SYNNEX Corporation
SYNNEX CORP (Form: 10-Q, Received: 07/11/2005 15:54:59)
Table of Contents

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 


 

FORM 10-Q

 

 


 

(Mark One)

x QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the quarterly period ended May 31, 2005

 

OR

 

¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the transition period from              to             

 

Commission File Number: 001-31892

 


 

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 No.)

44201 Nobel Drive

Fremont, California

  94538
(Address of principal executive offices)   (Zip Code)

 

(510) 656-3333

(Registrant’s telephone number, including area code)

 


 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.    Yes   x     No   ¨

 

Indicate by check mark whether the registrant is an accelerated filer (as defined in Rule 12b-2 of the Exchange Act).    Yes   x     No   ¨

 

Indicate the number of shares outstanding of each of the issuer’s classes of common stock, as of the latest practicable date.

 

Class


 

Outstanding at July 5, 2005


Common Stock, $0.001 par value   28,714,992

 



Table of Contents

SYNNEX CORPORATION

FORM 10-Q

INDEX

 

          Page

PART I.    FINANCIAL INFORMATION    3
    Item 1.    Financial Statements     
     Condensed Consolidated Balance Sheets (unaudited) as of May 31, 2005 and November 30, 2004    3
     Condensed Consolidated Statements of Operations (unaudited) for the Three and Six Months Ended May 31, 2005 and 2004    4
     Condensed Consolidated Statements of Cash Flows (unaudited) for the Six Months Ended May 31, 2005 and 2004    5
     Condensed Consolidated Statements of Comprehensive Income (unaudited) for the Three and Six months Ended May 31, 2005 and 2004    6
     Notes to Condensed Consolidated Financial Statements (unaudited)    7
    Item 2.    Management’s Discussion and Analysis of Financial Condition and Results of Operations    22
    Item 3.    Quantitative and Qualitative Disclosures about Market Risk    48
    Item 4.    Controls and Procedures    49
PART II.    OTHER INFORMATION    50
    Item 4.    Submission of Matters to a Vote of Security Holders    50
    Item 6.    Exhibits    50
Signatures    51
Exhibit Index    52

 

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Table of Contents

PART I – FINANCIAL INFORMATION

ITEM 1. Financial Statements

SYNNEX CORPORATION

CONDENSED CONSOLIDATED BALANCE SHEETS

(in thousands, except for par values)

(unaudited)

 

     May 31,
2005


  

November 30,

2004


ASSETS

             

Current assets:

             

Cash and cash equivalents

   $ 4,951    $ 28,726

Restricted cash

     —        2,020

Short-term investments

     27,465      5,051

Accounts receivable, net

     327,978      372,604

Receivable from vendors, net

     62,182      69,033

Receivable from affiliates

     7,166      1,970

Inventories

     373,623      408,346

Deferred income taxes

     17,254      17,645

Other current assets

     11,331      7,599
    

  

Total current assets

     831,950      912,994

Property and equipment, net

     33,412      33,851

Goodwill and intangible assets

     43,704      48,722

Deferred income taxes

     2,623      1,421

Other assets

     4,664      2,709
    

  

Total assets

   $ 916,353    $ 999,697
    

  

LIABILITIES AND STOCKHOLDERS’ EQUITY

             

Current liabilities:

             

Borrowings under term loans and lines of credit

   $ 61,443    $ 74,996

Accounts payable

     294,159      386,638

Payable to affiliates

     73,520      68,977

Accrued liabilities

     58,570      62,611

Income taxes payable

     14,885      2,837
    

  

Total current liabilities

     502,577      596,059

Long-term borrowings

     1,242      13,074

Long-term liabilities

     6,161      17,772

Deferred income taxes

     820      1,054
    

  

Total liabilities

     510,800      627,959
    

  

Minority interest in subsidiaries

     —        2,082
    

  

Commitments and contingencies (Note 12)

             

Stockholders’ equity:

             

Preferred stock, $0.001 par value, 5,000 shares authorized, no shares issued or outstanding

     —        —  

Common stock, $0.001 par value, 100,000 shares authorized, 28,666 and 27,727 shares issued and outstanding

     29      28

Additional paid-in capital

     154,082      145,423

Accumulated other comprehensive income

     8,335      12,086

Retained earnings

     243,107      212,119
    

  

Total stockholders’ equity

     405,553      369,656
    

  

Total liabilities and stockholders’ equity

   $ 916,353    $ 999,697
    

  

 

The accompanying notes are an integral part of these condensed consolidated financial statements (unaudited).

 

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SYNNEX CORPORATION

CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS

(in thousands, except for per share amounts)

(unaudited)

 

     Three Months Ended

    Six Months Ended

 
    

May 31,

2005


   

May 31,

2004


   

May 31,

2005


   

May 31,

2004


 

Revenue

   $ 1,346,328     $ 1,231,208     $ 2,656,091     $ 2,405,891  

Cost of revenue

     (1,289,772 )     (1,179,999 )     (2,543,401 )     (2,304,440 )
    


 


 


 


Gross profit

     56,556       51,209       112,690       101,451  

Selling, general and administrative expenses

     (38,159 )     (32,664 )     (77,871 )     (65,790 )
    


 


 


 


Income from operations

     18,397       18,545       34,819       35,661  

Interest expense and finance charges, net

     (3,521 )     (1,705 )     (7,331 )     (3,788 )

Other income (expense), net

     949       (836 )     1,656       (1,157 )
    


 


 


 


Income before income taxes and minority interest

     15,825       16,004       29,144       30,716  

Provision for income taxes

     (6,006 )     (6,021 )     (11,048 )     (11,367 )

Minority interest in subsidiaries

     32       94       58       244  
    


 


 


 


Net income from continuing operations

     9,851       10,077       18,154       19,593  

Income from discontinued operations, net of tax

     207       134       511       271  

Gain on sale of discontinued operations, net of tax

     12,323       —         12,323       —    
    


 


 


 


Net income

   $ 22,381     $ 10,211     $ 30,988     $ 19,864  
    


 


 


 


Earnings per share:

                                

Basic

                                

Income from continuing operations

   $ 0.35     $ 0.38     $ 0.64     $ 0.75  

Discontinued operations

   $ 0.43     $ 0.01     $ 0.46     $ 0.01  
    


 


 


 


Net income per common share - basic

   $ 0.78     $ 0.39     $ 1.10     $ 0.76  
    


 


 


 


Diluted

                                

Income from continuing operations

   $ 0.32     $ 0.33     $ 0.58     $ 0.66  

Discontinued operations

   $ 0.40     $ 0.01     $ 0.41     $ 0.01  
    


 


 


 


Net income per common share - diluted

   $ 0.72     $ 0.34     $ 0.99     $ 0.67  
    


 


 


 


Weighted average common shares outstanding - basic

     28,539       26,520       28,275       26,238  
    


 


 


 


Weighted average common shares outstanding - diluted

     30,900       30,179       31,201       29,865  
    


 


 


 


 

The accompanying notes are an integral part of these condensed consolidated financial statements (unaudited).

 

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SYNNEX CORPORATION

CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS

(in thousands)

(unaudited)

 

     Six Months Ended

 
    

May 31,

2005


   

May 31,

2004


 

Cash flows from operating activities:

                

Net income from continuing operations

   $ 18,154     $ 19,593  

Gain on sale of discontinued operations, net of tax

     12,323       —    

Net income from discontinued operations, net of tax

     511       271  
    


 


Net income

     30,988       19,864  

Adjustments to reconcile net income to net cash used in operating activities:

                

Depreciation expense

     2,424       1,963  

Amortization of intangible assets

     1,964       1,474  

Amortization of unearned stock-based compensation

     —         202  

Provision for doubtful accounts

     2,294       2,734  

Tax benefits from employee stock plan

     2,227       998  

Unrealized loss on trading securities

     266       66  

Realized (gain) loss on investment

     ( 1,751 )     5  

Stock received from sale of business

     (20,478 )     —    

Unrealized gain on short-term investments

     (917 )     —    

Loss (gain) on disposal of fixed assets

     652       (4 )

Minority interest in subsidiaries

     (58 )     (201 )

Changes in assets and liabilities, net of acquisition of businesses:

                

Accounts receivable

     11,036       (39,688 )

Receivable from vendors

     6,414       (2,118 )

Receivable from affiliates

     (5,198 )     (3,027 )

Inventories

     13,379       (9,890 )

Other assets

     (1,045 )     7,467  

Payable to affiliates

     4,543       344  

Accounts payable

     (70,136 )     (21,475 )

Accrued liabilities

     13,422       (2,399 )
    


 


Net cash used in operating activities

     ( 9,974 )     (43,685 )

Cash flows from investing activities:

                

Purchases of short-term investments

     (373 )     (1,094 )

Proceeds from sale of short-term investments

     2,561       93  

Acquisition of businesses

     (4,769 )     (1,372 )

Minority investment

     (3,000 )     —    

Purchase of property and equipment, net

     (3,553 )     (3,434 )

Decrease in restricted cash

     2,021       4  
    


 


Net cash used in investing activities

     (7,113 )     (5,803 )

Cash flows from financing activities:

                

Cash overdraft

     (4,559 )     26,055  

Proceeds from revolving line of credit

     1,613       35,900  

Payments on revolving line of credit

     —         (40,900 )

Proceeds from bank loan

     521,621       408,862  

Repayment of bank loan

     (529,577 )     (441,753 )

Net proceeds under other lines of credit

     4,647       3,026  

Payments of bonds and other long-term liabilities

     (5,917 )     (374 )

Dividend payment to minority shareholders

     (1,133 )     —    

Net proceeds from issuance of common stock

     6,458       54,841  
    


 


Net cash provided by (used in) financing activities

     (6,847 )     45,657  
    


 


Effect of exchange rate changes on cash and cash equivalents

     159       (114 )
    


 


Net decrease in cash and cash equivalents

     (23,775 )     (3,945 )

Cash and cash equivalents at beginning of period

     28,726       22,079  
    


 


Cash and cash equivalents at end of period

   $ 4,951     $ 18,134  
    


 


Supplemental disclosures of cash flow information:

                

Interest paid

   $ 2,242     $ 1,453  
    


 


Income taxes paid

   $ 6,169     $ 10,923  
    


 


Accrual for purchase of fixed assets

   $ —       $ 1,800  
    


 


 

The accompanying notes are an integral part of these condensed consolidated financial statements (unaudited).

 

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SYNNEX CORPORATION

CONDENSED CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME

(in thousands)

(unaudited)

 

     Three Months Ended

    Six Months Ended

 
    

May 31,

2005


   

May 31,

2004


   

May 31,

2005


   

May 31,

2004


 

Net income

   $ 22,381     $ 10,211     $ 30,988     $ 19,864  

Other comprehensive income:

                                

Changes in unrealized gains (losses) on available-for-sale securities

     15       (129 )     7       (55 )

Foreign currency translation adjustment

     (1,762 )     (938 )     (3,758 )     (1,746 )
    


 


 


 


Total comprehensive income

   $ 20,634     $ 9,144     $ 27,237     $ 18,063  
    


 


 


 


 

The accompanying notes are an integral part of these condensed consolidated financial statements (unaudited).

 

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Table of Contents

SYNNEX CORPORATION

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

For the three and six months ended May 31, 2005 and 2004

(amounts in thousands, except for per share amounts)

(unaudited)

 

NOTE 1- ORGANIZATION AND BASIS OF PRESENTATION:

 

SYNNEX Corporation (together with its subsidiaries, herein referred to as “SYNNEX” or the “Company”) is an information technology products supply chain services company. The Company’s supply chain outsourcing services include distribution, contract assembly, logistics and demand generation marketing. SYNNEX is headquartered in Fremont, California and has operations in North and Latin America, Asia and Europe.

 

The accompanying interim unaudited condensed consolidated financial statements as of May 31, 2005 and 2004 and for the three and six months then ended have been prepared by the Company in accordance with the rules and regulations of the Securities and Exchange Commission (“SEC”). The amounts as of November 30, 2004 have been derived from the Company’s annual audited financial statements. Certain information and footnote disclosures normally included in financial statements prepared in accordance with generally accepted accounting principles have been condensed or omitted in accordance with such rules and regulations. In the opinion of management, the accompanying unaudited condensed consolidated financial statements reflect all adjustments, consisting only of normal recurring adjustments, necessary to present fairly the financial position of the Company and its results of operations and cash flows as of and for the periods presented. These financial statements should be read in conjunction with the annual audited financial statements and notes thereto as of and for the year ended November 30, 2004, included in the Company’s Annual Report on Form 10-K for the fiscal year ended November 30, 2004.

 

The results of operations for the three and six months ended May 31, 2005 are not necessarily indicative of the results that may be expected for the year ending November 30, 2005, or any future period and the Company makes no representations related thereto.

 

The Company is an affiliate of MiTAC International Corporation, a publicly traded corporation in Taiwan. At May 31, 2005, MiTAC International Corporation and its affiliates had a combined ownership of approximately 68% of the Company’s outstanding common stock.

 

NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:

 

Use of estimates

 

The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenue and expense during the reporting period. We evaluate our estimates on a regular basis. Our estimates are based on historical experience and on various assumptions that the Company believes are reasonable. Actual results could differ from those estimates.

 

Principles of consolidation

 

The consolidated financial statements include the accounts of the Company and its wholly owned subsidiaries and majority owned subsidiaries in which no substantive participating rights are held by minority stockholders. All significant intercompany accounts and transactions have been eliminated.

 

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Table of Contents

SYNNEX CORPORATION

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS-(Continued)

For the three and six months ended May 31, 2005 and 2004

(amounts in thousands, except for per share amounts)

(unaudited)

 

The consolidated financial statements include 100% of the assets and liabilities of these majority owned subsidiaries and the ownership interest of minority investors are recorded as minority interest. Investments in 20% through 50% owned affiliated companies are included under the equity method where the Company exercises significant influence over operating and financial affairs of the investee. Investments in less than 20% owned companies or investments in 20% through 50% owned companies where the Company does not exercise significant influence over operating and financial affairs of the investee are recorded under the cost method.

 

Cash and cash equivalents

 

The Company considers all highly liquid debt instruments purchased with an original maturity or remaining maturity at date of purchase of three months or less to be cash equivalents. Cash equivalents consist principally of money market deposit accounts that are stated at cost, which approximates fair value. The Company is exposed to credit risk in the event of default by financial institutions to the extent that cash balances with financial institutions are in excess of amounts that are insured by the Federal Deposit Insurance Corporation.

 

Restricted cash

 

The Company previously provided letters of credit on behalf of its subsidiaries in Asia. The Company was required by the banks to maintain certain balances in its bank accounts as collateral for such credit arrangements. At November 30, 2004, the Company had restricted cash balances of $2,020. The Company did not have a restricted cash balance at May 31, 2005.

 

Investments

 

The Company classifies its investments in marketable securities as trading and available-for-sale. All securities related to its deferred compensation plan and the Company’s investment in MCJ Company LTD. (“MCJ”) are classified as trading and are recorded at fair value, based on quoted market prices, and unrealized gains and losses are included in results of operations. All other securities are classified as available-for-sale and are recorded at fair market value, based on quoted market prices, and unrealized gains and losses are included in other comprehensive income, a component of stockholders’ equity. Realized gains and losses, which are calculated based on the specific identification method, and declines in value judged to be other than temporary, if any, are recorded in operations as incurred.

 

To determine whether a decline in value is other-than-temporary, the Company evaluates several factors, including current economic environment, market conditions, operational and financial performance of the investee, and other specific factors relating to the business underlying the investment, including business outlook of the investee, future trends in the investee’s industry and the Company’s intent to carry the investment for a sufficient period of time for any recovery in fair value. If a decline in value is deemed as other-than-temporary, the Company records reductions in carrying values to estimated fair values, which are determined based on quoted market prices if available or on one or more of the valuation methods such as pricing models using historical and projected financial information, liquidation values, and values of other comparable public companies.

 

Long-term investments include instruments that the Company has the ability and intent to hold for more than twelve months. The Company classifies its long-term investments as available-for-sale if a readily determinable fair value is available.

 

The Company has investments in equity instruments of privately held companies. These investments are included in other assets and are accounted for under the cost method, as the Company does not have the ability to exercise significant influence over operations. The Company monitors its investments for impairment by considering current factors, including economic environment, market conditions, operational performance and other specific factors relating to the business underlying the investment, and records reductions in carrying values when necessary.

