for
the entire period of 180 days immediately preceding termination of
employment; and (iii) for a Participant granted an Award and
employed outside of the United States, a physical or mental
condition that qualifies as a long-term disability as determined
under local law.
“DIVIDEND EQUIVALENT”
means, in respect of a Restricted Stock Unit, a Performance Award
or an Other Stock-Based Award, an amount equal to the cash dividend
on one share of Common Stock payable on a dividend payment
date.
“EMPLOYEE” means any
individual, including any Executive Officer of the Company, who is
on the active payroll of the Company or a Subsidiary at the
relevant time or as may be determined under local law.
“EXCHANGE ACT” means the
Securities Exchange Act of 1934, as amended and in effect from time
to time, including all rules and regulations promulgated
thereunder.
“EXECUTIVE OFFICER”
means, at any time, an individual who is an Executive Officer of
the Company within the meaning of Exchange Act Rule 3b-7 or who is
an officer of the Company within the meaning of Exchange Act Rule
16a-1(f).
“FAIR MARKET VALUE”
means, in respect of any date on or as of which a determination
thereof is being or to be made, the closing sales price of a share
of the Common Stock reported on such date on The NASDAQ Stock
Market or, if the Common Stock was not traded on such date, on the
preceding day on which sales of shares of the Common Stock were
reported on The NASDAQ Stock Market, or if shares of Common Stock
are not then listed on The NASDAQ Stock Market, the fair market
value of a share of Common Stock on such date as determined in good
faith by the Committee.
“GROUP” means two or
more persons acting as a partnership, limited partnership,
syndicate, or other group for the purpose of acquiring, holding, or
disposing of securities of an issuer within the meaning of
Section 13(d) and 14(d) under the Exchange Act.
“INCENTIVE STOCK OPTION”
means any Stock Option to purchase shares of Common Stock granted
pursuant to Section 7 of the Plan that is intended to be and
is specifically designated as an “incentive stock
option” within the meaning of Section 422A of the
Code.
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“NON-QUALIFIED STOCK
OPTION” means any Stock Option to purchase shares of Common
Stock granted pursuant to Section 7 of the Plan that is not an
Incentive Stock Option.
“OUTSIDE DIRECTOR” means
a Director who is not an Employee.
“OTHER STOCK-BASED
AWARDS” means a grant made pursuant to Section 11 of the
Plan.
“PARTICIPANT” means an
Employee or Outside Director to whom an Award has been granted
under the Plan.
“PERFORMANCE AWARD”
means a grant made pursuant to Section 10 of the Plan, the
amount and settlement of which is contingent on the achievement of
specific Performance Goals during a Performance Period, determined
using a specific Performance Measure, all as specified in the
related Award Agreement. Performance Awards may be granted in the
form of Stock Options, SARs, Restricted Stock, Restricted Stock
Units, and/or Other Stock-Based Awards.
“PERFORMANCE GOALS”
mean, with respect to a Performance Award, one or more targets,
goals or levels of attainment selected by the Committee required to
be achieved in terms of the specified Performance Measure during
the specified Performance Period.
“PERFORMANCE MEASURE”
means, with respect to a Performance Award, one or more of the
criteria identified at Section 10(c) of the Plan selected by
the Committee for the purpose of establishing, and measuring
attainment of, Performance Goals for a Performance Period in
respect of such grant, as provided in the related Award Agreement.
For purposes of clarity, the Committee may establish a Performance
Measure on a regional or jurisdictional basis, Subsidiary by
Subsidiary basis, product-line basis, consolidated Company basis,
or any other manner that it determines appropriate in its sole
discretion.
“PERFORMANCE PERIOD”
means, with respect to a Performance Award, the one or more periods
of time, which may be of varying and overlapping durations, as the
Committee may select during which the attainment of one or more
Performance Goals will be measured.
“PERSON” means a
“person” within the meaning of Section 13(d) and
14(d) under the Exchange Act.
“PLAN” means this 2009
Equity Incentive Plan of the Company, as may be amended from time
to time.
“RESTRICTED PERIOD”
means the period during which shares of Common Stock issued to a
Participant pursuant to an Award may not be sold, assigned,
transferred, pledged, hypothecated or otherwise disposed of, except
by will or the laws of descent and distribution, for such period,
beginning on the date on which the Award is granted.
