Td Synnex Corp S-3ASR, filed Oct 10, 2023
Td Synnex Corp (SNX)
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As filed with the Securities and Exchange Commission on October 10, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TD SYNNEX Corporation
(Exact name of registrant as specified in its charter)
| Delaware | 94-2703333 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification Number) |
44201 Nobel Drive
Fremont, California 94538
(510) 656-3333
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
David Vetter
Chief Legal Officer
16202 Bay Vista Drive
Clearwater, FL 33760
(727) 539-7429
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copy to:
Allison M. Leopold Tilley
Davina K. Kaile
Pillsbury Winthrop Shaw Pittman LLP
2550 Hanover Street
Palo Alto, CA 94304
(650) 233-4500
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the SEC pursuant to Rule 462(e) under the Securities Act, check the following box. ☒
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act:
| Large accelerated filer | ☒ | Accelerated filer | ☐ | |||
| Non-accelerated filer | ☐ | Smaller reporting company | ☐ | |||
| 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 7(a)(2)(B) of Securities Act. ☐
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EXPLANATORY NOTE
Pursuant to Rule 429 under the Securities Act of 1933, as amended (the “Securities Act”), the prospectus (the “Prospectus”) included in this registration statement on Form S-3 (the “Registration Statement”) is a combined prospectus relating to this Registration Statement and to the registration statement on Form S-3 (File No. 333-259270), previously filed by TD SYNNEX Corporation (formerly “SYNNEX Corporation”) which became effective automatically on September 2, 2021 (the “Prior Registration Statement”) relating to the offer and resale of up to an aggregate of 44,000,000 shares of common stock previously issued to the selling stockholders named therein, of which 35,199,549 shares remain unsold under the Prior Registration Statement. This Registration Statement, which is a new registration statement, combines the remaining 35,199,549 shares of common stock from the Prior Registration Statement, with an additional 9,762,063 shares of common stock, all of which were previously issued to, and are registered hereby for offer and resale by, the additional selling stockholders named in the Prospectus, to enable an aggregate of 44,961,612 shares of common stock to be offered pursuant to the combined prospectus. Pursuant to Rule 429 under the Securities Act, this Registration Statement also constitutes a post-effective amendment to the Prior Registration Statement (the “Post-Effective Amendment”), and such Post-Effective Amendment shall become effective concurrently with the effectiveness of this Registration Statement in accordance with Section 8(c) of the Securities Act.
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PROSPECTUS
TD SYNNEX Corporation
Common Stock
This prospectus relates to the offer and resale from time to time by the selling stockholders of TD SYNNEX Corporation listed on page 7 of up to an aggregate of 44,961,612 shares of our common stock, par value $0.001 per share, consisting of up to: (a) 35,199,549 shares of our common stock previously registered for resale by certain entities managed by affiliates of Apollo Global Management, Inc. (the “Apollo Selling Stockholders”) pursuant to the prior registration statement on Form S-3 filed and which became effective automatically on September 2, 2021 (File No. 333-259270) and (b) 9,762,063 shares of our common stock registered for resale by certain entities affiliated with MiTAC Holdings Corporation (the “MiTAC Selling Stockholders” and, together with the Apollo Selling Stockholders, the “Initial Selling Stockholders”) pursuant to this registration statement on Form S-3 of which this prospectus forms a part, as well as the pledgees, donees, transferees, assignees, successors, designees and others who later come to hold any of the Initial Selling Stockholders’ interest in our common stock other than through a public sale (collectively with the Initial Selling Stockholders, the “Selling Stockholders”). The Apollo Selling Stockholders acquired their shares from us in connection with our acquisition of Tiger Parent (AP) Corporation (“Tiger Parent”), the indirect parent entity of Tech Data Corporation, a Florida corporation (“Tech Data”). Such shares of common stock were sold and issued by us to the Apollo Selling Stockholders pursuant to the terms and subject to the conditions of the Agreement and Plan of Merger (the “Merger Agreement”), dated as of March 22, 2021, by and among TD SYNNEX Corporation, a Delaware corporation (“TD SYNNEX,” “we,” “us” or “our”), Spire Sub I, Inc., a Delaware corporation and a wholly-owned subsidiary of SYNNEX (“Merger Sub I”), Spire Sub II, LLC, a Delaware limited liability company and a direct wholly owned subsidiary of SYNNEX (“Merger Sub II”), and Tiger Parent, and the related agreements. In 1992, MiTAC International Corporation (“MiTAC International”), through its wholly owned subsidiary, Silver Star Development, Ltd., acquired a controlling interest in us and, prior to the completion of our initial public offering, had increased its beneficial ownership interest in us to approximately 98%. In September 2013, MiTAC Holdings Corporation (“MiTAC Holdings”) was established through a stock swap from MiTAC International, which is now a wholly owned subsidiary of MiTAC Holdings.
We are not selling any shares of our common stock under this prospectus and we will not receive any of the proceeds from the sale of shares by the Selling Stockholders. Our registration of the shares of our common stock covered by this prospectus does not mean the Selling Stockholders will offer or sell any of the shares of our common stock. The Selling Stockholders may sell the shares of common stock described in this prospectus through a number of different ways and at varying prices, including through public or private transactions at market prices prevailing at the time of sale or at negotiated prices. We provide more information about how the Selling Stockholders may sell their shares of common stock in the section of this prospectus entitled “Plan of Distribution.”
Our common stock is listed on The New York Stock Exchange under the symbol “SNX.” On October 9, 2023, the last reported sale price for our common stock on The New York Stock Exchange was $98.69 per share.
Investing in our common stock involves a high degree of risk. Before investing, you should carefully consider the matters described under the caption “Risk Factors” beginning on page 4.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is October 10, 2023.
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This prospectus is part of an automatic shelf registration statement that we filed with the Securities and Exchange Commission (the “SEC”) as a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”), utilizing a “shelf” registration process. Under this process, the Selling Stockholders may sell shares of common stock from time to time in one or more offerings through any means described in the section entitled “Plan of Distribution.” Any applicable prospectus supplement may add, update, or change information contained in this prospectus.
You should read this prospectus together with any applicable prospectus supplement, as well as additional information described under the heading “Where You Can Find More Information.” You should rely only on the information contained or incorporated by reference in this prospectus, any accompanying prospectus supplement and any applicable “free writing prospectus.” We have not authorized, and the Selling Stockholders have not authorized, anyone else to provide you with different or additional information. No offer of shares of common stock is being made in any jurisdiction where the offer or sale is not permitted.
You should not assume that the information in this prospectus, any accompanying prospectus supplement, or any document incorporated by reference herein or therein is accurate as of any date other than their respective dates. Our business, financial condition, results of operations, and prospects may have changed since those dates. You should carefully read the entire prospectus, as well as the documents incorporated by reference in the prospectus, any applicable prospectus supplement and any applicable “free writing prospectus” before making an investment decision.