 

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SYNNEX CORPORATION

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS-(Continued)

For the three and six months ended May 31, 2005 and 2004

(amounts in thousands, except for per share amounts)

(unaudited)

 

Allowance for doubtful accounts

 

The allowance for doubtful accounts is estimated to cover the losses resulting from the inability of customers to make payments for outstanding balances. In estimating the required allowance, the Company takes into consideration the overall quality and aging of the receivables, credit evaluations of customers’ financial condition and existence of credit insurance. The Company also evaluates the collectability of accounts receivable based on specific customer circumstances, current economic trends, historical experience with collections and any value and adequacy of collateral received from the customers.

 

Inventories

 

Inventories are stated at the lower of cost or market. Cost is computed based on the weighted average method. Inventories consist of finished goods purchased from various manufacturers for distribution resale and components used for contract assembly. The Company records estimated inventory reserves for quantities in excess of demand, cost in excess of market value and product obsolescence.

 

Property and equipment

 

Property and equipment are stated at cost, less accumulated depreciation. Depreciation and amortization are computed using the straight-line method based upon the shorter of the estimated useful lives of the assets, or the lease term of the respective assets, if applicable. Maintenance and repairs are charged to expense as incurred, and improvements are capitalized. When assets are retired or otherwise disposed of, the cost and accumulated depreciation and amortization are removed from the accounts and any resulting gain or loss is reflected in operations in the period realized. The depreciation and amortization periods for property and equipment categories are as follows:

 

Equipment and furniture

   3 - 7 years

Software

   3 years

Leasehold improvements

   3 - 10 years

Buildings

   39 years

 

Goodwill

 

The Company has adopted Statement of Financial Accounting Standards No. 142, “Goodwill and Other Intangible Assets” (“SFAS No. 142”), which revised the standards of accounting for goodwill, by replacing the amortization of these assets with the requirement that they are reviewed annually for impairment, or more frequently if impairment indicators exist. No goodwill impairment was recorded for the periods presented.

 

Intangible assets

 

Intangible assets consist primarily of vendor lists, customer lists and trade names, which are amortized on a straight-line basis over their estimated lives. Intangible assets are amortized as follows:

 

Vendor lists

   4 - 10 years

Customer lists

   5 - 8 years

Other intangible assets

   3 - 5 years

 

Software costs

 

The Company develops software for internal use only. The payroll and other costs related to the development of software have been expensed as incurred. Excluding the costs of support, maintenance and training functions that are not subject to capitalization, the costs of the software department were not material for the periods

 

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SYNNEX CORPORATION

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS-(Continued)

For the three and six months ended May 31, 2005 and 2004

(amounts in thousands, except for per share amounts)

(unaudited)

 

presented. If the internal software development costs become material, the Company will capitalize the costs based on the defined criteria for capitalization in accordance with Statement of Position 98-1, “Accounting for the Costs of Computer Software Developed or Obtained for Internal Use.”

 

Impairment of long-lived assets

 

The Company reviews the recoverability of its long-lived assets, such as property and equipment, when events or changes in circumstances occur that indicate the carrying value of the asset or asset group may not be recoverable. The assessment of possible impairment is based on the Company’s ability to recover the carrying value of the asset or asset group from the expected future pre-tax cash flows, undiscounted and without interest charges, of the related operations. If these cash flows are less than the carrying value of such assets, an impairment loss is recognized for the difference between estimated fair value and carrying value. The measurement of impairment requires management to estimate future cash flows and the fair value of long-lived assets.

 

Concentration of credit risk

 

Financial instruments that potentially subject the Company to significant concentration of credit risk consist principally of cash and cash equivalents and accounts receivable. The Company’s cash and cash equivalents are maintained with high quality institutions, the compositions and maturities of which are regularly monitored by management. Through May 31, 2005, the Company had not experienced any losses on such deposits.

 

Accounts receivable include amounts due from customers in the technology industry. The Company believes that the concentration of credit risk on its accounts receivable is substantially mitigated by the Company’s evaluation process and relatively short collection terms. The Company performs ongoing credit evaluations of its customers’ financial condition and limits the amount of credit extended when deemed necessary, but generally requires no collateral. The Company also maintains allowances for potential credit losses. In estimating the required allowances, the Company takes into consideration the overall quality and aging of the receivable portfolio, the existence of a limited amount of credit insurance and specifically identified customer risks. Through May 31, 2005, such losses have been within management’s expectations.

 

In the three and six months ended May 31, 2004, sales to one customer accounted for 12% and 11%, respectively, of the Company’s total revenues. In the three and six months ended May 31, 2005, no single customer represented 10% or more of the Company’s total revenues. At November 30, 2004 and May 31, 2005, no single customer comprised more than 10% of the total consolidated accounts receivable balance.

 

Revenue recognition

 

The Company recognizes revenue as products are shipped, if a purchase order exists, the sale price is fixed or determinable, collection of resulting receivables is reasonably assured, risk of loss and title have transferred and product returns are reasonably estimable. Shipping terms are typically F.O.B. the Company’s warehouse. Provisions for sales returns are estimated based on historical data and are recorded concurrently with the recognition of revenue. These provisions are reviewed and adjusted periodically by the Company. Revenue is reduced for early payment discounts and volume incentive rebates offered to customers.

 

The Company purchases licensed software products from OEM vendors and distributes them to customers. Revenues are recognized upon shipment of software products when a purchase order exists, the sales price is fixed or determinable and collection is determined to be probable. Subsequent to the sale of software products, the Company generally has no obligation to provide any modification, customization, upgrades, enhancements, or any other post-contract customer support.

 

Original Equipment Manufacturer (“OEM”) supplier programs

 

Funds received from OEM suppliers for inventory volume promotion programs, price protection and product rebates are recorded as adjustments to cost of revenue. The Company tracks vendor promotional programs for volume discounts on a program-by-program basis. The Company monitors the balances of receivables from

 

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SYNNEX CORPORATION

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS-(Continued)

For the three and six months ended May 31, 2005 and 2004

(amounts in thousands, except for per share amounts)

(unaudited)

 

vendors on a quarterly basis and adjusts the balance due for differences between expected and actual volume sales. Vendor receivables are generally collected through reductions authorized by the vendor to accounts payable. For price protection programs, the Company records a reduction in the payable to the vendor and a reduction in the related inventory. Funds received for specific marketing and infrastructure reimbursements are recorded as adjustments to selling, general and administrative expenses, and any excess reimbursement amount is recorded as an adjustment to cost of revenue.

 

Royalties

 

The Company purchases licensed software products from OEM vendors and distributes to resellers. Royalties to OEM vendors are accrued for and recorded in cost of revenue when software products are shipped and revenue is recognized.

 

Warranties

 

The Company’s OEM suppliers generally warrant the products distributed by the Company and allow returns of defective products. The Company generally does not independently warrant the products it distributes; however, the Company does warrant the following: (1) its services with regard to products that it assembles for its customers, and (2) products that it builds to order from components purchased from other sources. Neither warranty expense nor the accrual for warranty costs is material to the Company’s consolidated financial statements.

 

Advertising

 

Costs related to advertising and promotion expenditures of products are charged to selling, general and administrative expense as incurred. To date, costs related to advertising and promotion expenditures have not been material.

 

Income taxes

 

The asset and liability method is used in accounting for income taxes. Under this method, deferred tax assets and liabilities are recognized for the expected tax consequences of temporary differences between the tax basis of assets and liabilities and their reported amounts in the financial statements using enacted tax rates and laws that will be in effect when the difference is expected to reverse. Valuation allowances are provided against assets that are not likely to be realized.

 

Fair value of financial instruments

 

For certain of the Company’s financial instruments, including cash, accounts receivable and accounts payable, the carrying amounts approximate fair value due to the short maturities. The amount shown for borrowings also approximates fair value since current interest rates offered to the Company for debt of similar maturities are approximately the same. The estimated fair values of foreign exchange contracts are based on market prices or current rates offered for contracts with similar terms and maturities. The ultimate amounts paid or received under these foreign exchange contracts, however, depend on future exchange rates. The gains or losses are recognized as “Other income (expense), net” based on changes in the fair value of the contracts, which generally occur as a result of changes in foreign currency exchange rates.

 

Foreign currency translations

 

The functional currencies of the Company’s foreign subsidiaries are their respective local currencies, with the exception of the Company’s UK operation, for which the functional currency is the U.S. dollar. The financial statements of the foreign subsidiaries are translated into U.S. dollars for consolidation as follows: assets and liabilities at the exchange rate as of the balance sheet date, stockholders’ equity at the historical rates of exchange, and income and expense amounts at the average exchange rate for the quarter. Translation adjustments resulting from the translation of the subsidiaries’ accounts are included in “Accumulated other comprehensive income.” Gains and losses resulting from foreign currency transactions are included within “Other income (expense), net.”

 

11


Table of Contents

SYNNEX CORPORATION

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS-(Continued)

For the three and six months ended May 31, 2005 and 2004

(amounts in thousands, except for per share amounts)

(unaudited)

 

Stock-based compensation

 

The Company’s employee stock option plan is accounted for in accordance with Accounting Principles Board No. 25, “Accounting for Stock Issued to Employees”, (“APB No. 25”) and complies with the disclosure provisions of Statement of Financial Accounting Standards No. 123, “Accounting for Stock-Based Compensation” (“SFAS No. 123”), and Statement of Financial Accounting Standards No. 148, “Accounting for Stock-Based Compensation, Transition and Disclosure” (“SFAS No. 148”). Expense associated with stock-based compensation is amortized on a straight-line basis over the vesting period of the individual award.

 

The Company accounts for stock issued to non-employees in accordance with the provisions of SFAS No. 123 and Emerging Issues Task Force Consensus No. 96-18, “Accounting for Equity Instruments That are Issued to Other Than Employees for Acquiring, or in Conjunction with Selling, Goods or Services” (“EITF No. 96-18”). Under SFAS No. 123 and EITF No. 96-18, stock option awards issued to non-employees are accounted for at fair value using the Black-Scholes option-pricing model.

 

The following table illustrates the effect on net income per share if the Company had applied the fair value recognition provisions of SFAS No. 123 to stock-based employee compensation. The estimated fair value of each Company option is calculated using the Black-Scholes option-pricing model:

 

     Three Months Ended

    Six Months Ended

 
    

May 31,

2005


   

May 31,

2004


   

May 31,

2005


   

May 31,

2004


 

Net income - as reported

   $ 22,381     $ 10,211     $ 30,988     $ 19,864  

Plus: Stock-based employee compensation expense determined under APB No. 25, included in reported net income

     —         65       —         202  

Less: Stock-based employee compensation expense determined under fair value based method related to the employee stock purchase plan

     (60 )     (1,160 )     (306 )     (1,160 )

Less: Stock-based employee compensation expense determined under fair value based method related to stock options

     (791 )     (782 )     (1,770 )     (1,559 )
    


 


 


 


Net income - as adjusted

   $ 21,530     $ 8,334     $ 28,912     $ 17,347  
    


 


 


 


Net earnings per share - basic:

                                

As reported

   $ 0.78     $ 0.39     $ 1.10     $ 0.76  

Pro forma

   $ 0.75     $ 0.31     $ 1.02     $ 0.66  

Net earnings per share - diluted:

                                

As reported

   $ 0.72     $ 0.34     $ 0.99     $ 0.67  

Pro forma

   $ 0.71     $ 0.28     $ 0.94     $ 0.59  

Shares used in computing net income per share - basic:

                                

As reported

     28,539       26,520       28,275       26,238  

Pro forma

     28,539       26,520       28,275       26,238  

Shares used in computing net income per share - diluted:

                                

As reported

     30,900       30,179       31,201       29,865  

Pro forma

     30,306       29,657       30,693       29,316  

 

Comprehensive income

 

Comprehensive income is defined as the change in equity of a business enterprise during a period from transactions and other events and circumstances from non-owner sources. The primary components of

 

12


Table of Contents

SYNNEX CORPORATION

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS-(Continued)

For the three and six months ended May 31, 2005 and 2004

(amounts in thousands, except for per share amounts)

(unaudited)

 

comprehensive income for the Company include foreign currency translation adjustments arising from the consolidation of the Company’s foreign subsidiaries and unrealized gains and losses on the Company’s available-for-sale securities.

 

Reclassifications

 

Certain reclassifications have been made to the May 31, 2004 financial statements to conform to the May 31, 2005 financial statements. These reclassifications did not change previously reported total assets, liabilities, stockholders’ equity or net income.

 

Recently issued accounting pronouncements

 

In December 2004, the Financial Accounting Standards Board (“FASB”) issued FASB Statement No. 123R (revised 2004), “Share-Based Payment” (“Statement 123R”) , which is a revision of FASB Statement No. 123, “Accounting for Stock-Based Compensation” . Statement 123R supersedes APB Opinion No. 25, “Accounting for Stock Issued to Employees”, and amends FASB Statement No. 95 , “Statement of Cash Flows” . Generally, the approach in Statement 123R is similar to the approach described in Statement 123. However, Statement 123R require s all share-based payments to employees, including grants of employee stock options, to be recognized in the income statement based on their fair values. Pro forma disclosure will no longer be an alternative. The new standard will be effective for the Company in the quarter ending February 28, 2006. The Company is in the process of assessing the impact of adopting this new standard, and expects the impact upon adoption to be minor to its financial position and results of operations. The impact will be dependent on the transition method, the option-pricing model used to compute fair values, and the inputs to that model, such as volatility and expected life.

 

In December 2004, the FASB Issued Statement of Financial Accounting Standards No. 151, “Inventory Costs” (“SFAS 151”), which adopts wording from the International Accounting Standards Board’s IAS 2 “Inventories” in an effort to improve the comparability of international financial reporting. The new standard indicates that abnormal freight, handling costs, and wasted materials (spoilage) are required to be treated as current period charges rather than as a portion of inventory cost. Additionally, the standard clarifies that fixed production overhead should be allocated based on the normal capacity of a production facility. The provisions of SFAS 151 are effective for fiscal years beginning after June 15, 2005. Adoption of SFAS 151 is not expected to have a material impact on the Company’s financial position or results of operations.

 

NOTE 3 – DISCONTINUED OPERATIONS:

 

During the second quarter of fiscal 2005, the Company sold approximately 93% of the equity it held in its subsidiary, SYNNEX K.K., to MCJ, in exchange for eight thousand six hundred three shares of MCJ. The Company recorded a gain of $12,323, net of tax, as a result of this sale. Under the provisions of FASB Statement No. 144, “Accounting for the Impairment or Disposal of Long-Lived Assets” (“Statement 144”), the sale of SYNNEX K.K. qualifies as a discontinued operation component of the Company. Based on this guidance, the Company has reported the results of operations and financial position of this business in discontinued operations within the condensed consolidated statements of operations for all periods presented.