“RESTRICTED STOCK” means
shares of Common Stock issued pursuant to Section 9 of the
Plan with a restriction on transferability, risk of forfeiture and
such other restrictions as the Committee, in its sole discretion
may impose, which restrictions generally will expire on a specified
date, upon the occurrence of a specified event and/or on an
accelerated basis under certain circumstances, as specified in this
Plan and set forth in the related Award Agreement.
“RESTRICTED STOCK UNIT”
means an unsecured and unfunded promise to deliver shares of Common
Stock in the future pursuant to Section 9 of the Plan, the
terms and conditions of which shall be specified in the related
Award Agreement.
“SAR” means a stock
appreciation right granted pursuant to Section 8 of the Plan,
which entitles a Participant to receive, in the form of a cash
payment or shares of Common Stock (as specified by the Committee),
an amount equal to the excess of the Fair Market Value of a
specified number of shares of Common Stock at the date of exercise
over an exercise price established by the Committee on the date of
grant.
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“SEC” means the United
States Securities and Exchange Commission or any successor
thereto.
“STOCK OPTION” means an
Incentive Stock Option and/or a Non-Qualified Stock
Option.
“SUBSIDIARY” means any
corporation or entity in which the Company directly or indirectly
owns or controls 50% or more of the equity securities issued by
such corporation or entity having the power to vote for the
election of directors.
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3.
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EFFECTIVE
DATE AND TERM
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(a) EFFECTIVE DATE. The Plan shall
be effective on June 10, 2009, subject to the approval by the
shareholders of the Company at the 2009 annual meeting of
shareholders or any adjournments thereof.
(b) TERM. The Plan shall remain in
effect until June 10, 2019, unless sooner terminated by the
Board. Notwithstanding the foregoing, upon termination of the Plan,
all Awards outstanding under the Plan will continue to have full
force and effect in accordance with the terms and conditions of the
Award Agreements evidencing such Awards.
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4.
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SHARES OF
COMMON STOCK SUBJECT TO PLAN
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(a) MAXIMUM NUMBER OF SHARES
AVAILABLE FOR ISSUANCE UNDER THE PLAN. The Aggregate Share Limit,
subject to adjustment as provided in Section 4(b) of the Plan,
shall be four million shares (4,000,000). The number of shares of
Common Stock to which an Award relates shall be counted against the
Aggregated Share Limit at the time of the grant of the Award. If
any Award under the Plan is cancelled by mutual consent or
terminates, expires or is forfeited for any reason without having
been exercised or settled in full, or if shares of Common Stock
pursuant to an Award are forfeited pursuant to the restrictions
applicable to the Award, or if an Award is settled in the form of
cash, cash equivalents or other property other than shares of
Common Stock, the number of shares subject thereto shall again be
available for purposes of the Plan. Notwithstanding the foregoing,
the following shares of Common Stock shall not become available for
purposes of the Plan:
(i) shares of Common Stock
previously owned or acquired by the Participant that are delivered
to the Company, or withheld from settlement of an Award, to pay the
exercise price;
(ii) shares of Common Stock that are
delivered or withheld for purposes of satisfying an income tax or
social insurance contribution withholding obligation; or
(iii) shares of Common Stock
reserved for issuance upon the grant of an SAR that exceed the
number of shares actually issued upon exercise.
The shares of Common Stock which may
be issued under the Plan may be authorized and unissued shares or
issued shares which have been reacquired by the Company. No
fractional shares of Common Stock shall be issued under the
Plan.