References in this prospectus to the terms “the Company,” “TD SYNNEX,” “SYNNEX,” “we,” “our” and “us” or other similar terms mean TD SYNNEX Corporation and its wholly owned subsidiaries, unless we state otherwise, or the context indicates otherwise.
Throughout this prospectus, when we refer to the shares of our common stock being registered on behalf of the Selling Stockholders, we are referring to all shares of common stock reported to us as held by such stockholders as of October 9, 2023. We agreed to file this prospectus pursuant to an Investor’s Rights Agreement with the Apollo Selling Stockholders dated September 1, 2021 (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed with the SEC on September 2, 2021) and a Letter Agreement with the MiTAC Selling Stockholders dated September 3, 2021 (the “MiTAC Letter Agreement”) (incorporated by reference to Exhibit 4.12 to our Annual Report on Form 10-K for the year ended November 30, 2021). Additional information with respect to the Selling Stockholders is contained in this prospectus under the heading “Selling Stockholders.”
When we refer to the Selling Stockholders in this prospectus, we are referring to the entities named in this prospectus as the Initial Selling Stockholders and, as applicable, any donees, pledgees, transferees or other successors-in-interest selling shares of common stock or interests in shares of common stock received after the date of this prospectus from the Initial Selling Stockholders as a gift, pledge, partnership distribution, redemption, repurchase or cancellation, or other non-sale related transfer.
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This summary highlights selected information contained elsewhere in this prospectus. This summary does not contain all information that you should consider before investing in our common stock. You should read the following summary together with the more detailed information regarding TD SYNNEX, the common stock being registered hereby, our financial statements and notes thereto and our risk factors, before deciding whether to purchase shares of our common stock from the Selling Stockholders.
Company Overview
We are a Fortune 100 corporation and a leading provider of a comprehensive range of distribution, systems design, and integration services for the technology industry.
We distribute PC systems, mobile phones and accessories, printers, peripherals, information technology (“IT”) systems including data center server and storage solutions, system components, software, networking, communications and security equipment, consumer electronics and complementary products. We also provide systems design and integration solutions. We distribute more than 200,000 technology products (as measured by active SKUs) from more than 1,500 original equipment manufacturers, as well as suppliers of next- generation technologies and delivery models such as converged and hyper-converged infrastructure, the cloud, security, big data/analytics/Internet of things and services. Our products are marketed globally to an active reseller base of more than 150,000 resellers, system integrators, and retailers. We purchase peripherals, IT systems, system components, software, networking, communications and security equipment, consumer electronics and complementary products from our suppliers and sell them to our reseller and retail customers. We perform a similar function for our distribution of licensed software products. Our reseller customers include value-added resellers, corporate resellers, government resellers, system integrators, direct marketers, retailers and managed service providers. We provide our vendors with access to large and highly fragmented markets such as small- and medium-sized businesses and serve as a variable, cost effective route to market for our vendors by providing them with access to resellers and end-users. We combine our core strengths in distribution with demand generation, supply chain management and design and integration solutions to help our customers achieve greater efficiencies in time to market, cost minimization, real-time linkages in the supply chain and aftermarket product support. We also provide comprehensive IT solutions in key vertical markets such as government and healthcare and we provide specialized service offerings that increase efficiencies in the areas of global computing components, logistics services and supply chain management. Additionally, we provide our customers with systems design and integration solutions for data center servers and networking solutions built specific to our customers’ workloads and data center environments.
Corporate Information
We have been in business since 1980 and have headquarters in both Clearwater, Florida and Fremont, California. We were originally incorporated in the State of California as COMPAC Microelectronics, Inc. in November 1980, and we changed our name to SYNNEX Information Technologies, Inc. in February 1994. We later reincorporated in the State of Delaware under the name of SYNNEX Corporation in October 2003. As a result of the Mergers (as defined below), on October 22, 2021, we filed with the Secretary of State of the State of Delaware a Certificate of Amendment to the Company’s Restated Certificate of Incorporation to change our corporate name from SYNNEX Corporation to TD SYNNEX Corporation, effective November 3, 2021. Our common stock is listed on The New York Stock Exchange under the symbol “SNX.” Our principal executive offices are located at 44201 Nobel Drive, Fremont, California 94538, and our telephone number is (510) 656-3333.
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Merger Transactions
On September 1, 2021, we completed our acquisition of Tiger Parent (AP) Corporation, a Delaware Corporation (“Tiger Parent”), which is the parent corporation of Tech Data Corporation, a Florida corporation (“Tech Data”). The acquisition was completed pursuant to the terms and conditions of the Agreement and Plan of Merger (the “Merger Agreement”), dated March 22, 2021 by and among SYNNEX Corporation, Spire Sub I, Inc., a Delaware corporation and a wholly owned subsidiary of SYNNEX Corporation (“Merger Sub I”), Spire Sub II, LLC, a Delaware limited liability company and a wholly owned subsidiary of SYNNEX Corporation (“Merger Sub II”), and Tiger Parent, pursuant to which, subject to the terms and conditions of the Merger Agreement, Merger Sub I merged with and into Tiger Parent (the “Initial Merger”), with Tiger Parent surviving the Initial Merger as a wholly owned subsidiary of SYNNEX Corporation (such surviving corporation, the “Surviving Corporation”), followed immediately by the merger of the Surviving Corporation with and into Merger Sub II (the “Subsequent Merger” and together with the Initial Merger, the “Mergers”), with Merger Sub II surviving the Subsequent Merger as a wholly owned subsidiary of SYNNEX Corporation.
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The Offering
| Common stock registered for resale by the Selling Stockholders |
44,961,612 shares |
| The New York Stock Exchange symbol |
SNX |
| Use of proceeds |
All of the shares of common stock being offered under this prospectus are being sold by the Selling Stockholders. Accordingly, we will not receive any proceeds from the sale of these shares. |
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Investing in our securities involves risk. Prior to making a decision about investing in our securities, you should carefully consider the specific factors discussed below and under the heading “Risk Factors” contained in our most recent Annual Report on Form 10-K and most recent Quarterly Reports on Form 10-Q and any other filings we make with the SEC from time to time that are incorporated herein by reference, as well as the “Risk Factors” contained in any prospectus supplement, together with all of the other information contained or incorporated by reference in this prospectus or any prospectus supplement. See “Where You Can Find More Information” in this prospectus. The risks and uncertainties we have described therein and below are not the only risks that we face. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our operations. In that case, the trading price of our common stock could decline.
Sales or the availability for sale of a substantial number of shares of our common stock in the public market could cause our stock price to be volatile or fall.