 

13


Table of Contents

SYNNEX CORPORATION

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS-(Continued)

For the three and six months ended May 31, 2005 and 2004

(amounts in thousands, except for per share amounts)

(unaudited)

 

The results from the operations of SYNNEX K.K., prior to the sale, were as follows:

 

     Three Months Ended

 
    

May 31,

2005


   

February 28,

2005


   

November 30,

2004


   

August 31,

2004


   

May 31,

2004


   

February 29,

2004


 

Revenue

   $ 24,815     $ 39,662     $ 37,783     $ 36,440     $ 41,853     $ 47,468  

Cost of revenue

     (23,143 )     (36,773 )     (35,451 )     (34,401 )     (39,338 )     (44,748 )
    


 


 


 


 


 


Gross profit

     1,672       2,889       2,332       2,039       2,515       2,720  

Selling, general and administrative expenses

     (1,187 )     (1,983 )     (1,926 )     (1,938 )     (2,192 )     (2,230 )
    


 


 


 


 


 


Income from operations

     485       906       406       101       323       490  

Interest expense and finance charges, net

     (42 )     (98 )     (94 )     (111 )     (130 )     (129 )

Other income (expense), net

     (79 )     (166 )     125       16       94       (77 )
    


 


 


 


 


 


Income before income taxes and minority interest

     364       642       437       6       287       284  

Provision for income taxes

     (144 )     (290 )     (200 )     (2 )     (132 )     (125 )

Minority interest

     (13 )     (48 )     (32 )     (1 )     (21 )     (22 )
    


 


 


 


 


 


Income from discontinued operations, net of tax

   $ 207     $ 304     $ 205     $ 3     $ 134     $ 137  
    


 


 


 


 


 


 

NOTE 4 – BALANCE SHEET COMPONENTS:

 

Accounts receivable, net:

 

    

May 31,

2005


   

November 30,

2004


 

Trade accounts receivables

   $ 348,628     $ 397,504  

Less: Allowance for doubtful accounts

     (10,432 )     (12,023 )

Less: Allowance for sales returns

     (10,218 )     (12,877 )
    


 


     $ 327,978     $ 372,604  
    


 


 

Inventories:

 

    

May 31,

2005


  

November 30,

2004


Components

   $ 48,437    $ 41,309

Finished goods

     325,186      367,037
    

  

     $ 373,623    $ 408,346
    

  

 

14


Table of Contents

SYNNEX CORPORATION

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS-(Continued)

For the three and six months ended May 31, 2005 and 2004

(amounts in thousands, except for per share amounts)

(unaudited)

 

Intangible assets:

 

     May 31, 2005

   November 30, 2004

    

Gross

Amount


  

Accumulated

Amortization


   

Net

Amount


  

Gross

Amount


  

Accumulated

Amortization


   

Net

Amount


Goodwill

   $ 24,143    $ —       $ 24,143    $ 23,631    $ —       $ 23,631

Vendor lists

     22,062      (13,079 )     8,983      22,898      (12,843 )     10,055

Customer lists

     12,112      (2,314 )     9,798      13,133      (2,204 )     10,929

Other intangible assets

     1,064      (284 )     780      4,878      (771 )     4,107
    

  


 

  

  


 

     $ 59,381    $ (15,677 )   $ 43,704    $ 64,540    $ (15,818 )   $ 48,722
    

  


 

  

  


 

 

Amortization expense was $787, $981, $1,474 and $1,964 for the three months ended May 31, 2004 and 2005 and the six months ended May 31, 2004 and 2005, respectively. Goodwill increased due to the final payment for the acquisition of BSA Sales, Inc.

 

NOTE 5 - ACCOUNTS RECEIVABLE ARRANGEMENTS:

 

The Company has established a six-year revolving arrangement (the “Arrangement”) through a consolidated wholly owned subsidiary to sell up to $275,000 of U.S. trade accounts receivables (the “Receivables”) to two financial institutions. In connection with the Arrangement, the Company sells its Receivables to its wholly-owned subsidiary on a continuing basis, which will in turn sell an undivided interest in the Receivables to the financial institutions without recourse, at market value, calculated as the gross receivable amount, less a facility fee. The fee is based on the prevailing commercial paper interest rates plus 0.90%. A separate fee based on the unused portion of the facility, at 0.30% per annum, is also charged by the financial institutions. To the extent that cash was received in exchange, the amount of Receivables sold to the financial institutions has been recorded as a true sale, in accordance with SFAS No. 140, “Accounting for Transfer and Servicing of Financial Assets and Extinguishments of Liabilities”. The amount of Receivables sold to the financial institutions and not yet collected from customers at November 30, 2004 and May 31, 2005 was $196,300 and $140,200, respectively. The wholly owned subsidiary is consolidated in the financial statements of the Company, and the remaining balance of unsold Receivables at November 30, 2004 and May 31, 2005 of $213,492 and $208,489, respectively, are included within “Accounts receivable, net”.

 

The gross proceeds resulting from the sale of the Receivables totaled approximately $215,000, $258,300, $428,750 and $506,400 in the three months ended May 31, 2004 and 2005 and the six months ended May 31, 2004 and 2005, respectively. The gross payments to the financial institutions under the Arrangement totaled approximately $207,500, $236,700, $477,550 and $562,500 in the three months ended May 31, 2004 and 2005 and the six months ended May 31, 2004 and 2005, respectively, which arose from the subsequent collection of Receivables. The proceeds (net of the facility fee) are reflected in the consolidated statement of cash flows in operating activities within changes in accounts receivable.

 

The Company continues to collect the Receivables on behalf of the financial institutions, for which it receives a service fee from the financial institutions, and remits collections to the financial institutions. The Company estimates that the service fee it receives approximates the market rate for such services, and as a result, has recognized no servicing assets or liabilities in its consolidated balance sheet. Facility fees (net of service fees) charged by the financial institutions totaled $810, $1,092, $1,617 and $2,254 in the three months ended May 31, 2004 and 2005 and the six months ended May 31, 2004 and 2005, respectively, and were recorded within “Interest expense and finance charges, net”.

 

Under the Arrangement the Company is required to maintain certain financial covenants to maintain its eligibility to sell additional Receivables under the facility. These covenants include minimum net worth, minimum fixed charge ratio, and net worth percentage. The Company was in compliance with the covenants at November 30, 2004 and May 31, 2005.

 

15


Table of Contents

SYNNEX CORPORATION

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS-(Continued)

For the three and six months ended May 31, 2005 and 2004

(amounts in thousands, except for per share amounts)

(unaudited)

 

The Company has also entered into financing agreements with various financial institutions (“Flooring Companies”) to allow certain customers of the Company to finance their purchases directly with the Flooring Companies. Under these agreements, the Flooring Companies pay to the Company the selling price of products sold to various customers, less a discount, within approximately 15 business days from the date of sale. The Company is contingently liable to repurchase inventory sold under flooring agreements in the event of any default by its customers under the agreement and such inventory being repossessed by the Flooring Companies. See Note 12, “Commitments and Contingencies” for additional information. Approximately $274,669, $298,903, $522,755 and $584,134 of the Company’s net sales were financed under these programs in the three months ended May 31, 2004 and 2005 and the six months ended May 31, 2004 and 2005, respectively. Approximately $54,152 and $42,329 of accounts receivable at November 30, 2004 and May 31, 2005, respectively, were subject to flooring agreements. Flooring fees were approximately $632, $1,409, $1,392 and $2,551 in the three months ended May 31, 2004 and 2005 and the six months ended May 31, 2004 and 2005, respectively, and are included within “ Interest expense and finance charges, net”.

 

NOTE 6 – RESTRUCTURING CHARGES:

 

In the first quarter of fiscal 2005, the Company announced a restructuring program in its distribution segment that impacted approximately 35 employees across multiple business functions in SYNNEX Canada and closed its facilities in Richmond, British Columbia, Calgary, Alberta and Saint-Laurent, Quebec. This restructuring resulted in employee termination benefits of $711, estimated facilities exit expenses of $839 and other expenses in the amount of $121. All charges were recorded in accordance with Statement of Financial Accounting Standards No. 146, “Accounting for Costs Associated with Exit or Disposal Activities”. All terminations were completed by May 31, 2005.

 

The following table summarizes the activity related to the liability for restructuring charges through May 31, 2005:

 

     Severance
and Benefits


    Facility and
Exit Costs


    Other

   Total

 

Balance of accrual at November 30, 2004

   $ —       $ —       $ —      $ —    

Restructuring charge expensed in the quarter ended February 28, 2005

     691       828       121      1,640  

Cash payments

     (74 )     —         —        (74 )

Non-cash charges

     —         (636 )     —        (636 )
    


 


 

  


Balance accrued at February 28, 2005

     617       192       121      930  

Adjustments

     20       11       —        31  

Cash payments

     (218 )     (62 )     —        (280 )
    


 


 

  


Balance accrued at May 31, 2005

   $ 419     $ 141     $ 121    $ 681  
    


 


 

  


 

The unpaid portion of the restructuring charges is included in the condensed consolidated balance sheets under the caption “Accrued liabilities”.

 

16


Table of Contents

SYNNEX CORPORATION

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS-(Continued)

For the three and six months ended May 31, 2005 and 2004

(amounts in thousands, except for per share amounts)

(unaudited)

 

NOTE 7 – BORROWINGS:

 

Borrowings consist of the following:

 

    

May 31,

2005


   

November 30,

2004


 

SYNNEX Canada revolving loan

   $ 59,491     $ 56,877  

SYNNEX Canada term loan

     1,581       2,275  

SYNNEX Japan line of credit

     —         16,521  

SYNNEX Japan term loan

     —         1,944  

SYNNEX Japan mortgage

     —         1,088  

SYNNEX Japan bonds

     —         6,997  

SYNNEX UK line of credit

     1,613       —    

SYNNEX China mortgage

     —         2,368  
    


 


       62,685       88,070  

Less: Current portion

     (61,443 )     (74,996 )
    


 


Non-current portion

   $ 1,242     $ 13,074  
    


 


 

NOTE 8 - STOCKHOLDERS’ EQUITY:

 

Initial Public Offering

 

The Company completed its initial public offering (“IPO”) on December 1, 2003 and sold an aggregate of 3,578 shares of its common stock. In January 2004, the underwriters of the Company’s IPO exercised a portion of their over-allotment option and purchased an additional 161 shares of common stock from the Company. Net proceeds from the IPO and the exercise of the over-allotment option aggregated approximately $48,800.

 

Stock Options

 

During the three months ended May 31, 2004 and 2005 and the six months ended May 31, 2004 and 2005, 272, 25, 290 and 25 stock options, respectively, were granted and at May 31, 2005 options to purchase 7,150 shares of common stock were outstanding.

 

The fair value of each option grant is estimated on the date of grant using the Black-Scholes option-pricing model. The Black-Scholes model, as well as other currently accepted option valuation models, was developed to estimate the fair value of freely tradable, fully transferable options without vesting restrictions, and these assumptions differ significantly from the characteristics of Company stock option grants. The following weighted average assumptions were used to estimate the fair value of stock option grants in the three months ended May 31, 2004 and 2005 and the six months ended May 31, 2004 and 2005:

 

     Three Months Ended

    Six Months Ended

 
    

May 31,

2005


   

May 31,

2004


   

May 31,

2005


   

May 31,

2004


 

Expected life (years)

   5     5     5     5  

Risk-free interest rate

   4.3 %   3.4 %   4.3 %   3.4 %

Expected volatility

   40 %   65 %   40 %   65 %

Dividend yield

   0 %   0 %   0 %   0 %

 

The weighted-average per share grant date fair value of options granted during the three months ended May 31, 2004 and 2005 and the six months ended May 31, 2004 and 2005 was $10.16, $8.68, $10.10 and $8.68, respectively.

 

2003 Employee Stock Purchase Plan

 

The Company’s 2003 Employee Stock Purchase Plan (“ESPP”) permits eligible employees to purchase common stock through payroll deductions, which may not exceed 15% of an employee’s total compensation. The

 

17


Table of Contents

SYNNEX CORPORATION

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS-(Continued)

For the three and six months ended May 31, 2005 and 2004

(amounts in thousands, except for per share amounts)

(unaudited)

 

maximum number of shares a participant may purchase during a single accumulation period is one thousand two hundred fifty. The plan was approved by the Company’s stockholders and approved by its board of directors in 2003. A total of 500 shares of common stock have been reserved for issuance under the ESPP.

 

Prior to the March 2005 Amendment, the ESPP had been implemented in a series of overlapping offering periods of 24 months’ duration, with new offering periods, other than the first offering period, beginning in October and April each year. Each offering period consisted of four accumulation periods of up to six months each. During each accumulation period, payroll deductions accumulate without interest. On the last trading day of each accumulation period, accumulated payroll deductions are used to purchase common stock.

 

Prior to the March 2005 Amendment, the purchase price equaled 85% of the fair market value per share of common stock on either the first trading day of the offering period or on the last trading day of the accumulation period, whichever was less. If the fair market value of the Company’s stock at the start of an offering period is higher than the fair market value at the start of a subsequent offering period, then the first offering period will automatically terminate and participants will be automatically re-enrolled in the new offering period.

 

The payroll deductions in the first three accumulation periods resulted in the purchase of 321 shares of common stock. The fair value of each share is estimated on the date the employee enrolls in the ESPP using the Black-Scholes option-pricing model. The following weighted average assumptions were used to estimate the fair value of ESPP purchases in the accumulation periods ended March 31, 2004, September 30, 2004 and March 31, 2005:

 

Expected life (years)

   1.0  

Risk-free interest rate

   2.1 %

Expected volatility

   59.7 %

Dividend yield

   0 %

 

The weighted-average per share ESPP enrollment date fair value of common stock purchased during the accumulation periods was $4.95.

 

In March 2005, the Company’s board of directors approved the following amendments to the ESPP to be effective for the accumulation period beginning April 1, 2005:

 

    Reduction of participant purchase price discount of Company stock from 15% to 5%;

 

    Reduction of two year offering periods and six month accumulation periods to three month offering and accumulation periods;

 

    Maximum purchase limit of $10 of stock per calendar year per participant; and

 

    Associate vice president level employees and above are not eligible to participate.

 

18


Table of Contents

SYNNEX CORPORATION

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS-( Continued)

For the three and six months ended May 31, 2005 and 2004

(amounts in thousands, except for per share amounts)

(unaudited)

 

NOTE 9 – NET INCOME PER COMMON SHARE:

 

The following table sets forth the computation of basic and diluted net income per common share for the period indicated:

 

     Three Months Ended

   Six Months Ended

     May 31,
2005


  

May 31,

2004


   May 31,
2005


  

May 31,

2004


Net income from continuing operations

     9,851      10,077      18,154      19,593

Income from discontinued operations, net of tax

     207      134      511      271

Gain on sale of discontinued operations, net of tax

     12,323      —        12,323      —  
    

  

  

  

Net income

   $ 22,381    $ 10,211    $ 30,988    $ 19,864
    

  

  

  

Weighted average common shares - basic

     28,539      26,520      28,275      26,238

Effect of dilutive securities:

                           

Stock options

     2,361      3,659      2,926      3,627
    

  

  

  

Weighted average common shares - diluted

     30,900      30,179      31,201      29,865
    

  

  

  

Earnings per share:

                           

Basic

                           

Income from continuing operations

   $ 0.35    $ 0.38    $ 0.64    $ 0.75

Discontinued operations

   $ 0.43    $ 0.01    $ 0.46    $ 0.01
    

  

  

  

Net income per common share - basic

   $ 0.78    $ 0.39    $ 1.10    $ 0.76
    

  

  

  

Diluted

                           

Income from continuing operations

   $ 0.32    $ 0.33    $ 0.58    $ 0.66

Discontinued operations

   $ 0.40    $ 0.01    $ 0.41    $ 0.01
    

  

  

  

Net income per common share - diluted

   $ 0.72    $ 0.34    $ 0.99    $ 0.67
    

  

  

  

 

Options to purchase 60, 304 and 130 shares of common stock for the three months ended May 31, 2004 and 2005 and the six months ended May 31, 2004, respectively, have not been included in the computation of diluted net income per share as their effect would have been anti-dilutive. There we no anti-dilutive shares during the six months ended May 31, 2005.

 

NOTE 10 - RELATED PARTY TRANSACTIONS:

 

Purchases of inventories from MiTAC International Corporation and its affiliates (principally motherboards and other peripherals) were approximately $90,469, $102,725, $211,148 and $203,040 during the three months ended May 31, 2004 and 2005 and the six months ended May 31, 2004 and 2005, respectively. Sales to MiTAC International Corporation and its affiliates during the three months ended May 31, 2004 and 2005 and the six months ended May 31, 2004 and 2005, were approximately $473, $435, $613 and $893, respectively. The Company’s relationship with MiTAC International Corporation has been informal and is not governed by long-term commitments or arrangements with respect to pricing terms, revenue, or capacity commitments. Accordingly, the Company negotiates manufacturing and pricing terms, including allocating customer revenue, on a case-by-case basis with MiTAC International Corporation.

 

In October 2001, as a new investment option for the deferred compensation plan, the Company established a brokerage account in Taiwan. The purpose of the account was to hold shares of MiTAC International Corporation and its affiliates. The shares were sold during the three months ended May 31, 2005. As of November 30, 2004 the fair market value of the common stock acquired was approximately $2,259. There were no shares of common stock held at May 31, 2005.

 

NOTE 11 - SEGMENT INFORMATION:

 

Segments were determined based on products and services provided by each segment. The Company has identified the following two reportable business segments:

 

The Distribution segment distributes computer systems and complementary products to a variety of customers, including value-added resellers, system integrators, retailers and direct resellers.

 

19


Table of Contents

SYNNEX CORPORATION

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS-(Continued)

For the three and six months ended May 31, 2005 and 2004

(amounts in thousands, except for per share amounts)

(unaudited)

 

The Contract Assembly segment provides electronics assembly services to OEMs, including integrated supply chain management, build-to-order and configure-to-order system configurations, materials management and logistics.