(b) ADJUSTMENTS UPON CHANGES IN
CAPITAL STRUCTURE. In the event of any change in the capital
structure, capitalization or Common Stock of the Company such as a
stock dividend, stock split, recapitalization, merger,
consolidation, split-up, combination or exchange of shares or other
form of reorganization, or any other change affecting the Common
Stock, such proportionate adjustments, if any, as the Board in its
discretion may deem appropriate to reflect such change shall be
made with respect to: (i) the Aggregate Share Limit and any
other share limitations provided under the Plan; (ii) the
number of shares of Common Stock subject to any outstanding or
other Award made to any individual Participant under the Plan;
(iii) the per share exercise price in respect of any
outstanding Stock Options; (iv) the number of shares of Common
Stock and the number of Restricted Stock Units or the value of such
Restricted Stock Units, as the case may be, which are the subject
of other Awards then outstanding under the Plan; and (v) any
other term or condition of any grant affected by any such change;
provided however
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that such adjustments be made in accordance with
the rules and regulations of Section 409A of the Code and
provided further that no such adjustment shall be authorized to the
extent that such authority would cause the Plan to violate
Section 422(b)(1) of the Code and with respect to any Award no
such adjustment shall be authorized to the extent that such
authority would be inconsistent with the Plan’s meeting the
requirements of Section 162(m) of the Code. Notwithstanding
the foregoing, any adjustments made pursuant to this section that
are considered “deferred compensation” under
Section 409A of the Code shall be made in compliance with the
requirements of Section 409A of the Code and any adjustments
that are not considered “deferred compensation” subject
to Section 409A of the Code shall be made in such manner as to
ensure that after such adjustment, the Awards either
(A) continue not to be subject to Section 409A of the
Code or (B) comply with the requirements of Section 409A
of the Code.
(c) NO REPRICINGS OR EXCHANGES
WITHOUT SHAREHOLDER APPROVAL. Except in connection with a corporate
transaction involving the Company (including, without limitation,
any stock dividend, stock split, extraordinary cash dividend,
recapitalization, reorganization, merger, consolidation, split-up,
spin-off, combination, or exchange of shares), the Committee shall
neither lower the exercise price of a Stock Option or an SAR, nor
grant any Award or provide cash in replacement of a cancelled Stock
Option or SAR that had been granted at a higher exercise price,
without the prior approval of the Company’s
shareholders.
(a) THE COMMITTEE. The Plan shall be
administered by the Committee. A majority of the members of the
Committee shall constitute a quorum for the transaction of business
and the acts of a majority of the members present at any meeting at
which a quorum is present shall be the acts of the Committee. Any
one or more members of the Committee may participate in a meeting
by conference telephone or similar means where all persons
participating in the meeting can hear and speak to each other,
which participation shall constitute presence in person at such
meeting. Action approved in writing by a majority of the members of
the Committee then serving shall be fully as effective as if the
action had been taken by unanimous vote at a meeting duly called
and held. The Company shall make grants and effect Awards under the
Plan in accordance with the terms and conditions specified by the
Committee, which terms and conditions shall be set forth in Award
Agreements and/or other instruments in such forms as the Committee
shall approve.
(b) COMMITTEE POWERS. The Committee
shall have full power and authority to operate and administer the
Plan in accordance with its terms. The powers of the Committee
include, but are not limited to:
(i) select Participants from among
Employees;
(ii) establish guidelines, criteria
and overall numbers of and limits of Awards;
(iii) establish the types of, and
the terms and conditions of, all Awards made under the Plan,
subject to any applicable limitations set forth in, and consistent
with the express terms of, the Plan;
(iv) make grants, conditionally or
unconditionally, and pay or otherwise effect Awards subject to, and
consistent with, the express provisions of the Plan;
(v) establish Performance Goals,
Performance Measures and Performance Periods, subject to, and
consistent with, the express provisions of the Plan;
(vi) reduce the amount of any
Award;
(vii) prescribe the form(s) of Award
Agreements and other instruments evidencing Awards under the
Plan;
(viii) pay and to defer payment of
Awards on such terms and conditions, not inconsistent with the
express terms of the Plan, as the Committee shall
determine;
(ix) direct the Company to make
conversions, accruals and payments pursuant to the Plan;
(x) determine whether, to what
extent and under what circumstances an Award may be settled,
cancelled, forfeited, accelerated, exchanged, deferred (in
accordance with the requirements of Section 409A of the Code)
or surrendered;
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(xi) construe and interpret the Plan
and make any determination of fact incident to the operation of the
Plan;
(xii) promulgate, amend and rescind
rules and regulations relating to the implementation, operation and
administration of the Plan;
(xiii) accelerate the date on which
any Award may be exercised and may accelerate the vesting of any
shares of Common Stock subject to any Award or previously acquired
shares by the exercise of any Stock Option subject to restriction
of plan and in compliance with 409A);
(xiv) delegate responsibility for
Plan operation, management and administration on such terms
consistent with the Plan, as the Committee may
establish;
(xv) delegate to other persons the
responsibility for prescribing the form(s) of Award Agreements and
other instruments evidencing Awards under the Plan;
(xvi) engage the services of persons
and firms, including banks, consultants, insurance companies and
broker-dealers in furtherance of the Plan’s activities;
and
(xvii) make all other determinations
and take all other actions as the Committee may deem necessary or
advisable for the administration and operation of the
Plan.