Sales of a substantial number of shares of our common stock in the public market or the perception that these sales might occur could abruptly depress the market price of our common stock and could impair our ability to raise capital through the sale of additional equity securities. As of August 31, 2023, we had approximately 92,737,234 shares of our common stock outstanding, 38.0% of which is held by the Apollo Selling Stockholders and 10.5% of which is held by the MiTAC Selling Stockholders. The Selling Stockholders may choose to sell some or all or none of their shares of common stock. The sale or the availability for sale of a large number of shares of our common stock in the public market from time to time could increase the potential for stock price volatility or cause the price of our common stock to decline. Even if we put strategies in place to attempt to address potential or actual volatility, the effectiveness of such strategies is uncertain. In addition, the Selling Stockholders have certain registration rights that require us to register the sale of common stock held by them, including in connection with underwritten offerings. Further, certain of the Selling Stockholders have pledged a significant number of the shares of common stock held by them pursuant to margin loan agreements, and any foreclosure upon those shares could result in sales of a substantial number of shares of our common stock in the public market, which could substantially decrease the market price of our common stock.
Our bylaws provide that the Court of Chancery of the State of Delaware will be the exclusive forum for substantially all disputes between us and our stockholders, which could limit our stockholders’ ability to obtain a favorable judicial forum for disputes with us or our directors, officers or employees.
Our bylaws provide that the Court of Chancery of the State of Delaware (or, if the Court of Chancery does not have jurisdiction, the federal district court for the District of Delaware) is the exclusive forum for (i) any derivative action or proceeding brought on behalf of the corporation, (ii) any action asserting a claim of breach of fiduciary duty owed by any current or former director, officer, other employee or agent of the corporation to the corporation or the corporation’s stockholders, including a claim alleging the aiding and abetting of such a breach of fiduciary duty, (iii) any action asserting a claim arising pursuant to any provision of the Delaware General Corporation Law or the bylaws or the certificate of incorporation or (iv) any action asserting a claim governed by the internal affairs doctrine or asserting an “internal corporate claim”. This choice of forum provision may limit a stockholder’s ability to bring a claim in a different judicial forum that such stockholder views as more favorable for such disputes which may discourage such lawsuits against us and our directors, officers and other employees. Alternatively, if a court were to find the choice of forum provisions contained in our bylaws to be inapplicable or unenforceable in an action, we may incur additional costs associated with resolving such action in other jurisdictions, which could adversely affect our business and financial condition.
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Forward-looking statements included in this prospectus, any prospectus supplement, information incorporated by reference herein or therein and any related free-writing prospectus are based on various facts and derived utilizing numerous important assumptions are subject to known and unknown risks, uncertainties and other factors that may cause our actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by such forward-looking statements. Forward-looking statements include the information concerning our future financial performance, business strategy, projected plans and objectives, as well as projections of macroeconomic and industry trends, which are inherently unreliable due to the multiple factors that impact economic trends, and any such variations may be material. Statements preceded by, followed by or that otherwise include the words “believes,” “expects,” “anticipates,” “intends,” “projects,” “estimates,” “plans,” and similar expressions or future or conditional verbs such as “will,” “should,” “would,” “may” and “could” are generally forward looking in nature and not historical facts. Factors that could cause our actual results to differ materially from those described in the forward-looking statements include, but are not limited to, those discussed in the section entitled “Risk Factors” contained herein and in any Annual Report on Form 10-K and any Quarterly Report on Form 10-Q incorporated by reference in this prospectus and in the section of any related prospectus supplement entitled “Risk Factors.
Except as required by law, we undertake no obligation to update any forward-looking statements in order to reflect any event or circumstance that may arise after the date of this prospectus. However, readers should carefully review the reports and documents we file or furnish from time to time with the SEC, particularly our annual reports on Form 10-K, quarterly reports on Form 10-Q and current reports on Form 8-K. For information about how to obtain a copy of these reports or other documents that we file with the SEC, see “Where You Can Find More Information” in this prospectus.
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The Selling Stockholders will make offers and sales pursuant to this prospectus and any applicable prospectus supplement. We will not receive any proceeds from the sale or other disposition by the Selling Stockholders of the shares of our common stock covered hereby, or interests therein. The Selling Stockholders will pay all applicable underwriting fees, discounts and similar charges (pro rata based on the securities sold). The Selling Stockholders shall be entitled to a single counsel at our expense to be selected by the Selling Stockholders. We will bear all other costs, fees and expenses incurred in effecting the registration of the shares covered by this prospectus, including, without limitation, all registration fees, listing fees of The New York Stock Exchange and fees and expenses of our counsel and our independent registered public accounting firm.
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We are registering for resale an aggregate of up to 44,961,612 shares of our common stock that may be sold by the Initial Selling Stockholders set forth herein, as well as the pledgees, donees, transferees, assignees, successors, designees and others who later come to hold any of the Initial Selling Stockholders’ interest in our common stock other than through a public sale (collectively with the Initial Selling Stockholders, the “Selling Stockholders”). Such shares were sold and issued by us to: (a) the former sole stockholder of Tiger Parent pursuant to the terms of the Merger Agreement and the related agreements, and (b) the MiTAC Selling Stockholders, in each case under an exemption from registration under Section 4(a)(2) of the Securities Act. In January 2023, an aggregate of 5,175,000 shares of common stock were sold by the Apollo Selling Stockholders pursuant to the Prior Registration Statement.
Beneficial ownership is determined in accordance with the rules of the SEC and includes voting or investment power with respect to our common stock. Under rules of the SEC, a person is deemed to be a “beneficial owner” of a security if that person has or shares voting power or investment power, which includes the power to dispose of or to direct the disposition of such security. A person is also deemed to be a beneficial owner of any securities of which that person has a right to acquire beneficial ownership within 60 days. Securities that can be so acquired are deemed to be outstanding for purposes of computing such person’s ownership percentage, but not for purposes of computing any other person’s percentage. Under these rules, more than one person may be deemed to be a beneficial owner of the same securities, and a person may be deemed to be a beneficial owner of securities as to which such person has no economic interest.
The Selling Stockholders may sell some, all, or none of their shares of common stock offered by this prospectus from time to time. Other than the Merger Agreement and the agreements contemplated thereby or described below, we currently have no agreements, arrangements or understandings with the Selling Stockholders regarding the sale of any of the shares of common stock being offered hereunder. Other than the rights provided to the Apollo Selling Stockholders pursuant to that certain Investor’s Rights Agreement dated September 1, 2021 (filed as Exhibit 10.1 to our Current Report on Form 8-K filed with the SEC on September 2, 2021), and the MiTAC Letter Agreement, dated as of September 3, 2021, by and between SYNNEX Corporation, Silver Star Developments Ltd. And Peer Developments Ltd. (filed as Exhibit 4.12 to our Annual Report on Form 10-K for the year ended November 30, 2021) and as otherwise described herein, none of the Selling Stockholders have, and within the past three years have had, any position, office or other material relationship with us or any of our affiliates.