 

Summarized financial information related to the Company’s reportable business segments as at May 31, 2004 and 2005, and for each of the periods then ended, is shown below:

 

     Distribution

  

Contract

Assembly


   Consolidated

Three Months Ended May 31, 2005:

                    

Revenue

   $ 1,210,996    $ 135,332    $ 1,346,328

Income from operations

     14,429      3,968      18,397

Total assets

     699,900      216,453      916,353

Three Months Ended May 31, 2004:

                    

Revenue

   $ 1,081,133    $ 150,075    $ 1,231,208

Income from operations

     14,372      4,173      18,545

Total assets

     648,721      181,084      829,805

Six Months Ended May 31, 2005:

                    

Revenue

   $ 2,391,262    $ 264,829    $ 2,656,091

Income from operations

     27,445      7,374      34,819

Total assets

     699,900      216,453      916,353

Six Months Ended May 31, 2004:

                    

Revenue

   $ 2,138,612    $ 267,279    $ 2,405,891

Income from operations

     28,529      7,132      35,661

Total assets

     648,721      181,084      829,805

 

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SYNNEX CORPORATION

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS-(Continued)

For the three and six months ended May 31, 2005 and 2004

(amounts in thousands, except for per share amounts)

(unaudited)

 

Summarized financial information related to the geographic areas in which the Company operated at May 31, 2005 and for each of the periods then ended is shown below:

 

     North
America


   Other

   Consolidation
Adjustments


    Consolidated

Three Months Ended May 31, 2005:

                            

Revenue

   $ 1,297,365    $ 59,349    $ (10,386 )   $ 1,346,328

Net income from continuing operations

     8,725      925      201       9,851

Other long-lived assets

     68,958      15,445      —         84,403

Three Months Ended May 31, 2004:

                            

Revenue

   $ 1,170,157    $ 69,819    $ (8,768 )   $ 1,231,208

Net income from continuing operations

     9,939      257      (119 )     10,077

Other long-lived assets

     30,247      19,372      —         49,619

Six Months Ended May 31, 2005:

                            

Revenue

   $ 2,551,965    $ 123,710    $ (19,584 )   $ 2,656,091

Net income from continuing operations

     15,918      2,116      120       18,154

Other long-lived assets

     68,958      15,445      —         84,403

Six Months Ended May 31, 2004:

                            

Revenue

   $ 2,282,294    $ 136,899    $ (13,302 )   $ 2,405,891

Net income from continuing operations

     19,765      125      (297 )     19,593

Other long-lived assets

     30,247      19,372      —         49,619

 

NOTE 12 - COMMITMENTS AND CONTINGENCIES:

 

The Company was contingently liable at May 31, 2005, under agreements to repurchase repossessed inventory acquired by Flooring Companies as a result of default on floor plan financing arrangements by the Company’s customers. These arrangements are described in Note 5. Losses, if any, would be the difference between repossession cost and the resale value of the inventory. There have been no repurchases through May 31, 2005 under these agreements nor is the Company aware of any pending customer defaults or repossession obligations.

 

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ITEM 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations

 

Forward-Looking Statements

 

When used in this Quarterly Report on Form 10-Q (the “Report”), the words “believes,” “plans,” “estimates,” “anticipates,” “expects,” “intends,” “allows,” “can,” “will” and similar expressions are intended to identify forward-looking statements. These are statements that relate to future periods and include statements relating to our services, our relationships with and the value we provide to our OEM suppliers and reseller customers, our relationship with MiTAC, our distribution, contract assembly and complementary supply chain services, our strategy with respect to international operations, our plan to continue our investment in IT services, adequacy of our facilities, revenue, gross margin, selling, general and administrative expenses, fluctuations in future revenues and operating results and future expenses, our expectation that our total gross margin percentage will likely remain stable from second quarter 2005 levels, fluctuations in inventory, our estimates regarding our capital requirements and our needs for additional financing, our infrastructure needs and growth, use of our working capital, thefts at our warehouses, our belief that we will be able to collect from our insurance company the insurance claim we have made, market consolidation, expansion of our operations and related costs, competition, impact of new rules and regulations affecting public companies, the adequacy of our cash resources to meet our capital needs, statements regarding our securitization program, sources of revenue and anticipated revenue and the adequacy of our internal controls over financial reporting. Forward-looking statements are subject to risks and uncertainties that could cause actual results to differ materially from those projected. These risks and uncertainties include, but are not limited to, those risks discussed below in “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Factors That May Affect Our Operating Results,” as well as the seasonality of the buying patterns of our customers, the concentration of sales to large customers, dependence upon and trends in capital spending budgets in the IT industry, fluctuations in general economic conditions, increased competition and costs related to expansion of our operations. These forward-looking statements speak only as of the date hereof. We expressly disclaim any obligation or undertaking to release publicly any updates or revisions to any forward-looking statements contained herein to reflect any change in our expectations with regard thereto or any change in events, conditions or circumstances on which any such statement is based.

 

Overview

 

We are a global information technology, or IT, supply chain services company. We offer a comprehensive range of services to IT original equipment manufacturers and software publishers, collectively OEMs, and reseller customers worldwide. The supply chain services that we offer include product distribution, related logistics, contract assembly and demand generation marketing.

 

We have been in the IT distribution business since 1980 and are one of the largest IT product distributors based on 2004 reported revenue. We focus our core wholesale distribution business on a limited number of leading IT OEMs, which allows us to enhance and increase the value we provide to our OEM suppliers and reseller customers. In the three and six months ended May 31, 2005 our largest OEM supplier, HP, accounted for approximately 28% and 29%, respectively, of our total revenue. Because we offer distribution, contract assembly and complementary supply chain services, OEM suppliers and resellers can outsource to us multiple areas of their business outside of their core competencies. This model allows us to provide services at several points along the IT product supply chain. We believe that the combination of our broad range of supply chain capabilities, our focus on serving the leading IT OEMs and our efficient operations enable us to realize strong relationships with our OEM suppliers and reseller customers. We are headquartered in Fremont, California and have distribution, sales and assembly facilities in Asia, Europe and North and Latin America.

 

Critical Accounting Policies and Estimates

 

There have been no material changes in our critical accounting policies and estimates for the three and six-month periods ended May 31, 2005 from our disclosure in our Annual Report on Form 10-K for the year ended November 30, 2004. For a discussion of the critical accounting policies, please see the discussion in our Annual Report on Form 10-K for the fiscal year ended November 30, 2004.

 

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Results of Operations

 

We operate in two business segments – distribution and contract assembly. Our revenue is currently approximately 90% from distribution and 10% from contract assembly. In addition, from a geographic segment perspective, approximately 95% of our total revenue is from North America and the remaining 5% is from outside North America. During the second quarter of fiscal 2005 we sold our Japanese subsidiary, SYNNEX K.K., in order to focus on our North American business. While we are currently focused on North American distribution and contract assembly operations we may expand outside of these geographies as we have in the past. As a result, the following discussion and analysis only include SYNNEX K.K.’s operations in discontinued operations.

 

The following table sets forth, for the indicated periods, data as percentages of revenue:

 

     Three Months Ended

    Six Months Ended

 
     May 31,
2005


   

May 31,

2004


    May 31,
2005


    May 31,
2004


 
Statements of Operations Data:                         

Revenue

   100.00 %   100.00 %   100.00 %   100.00 %

Cost of revenue

   (95.80 )   (95.84 )   (95.76 )   (95.78 )
    

 

 

 

Gross profit

   4.20     4.16     4.24     4.22  

Selling, general and administrative expenses

   (2.83 )   (2.65 )   (2.93 )   (2.74 )
    

 

 

 

Income from operations

   1.37     1.51     1.31     1.48  

Interest expense and finance charges, net

   (0.26 )   (0.14 )   (0.27 )   (0.16 )

Other income (expense), net

   0.07     (0.07 )   0.06     (0.04 )
    

 

 

 

Income before income taxes and minority interest

   1.18     1.30     1.10     1.28  

Provision for income taxes

   (0.45 )   (0.49 )   (0.42 )   (0.47 )

Minority interest in subsidiaries

   0.00     0.01     0.00     0.01  
    

 

 

 

Net income from continuing operations

   0.73     0.82     0.68     0.82  

Income from discontinued operations, net of tax

   0.02     0.01     0.02     0.01  

Gain on sale of discontinued operations, net of tax

   0.91     0.00     0.47     0.00  
    

 

 

 

Net income

   1.66 %   0.83 %   1.17 %   0.83 %
    

 

 

 

 

Three Months Ended May 31, 2005 and 2004

 

Revenue:

 

     Three Months Ended
May 31, 2005


   Three Months Ended
May 31, 2004


   % Change

 
     (in thousands)    (in thousands)       

Revenue

   $ 1,346,328    $ 1,231,208    9.4 %

Distribution revenue

   $ 1,210,996    $ 1,081,133    12.0 %

Contract assembly revenue

   $ 135,332    $ 150,075    (9.8 )%

 

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Table of Contents

The increase in our distribution revenue was primarily attributable to increased demand for products through the IT distribution channel, primarily in the United States, and the acquisition of Canadian based EMJ Data Systems Limited (“EMJ”) in September 2004. Our revenue increase was also a result of our increased selling efforts, including the hiring of additional sales and business development staff in the United States. The increase in our distribution revenue was somewhat mitigated by continued significant competition in the IT distribution marketplace and gradual declines in the average selling price of products we sell. Although the overall demand for IT products, including the sale of products through the IT distribution channel, has improved in recent years, there can be no assurance that it will continue to improve or that our suppliers will not change their marketing and sales strategies and decrease their business through the IT distribution channel. While we continue to address these challenges to our revenue growth, there can be no assurance that we will be successful in reducing the effects of these issues on our future results.

 

The decrease in contract assembly revenue was the result of a decrease in demand from our largest contract assembly customer, Sun Microsystems. This decrease was partially offset by an increase in sales to our other contract assembly customers which totaled 6% of our contract assembly sales in the second quarter of 2005 versus 2% in the second quarter of 2004. We currently expect our contract assembly business revenue level to have fluctuations in the foreseeable quarters as we attempt to diversify our contract assembly customer base.

 

Gross Profit:

 

     Three Months Ended
May 31, 2005


    Three Months Ended
May 31, 2004


    % Change

 
     (in thousands)     (in thousands)        

Gross profit

   $ 56,556     $ 51,209     10.4 %

Percentage of revenue

     4.20 %     4.16 %   1.0 %

 

Our gross margin has been and will continue to be affected by a variety of factors, including competition, the mix and average selling prices of products we sell and the mix of customers to whom we sell, rebate and discount programs from our suppliers, freight costs and reserves for inventory losses. The slight increase in gross margin percentage was primarily a result of higher margins in our distribution segment, primarily from revenue outside of the United States. Our contract assembly gross margin percentage increased slightly due to changes in product and customer mix.

 

Due to competitive pressures in North America and our increased dependence on North American revenue in future periods, we currently expect that our total gross margin percentage will likely remain approximately the same as second quarter 2005 levels. Our gross margins may decrease in future periods as a result of the relative mix of our distribution and contract assembly revenue, distribution customer mix, as well as due to potential increased competition, softness in the overall economy or changes to the terms and conditions in which we do business with our OEMs.

 

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Table of Contents

Selling, General and Administrative Expenses:

 

     Three Months Ended
May 31, 2005


    Three Months Ended
May 31, 2004


    % Change

 
     (in thousands)     (in thousands)        

Selling, general and administrative expenses

   $ 38,159     $ 32,664     16.8 %

Percentage of revenue

     2.83 %     2.65 %   6.8 %

 

Our selling, general and administrative expenses consist primarily of salaries, commissions, bonuses, and related expenses for personnel engaged in sales, product marketing, distribution and contract assembly operations and administration. Selling, general and administrative expenses also include stock-based compensation expense, deferred compensation expense or income, temporary personnel fees, the costs of our facilities, utility expense, professional fees, depreciation expense on our capital equipment and amortization expense on our intangible assets. Selling, general and administrative expenses increased in the second quarter of 2005 from the prior year, and, as a percentage of revenue, selling, general and administrative expenses increased in the three months ended May 31, 2005 to 2.8% from 2.7% in the prior year. These increases were primarily the result of hiring of additional sales and business development personnel in the United States, the acquisition of Canadian based EMJ in September 2004 and a $1.0 million increase in deferred compensation expense. This increase was partially offset by savings achieved from the Canadian restructuring activities initiated in the three months ended February 28, 2005.

 

Netted against selling, general and administrative expenses are reimbursements from OEM suppliers of $4.8 million for the three months ended May 31, 2005, compared to $4.0 million in the prior year. The reimbursements relate to marketing, infrastructure and promotion programs such as advertisements in trade publications, direct marketing campaigns through mail and e-mail and product demonstrations at trade shows. We make the arrangements and pay for the advertising, facility fees and other costs of the programs, which feature the OEM suppliers’ products. If our OEM suppliers had not offered reimbursements for these programs, then we might have chosen not to have these programs and incur the related costs.

 

While we continually strive to maintain the lowest possible cost structure in running our operations, without sacrificing customer and vendor service and satisfaction, we do expect that our selling, general and administrative expense will increase in future periods as we invest in our infrastructure to improve processes and productivity and to grow our business.

 

Income from Operations:

 

     Three Months Ended
May 31, 2005


   Three Months Ended
May 31, 2004


   % Change

 
     (in thousands)    (in thousands)       

Income from operations

   $ 18,397    $ 18,545    (0.8 )%

 

Income from operations as a percentage of revenue of 1.4% for the three months ended May 31, 2005 decreased slightly from 1.5% in the prior year due to the increase in selling, general and administrative expenses. Our distribution operating income percentage decreased to 1.2% in the three months ended May 31, 2005 from 1.3% in the prior year primarily due to integrating the EMJ acquisition in Canada, the hiring of additional sales and business development personnel in the United States and a $1.0 million increase in deferred compensation expense. This was partially offset by a $0.4 million decrease in the operating loss of our Mexico operation. While the increase in deferred compensation expense had an effect on operating income, there was no effect on net income as the increase in deferred compensation expense was offset by an investment gain, which is recorded in other income and expense. The decrease in the operating loss in Mexico was a result of focused efforts to reduce costs and improve operating effectiveness. Our contract assembly operating income percentage increased to 2.9% in the three months ended May 31, 2005 from 2.8% in the prior year primarily due to product and customer mix.

 

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Table of Contents

Interest Expense and Finance Charges, net:

 

     Three Months Ended
May 31, 2005


   Three Months Ended
May 31, 2004


   % Change

 
     (in thousands)    (in thousands)       

Interest expense and finance charges, net

   $ 3,521    $ 1,705    106.5 %

 

Amounts recorded in interest expense and finance charges, net include interest expense paid on our lines of credit, long-term debt, deferred compensation liability offset by income earned on our excess cash investments, finance fees associated with third party accounts receivable flooring arrangements and finance fees associated with the sale of accounts receivable through our securitization facility. The increase in interest expense and finance charges, net, was primarily a result of higher finance charges due to higher interest rates as compared to those in 2004 and higher debt levels in our Canadian subsidiary, due to the EMJ acquisition.

 

Other Income (Expense), net:

 

     Three Months Ended
May 31, 2005


   Three Months Ended
May 31, 2004


    % Change

 
     (in thousands)    (in thousands)        

Other income (expense), net

   $ 949    $ (836 )   (213.5 )%

 

Amounts recorded in other income (expense), net include foreign currency transaction gains and losses, investment gains and losses, including those in our deferred compensation plan and other non-operating gains and losses. The increase in other income (expense), net was primarily due to a $0.9 million mark to market gain from the increase in value of shares of MCJ Company Limited (“MCJ”) stock we acquired as a result of the sale of our Japanese subsidiary and a $1.0 million increase in investment gains related to deferred compensation, partially offset by a $0.2 million increase in foreign exchange losses in the three months ended May 31, 2005 as compared with the same period in the prior year.

 

Provision for Income Taxes . Income taxes consist of our current and deferred tax expense resulting from our income earned in domestic and foreign jurisdictions. Our effective tax rate was 38.0% in the three months ended May 31, 2005 as compared with an effective tax rate of 37.6% in the prior year. The increase in our effective tax rate from the second quarter of 2005 versus the second quarter of 2004 was primarily a result of a higher percentage of our total taxable income realized in the United States, where our corporate tax rate is generally higher than other geographies we operate in.