The Committee may, in its sole
discretion, delegate to one or more Executive Officers the power to
select Participants from among the Employees provided that at the
time of such grant no recipient of such grants shall be an
Executive Officer. The Committee may correct any defect or supply
any omission or reconcile any inconsistency in the Plan or in any
Award granted thereunder in the manner and to the extent that it
shall deem necessary or advisable to carry the Plan into effect and
shall be the sole and final judge of such necessity or
advisability.
(c) BINDING ACTION. Any
determination, decision or action of the Committee in connection
with the construction, interpretation, administration or
application of the Plan, and of any Award Agreement, shall be
final, conclusive and binding upon all Participants, and all
persons claiming through Participants, affected thereby. No
Committee member or delegate thereof shall be liable for any action
taken or determination made, or which the Committee member or
delegate fails to take or make, in good faith with respect to the
Plan or any Awards granted thereunder.
(d) ADMINISTRATIVE ACCOUNTS. For the
purpose of accounting for Stock Options, SARs, Restricted Stock,
Restricted Stock Units, Performance Awards or Other Stock-Based
Awards where settlement is deferred into the future, the Company
shall establish bookkeeping accounts evidencing the shares of
Common Stock underlying such Awards and bearing the name of each
Participant receiving such Awards. Each account shall be unsecured
and unfunded, unless otherwise determined by the Committee in
accordance with the terms of the Plan.
(e) CERTIFICATIONS. In respect of
each grant under the Plan to a Covered Employee which the Committee
intends to be “performance-based compensation” under
Section 162(m) of the Code, the Plan and the related Award
Agreement shall be construed to confirm such intent, and to conform
to the requirements of Section 162(m) of the Code, and the
Committee shall certify in writing (which writing may include
approved minutes of a meeting of the Committee) that the applicable
Performance Goal(s), determined using the Performance Measure
specified in the related Award Agreement, was attained during the
relevant Performance Period at a level that equaled or exceeded the
level required for the payment of such Award in the amount proposed
to be paid and that such Award does not exceed any applicable Plan
limitation.
(f) AWARDS TO EMPLOYEES OUTSIDE OF
THE UNITED STATES. The Committee may grant Awards to Employees who
reside in countries outside of the United States. Notwithstanding
anything in the Plan to the contrary, the Committee may, in its
sole discretion:
(i) amend or vary the terms of the
Plan in order to conform such terms with the requirements of each
country where a Subsidiary is located;
(ii) amend or vary the terms of the
Plan in each country where a Subsidiary is located as it considers
necessary or desirable to take into account or to mitigate or
reduce the burden of taxation and social insurance contributions
for Participants and/or the Subsidiary; or
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(iii) amend or vary the terms of the
Plan in a country where the Subsidiary is located as it considers
necessary or desirable to meet the goals and objectives of the
Plan.
The Committee may, where it deems
appropriate in its sole discretion, establish one or more sub-plans
of the Plan for these purposes. The Committee may, in its sole
discretion, establish administrative rules and procedures to
facilitate the operation of the Plan in such jurisdictions. The
terms and conditions contained herein which are subject to
variation in a country shall be reflected in a written attachment
to the Plan for each Subsidiary in such country. To the extent
permitted under applicable law, the Committee may delegate its
authority and responsibilities hereunder to one or more Executive
Officers of the Company.
(a) AWARDS TO EMPLOYEES. The
Committee may, in its sole discretion, grant Awards to any Employee
under the Plan and to establish the terms and conditions applicable
to such Awards.
(b) AWARDS TO OUTSIDE DIRECTORS. The
Board (in lieu of the Committee) may, in its sole
discretion,