Selling Stockholder information for any additional Selling Stockholders, if any, will be set forth by prospectus supplement to the extent required prior to the time of any offer or sale of such Selling Stockholders’ shares pursuant to this prospectus. Any prospectus supplement may add, update, substitute, or change the information contained in this prospectus, including the identity of the Selling Stockholders and the number of shares registered on their behalf. Any of the Selling Stockholders may sell or otherwise transfer all, some or none of such shares in this offering. See “Plan of Distribution.”
| Prior to the Offering | After the Offering | |||||||||||||||||||
| Name of Selling Stockholder | Number of Shares of Common Stock Beneficially Owned |
Percent of Shares of Common Stock Outstanding (1) |
Number of Shares of Common Stock Being Registered for Resale (2) |
Number of Shares of Common Stock Beneficially Owned (3) |
Percent of Shares of Common Stock Outstanding |
|||||||||||||||
| Entities managed by affiliates of Apollo Global Management Inc.(4) |
35,199,549 | 38.0 | % | 35,199,549 | — | — | ||||||||||||||
| Entities affiliated with MiTAC Holdings Corporation and related parties(5) |
9,762,063 | 10.5 | % | 9,762,063 | — | — | ||||||||||||||
| (1) | Based on 92,737,234 shares outstanding as of August 31, 2023. |
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| (2) | Represents the number of shares being registered on behalf of the Selling Stockholder pursuant to this registration statement, which may be less than the total number of shares beneficially owned by such Selling Stockholder. |
| (3) | Assumes that the Selling Stockholders dispose of all of the shares of common stock covered by this prospectus and do not acquire beneficial ownership of any additional shares. The registration of these shares does not necessarily mean that the Selling Stockholders will sell all or any portion of the shares covered by this prospectus. |
| (4) | Tiger Parent Holdings, L.P. (“Tiger Holdings”), AP IX Tiger Holdings, L.P. (“AP IX Tiger”), AP IX Tiger Co-Invest II, L.P. (“Tiger Co-Invest”) and AP IX Tiger Co-Invest (ML), L.P. (“Tiger Co-Invest ML”) each hold shares of the Company. The shares of common stock to be sold in this offering are held by AP IX Tiger, Tiger Co-Invest, Tiger Co-Invest ML, and Tiger Holdings. Tiger Parent Holdings GP, LLC (“Tiger GP”) is the general partner of Tiger Holdings. AP IX Tiger is the sole member of Tiger GP. AP IX Tiger Co-Invest (ML) GP, LLC (“Tiger Co-Invest ML GP”) is the general partner of Tiger Co-Invest ML. AP IX Tiger Holdings GP, LLC (“AP IX Tiger GP”) is the general partner of each of AP IX Tiger and Tiger Co-Invest, and the sole member of Tiger Co-Invest ML GP. Apollo Management IX, L.P. (“Management IX”) is the non-member manager of AP IX Tiger GP. The general partner of Management IX is AIF IX Management, LLC (“AIF IX LLC”). Apollo Management, L.P. (“Apollo LP”) is the sole member and manager of AIF IX LLC. Apollo Management GP, LLC (“Management GP”) is the general partner of Apollo LP. Apollo Management Holdings, L.P. (“Management Holdings”) is the sole member of Management GP. Apollo Management Holdings GP, LLC (“Management Holdings GP”) is the general partner of Management Holdings. Each of the entities listed herein, other than Tiger Holdings, AP IX Tiger, Tiger Co-Invest, and Tiger Co-Invest ML, disclaims beneficial ownership of any shares of the common stock owned of record by Tiger Holdings, AP IX Tiger, Tiger Co-Invest, and Tiger Co-Invest ML, except to the extent of any pecuniary interest therein. Joshua Harris, Scott Kleinman, Marc Rowan and James Zelter are the managers, as well as executive officers, of Management Holdings GP. Each of the entities listed above, other than Tiger Parent Holdings, L.P., and each of Messrs. Harris, Kleinman, Rowan and Zelter, disclaims beneficial ownership of any shares of the Company’s common stock owned of record by Tiger Parent Holdings, L.P. The address of the principal office of each of Tiger GP, Tiger Co-Invest ML GP, and AP IX Tiger GP is One Manhattanville Road, Suite 201, Purchase, New York 10577. The address of the principal office of each of Tiger Holdings, AP IX Tiger, Tiger Co-Invest, Tiger Co-Invest ML, and Management Holdings is One Manhattanville Road, Suite 201, Purchase, New York 10577. The address of the principal office of each of Management IX, AIF IX LLC, Apollo LP, Management GP, and Management Holdings GP is 9 West 57th Street, New York, NY10019. |
The proceeds of the shares offered by Tiger Holdings will be distributed to certain members of management of the Company. Such members of management had been members of management of Tech Data Corporation and had exchanged their profits interests of Tiger Holdings on August 26, 2021 for the right to receive shares of the Company.
| (5) | Based on information reported on a Schedule 13G/A filed with the SEC on February 13, 2023 and a subsequent Form 4 filed with the SEC on April 5, 2023, this amount includes 2,594,649 shares held by MiTAC International Corporation (“MIC”), 2,403,229 shares held by MiTAC Holdings Corporation (“MHC”), 302,102 shares held by Silver Star Developments Ltd. (“SSDL”) and 3,859,888 shares held by Peer Developments Ltd. (“PEER”). SSDL is a wholly owned subsidiary of MIC, and MIC is a wholly owned subsidiary of MHC. The principal business office for MIC and SSDL is No. 200 Wenhua 2nd Road, Guishan Dist., Taoyuan City 333, Taiwan. Jhi-Wu Ho and Hsiang-Yun Yang, the directors of SSDL, hold shared voting and dispositive power over the shares held by SSDL. PEER is a wholly owned subsidiary of Synnex Technology International Corporation (“Synnex Technology”). The principal business office for Synnex Technology and PEER is 4th Floor, No. 75 Sec. 3, Minsheng East Road, Zhongshan Dist., Taipei City 104, Taiwan. Matthew F.C. Miau and Shu-Wu Tu, the directors of PEER, hold shared voting and dispositive power over the shares held by PEER. Matthew F.C. Miau is the Chairman of the board of directors of MIC and Synnex Technology and a director of TD SYNNEX. Each of the reporting persons disclaims membership in a group. The beneficial ownership of the 602,195 shares Matthew F.C. Miau |
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| claims includes 195,542 shares directly held by Mr. Miau, 217,050 shares indirectly held by MASJ Holding Charitable Remainder Trust, and 189,603 shares indirectly held by Mr. Miau’s spouse. In addition, MIC disclaims beneficial ownership of the 3,859,888 shares directly held by PEER and disclaims beneficial ownership of the 602,195 shares by Mr. Miau. Synnex Technology disclaims beneficial ownership of the 302,102 shares directly held by SSDL and disclaims beneficial ownership of the 602,195 shares by Mr. Miau. Mr. Miau disclaims beneficial ownership of the 2,594,649 shares held by MIC, 2,403,229 shares held by MHC, 302,102 shares directly held by SSDL and disclaims beneficial ownership of the 3,859,888 shares directly held by PEER. |
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MATERIAL RELATIONSHIPS WITH SELLING STOCKHOLDERS
Apollo
Apollo Global Management, Inc. (“Apollo” and, together with its affiliates (including the Selling Stockholders), the “Apollo Entities”) is an affiliate of the Company. Without giving effect to any resale of shares of common stock pursuant to this prospectus, the Apollo Entities beneficially owned approximately 38.0% of outstanding shares of our common stock.