 

Minority Interest . Minority interest is the portion of earnings from operations from our subsidiary in Mexico attributable to others. Minority interest benefit decreased to $32,000 in the three months ended May 31, 2005 from a $94,000 in the three months ended May 31, 2004 due to a decrease in losses at our Mexico subsidiary.

 

Discontinued Operations . During the second quarter of fiscal 2005 we sold approximately 93% of SYNNEX K.K. to MCJ, in exchange for 8,603 shares of MCJ. We recorded a gain of $12.3 million, net of tax, as a result of this sale. Under the provisions of FASB Statement No. 144, “Accounting

 

26


Table of Contents

for the Impairment or Disposal of Long-Lived Assets” (“Statement 144”), the sale of SYNNEX K.K. qualifies as a discontinued operation component of us. Based on this guidance, we have reported the results of operations and financial position of this business in discontinued operations within the condensed consolidated statements of operations for all periods presented.

 

The results from the operations of SYNNEX K.K., prior to the sale, were as follows (in thousands):

 

     Three Months Ended

 
     May 31,
2005


    May 31,
2004


 

Revenue

   $ 24,815     $ 41,853  

Cost of revenue

     (23,143 )     (39,338 )
    


 


Gross profit

     1,672       2,515  

Selling, general and administrative expenses

     (1,187 )     (2,192 )
    


 


Income from operations

     485       323  

Interest expense and finance charges, net

     (42 )     (130 )

Other income (expense), net

     (79 )     94  
    


 


Income before income taxes and minority interest

     364       287  

Provision for income taxes

     (144 )     (132 )

Minority interest

     (13 )     (21 )
    


 


Income from discontinued operations, net of tax

   $ 207     $ 134  
    


 


 

Six Months Ended May 31, 2005 and 2004

 

Revenue:

 

     Six Months Ended
May 31, 2005


   Six Months Ended
May 31, 2004


   % Change

 
     (in thousands)    (in thousands)       

Revenue

   $ 2,656,091    $ 2,405,891    10.4 %

Distribution revenue

   $ 2,391,262    $ 2,138,612    11.8 %

Contract assembly revenue

   $ 264,829    $ 267,279    (0.9 )%

 

 

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Table of Contents

The increase in our distribution revenue was primarily attributable to increased demand for products through the IT distribution channel, primarily in the United States, and the acquisition of Canadian based EMJ in September 2004. Our revenue increase was also a result of our increased selling efforts, including the hiring of additional sales and business development staff in the United States. The increase in our distribution revenue was somewhat mitigated by continued significant competition in the IT distribution marketplace and gradual declines in the average selling price of products we sell. Although the overall demand for IT products, including the sale of products through the IT distribution channel, has improved in recent years, there can be no assurance that it will continue to improve or that our suppliers will not change their marketing and sales strategies and decrease their business through the IT distribution channel. While we continue to address these challenges to our revenue growth, there can be no assurance that we will be successful in reducing the effects of these issues on our future results.

 

The slight decrease in contract assembly revenue was the result of a decrease in demand from our largest contract assembly customer, Sun Microsystems, in the second quarter of fiscal 2005.

 

Gross Profit:

 

     Six Months Ended
May 31, 2005


    Six Months Ended
May 31, 2004


    % Change

 
     (in thousands)     (in thousands)        

Gross profit

   $ 112,690     $ 101,451     11.1 %

Percentage of revenue

     4.24 %     4.22 %   0.0 %

 

The slight increase in gross margin percentage was primarily a result of higher margins in our distribution segment, primarily from revenue outside of the United States. Our contract assembly gross margin percentage increased slightly due to changes in product and customer mix.

 

Selling, General and Administrative Expenses:

 

     Six Months Ended
May 31, 2005


    Six Months Ended
May 31, 2004


    % Change

 
     (in thousands)     (in thousands)        

Selling, general and administrative expenses

   $ 77,871     $ 65,790     18.4 %

Percentage of revenue

     2.93 %     2.74 %   6.9 %

 

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Selling, general and administrative expenses increased in the six months ended May 31, 2005 from the prior year, and, as a percentage of revenue, selling, general and administrative expenses increased in the six months ended May 31, 2005 to 2.9% from 2.7% in the prior year. The increase was primarily the result of hiring of additional sales and business development personnel in the United States, the acquisition of Canadian based EMJ in September 2004 and a $1.6 million increase in deferred compensation expense. Netted against selling, general and administrative expenses are reimbursements from OEM suppliers of $9.4 million for the six months ended May 31, 2005, compared to $7.4 million in the prior year.

 

In addition, our selling, general and administrative expenses increased due to a $1.7 million restructuring charge initiated in the three months ended February 28, 2005 in our Canadian distribution segment. The restructuring charge was primarily incurred to eliminate duplicate personnel and excess facilities that occurred as a result of our acquisition of EMJ. The restructuring resulted in employee termination benefits of $0.7 million, estimated facilities exit expenses of $0.9 million and other costs of $0.1 million. All charges were recorded in accordance with Statement of Financial Accounting Standards No. 146, “Accounting for Costs Associated with Exit or Disposal Activities”. The unpaid portion of the restructuring charges is included in the condensed consolidated balance sheets under the caption “Accrued liabilities”.

 

Income from Operations:

 

     Six Months Ended
May 31, 2005


   Six Months Ended
May 31, 2004


   % Change

 
     (in thousands)    (in thousands)       

Income from operations

   $ 34,819    $ 35,661    (2.4 )%

 

Income from operations as a percentage of revenue of 1.3% for the six months ended May 31, 2005 decreased slightly from 1.5% in the prior year due to the increase in selling, general and administrative expenses. Our distribution operating income percentage decreased to 1.1% in the six months ended May 31, 2005 from 1.3% in the prior year primarily due to our restructuring charges in the first quarter of fiscal 2005, a $1.6 million increase in deferred compensation expense and the hiring of additional sales and business development personnel in the United States. This was partially offset by a $0.8 million decrease in the operating loss of our Mexico operation. While the increase in deferred compensation expense had an effect on operating income, there was no effect on net income as the increase in deferred compensation expense was offset by an investment gain, which is recorded in other income and expense. The decrease in the operating loss in Mexico was a result of focused efforts to reduce costs and improve operating effectiveness. Our contract assembly operating income percentage increased to 2.8% in the six months ended May 31, 2005 from 2.7% in the prior year primarily due to product and customer mix.

 

Interest Expense and Finance Charges, net:

 

     Six Months Ended
May 31, 2005


   Six Months Ended
May 31, 2004


   % Change

 
     (in thousands)    (in thousands)       

Interest expense and finance charges, net

   $ 7,331    $ 3,788    93.5 %

 

The increase in interest expense and finance charges, net was a result of higher finance charges due to higher interest rates as compared to those in 2004 and higher debt levels in our Canadian subsidiary due to the EMJ acquisition.

 

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Table of Contents

Other Income (Expense), net:

 

     Six Months Ended
May 31, 2005


   Six Months Ended
May 31, 2004


    % Change

 
     (in thousands)    (in thousands)        

Other income (expense), net

   $ 1,656    $ (1,157 )   (243.1 )%

 

The increase in other income (expense), net was primarily due to a $0.9 million mark-to-market gain from the increase in value of shares of MCJ stock we acquired as a result of the sale of our Japanese subsidiary and a $1.6 million increase in investment gains related to deferred compensation, partially offset by $0.5 million related to the repayment of debt resulting from the acquisition of EMJ in the six months ended May 31, 2005 as compared with the same period in the prior year.

 

Provision for Income Taxes . Our effective tax rate was 37.9% in the six months ended May 31, 2005 as compared with an effective tax rate of 37.0% in the prior year. The increase in our effective tax rate from the first six months of 2005 versus the first six months of 2004 was primarily a result of a higher percentage of our total taxable income realized in the United States, where our corporate tax rate is generally higher than other geographies we operate in.

 

Minority Interest . Minority interest is the portion of earnings from operations from our subsidiary in Mexico attributable to others. Minority interest benefit decreased to $58,000 in the six months ended May 31, 2005 from $244,000 in the six months ended May 31, 2004 due to a decrease in losses at our Mexico subsidiary.

 

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Table of Contents

Discontinued Operations . The results from the operations of SYNNEX K.K., prior to the sale, were as follows (in thousands):

 

     Six Months Ended

 
     May 31,
2005


    May 31,
2004


 

Revenue

   $ 64,477     $ 89,321  

Cost of revenue

     (59,916 )     (84,086 )
    


 


Gross profit

     4,561       5,235  

Selling, general and administrative expenses

     (3,170 )     (4,422 )
    


 


Income from operations

     1,391       813  

Interest expense and finance charges, net

     (140 )     (259 )

Other income (expense), net

     (245 )     17  
    


 


Income before income taxes and minority interest

     1,006       571  

Provision for income taxes

     (434 )     (257 )

Minority interest

     (61 )     (43 )
    


 


Income from discontinued operations, net of tax

   $ 511     $ 271  
    


 


 

Liquidity and Capital Resources

 

Cash Flows

 

Our business is working capital intensive. Our working capital needs are primarily to finance accounts receivable and inventory. We rely heavily on debt, accounts receivable flooring programs and the sale of our accounts receivable under our securitization program for our working capital needs.

 

We have financed our growth and cash needs to date primarily through working capital financing facilities, bank credit lines, cash generated from operations and our initial public offering. The primary uses of cash have been to fund increases in inventory and accounts receivable resulting from increased sales, and for acquisitions.

 

We had positive net working capital of $316.9 and $329.4 million at November 30, 2004 and May 31, 2005, respectively. We believe that cash flows from operations, our current cash balance and funds available under our working capital and credit facilities will be sufficient to meet our working capital needs and planned capital expenditures for the next 12 months.

 

To increase our market share and better serve our customers, we may further expand our operations through investments or acquisitions. We expect that this expansion would require an initial investment in personnel, facilities and operations, which may be more costly than similar investments in current operations. As a result of these investments, we may experience an increase in cost of sales and operating expenses that is disproportionate to revenue from those operations. These investments or acquisitions would likely be funded primarily by incurring additional debt or issuing additional capital stock.

 

Net cash used in operating activities was $10.0 million in the six months ended May 31, 2005. Cash used in operating activities in the six months ended May 31, 2005 was primarily attributable to decreases of $20.5 million for stock received from the sale of SYNNEX K.K. and $27.6 million from a decrease in cash from net working capital, partially offset by increases of $31.0 million from net income and $4.4 million from depreciation and amortization. The decrease in cash from net working capital in the six months ended May 31, 2005 was primarily due to a decrease in accounts payable, partially offset by decreases in inventories, accounts receivable and receivable from vendors . The fluctuations in these working capital balances were also affected by a net decrease of $56.1 million in sales of accounts receivable to two financial institutions

 

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under our securitization program. Absent this net decrease in sales of accounts receivable, our cash provided by working capital would have been $28.5 million and net cash provided by operating activities would have been $46.1 million.

 

Net cash used in investing activities was $7.1 million in the six months ended May 31, 2005. The use of cash was primarily the result of a $3.0 million investment in Microland, the final payments for the acquisitions of EMJ and BSA Sales, Inc. of $4.8 million and capital expenditures of $3.6 million, partially offset by a decrease in restricted cash of $2.0 million. The capital expenditures were mostly for the purchase of land associated with a building we already owned at our UK subsidiary, and computer equipment upgrades.

 

Net cash used in financing activities was $6.8 million in the six months ended May 31, 2005 and was primarily related to net debt payments of $7.6 million and cash overdraft of $4.6 million, offset by proceeds from purchases of common stock of $6.5 million.

 

Capital Resources

 

Our cash and cash equivalents totaled $28.7 million and $5.0 million at November 30, 2004 and May 31, 2005, respectively.

 

Off-Balance Sheet Arrangements

 

We have a six-year revolving accounts receivable securitization program in the United States, which provides for the sale of up to $275.0 million of U.S. trade accounts receivable to two financial institutions, which expires in August 2008. In connection with this program substantially all of our U.S. trade accounts receivable are transferred without recourse to our wholly owned subsidiary, which, in turn, sells the accounts receivable to the financial institutions. Sales of the accounts receivables to the financial institutions under this program result in a reduction of total accounts receivable in our consolidated balance sheet. The remaining accounts receivable not sold to the financial institutions are carried at their net realizable value, including an allowance for doubtful accounts. Our effective borrowing cost under the program is the prevailing commercial paper rate of return plus 0.90% per annum. At November 30, 2004 and May 31, 2005, the amount of our accounts receivable sold to and held by the financial institutions under this accounts receivable securitization program totaled $196.3 million and $140.2 million, respectively. The decrease in the first quarter of fiscal 2005 was due to business seasonality. We believe that available funding under our accounts receivable financing programs provides us increased flexibility to make incremental investments in strategic growth initiatives and to manage working capital requirements, and that there are sufficient trade accounts receivable to support the U.S. financing programs. As we have in prior periods, we expect we will increase this facility if our revenue levels continue to increase. Under the program, we continue to service the accounts receivable, and receive a service fee from the financial institutions. The program contains customary financial covenants, including, but not limited to, requiring us to maintain on a consolidated basis:

 

    a minimum net worth at the end of each fiscal quarter in each fiscal year ending on or after November 30, 2003 of not less than the sum of (i) the minimum net worth required under the arrangement for the immediately preceding fiscal year plus (ii) an amount equal to 50% of the positive net income of us and our subsidiaries on a consolidated basis for the immediately preceding fiscal year plus (iii) an amount equal to 100% of the amount of any equity raised by or capital contributed to us during the immediately preceding fiscal year;

 

    a fixed charge ratio for each rolling period from and after the closing of the arrangement of not less than 1.70 to 1.00. The fixed charge ratio is the ratio of EBITDA for the rolling period ending on such date to “fixed charges” for such period. Fixed charges means, with respect to any of our fiscal periods the sum of (a) cash interest expense during such period, plus (b) regularly scheduled payments of principal on our debt (other than debt owing under the amended arrangement, as defined) paid during such period, plus (c) the aggregate amount of all capital expenditures made by us during such period other than capital expenditures related to the purchase of and improvements to the building occupied by our subsidiary in China in an amount not to exceed $8.5 million, plus (d) income tax expense during such period, plus (e) any dividend, return of capital or any other distribution in connection with our capital stock. Rolling period means as of the end of any or our fiscal quarters, the immediately preceding four fiscal quarters (including the fiscal quarter then ending); and

 

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    with respect to our wholly owned subsidiary, a net worth percentage of not less than 5.0%.

 

We are also obligated to provide periodic financial statements and investment reports, notices of material litigation and any other information relating to our U.S. trade accounts receivable as requested by the financial institutions.

 

As is customary in trade accounts receivable securitization arrangements, a credit rating agency’s downgrade of the third party issuer of commercial paper or of a back-up liquidity provider (which provides a source of funding if the commercial paper market cannot be accessed) could result in an adverse change or loss of our financing capacity under these programs if the commercial paper issuer and/or liquidity back-up provider is not replaced. Loss of such financing capacity could have a material adverse effect on our financial condition and results of operations.

 

We have issued guarantees to certain vendors of our subsidiaries for the total amount of $77.9 million as of November 30, 2004 and $65.5 million as of May 31, 2005.

 

We have also issued guarantees of C$25.0 million in relation to a revolving loan agreement between SYNNEX Canada and a financial institution.

 

We are obligated under these guarantees to pay amounts due should our subsidiaries not pay valid amounts owed to their vendors or lenders. The vendor guarantees are typically less than one-year arrangements, with 30-day cancellation clauses and the lender guarantees are typically for the term of the loan agreement.

 

On-Balance Sheet Arrangements

 

We have entered into a senior secured revolving line of credit arrangement, or the Revolver, with a group of financial institutions, which is secured by our inventory and expires in 2008. The Revolver’s maximum commitment is 40% of eligible inventory valued at the lower of cost or market, less liquidation reserve (as defined) up to a maximum borrowing of $45.0 million. Interest on borrowings under the Revolver is based on the financial institution’s prime rate or LIBOR plus 1.75% at our option. There were no borrowings outstanding under the Revolver at November 30, 2004 or May 31, 2005.