The Apollo Entities acquired these shares from us in connection with our acquisition of Tiger Parent, the indirect parent entity of Tech Data. Such shares of common stock were sold and issued by us to the Apollo Entities pursuant to the terms and subject to the conditions of the Merger Agreement. Additionally, in connection with the completion of the Mergers, we entered into an Investor Rights Agreement (the “Investor Rights Agreement”) with Tiger Holdings, an affiliate of Apollo. Pursuant to the Investor Rights Agreement, the Apollo Entities have the right to nominate (i) up to four directors if the Apollo Entities own 30% or more of the outstanding shares of our common stock, (ii) up to three directors if the Apollo Entities own between 20% and 30% of the outstanding shares of our common stock, (iii) up to two directors, if the Apollo Entities own between 10% and 20% of the outstanding shares of our common stock or (iv) up to one director, if the Apollo Entities own between 5% and 10% of the outstanding shares of our common stock (such directors nominated by the Apollo Entities, the “Apollo Directors”). The current Apollo Directors are Robert Kalsow-Ramos, Nayaki Nayyar, Matthew Nord, and Merline Saintil. The Investor Rights Agreement also provides that, of the remaining directors who are not Apollo Directors, one director shall be the then-serving Chief Executive Officer of the Company, currently Richard Hume, and the other directors will be nominated in accordance with the provisions of our bylaws and Certificate of Incorporation. The Apollo Directors must fulfill their pro rata portion of any diversity requirements pursuant to law, stock exchange rules, or other regulatory requirements based on the percentage of our board of directors consisting of Apollo Directors.
Under the Investor Rights Agreement, we have waived the corporate opportunity doctrine to the extent permitted under the Delaware General Corporation Law with respect to the Apollo Directors and Apollo Entities, so long as such person is not an employee of the Company or our subsidiaries (the “Covered Persons”). Specifically, we agreed that the Covered Persons do not have a duty to refrain from: (i) investing in or conducting any business of any kind, (ii) doing business with our or any of our affiliates’ clients, customers, vendors or lessors, or (iii) making any investments in any kind of property in which we may make investments. Further, we agreed, among other things, subject to any express agreement otherwise that may from time to time be in effect, that if a Covered Person acquires knowledge of a potential transaction which may constitute a corporate opportunity for both (a) the Covered Person outside of his or her capacity as a member of our board of directors and (b) the Company, then the Covered Person shall not have any duty to offer or communicate information regarding such corporate opportunity to us, and we renounced any interest or expectancy in any potential transaction or matter of which the Covered Person acquires knowledge, except for any corporate opportunity which is expressly offered to a Covered Person in writing solely in his or her capacity as a member of our board of directors, or as expressly agreed otherwise.
In addition, we granted the Apollo Entities certain registration rights pursuant to the Investor Rights Agreement. Subject to several exceptions, including our right to defer a demand registration, underwritten shelf registration or non-underwritten shelf registration under certain circumstances, the Apollo Entities have the right to require us to register the sale of the shares of common stock held by them on Form S-3, subject to offering size and other restrictions. The Apollo Entities also have the right to request marketed and non-marketed underwritten offerings using a shelf registration statement. If we propose to file certain types of registration statements under the Securities Act with respect to an offering of shares of common stock (including for sale by us or at the request of any holder of registration rights), then we will be required to offer the Apollo Entities the opportunity to register any number of shares of common stock that they request, on the terms and conditions set forth in the Investor Rights Agreement (customarily known as “piggyback rights”). The registration rights granted under the
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Investor Rights Agreement are subject to customary restrictions including, if a registration is underwritten, any limitations on the number of shares to be included in the underwritten offering as reasonably advised by the managing underwriter or underwriters. All expenses of registration under the Investor Rights Agreement, including the legal fees of counsel chosen by the Apollo Entities, but excluding all applicable underwriting fees, discounts and similar charges, will be paid by us. The Investor Rights Agreement also contains customary indemnification and contribution provisions. Any sales in the public market of any shares of common stock registrable pursuant to the registration rights granted under the Investor Rights Agreement could depress the market price of our shares of common stock. See “Risk Factors—Sales or the availability for sale of a substantial number of shares of our common stock in the public market could cause our stock price to be volatile or fall.”
Our director Robert Kalsow-Ramos is a Partner, Private Equity at Apollo and our director Matthew Nord is a Partner and Co-Head of Private Equity at Apollo.
MiTAC Holdings Corporation
We have a business relationship with MiTAC International Corporation (“MiTAC International”), a publicly-traded company in Taiwan that began in 1992 when it became our primary investor through its affiliates. In September 2013, MiTAC Holdings Corporation (“MiTAC Holdings”) was established through a stock swap from MiTAC International and became a publicly traded company on the Taiwan Stock Exchange. MiTAC International is now a wholly owned subsidiary of MiTAC Holdings. As of August 31, 2023, MiTAC Holdings and its affiliates beneficially owned approximately 10.5% of our common stock. Matthew Miau, our Chair Emeritus of the Board and a director, is the Chairman of MiTAC Holdings and a director or officer of MiTAC Holdings’ affiliates.
Until July 31, 2010, we worked with MiTAC Holdings on OEM outsourcing and jointly marketed MiTAC Holdings’ design and electronic manufacturing services and our contract assembly capabilities. On July 31, 2010, MiTAC Holdings purchased certain assets related to the contract assembly business including inventory and customer contracts, primarily related to customers then being jointly serviced by MiTAC Holdings and us. We made payments of $0.4 million and $0.2 million to MiTAC Holdings and its affiliates for reimbursement of rent and overhead costs for facilities used by us during fiscal years ended November 30, 2022 and 2021, respectively.
We purchased inventories and services from MiTAC Holdings and its affiliates totaling $257.7 million, $199.7 and $211.9 million during fiscal years 2022, 2021 and 2020, respectively. Our sales to MiTAC Holdings, and its affiliates during fiscal years 2022, 2021 and 2020 totaled $1.3 million, $0.6 million and $0.8 million, respectively. Most of the purchases and sales in 2022, 2021 and 2020 were pursuant to the agreements mentioned under the heading “Agreements with MiTAC Holdings and Affiliates” below.
Our business relationship with MiTAC Holdings and its affiliates has been informal and is not governed by long-term commitments or arrangements with respect to pricing terms, revenue or capacity commitments. We negotiate pricing and other material terms on a case-by-case basis with MiTAC Holdings and its affiliates. We have adopted a policy requiring that material transactions with MiTAC Holdings or its related parties be approved by the Audit Committee, which is composed solely of independent directors. In addition, Matthew Miau’s compensation is approved by the Nominating and Corporate Governance Committee and will be approved by the Compensation Committee going forward, which are also composed solely of independent directors. While the ownership structure of MiTAC Holdings and its affiliates is complex, it has not had a material adverse effect on our business in the past, and we do not expect it to do so in the future.
Agreements with MiTAC Holdings and Affiliates
We have entered into several additional agreements with affiliates of MiTAC Holdings. These agreements do not constitute contracts or obligations by any party to purchase products or services from the other parties, nor do they restrict our ability to conduct our business. Accordingly, we do not believe that the termination of any of
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these agreements would have a material adverse effect on our business. Pursuant to these agreements, the terms for contracted services or purchased products are individually negotiated and, if agreed upon by the parties, such terms are included in a purchase order. In the fiscal years ended November 30, 2022, 2021 and 2020, we paid an aggregate of approximately $257.7 million, $199.7 million and $211.9 million to MiTAC Holdings and its affiliates, most of which was paid pursuant to certain distribution and supply agreements.
Letter Agreement. In connection with the Mergers and the Investor Rights Agreement, we entered into a letter agreement (the “Letter Agreement”) with Silver Star Developments Ltd., Peer Developments Ltd., and any of their affiliates that becomes an owner of TD SYNNEX common stock (the “MiTAC Stockholders”). Under the Letter Agreement, we have agreed that, in the event we file a registration statement with respect to an underwritten offering or a shelf registration statement, whether on our own account or otherwise, or we receive an underwritten shelf take-down notice, then the MiTAC Stockholders shall be given notice thereof, and shall be entitled to include in such filings the shares of TD SYNNEX common stock held by them, subject to certain underwriter cutbacks.
For more information on these relationships, please refer to the 2022 Annual Report, which is incorporated herein by reference.
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The Selling Stockholders may, from time to time in one or more transactions on The New York Stock Exchange or any other organized market where our shares of common stock may be traded, sell any or all of their shares of our common stock offered hereby through underwriters, dealers or agents, directly to one or more purchasers or through a combination of any such methods of sale. The Selling Stockholders may distribute the shares of our common stock offered hereby from time to time in one or more transactions:
| • | at a fixed price or prices, which may be changed; |
| • | at market prices prevailing at the time of sale; |
| • | at prices related to such prevailing market prices; or |
| • | at negotiated prices. |
The Selling Stockholders may use any one or more of the following methods when selling the shares offered hereby:
| • | ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
| • | one or more block trades in which the broker-dealer will attempt to sell such shares as agent or principal of all of such shares held by the Selling Stockholders; |
| • | purchases by a broker-dealer as principal and resale by such broker-dealer for its account; |
| • | an exchange distribution in accordance with the rules of the applicable exchange; |
| • | through trading plans entered into by a Selling Stockholder pursuant to Rule 10b5-1 under the Securities Exchange Act of 1934 (the “Exchange Act”) that are in place at the time of an offering pursuant to this prospectus and any applicable prospectus supplement hereto that provide for periodic sales of their securities on the basis of parameters described in such trading plans; |
| • | settlement of short sales effected after the date of this prospectus; |
| • | through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; |
| • | through one or more underwritten offerings on a firm commitment or best efforts basis; |
| • | privately negotiated transactions; |
| • | agreements between broker-dealers and the Selling Stockholders to sell a specified number of such shares at a stipulated price per share; |
| • | a combination of any such methods of sale; and |
| • | any other method permitted pursuant to applicable law. |
In addition, any shares covered by this prospectus that qualify for resale pursuant to Rule 144 under the Securities Act may be sold under Rule 144 rather than under this prospectus.
If the Selling Stockholders effect such transactions by selling shares of common stock offered hereby to or through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may receive commissions in the form of discounts, concessions or commissions from the Selling Stockholders or commissions from purchasers of the shares of common stock offered hereby for whom they may act as agent or to whom they may sell as principal (which discounts, concessions or commissions as to particular underwriters, broker-dealers or agents may be in excess of those customary in the types of transactions involved). The Selling Stockholders reserve the right to accept and, together with their agents from time to time, to reject, in whole or in part, any proposed purchase of common stock to be made directly or through agents. We will not receive any of the proceeds from sales of our common stock by the Selling Stockholders.
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The Selling Stockholders may, from time to time, pledge or grant a security interest in some or all of the shares of common stock offered hereby and owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell such shares of common stock from time to time pursuant to this prospectus or any amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act, amending, if necessary, the list of Selling Stockholders to include the pledgee, transferee or other successors in interest as Selling Stockholders under this prospectus. The Selling Stockholders also may transfer and donate the shares of common stock offered hereby in other circumstances, in which case the transferees, donees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.
In addition, a Selling Stockholder that is an entity may elect to make a pro rata in-kind distribution of securities to its members, partners or stockholders or purchase or redeem interests held in such entity by its members, partners or stockholders in exchange for securities, in each case pursuant to the registration statement of which this prospectus is a part by delivering a prospectus with a plan of distribution. Such members, partners or stockholders (unless our affiliate) would thereby receive freely tradeable securities pursuant to the distribution through a registration statement. To the extent a distributee is an affiliate of ours (or to the extent otherwise required by law), we may file a prospectus supplement in order to permit the distributees to use the prospectus to resell the securities acquired in the distribution.
In connection with the sale of our common stock or interests therein, the Selling Stockholders may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short sales of the common stock in the course of hedging the positions they assume. The Selling Stockholders may also sell shares of our common stock short and deliver these securities to close out the short positions, or loan or pledge the common stock to broker-dealers that in turn may sell these securities. The Selling Stockholders may also enter into option or other transactions with broker-dealers or other financial institutions or the creation of one or more derivative securities which require the delivery to such broker-dealer or other financial institution of shares offered by this prospectus, which shares such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The Selling Stockholders and any broker-dealers or agents that participate in the distribution of the shares of common stock covered by this prospectus may be deemed to be “underwriters” within the meaning of the Securities Act. Any discounts, commissions, concessions or profit they earn on any resale of the shares may be underwriting discounts and commissions under the Securities Act. Selling Stockholders who are deemed to be “underwriters” within the meaning of the Securities Act will be subject to the prospectus delivery requirements of the Securities Act. To the extent required, the shares of our common stock to be sold, the names of the Selling Stockholders, the respective purchase prices and public offering prices, the names of any agents or dealers, and any applicable discounts, commissions, concessions or other compensation with respect to a particular offer will be set forth in an accompanying prospectus supplement or, if appropriate, a post-effective amendment to the registration statement that includes this prospectus. Underwriters and their controlling persons, dealers and agents may be entitled, under agreements entered into with us and the Selling Stockholders, to indemnification against and contribution toward specific civil liabilities, including liabilities under the Securities Act.
We have agreed to indemnify the Selling Stockholders against certain liabilities, including liabilities under the Securities Act, relating to the registration of the shares offered by this prospectus.
Under the securities laws of some states, the shares of common stock offered hereby may be sold in such states only through registered or licensed brokers or dealers. In addition, in some states the shares of common stock offered hereby may not be sold unless such shares have been registered or qualified for sale in such state or an exemption from registration or qualification is available and is complied with.