 

Our subsidiary, SYNNEX Canada, has a revolving loan agreement with a group of financial institutions. At May 31, 2005 the credit limit was C$125.0 million and matures in September 2007. Borrowings under the loan agreement are collateralized by substantially all of SYNNEX Canada’s assets, including inventories and accounts receivable. Borrowings bear interest at the prime rate of a Canadian bank designated by the financial institution or at the financial institution’s Bankers Acceptance rate plus 1.2% for Canadian dollar denominated loans, at the prime rate of a U.S. bank designated by the financial institution or at LIBOR plus 1.2% for U.S. dollar denominated loans. The balance outstanding at November 30, 2004 and May 31, 2005 was $56.9 and $59.5 million, respectively.

 

We have other lines of credit and revolving facilities with financial institutions, which provide for borrowing capacity aggregating approximately $60.6 and $5.5 million at November 30, 2004 and May 31, 2005, respectively. At November 30, 2004 and May 31, 2005, we had borrowings of $16.5 and $1.6 million, respectively, outstanding under these facilities. We also have various term loans, bonds and mortgages with financial institutions totaling approximately $14.7 and $1.6 million at November 30, 2004 and May 31, 2005, respectively. Future principal payments due under these term loans, bonds and mortgages and payments due under our operating lease arrangements after May 31, 2005 are as follows (in thousands):

 

     Payments Due By Period

     Total

   Less than
1 Year


   1-3
Years


   3-5
Years


   >5
Years


Contractual obligations

                                  

Principal debt payments

   $ 1,581    $ 339    $ 678    $ 564    $ —  

Non-cancelable operating leases

     39,086      8,800      15,451      6,786      8,049
    

  

  

  

  

Total

   $ 40,667    $ 9,139    $ 16,129    $ 7,350    $ 8,049
    

  

  

  

  

 

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We are in compliance with all covenants or other requirements set forth in our accounts receivable financing programs and credit agreements discussed above.

 

Recent Accounting Pronouncements

 

In December 2004, the Financial Accounting Standards Board (FASB) issued FASB Statement No. 123R (revised 2004), “Share-Based Payment” , which is a revision of FASB Statement No. 123, “Accounting for Stock-Based Compensation” . Statement 123R supersedes APB Opinion No. 25, “Accounting for Stock Issued to Employees”, and amends FASB Statement No. 95 , “Statement of Cash Flows” . Generally, the approach in Statement 123R is similar to the approach described in Statement 123. However, Statement 123R require s all share-based payments to employees, including grants of employee stock options, to be recognized in the income statement based on their fair values. Pro forma disclosure is no longer an alternative. The new standard will be effective for us in the quarter ending February 28, 2006. We are in the process of assessing the impact of adopting this new standard, and expect the impact upon adoption to be minor to our financial position and results of operations. The impact will be dependent on the transition method, the option-pricing model used to compute fair values, and the inputs to that model, such as volatility and expected life.

 

In December 2004, the FASB issued Statement of Financial Accounting Standards No. 151, “Inventory Costs” (“SFAS 151”), which adopts wording from the International Accounting Standards Board’s IAS 2 “Inventories” in an effort to improve the comparability of international financial reporting. The new standard indicates that abnormal freight, handling costs, and wasted materials (spoilage) are required to be treated as current period charges, rather than as a portion of inventory cost. Additionally, the standard clarifies that fixed production overhead should be allocated based on the normal capacity of a production facility. The provisions of SFAS 151 are effective for fiscal years beginning after June 15, 2005. Adoption of SFAS 151 is not expected to have a material impact on our financial position or results of operations.

 

FACTORS THAT MAY AFFECT OUR OPERATING RESULTS

 

We anticipate that our revenue and operating results will fluctuate, which could adversely affect the price of our common stock.

 

Our operating results have fluctuated and will fluctuate in the future as a result of many factors, including:

 

    general economic conditions and weakness in IT spending;

 

    the loss or consolidation of one or more of our significant original equipment manufacturer, or OEM, suppliers or customers;

 

    market acceptance and product life of the products we assemble and distribute;

 

    competitive conditions in our industry, which may impact our margins;

 

    pricing, margin and other terms with our OEM suppliers;

 

    variations in our levels of excess inventory and doubtful accounts, and changes in the terms of OEM supplier-sponsored programs, such as price protection and return rights;

 

    changes in our costs and operating expenses; and

 

    the contribution to our total revenue of our international operations.

 

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Although we attempt to control our expense levels, these levels are based, in part, on anticipated revenue. Therefore, we may not be able to control spending in a timely manner to compensate for any unexpected revenue shortfall.

 

Our operating results also are affected by the seasonality of the IT products industry. We have historically experienced higher sales in our fourth fiscal quarter due to patterns in the capital budgeting, federal government spending and purchasing cycles of end-users. These patterns may not be repeated in subsequent periods.

 

You should not rely on period-to-period comparisons of our operating results as an indication of future performance. The results of any quarterly period are not indicative of results to be expected for a full fiscal year. In future quarters, our operating results may be below the expectations of public market analysts or investors, which would likely cause our share price to decline. For example, in March 2005, we announced that our revenue and net income for the three months ended February 28, 2005 would be lower than our previously released guidance and, as a result, our share price subsequently declined.

 

We depend on a small number of OEMs to supply the IT products that we sell and the loss of, or a material change in, our business relationship with a major OEM supplier could adversely affect our business, financial position and operating results.

 

Our future success is highly dependent on our relationships with a small number of OEM suppliers. Sales of HP and IBM products represented approximately 28% and 11%, respectively, of our total revenue in the three months ended May 31, 2004 and approximately 28% and 4%, respectively, of our total revenue in the three months ended May 31, 2005. For the six months ended May 31, 2004, sales of HP and IBM products accounted for approximately 28% and 11%, respectively, of our total revenue and approximately 29% and 5%, respectively, of our total revenue for the six months ended May 31, 2005. Our OEM supplier agreements typically are short-term and may be terminated without cause upon short notice. The loss or deterioration of our relationships with a major OEM supplier, the authorization by OEM suppliers of additional distributors, the sale of products by OEM suppliers directly to our reseller customers and end-users, or our failure to establish relationships with new OEM suppliers or to expand the distribution and supply chain services that we provide OEM suppliers could adversely affect our business, financial position and operating results. In addition, OEM suppliers may face liquidity or solvency issues that in turn could negatively affect our business and operating results.

 

Our business is also highly dependent on the terms provided by our OEM suppliers. Generally, each OEM supplier has the ability to change the terms and conditions of their sales agreements, such as reducing the amount of price protection and return rights or reducing the level of purchase discounts, rebates and marketing programs available to us. If we are unable to pass the impact of these changes through to our reseller customers, our business, financial position and operating results could be adversely affected.

 

Our gross margins are low, which magnifies the impact of variations in revenue, operating costs, bad debts and interest expense on our operating results.

 

As a result of significant price competition in the IT products industry, our gross margins are low, and we expect them to continue to be low in the future. Increased competition arising from industry consolidation and low demand for certain IT products may hinder our ability to maintain or improve our gross margins. These low gross margins magnify the impact of variations in revenue, operating costs, bad debts and interest expense on our operating results. A portion of our operating expenses is relatively fixed, and planned expenditures are based in part on anticipated orders that are forecasted with limited visibility of future demand. As a result, we may not be able to reduce our operating expenses as a percentage of revenue to mitigate any further reductions in gross margins in the future. If we cannot proportionately decrease our cost structure in response to competitive price pressures, our business and operating results could suffer.

 

We also receive purchase discounts and rebates from OEM suppliers based on various factors, including sales or purchase volume and breadth of customers. A decrease in net sales could negatively affect the level of volume rebates received from our OEM suppliers and thus, our gross margins. Because some rebates from OEM

 

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suppliers are based on percentage increases in sales of products, it may become more difficult for us to achieve the percentage growth in sales required for larger discounts due to the current size of our revenue base. A decrease or elimination of purchase discounts and rebates from our OEM suppliers would adversely affect our business and operating results.

 

Because we sell on a purchase order basis, we are subject to uncertainties and variability in demand by our reseller and contract assembly customers, which could decrease revenue and adversely affect our operating results.

 

We sell to our reseller and contract assembly customers on a purchase order basis rather than pursuant to long-term contracts or contracts with minimum purchase requirements. Consequently, our sales are subject to demand variability by our reseller and contract assembly customers. The level and timing of orders placed by our reseller and contract assembly customers vary for a variety of reasons, including seasonal buying by end-users, the introduction of new hardware and software technologies and general economic conditions. Customers submitting a purchase order may cancel, reduce or delay their orders. If we are unable to anticipate and respond to the demands of our reseller and contract assembly customers, we may lose customers because we have an inadequate supply of products, or we may have excess inventory, either of which may harm our business, financial position and operating results.

 

We are subject to the risk that our inventory value may decline, and protective terms under our OEM supplier agreements may not adequately cover the decline in value, which in turn may harm our business, financial position and operating results.

 

The IT products industry is subject to rapid technological change, new and enhanced product specification requirements, and evolving industry standards. These changes may cause inventory on hand to decline substantially in value or to rapidly become obsolete. Most of our OEM suppliers offer limited protection from the loss in value of inventory. For example, we can receive a credit from many OEM suppliers for products held in inventory in the event of a supplier price reduction. In addition, we have a limited right to return a certain percentage of purchases to most OEM suppliers. These policies are subject to time restrictions and do not protect us in all cases from declines in inventory value. In addition, our OEM suppliers may become unable or unwilling to fulfill their protection obligations to us. The decrease or elimination of price protection or the inability of our OEM suppliers to fulfill their protection obligations could lower our gross margins and cause us to record inventory write-downs. If we are unable to manage our inventory with our OEM suppliers with a high degree of precision, we may have insufficient product supplies or we may have excess inventory, resulting in inventory write downs, either of which may harm our business, financial position and operating results.

 

We depend on OEM suppliers to maintain an adequate supply of products to fulfill customer orders on a timely basis, and any supply shortages or delays could cause us to be unable to fulfill orders on a timely basis, which in turn could harm our business, financial position and operating results.

 

Our ability to obtain particular products in the required quantities and to fulfill reseller customer orders on a timely basis is critical to our success. In most cases, we have no guaranteed price or delivery agreements with our OEM suppliers. We occasionally experience a supply shortage of certain products as a result of strong demand or problems experienced by our OEM suppliers. If shortages or delays persist, the price of those products may increase, or the products may not be available at all. In addition, our OEM suppliers may decide to distribute, or to substantially increase their existing distribution business, through other distributors, their own dealer networks, or directly to resellers. Accordingly, if we are not able to secure and maintain an adequate supply of products to fulfill our reseller customer orders on a timely basis, our business, financial position and operating results may be adversely affected.

 

A portion of our revenue is financed by floor plan financing companies and any termination or reduction in these financing arrangements could harm our business and operating results.

 

A portion of our distribution revenue is financed by floor plan financing companies. Floor plan financing companies are engaged by our customers to finance, or “floor,” the purchase of products from us. In exchange for a fee, we transfer the risk of loss on the sale of our products to the floor plan companies. We currently receive

 

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payment from these financing companies within approximately 15 business days from the date of the sale, which allows our business to operate at much lower relative working capital levels than if such programs were not available. If these floor plan arrangements are terminated or substantially reduced, the need for more working capital and the increased financing cost could harm our business and operating results. We have not experienced any termination or significant reduction in floor plan arrangements in the past.

 

We have significant credit exposure to our reseller customers, and negative trends in their businesses could cause us significant credit loss and negatively impact our cash flow and liquidity position.

 

We extend credit to our reseller customers for a significant portion of our sales to them. Resellers have a period of time, generally 30 days after the date of invoice, to make payment. As a result, we are subject to the risk that our reseller customers will not pay for the products they purchase. Our credit exposure risk may increase due to liquidity or solvency issues experienced by our resellers as a result of an economic downturn or a decrease in IT spending by end-users. If we are unable to collect payment for products we ship to our reseller customers or if our reseller customers are unable to timely pay for the products we ship to them, it will be more difficult or costly to utilize receivable-based financing, which could negatively impact our cash flow and liquidity position.

 

We experienced theft of product from our warehouses. Future thefts could harm our operating results.

 

Although from time to time we have experienced incidents of theft at various facilities, in fiscal 2003 and fiscal 2005 we experienced theft as a result of break-ins at four of our warehouses in which approximately $13.4 million of inventory was stolen. Based on our investigation, discussions with local law enforcement and meetings with federal authorities, we believe the thefts at our warehouses were part of an organized crime effort that targeted a number of technology equipment warehouses throughout the United States.

 

As a result of the losses in 2003, we reduced our inventory value by $9.4 million, and recorded estimated proceeds, net of deductibles as a receivable from our insurance company, included within “other current assets” on our balance sheet as of November 30, 2003. In January 2004 we received a final settlement from our insurance company that amounted to substantially all of the receivable recorded as of November 30, 2003.

 

In March 2005 approximately $4.0 million of inventory was stolen from our facility in the City of Industry, California. We have filed a claim with our insurance provider for the amount of the loss, less a small deductible. Based on the information we have received to date from our insurance provider, we expect the claim to be collected.

 

These types of incidents may make it more difficult or expensive for us to obtain theft coverage in the future. There is no assurance that future incidents of theft will not re-occur.

 

A significant portion of our contract assembly revenue comes from a single customer, and any decrease in sales from this customer could adversely affect our revenue.

 

Our primary contract assembly customer, Sun Microsystems, accounted for approximately $147.3 million or 98% of our contract assembly revenue in the three months ended May 31, 2004 and approximately $127.7 million or 94% of our contract assembly revenue in the three months ended May 31, 2005. Sun Microsystems accounted for approximately $263.6 million or 99% of our contract assembly revenue in the six months ended May 31, 2004 and approximately $245.5 million or 93% of our contract assembly revenue in the six months ended May 31, 2005. Sun Microsystems accounted for 12% of our total revenue in the three months ended May 31, 2004, 11% of our total revenue in the six months ended May 31, 2004 and less than 10% of our total revenue in the three and six months ended May 31, 2005. The future success of our relationship with Sun Microsystems depends on MiTAC International continuing to work with us to service Sun Microsystems’ needs. Our relationship with Sun Microsystems evolved from a customer relationship initiated by MiTAC International and is a joint relationship with MiTAC International. We rely on MiTAC International to manufacture and supply subassemblies and components for the computer systems we assemble for Sun Microsystems. If we are unable to maintain our relationship with MiTAC International, our relationship with Sun Microsystems could suffer, which in turn could harm our business, financial position and operating results. In addition, if we were unable to obtain assembly contracts for new and successful products our business and operating results would suffer. For example, a loss of contract assembly business from Sun Microsystems would have a material adverse effect on our revenue and operating results in subsequent periods.

 

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We have pursued and intend to continue to pursue strategic acquisitions or investments in new markets and may encounter risks associated with these activities, which could harm our business and operating results.

 

The distribution and contract assembly industries have experienced significant consolidation due to price erosion and market competition, augmented by economic downturns in previous years. We expect this consolidation to continue. We have in the past pursued and in the future expect to pursue acquisitions of, or investments in, businesses and assets in new markets, either within or outside the IT products industry, that complement or expand our existing business. Our acquisition strategy involves a number of risks, including:

 

    difficulty in successfully integrating acquired operations, IT systems, customers, OEM supplier and partner relationships, products and businesses with our operations;

 

    loss of key employees of acquired operations or inability to hire key employees necessary for our expansion;

 

    diversion of our capital and management attention away from other business issues;

 

    an increase in our expenses and working capital requirements;

 

    in the case of acquisitions that we may make outside of the United States, difficulty in operating in foreign countries and over significant geographical distances; and

 

    other financial risks, such as potential liabilities of the businesses we acquire.

 

Our growth may be limited and our competitive position may be harmed if we are unable to identify, finance and complete future acquisitions. We believe that further expansion may be a prerequisite to our long-term success as some of our competitors in the IT product distribution industry have larger international operations, higher revenues and greater financial resources than us. We have incurred costs and encountered difficulties in the past in connection with our acquisitions and investments. For example, our operating margins were initially adversely affected as a result of our acquisition of Merisel Canada Inc. and we have written off substantial investments in the past, one of which was eManage.com, Inc. Also, our recent acquisition of EMJ has caused an initial negative effect on our operating margins as we integrate EMJ’s systems, operations and personnel. Future acquisitions may result in dilutive issuances of equity securities, the incurrence of additional debt, large write-offs, a decrease in future profitability, or future losses. The incurrence of debt in connection with any future acquisitions could restrict our ability to obtain working capital or other financing necessary to operate our business. Our recent and future acquisitions or investments may not be successful, and if we fail to realize the anticipated benefits of these acquisitions or investments, our business and operating results could be harmed.

 

We are dependent on a variety of IT and telecommunications systems, and any failure of these systems could adversely impact our business and operating results.

 

We depend on IT and telecommunications systems for our operations. These systems support a variety of functions, including inventory management, order processing, shipping, shipment tracking and billing.

 

Failures or significant downtime of our IT or telecommunications systems could prevent us from taking customer orders, printing product pick-lists, shipping products or billing customers. Sales also may be affected if our reseller customers are unable to access our price and product availability information. We also rely on the Internet, and in particular electronic data interchange, or EDI, for a large portion of our orders and information exchanges with our OEM suppliers and reseller customers. The Internet and individual web sites have experienced a number of disruptions and slowdowns, some of which were caused by organized attacks. In addition, some web sites have experienced security breakdowns. If we were to experience a security breakdown, disruption or breach that compromised sensitive information, it could harm our relationship with our OEM suppliers or reseller customers. Disruption of our web site or the Internet in general could impair our order processing or more generally prevent our OEM suppliers or reseller customers from accessing information. The occurrence of any of these events could have an adverse effect on our business and operating results.

 

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We rely on independent shipping companies for delivery of products, and price increases or service interruptions from these carriers could adversely affect our business and operating results.

 

We rely almost entirely on arrangements with independent shipping companies, such as FedEx and UPS, for the delivery of our products from OEM suppliers and delivery of products to reseller customers. Freight and shipping charges can have a significant impact on our gross margin. As a result, an increase in freight surcharges due to rising fuel cost or general price increases will have an immediate adverse effect on our margins, unless we are able to pass the increased charges to our reseller customers or renegotiate terms with our OEM suppliers. In addition, in the past, UPS has experienced work stoppages due to labor negotiations with management. The termination of our arrangements with one or more of these independent shipping companies, the failure or inability of one or more of these independent shipping companies to deliver products, or the unavailability of their shipping services, even temporarily, could have an adverse effect on our business and operating results.

 

Part of our business is conducted outside of the United States, exposing us to additional risks that may not exist in the United States, which in turn could cause our business and operating results to suffer.

 

We have international operations in Canada, China, Mexico and the United Kingdom. In the three months ended May 31, 2004 and 2005 and the six months ended May 31, 2004 and 2005, approximately 16%, 20%, 18% and 20%, respectively, of our total revenue was generated outside the United States. In the three months ended May 31, 2004 and 2005 and the six months ended May 31, 2004 and 2005, approximately 11%, 16%, 12% and 16%, respectively, of our total revenue was generated in Canada. No other country or region accounted for more than 10% of our total revenue. Our international operations are subject to risks, including:

 

    political or economic instability;

 

    changes in governmental regulation;

 

    changes in import/export duties;

 

    trade restrictions;

 

    difficulties and costs of staffing and managing operations in certain foreign countries;

 

    work stoppages or other changes in labor conditions;

 

    difficulties in collecting of accounts receivables on a timely basis or at all;

 

    taxes; and

 

    seasonal reductions in business activity in some parts of the world.

 

We may continue to expand internationally to respond to competitive pressure and customer and market requirements. Establishing operations in any other foreign country or region presents risks such as those described above as well as risks specific to the particular country or region. In addition, until a payment history is established over time with customers in a new geography or region, the likelihood of collecting receivables generated by such operations could be less than our expectations. As a result, there is a greater risk that reserves set with respect to the collection of such receivables may be inadequate. For example, we commenced our Mexico operations in April 2002 and we have incurred operating losses, partially due to higher than expected losses on receivable collections. We have established and subsequently ceased operations in foreign countries in the past, which caused us to incur additional expense and loss. If our international expansion efforts in any foreign country are unsuccessful, we may decide to cease operations, which would likely cause us to incur similar additional expenses and loss.

 

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In addition, changes in policies and/or laws of the United States or foreign governments resulting in, among other things, higher taxation, currency conversion limitations, restrictions on fund transfers or the expropriation of private enterprises, could reduce the anticipated benefits of our international expansion. Furthermore, any actions by countries in which we conduct business to reverse policies that encourage foreign trade or investment could adversely affect our business. If we fail to realize the anticipated revenue growth of our future international operations, our business and operating results could suffer.

 

Because we conduct substantial operations in China, risks associated with economic, political and social events in China could negatively affect our business and operating results.

 

A substantial portion of our IT systems operations, including our IT systems support and software development operations, is located in China. In addition, we also conduct general and administrative activities from our facility in China. As of May 31, 2005, we had 313 personnel located in China. We expect to increase our operations in China in the future. Our operations in China are subject to a number of risks relating to China’s economic and political systems, including:

 

    a government fixed foreign exchange rate and limitations on the convertibility of the Chinese renminbi;

 

    extensive government regulation;

 

    changing governmental policies relating to tax benefits available to foreign-owned businesses;

 

    the telecommunications infrastructure;

 

    a relatively uncertain legal system; and

 

    uncertainties related to continued economic and social reform.

 

In addition, external events in Asia, such as the 2003 outbreak of severe acute respiratory syndrome, or SARS, and heightened political tensions in this region may adversely affect our business by disrupting the IT supply chain, restricting travel or interfering with the electronic and communications infrastructure.

 

Our IT systems are an important part of our global operations. Any significant interruption in service, whether resulting from any of the above uncertainties, natural disasters or otherwise, could result in delays in our inventory purchasing, errors in order fulfillment, reduced levels of customer service and other disruptions in operations, any of which could cause our business and operating results to suffer.

 

Changes in foreign exchange rates and limitations on the convertibility of foreign currencies could adversely affect our business and operating results.

 

In the three months ended May 31, 2004 and 2005 and the six months ended May 31, 2004 and 2005, approximately 16%, 20%, 18% and 20%, respectively, of our total revenue was generated outside the United States. Most of our international revenue, cost of revenue and operating expenses are denominated in foreign currencies. We presently have currency exposure arising from both sales and purchases denominated in foreign currencies. Changes in exchange rates between foreign currencies and the U.S. dollar may adversely affect our operating margins. For example, if these foreign currencies appreciate against the U.S. dollar, it will make it more expensive in terms of U.S. dollars to purchase inventory or pay expenses with foreign currencies. This could have a negative impact to us if revenues related to these purchases are transacted in U.S. dollars. In addition, currency devaluation can result in a loss to us if we hold deposits of that currency as well as make our products, which are usually purchased by us with U.S. dollars, relatively more expensive than products manufactured locally. We currently conduct only limited hedging activities, which involve the use of currency forward contracts. Hedging foreign currencies can be risky. For example, in fiscal 2003 we incurred $3.7 million of foreign currency transaction losses as a result of purchases of forward contracts not conducted within our normal hedging practices and procedures, combined with a weakening U.S. dollar. There is also additional risk if the currency is not freely or actively traded.

 

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Some currencies, such as the Chinese renminbi, are subject to limitations on conversion into other currencies, which can limit our ability to hedge or to otherwise react to rapid foreign currency devaluations. We cannot predict the impact of future exchange rate fluctuations on our business and operating results.

 

Because of the experience of our key personnel in the IT products industry and their technological expertise, if we were to lose any of our key personnel, it could inhibit our ability to operate and grow our business successfully.

 

We operate in the highly competitive IT products industry. We are dependent in large part on our ability to retain the services of our key senior executives and other technical experts and personnel. Our employees and executives do not have employment agreements. Furthermore, we do not carry “key person” insurance coverage for any of our key executives. We compete for qualified senior management and technical personnel. The loss of, or inability to hire, key executives or qualified employees could inhibit our ability to operate and grow our business successfully.

 

We may become involved in intellectual property or other disputes that could cause us to incur substantial costs, divert the efforts of our management, and require us to pay substantial damages or require us to obtain a license, which may not be available on commercially reasonable terms, if at all.

 

We may from time to time receive notifications alleging infringements of intellectual property rights allegedly held by others relating to our business or the products we sell or assemble for our OEM suppliers and others. Litigation with respect to patents or other intellectual property matters could result in substantial costs and diversion of management and other resources and could have an adverse effect on our business. Although we generally have various levels of indemnification protection from our OEM suppliers and contract assembly customers, in many cases any indemnification to which we may be entitled is subject to maximum limits or other restrictions. In addition, we have developed proprietary IT systems that play an important role in our business. If any infringement claim is successful against us and if indemnification is not available or sufficient, we may be required to pay substantial damages or we may need to seek and obtain a license of the other party’s intellectual property rights. We may be unable to obtain such a license on commercially reasonable terms, if at all.

 

We are from time to time involved in other litigation in the ordinary course of business. For example, we are currently defending a trademark infringement action, a civil matter involving third party investors in eManage.com, Inc. and various bankruptcy preference actions. We may not be successful in defending these or other claims. Regardless of the outcome, litigation can result in substantial expense and could divert the efforts of our management.

 

Because of the capital-intensive nature of our business, we need continued access to capital, which, if not available to us, could harm our ability to operate or expand our business.

 

Our business requires significant levels of capital to finance accounts receivable and product inventory that is not financed by trade creditors. If cash from available sources is insufficient, or if cash is used for unanticipated needs, we may require additional capital sooner than anticipated. In the event we are required, or elect, to raise additional funds, we may be unable to do so on favorable terms, or at all. Our current and future indebtedness could adversely affect our operating results and severely limit our ability to plan for, or react to, changes in our business or industry. We could also be limited by financial and other restrictive covenants in any credit arrangements, including limitations on our borrowing of additional funds and issuing dividends. Furthermore, the cost of debt financing has increased recently and could significantly increase in the future, making it cost prohibitive to borrow, which could force us to issue new equity securities.

 

If we issue new equity securities, existing stockholders may experience additional dilution, or the new equity securities may have rights, preferences or privileges senior to those of existing holders of common stock. If we cannot raise funds on acceptable terms, we may not be able to take advantage of future opportunities or respond to competitive pressures or unanticipated requirements. Any inability to raise additional capital when required could have an adverse effect on our business and operating results.

 

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The terms of our indebtedness agreements impose significant restrictions on our ability to operate which in turn may negatively affect our ability to respond to business and market conditions and therefore have an adverse effect on our business and operating results.

 

As of May 31, 2005, we had approximately $62.7 million in outstanding short and long-term borrowings under term loans and lines of credit, excluding trade payables. As of May 31, 2005, approximately $140.2 million of our accounts receivable were sold to and held by two financial institutions under our accounts receivable securitization program. The terms of our current indebtedness agreements restrict, among other things, our ability to:

 

    incur additional indebtedness;

 

    pay dividends or make certain other restricted payments;

 

    consummate certain asset sales or acquisitions;

 

    enter into certain transactions with affiliates; and

 

    merge, consolidate or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of our assets.

 

We are also required to maintain specified financial ratios and satisfy certain financial condition tests, including minimum net worth and fixed charge coverage ratio as outlined in our senior secured revolving line of credit arrangement. We may be unable to meet these ratios and tests, which could result in the acceleration of the repayment of the related debt, the termination of the facility or the increase in our effective cost of funds. As a result, our ability to operate may be restricted and our ability to respond to business and market conditions limited, which could have an adverse effect on our business and operating results.

 

We have significant operations concentrated in Northern California, South Carolina and Toronto and any disruption in the operations of our facilities could harm our business and operating results.

 

Our worldwide operations could be subject to natural disasters and other business disruptions, which could seriously harm our revenue and financial condition and increase our costs and expenses. We have significant operations in our facilities located in Fremont, California, Greenville, South Carolina and Toronto. As a result, any prolonged disruption in the operations of our facilities, whether due to technical difficulties, power failures, destruction or damage to the facilities as a result of a natural disaster, fire or any other reason, could harm our operating results. We currently do not have a formal disaster recovery plan and may not have sufficient business interruption insurance to compensate for losses that could occur.

 

Global health, economic, political and social conditions may harm our ability to do business, increase our costs and negatively affect our stock price.

 

External factors such as potential terrorist attacks, acts of war or geopolitical and social turmoil in many parts of the world could prevent or hinder our ability to do business, increase our costs and negatively affect our stock price. For example, increased instability may adversely impact the desire of employees and customers to travel, the reliability and cost of transportation, our ability to obtain adequate insurance at reasonable rates or require us to incur increased costs for security measures for our domestic and international operations. These uncertainties make it difficult for us and our customers to accurately plan future business activities. More generally, these geopolitical social and economic conditions could result in increased volatility in the United States and worldwide financial markets and economy. We are predominantly uninsured for losses and interruptions caused by terrorist acts and acts of war.

 

We rely on MiTAC International for certain manufacturing and assembly services and the loss of these services would require us to seek alternate providers, which may charge us more for their services.

 

We rely on MiTAC International to manufacture and supply subassemblies and components for some of our contract assembly customers, including Sun Microsystems, currently our primary contract assembly customer,

 

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and our reliance on MiTAC International may increase in the future. Our relationship with MiTAC International has been informal and is not governed by long-term commitments or arrangements with respect to pricing terms, revenue or capacity commitments. Accordingly, we negotiate manufacturing and pricing terms on a project-by-project basis, based on manufacturing services rendered by MiTAC International or us. In the event MiTAC International no longer provides such services and components to us, we would need to find an alternative source for these services and components. There can be no assurance that we would be able to obtain alternative services and components on similar terms, which may in turn increase our manufacturing costs. In addition, we may not find manufacturers with sufficient capacity, which may in turn lead to shortages in our product supplies. Increased costs and products shortages could harm our business and operating results. The payment terms relating to the purchase and sale of product to MiTAC International are similar to the terms that we have with nonaffiliated customers and vendors.

 

Our business relationship with MiTAC International has been and will continue to be negotiated as related parties and therefore may not be the result of arms’-length negotiations between independent parties. Our relationship, including pricing and other material terms with our shared customers or with MiTAC International, may or may not be as advantageous to us as the terms we could have negotiated with unaffiliated third parties. We have a joint sales and marketing agreement with MiTAC International, pursuant to which both parties agree to use their commercially reasonable efforts to promote the other party’s service offerings to their respective customers who are interested in such product offerings. To date, there has not been a significant amount of sales attributable to the joint marketing agreement. This agreement does not provide for the terms upon which we negotiate manufacturing and pricing terms. These negotiations have been on a case-by-case basis. The agreement had an initial term of one year and will automatically renew for subsequent one-year terms unless either party provides written notice of non-renewal within 90 days of the end of any renewal term. The agreement may also be terminated without cause either by the mutual written agreement of both parties or by either party without cause upon 90 days prior written notice of termination to the other party. Either party may immediately terminate the agreement by providing written notice of (a) the other party’s material breach of any provision of the agreement and failure to cure within 30 days, or (b) if the other party becomes bankrupt or insolvent. In addition, we are party to a general agreement with MiTAC International and Sun Microsystems under which we work with MiTAC International to provide contract assembly services to Sun Microsystems. We do not currently anticipate entering into any long-term commitments or arrangements with MiTAC International. We have adopted a policy requiring material transactions in which any of our directors has a potential conflict of interest to be approved by our Audit Committee, which is composed of disinterested members of the Board. Fred Breidenbach, David Rynne and Dwight Steffensen are the current members of our Audit Committee.

 

Some of our customer relationships evolved from relationships between such customers and MiTAC International and the loss of such relationships could harm our business and operating results.

 

Our relationship with Sun Microsystems and some of our other customers evolved from customer relationships that were initiated by MiTAC International. Our relationship with Sun Microsystems is a joint relationship with MiTAC International and us, and the future success of our relationship with Sun Microsystems depends on MiTAC International continuing to work with us to service Sun Microsystems’ requirements. The original agreement between Sun Microsystems and MiTAC International was signed on August 28, 1999 and we became a party to the agreement on February 12, 2002. Substantially all of our contract assembly services to Sun Microsystems are covered by the general agreement. The agreement continues indefinitely until terminated in accordance with its terms. Sun Microsystems may terminate this agreement for any reason on 60 days written notice. Any party may terminate the agreement with written notice if one of the other parties materially breaches any provision of the agreement and the breach is incapable of being cured or is not cured within 30 days. The agreement may also be terminated on written notice if one of the other parties becomes bankrupt or insolvent. If we are unable to maintain our relationship with MiTAC International, our relationship with Sun Microsystems could suffer and we could lose other customer relationships or referrals, which in turn could harm our business, financial position and operating results.