There can be no assurance that the Selling Stockholders will sell any or all of the shares of common stock registered pursuant to the registration statement of which this prospectus forms a part.
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The Selling Stockholders and any other person participating in such distribution will be subject to applicable provisions of the Exchange Act, and the rules and regulations thereunder, including, without limitation, Regulation M of the Exchange Act, which may limit the timing of purchases and sales of any of the shares of common stock offered hereby by the Selling Stockholders and any other participating person. Regulation M may also restrict the ability of any person engaged in the distribution of the shares of common stock offered hereby to engage in market-making activities with respect to the shares of common stock offered hereby. All of the foregoing may affect the marketability of the shares of common stock offered hereby and the ability of any person or entity to engage in market-making activities with respect to the shares of common stock offered hereby.
Once sold under the registration statement, of which this prospectus forms a part, the shares of common stock offered hereby will be freely tradable in the hands of persons other than our affiliates.
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The validity of the shares of common stock offered by this prospectus has been passed upon for us by Pillsbury Winthrop Shaw Pittman LLP, Palo Alto, California.
The consolidated financial statements and financial statement schedule of TD SYNNEX Corporation and subsidiaries as of November 30, 2022 and 2021, and for each of the years in the three-year period ended November 30, 2022, and management’s assessment of the effectiveness of internal control over financial reporting as of November 30, 2022 have been incorporated by reference herein and in the registration statement in reliance upon the report of KPMG LLP, independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We have filed a registration statement on Form S-3 with the SEC under the Securities Act. This prospectus is part of the registration statement but the registration statement includes and incorporates by reference additional information and exhibits. We file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the public on the internet at a website maintained by the SEC located at http://www.sec.gov. We also maintain an internet site at https://www.tdsynnex.com/ where information about us, including SEC filings, is also available free of charge. However, the information on, or accessible through, our internet site is not incorporated by reference in this prospectus and any prospectus supplement and you should not consider it a part of this prospectus or any accompanying prospectus supplement. Reference to our internet site is made as an inactive textual reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to “incorporate by reference” into this prospectus the information in other documents that we file with it. This means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be a part of this prospectus, and information in documents that we file later with the SEC will automatically update and supersede information contained in documents filed earlier with the SEC or contained in this prospectus. We incorporate by reference in this prospectus (i) the documents listed below, and (ii) and any future filings that we may make with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act after the filing date of the registration statement of which this prospectus forms a part, as well as between the date of this prospectus and the termination of any offering of common stock under this prospectus; provided, however, that we are not incorporating, in each case, any documents or information deemed to have been furnished and not filed in accordance with SEC rules:
| • | Our Annual Report on Form 10-K for the fiscal year ended November 30, 2022, filed with the SEC on January 24, 2023 (the “2022 Annual Report”), including the portions of our Definitive Proxy Statement on Schedule 14A filed on February 6, 2023 incorporated by reference into the 2022 Annual Report; |
| • | Our Quarterly Reports on Form 10-Q for the quarters ended February 28, 2023, May 31, 2023, and August 31, 2023; |
| • | Our Current Reports on Form 8-K filed with the SEC on January 10, 2023; January 26, 2023, January 30, 2023, March 27, 2023 (as amended on June 22, 2023), and September 29, 2023; and |
| • | The description of our common stock contained in Exhibit 4.1 of our Annual Report on Form 10-K for the fiscal year ended November 30, 2021, including any amendment or report updating such description. |
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All documents and reports that we file with the SEC (other than any portion of such filings that are furnished under applicable SEC rules rather than filed) under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act from the date of this prospectus supplement until the completion of the offering under this prospectus supplement shall be deemed to be incorporated in this prospectus supplement and the accompanying prospectus by reference. The information contained on or accessible through our website at https://www.tdsynnex.com is not incorporated into this prospectus supplement or the accompanying prospectus.
Upon request, we will provide, without charge, to each person, including any beneficial owner, to whom a copy of this prospectus is delivered, a copy of any or all of the documents incorporated by reference into this prospectus but not delivered herewith. You may request a copy of these filings, other than an exhibit to these filings unless we have specifically included or incorporated that exhibit by reference into the filing, from the SEC as described under “Where You Can Find More Information” or, at no cost, by writing or telephoning TD SYNNEX Corporation at the following address:
TD SYNNEX Corporation
Attention: Corporate Secretary
16202 Bay Vista Drive
Clearwater, Florida 33760
(510) 656-3333
You should not assume that the information in this prospectus or any documents incorporated by reference is accurate as of any date other than the date of the applicable document. Any statement contained in a document incorporated or deemed to be incorporated by reference into this prospectus will be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or any other subsequently filed document that is deemed to be incorporated by reference into this prospectus modifies or supersedes the statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Set forth below is an estimate (except in the case of the registration fee) of the amount of fees and expenses to be incurred in connection with the issuance and distribution of the offered securities registered hereby, other than underwriting discounts and commissions, if any, incurred in connection with the sale of the offered securities. All such amounts will be borne by the registrant.
| SEC Registration Fee |
$ | 141,019 | ||
| Legal Fees and Expenses |
50,000 | |||
| Accounting Fees and Expenses |
75,000 | |||
| Miscellaneous Fees and Expenses |
23,981 | |||
|
|
|
|||
| Total |
$ | 290,000 | ||
|
|
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Item 15. Indemnification of Directors and Officers.
Section 102(b)(7) of the Delaware General Corporation Law (the “DGCL”), allows a corporation to eliminate the personal liability of directors of a corporation to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except where the director breached the duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of the DGCL or obtained an improper personal benefit.
Section 145(a) of the DGCL provides that a corporation may indemnify 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 the person 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 the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person 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 the person’s 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 good faith and in a manner which the person 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 reasonable cause to believe that the person’s conduct was unlawful.
Section 145(b) of the DGCL provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person 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 the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and 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 to the corporation unless and only to the extent that the Delaware Court of Chancery or 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 of the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Delaware Court of Chancery or such other court shall deem proper.
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Section 145(e) of the DGCL provides that to the extent that a present or former director or officer of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (a) and (b) of Section 145 of the DGCL, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith.
Section 145(e) of the DGCL provides that expenses, including attorneys’ fees, incurred by an officer or director of the corporation in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the corporation as authorized in Section 145 of the DGCL. Such expenses, including attorneys’ fees, incurred by former directors and officers or other persons serving at the request of the corporation as directors, officers, employees or agents of another corporation, partnership, joint venture, trust or other enterprise may be so paid upon such terms and conditions, if any, as the corporation deems appropriate.
Section 145(g) of the DGCL specifically allows a Delaware corporation to purchase liability insurance on behalf of its directors and officers and to insure against potential liability of such directors and officers regardless of whether the corporation would have the power to indemnify such directors and officers under Section 145 of the DGCL.
Section 174 of the DGCL provides, among other things, that a director, who willfully or negligently approves of an unlawful payment of dividends or an unlawful stock purchase or redemption, may be held liable for such actions. A director who was either absent when the unlawful actions were approved or dissented at the time, may avoid liability by causing his or her dissent to such actions to be entered in the books containing minutes of the meetings of the board of directors at the time such action occurred or immediately after such absent director receives notice of the unlawful acts.
Our certificate of incorporation and bylaws provide that TD SYNNEX will, to the fullest extent permitted by the DGCL, 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 by reason of the fact that such person 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 attorney’s fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action. The DGCL provides that such indemnification is subject to such person seeking indemnification having acted in good faith and in a manner that such person reasonably believed to be in, or not opposed to, the best interests of the corporation, and with respect to any criminal motion or proceeding, such person having had no reasonable cause to believe the conduct was unlawful. Our certificate of incorporation provides that the foregoing right to indemnification is a contract right and includes the right to be paid by TD SYNNEX the expenses incurred in defending any such proceeding in advance of its final disposition, except that, if the DGCL so requires, the payment of such expenses incurred by a current, former or proposed director or officer in his or her capacity as a director or officer or proposed director or officer in advance of the final disposition of a proceeding shall be made only upon delivery to TD SYNNEX of an undertaking by or on behalf of such person to repay all amounts so advanced if it shall be ultimately determined that such person is not entitled to be indemnified under TD SYNNEX’ certificate of incorporation or otherwise. TD SYNNEX may, by action of TD SYNNEX’ board of directors, provide indemnification to employees and agents of TD SYNNEX, individually or as a group, with the same scope and effect as the indemnification of directors and officers provided for in TD SYNNEX’ charter. The right to indemnification and the advancement and payment of expenses that will be conferred by TD SYNNEX’ charter and TD SYNNEX’ bylaws will not be exclusive of any other right which any indemnified person may have or acquire.
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Our bylaws, as amended, provide that TD SYNNEX’ board of directors may authorize TD SYNNEX to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of TD SYNNEX, or is or was serving at the request of TD SYNNEX as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not TD SYNNEX would have the power to indemnify such person against such liability under the provisions of our bylaws.
Item 16. Exhibits
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| * | Filed herewith |
Item 17. Undertakings.
| (a) | The undersigned registrant hereby undertakes: |
| (1) | to file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and (iii) to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (i), (ii) and (iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement; |
| (2) | that, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; |
| (3) | to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering; and |
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| (4) | that, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: (i) each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and (ii) each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which the prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. |
| (5) | that, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: (i) any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; (ii) any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; (iii) the portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and (iv) any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
| (b) | The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (c) | Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. |
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Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant, TD SYNNEX Corporation, certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Clearwater, State of Florida, on October 10, 2023.
| TD SYNNEX Corporation | ||
| By:
|
/s/ Richard T. Hume | |
| Richard T. Hume | ||
| President and Chief Executive Officer | ||
SIGNATURES AND POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Richard T. Hume, Marshall W. Witt and David Vetter, and each of them, as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement (including all post-effective amendments) or supplements thereto, and any additional registration statement relating to the offering covered by this Registration Statement and filed pursuant to Rule 462(b) of the Securities Act of 1933, as amended, and to file the same with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature |
Title |
Date | ||
| /s/ Richard T. Hume Richard T. Hume |
President and Chief Executive Officer and Director (Principal Executive Officer) |
October 10, 2023 | ||
| /s/ Marshall W. Witt Marshall W. Witt |
Chief Financial Officer (Principal Financial Officer) |
October 10, 2023 | ||
| /s/ John Henry John Henry |
Chief Accounting Officer (Principal Accounting Officer) | October 10, 2023 | ||
| /s/ Ann F. Vezina Ann F. Vezina |
Chair of the Board | October 10, 2023 | ||
| /s/ Robert Kalsow-Ramos Robert Kalsow-Ramos |
Vice Chair of the Board | October 10, 2023 | ||
| /s/ Matthew F.C. Miau Matthew F.C. Miau |
Chair Emeritus of the Board | October 10, 2023 | ||
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| Signature |
Title |
Date | ||
|
/s/ Fred A. Breidenbach Fred A. Breidenbach |
Director |
October 10, 2023 | ||
| /s/ Kathleen Crusco Kathleen Crusco |
Director | October 10, 2023 | ||
| /s/ Hau L. Lee Hau L. Lee |
Director | October 10, 2023 | ||
| /s/ Nayaki Nayyar Nayaki Nayyar |
Director | October 10, 2023 | ||
| /s/ Matthew Nord Matthew Nord |
Director | October 10, 2023 | ||
| /s/ Dennis Polk Dennis Polk |
Director | October 10, 2023 | ||
| /s/ Claude Pumilia Claude Pumilia |
Director | October 10, 2023 | ||
| /s/ Merline Saintil Merline Saintil |
Director | October 10, 2023 | ||
| /s/ Duane E. Zitzner Duane E. Zitzner |
Director | October 10, 2023 | ||
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Exhibit 5.1
PILLSBURY WINTHROP SHAW PITTMAN LLP
2550 Hanover Street
Palo Alto, California 94304-1115
October 10, 2023
TD SYNNEX Corporation
44201 Nobel Dr.
Fremont, CA 94538
Ladies and Gentlemen:
We are acting as counsel for TD SYNNEX Corporation, a Delaware corporation (the “Company”), in connection with the Registration Statement on Form S-3 filed by the Company with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933 (the “Act”) relating to the registration of 44,961,612 shares of common stock, par value $0.001 per share, of the Company (the “Common Stock”), all of which are to be offered and sold by certain stockholders of the Company (the “Shares”). Such Registration Statement, as amended, is herein referred to as the “Registration Statement.”
We have reviewed the Registration Statement and such other documents, records, certificates and other materials, and have reviewed and are familiar with such corporate proceedings and satisfied ourselves as to such other matters, as we have considered relevant or necessary as a basis for our opinions set forth in this letter. In such review, we have assumed the accuracy and completeness of all agreements, documents, records, certificates and other materials submitted to us, the conformity with the originals of all such materials submitted to us as copies (whether or not certified and including facsimiles), the authenticity of the originals of such materials and all materials submitted to us as originals, the genuineness of all signatures and the legal capacity of all natural persons.
On the basis of the assumptions and subject to the qualifications and limitations set forth herein, we are of the opinion that the Shares have been duly authorized and validly issued and are fully paid and nonassessable.
Our opinions set forth in this letter are limited to the General Corporation Law of the State of Delaware, as in effect on the date hereof.
We hereby consent to the filing of this letter as Exhibit 5.1 to the Registration Statement and to the use of our name under the caption “Legal Matters” in the Registration Statement and in the Prospectus forming a part thereof and any supplement thereto. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ Pillsbury Winthrop Shaw Pittman LLP
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
We consent to the use of our report dated January 23, 2023, with respect to the consolidated financial statements of TD SYNNEX Corporation and subsidiaries and the effectiveness of internal control over financial reporting, incorporated herein by reference and to the reference to our firm under the heading “Experts” in the prospectus.
/s/ KPMG LLP
Santa Clara, California
October 10, 2023