 

There could be potential conflicts of interest between us and affiliates of MiTAC International, which could impact our business and operating results.

 

MiTAC International’s and its affiliates’ continuing beneficial ownership of our common stock could create conflicts of interest with respect to a variety of matters, such as potential acquisitions, competition, issuance or

 

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disposition of securities, election of directors, payment of dividends and other business matters. Similar risks could exist as a result of Matthew Miau’s positions as our Chairman, the Chairman of MiTAC International and as a director or officer of MiTAC International’s affiliated companies. In fiscal 2004, Mr. Miau received a retainer of $225,000 for his performance as Chairman. For fiscal year 2005, our Compensation Committee has recommended and the Board of Directors has approved a $225,000 retainer for Mr. Miau. Mr. Miau’s compensation is based primarily upon his non-executive back-up role to Mr. Huang in the event Mr. Huang were unable to serve as President and Chief Executive Officer and certain time commitments devoted to us as our Chairman. Any future compensation payable to Mr. Miau will be based upon the recommendation of the Compensation Committee and subject to the approval of the Board of Directors. We have adopted a policy requiring material transactions in which any of our directors has a potential conflict of interest to be approved by our Audit Committee, which is composed of disinterested members of the Board.

 

Synnex Technology International Corp., or Synnex Technology International, a publicly traded company based in Taiwan and affiliated with MiTAC International, currently provides distribution and fulfillment services to various markets in Asia and Australia, and is also a potential competitor of ours. Mitac Incorporated, a privately held company based in Taiwan and a separate entity from MiTAC International, owns approximately 15.5% of Synnex Technology International and approximately 8.9% of MiTAC International. MiTAC International indirectly owns 0.33% of Synnex Technology International and Synnex Technology International owns approximately 0.9% of MiTAC International. In addition, MiTAC International indirectly owns approximately 8.9% of Mitac Incorporated and Synnex Technology International owns approximately 14.4% of Mitac Incorporated. Synnex Technology International indirectly through its ownership of Peer Developments Limited owns approximately 18.5% of our outstanding common stock. Neither MiTAC International nor Synnex Technology International is restricted from competing with us. In the future, we may increasingly compete with Synnex Technology International, particularly if our business in Asia expands or Synnex Technology International expands its business into geographies or customers we serve. Although Synnex Technology International is a separate entity, from us, it is possible that there will be confusion as a result of the similarity of our names. Moreover, we cannot limit or control the use of the Synnex name by Synnex Technology International or MiTAC International, and our use of the Synnex name may be restricted as a result of registration of the name by Synnex Technology International or the prior use in jurisdictions where they currently operate.

 

As of May 31, 2005, our executive officers, directors and principal stockholders own approximately 69% of our common stock and this concentration of ownership allows them to control all matters requiring stockholder approval and could delay or prevent a change in control of SYNNEX.

 

As of May 31, 2005, our executive officers, directors and principal stockholders beneficially owned approximately 69% of our outstanding common stock. In particular, MiTAC International, through its affiliates, beneficially owned approximately 68% of our outstanding common stock.

 

MiTAC International and its affiliates own a controlling interest in us as of May 31, 2005. As a result, MiTAC International’s interests and ours may increasingly conflict. For example, we rely on MiTAC International for certain manufacturing and supply services and for relationships with certain key customers. As a result of the decrease in their ownership in us, we may lose these services and relationships, which may lead to increased costs to replace the lost services and the loss of certain key customers. We cannot predict the likelihood that we may incur increased costs or lose customers if MiTAC International’s ownership percentage of us decreases in the future.

 

Downturn in the IT industry could continue to have a material adverse effect on our business and operating results.

 

The IT industry in which we operate has experienced decreases in demand. Softening demand for our products and services caused by an ongoing economic downturn and over-capacity were responsible, in part, for a decline in our revenue in fiscal 2001, as well as problems with the saleability of inventory and collection of reseller customer receivables.

 

The North American economy and market conditions continue to be challenging in the IT industry. As a result, individuals and companies may continue delaying or reducing expenditures, including those for IT products.

 

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While in the past we may have benefited from the consolidation in our industry resulting from the slowdown, further delays or reductions in IT spending in particular, and economic weakness generally, could have an adverse effect on our business and operating results.

 

Our distribution business may be adversely affected by OEM suppliers increasing their commitment to direct sales, which in turn could cause our business and operating results to suffer.

 

Consolidation of OEM suppliers has resulted in fewer sources for some of the products that we distribute. This consolidation has also resulted in larger OEM suppliers that have significant operating and financial resources. Some OEM suppliers, including some of the leading OEM suppliers that we service, have been selling a greater volume of products directly to end-users, thereby limiting our business opportunities. If large OEM suppliers continue the trend to sell directly to our resellers, rather than use us as the distributor of their products, our business and operating results will suffer.

 

OEMs are limiting the number of supply chain service providers with which they do business, which in turn would negatively impact our business and operating results.

 

Currently, there is a trend towards reducing the number of authorized distributors used by the OEM suppliers. As a smaller market participant in the IT product distribution and contract assembly industries, than some of our competitors, we may be more susceptible to loss of business from further reductions of authorized distributors or contract assemblers by IT product OEMs. For example, the termination of Sun Microsystems’ contract assembly business with us would have a significant negative effect on our revenue and operating results. A determination by any of our primary OEMs to consolidate their business with other distributors or contract assemblers would negatively affect our business and operating results.

 

The IT industry is subject to rapidly changing technologies and process developments, and we may not be able to adequately adjust our business to these changes, which in turn would harm our business and operating results.

 

Dynamic changes in the IT industry, including the consolidation of OEM suppliers and reductions in the number of authorized distributors used by OEM suppliers, have resulted in new and increased responsibilities for management personnel and have placed, and continue to place, a significant strain upon our management, operating and financial systems and other resources. We may be unable to successfully respond to and manage our business in light of industry developments and trends. Also crucial to our success in managing our operations will be our ability to achieve additional economies of scale. Our failure to achieve these additional economies of scale or to respond to changes in the IT industry could adversely affect our business and operating results.

 

We are subject to intense competition in the IT industry, both in the United States and internationally, and if we fail to compete successfully, we will be unable to gain or retain market share.

 

We operate in a highly competitive environment, both in the United States and internationally. The IT product distribution and contract assembly industries are characterized by intense competition, based primarily on product availability, credit availability, price, speed of delivery, ability to tailor specific solutions to customer needs, quality and depth of product lines, pre-sale and post-sale technical support, flexibility and timely response to design changes, technological capabilities, service and support. We compete with a variety of regional, national and international IT product distributors and contract manufacturers and assemblers. In some instances, we also compete with our own customers, our own OEM suppliers and MiTAC International.

 

Some of our competitors are substantially larger and have greater financial, operating, manufacturing and marketing resources than us. Some of our competitors may have broader geographic breadth and range of services than us and may have more developed relationships with their existing customers. We may lose market share in the United States or in international markets, or may be forced in the future to reduce our prices in response to the actions of our competitors and thereby experience a reduction in our gross margins.

 

We may initiate other business activities, including the broadening of our supply chain capabilities, and may face competition from companies with more experience in those new areas. In addition, as we enter new areas

 

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of business, we may also encounter increased competition from current competitors and/or from new competitors, including some who may once have been our OEM suppliers or reseller customers. Increased competition and negative reaction from our OEM suppliers or reseller customers resulting from our expansion into new business areas may harm our business and operating results.

 

Significant fluctuations in the market price of our common stock could result in securities class action claims against us, which could seriously harm our business.

 

Securities class action claims have been brought against companies in the past where volatility in the market price of that company’s securities has taken place. This kind of litigation could be very costly and divert our management’s attention and resources, and any adverse determination in this litigation could also subject us to significant liabilities, any or all of which could adversely affect our business and operating results.

 

Compliance with changing regulation of corporate governance and public disclosure may result in additional expenses.

 

Changing laws, regulations and standards relating to corporate governance and public disclosure, including the Sarbanes-Oxley Act of 2002, new SEC regulations and New York Stock Exchange rules, are creating uncertainty for companies such as ours. These new or changed laws, regulations and standards are subject to varying interpretations in many cases due to their lack of specificity, and as a result, their application in practice may evolve over time as new guidance is provided by regulatory and governing bodies, which could result in continuing uncertainty regarding compliance matters and higher costs necessitated by ongoing revisions to disclosure and governance practices. We are committed to maintaining high standards of corporate governance and public disclosure. As a result, our efforts to comply with evolving laws, regulations and standards have resulted in, and are likely to continue to result in, increased general and administrative expenses and a diversion of management time and attention from revenue-generating activities to compliance activities. In particular, our ongoing efforts to comply with Section 404 of the Sarbanes-Oxley Act of 2002 and the related regulations regarding our required assessment of our internal controls over financial reporting and our external auditors’ audit of that assessment has required the commitment of significant financial and managerial resources. We expect these efforts to require the continued commitment of significant resources. Further, our board members, chief executive officer and chief financial officer could face an increased risk of personal liability in connection with the performance of their duties. As a result, we may have difficulty attracting and retaining qualified board members and executive officers, which could harm our business. If our efforts to comply with new or changed laws, regulations and standards differ from the activities intended by regulatory or governing bodies due to ambiguities related to practice, our reputation may be harmed.

 

While we believe that we currently have adequate internal controls over financial reporting, we are exposed to risks from recent legislation requiring companies to evaluate those internal controls.

 

Section 404 of the Sarbanes-Oxley Act of 2004 requires our management to report on, and our independent auditors to attest to, the effectiveness of our internal control structure and procedures for financial reporting. We completed an evaluation of the effectiveness of our internal controls for the fiscal year ending November 30, 2004, and we have an ongoing program to perform the system and process evaluation and testing necessary to continue to comply with these requirements. We expect to continue to incur increased expense and to devote additional management resources to Section 404 compliance. In the event that our chief executive officer, chief financial officer or independent registered public accounting firm determines that our internal controls over financial reporting are not effective as defined under Section 404, investor perceptions and the reputation of our company may be adversely affected and could cause a decline in the market price of our stock.

 

Changes to financial accounting standards may affect our results of operations and cause us to change our business practices.

 

We prepare our financial statements to conform with generally accepted accounting principles, or GAAP, in the United States. These accounting principles are subject to interpretation by the American Institute of Certified Public Accountants, the Securities and Exchange Commission and various bodies formed to interpret and create appropriate accounting policies. A change in those policies can have a significant effect on our reported results and

 

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may affect our reporting of transactions completed before a change is announced. Changes to those rules or the questioning of current practices may adversely affect our reported financial results or the way we conduct our business. For example, accounting policies affecting many aspects of our business, including rules relating to employee stock option grants, have recently been revised or are under review. The FASB and other agencies have finalized changes to U.S. generally accepted accounting principles that will require us, starting in our quarter ended February 28, 2006, to record a charge to earnings for employee stock option grants and other equity incentives. We may have significant and ongoing accounting charges resulting from option grant and other equity incentive expensing that could reduce our overall net income. In addition, since we historically have used equity-related compensation as a component of our total employee compensation program, the accounting change could make the use of equity-related compensation less attractive to us and therefore make it more difficult to attract and retain employees.

 

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ITEM 3. Quantitative and Qualitative Disclosures About Market Risk

 

There have been no material changes in our quantitative and qualitative disclosures about market risk for the three and six-month periods ended May 31, 2005 from our Annual Report on Form 10-K for the year ended November 30, 2004. For further discussion of quantitative and qualitative disclosures about market risk, reference is made to our Annual Report on Form 10-K for the year ended November 30, 2004.

 

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ITEM 4. Controls and Procedures

 

(a) Evaluation of disclosure controls and procedures. We maintain “disclosure controls and procedures,” as such term is defined in Rule 13a-15(e) under the Securities Exchange Act of 1934 (the “Exchange Act”), that are designed to ensure that information required to be disclosed by us in reports that we file or submit under the Exchange Act is recorded, processed, summarized, and reported within the time periods specified in Securities and Exchange Commission rules and forms, and that such information is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure. In designing and evaluating our disclosure controls and procedures, management recognized that disclosure controls and procedures, no matter how well conceived and operated, can provide only reasonable, not absolute, assurance that the objectives of the disclosure controls and procedures are met. Our disclosure controls and procedures have been designed to meet, and management believes they meet, reasonable assurance standards. Additionally, in designing disclosure controls and procedures, our management necessarily was required to apply its judgment in evaluating the cost-benefit relationship of possible disclosure controls and procedures. The design of any disclosure controls and procedures also is based in part upon certain assumptions about the likelihood of future events, and there can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions.

 

Based on their evaluation as of the end of the period covered by this Quarterly Report on Form 10-Q, our Chief Executive Officer and Chief Financial Officer have concluded that, subject to the limitations noted above, our disclosure controls and procedures were effective to ensure that material information relating to us, including our consolidated subsidiaries, is made known to them by others within those entities, particularly during the period in which this Quarterly Report on Form 10-Q was being prepared.

 

(b) Changes in internal control over financial reporting. There was no change in our internal control over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act) identified in connection with the evaluation during our last fiscal quarter that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.

 

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PART II. OTHER INFORMATION

 

ITEM 4. Submission of Matters to a Vote of Security Holders

 

We held an Annual Meeting of our Stockholders on March 23, 2005, at which the following occurred:

 

ELECTION OF SIX DIRECTORS TO THE BOARD OF DIRECTORS: The stockholders elected Matthew Miau, Robert Huang, Fred Breidenbach, David Rynne, Young Sohn and Dwight Steffensen as Directors. The votes on the matters were as follows:

 

Matthew Miau     

FOR

   27,583,919

WITHHELD

   45,549
Robert Huang     

FOR

   27,585,119

WITHHELD

   44,349
Fred Breidenbach     

FOR

   27,585,678

WITHHELD

   43,790
David Rynne     

FOR

   27,393,468

WITHHELD

   236,000
Young Sohn     

FOR

   27,393,713

WITHHELD

   235,755
Dwight Steffensen     

FOR

   27,393,513

WITHHELD

   235,955

 

RATIFICATION OF THE SELECTION BY THE AUDIT COMMITTEE OF THE BOARD OF DIRECTORS OF PRICEWATERHOUSECOOPERS LLP AS OUR INDEPENDENT REGISTERED PUBLIC ACCOUNTANTS: The stockholders ratified the selection by the Audit Committee of the Board of Directors of PricewaterhouseCoopers LLP as our independent registered public accountants for the 2005 fiscal year. The vote on the matter was as follows:

 

FOR

   27,604,112

AGAINST

   25,141

ABSTAIN

   215

 

ITEM 6. Exhibits

 

10.1#    Amended and restated 2003 Employee Stock Purchase Plan.
10.2    Master Agreement and Plan of Reorganization, dated March 29, 2005, by and among the Registrant, SYNNEX K.K. and MCJ, Company. LTD.
31.1    Certification by Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
31.2    Certification by Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
32.1 *    Statement of Chief Executive Officer and Chief Financial Officer under Section 906 of the Sarbanes-Oxley Act of 2002 (18 U.S.C. Section 1350).

# Indicates management contract or compensatory plan.

 

* In accordance with Item 601(b)(32)(ii) of Regulation S-K and SEC Release Nos. 33-8238 and 34-47986, Final Rule: Management’s Reports on Internal Control Over Financial Reporting and Certification of Disclosure in Exchange Act Periodic Reports, the certifications furnished in Exhibit 32.1 hereto are deemed to accompany this Form 10-Q and will not be deemed “filed” for purpose of Section 18 of the Exchange Act. Such certifications will not be deemed to be incorporated by reference into any filing under the Securities Act or the Exchange Act, except to the extent that the registrant specifically incorporates it by reference.

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

Date: July 11, 2005

 

SYNNEX Corporation
By:  

/s/    R OBERT H UANG


    Robert Huang
    Chief Executive Officer
By:  

/s/    D ENNIS P OLK


    Dennis Polk
    Chief Financial Officer

 

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EXHIBIT INDEX

 

Exhibit
Number


 

Description of Document


10.1#   Amended and restated 2003 Employee Stock Purchase Plan.
10.2   Master Agreement and Plan of Reorganization, dated March 29, 2005, by and among the Registrant, SYNNEX K.K. and MCJ, Company. LTD.
31.1   Certification by Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
31.2   Certification by Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
32.1*   Statement of Chief Executive Officer and Chief Financial Officer under Section 906 of the Sarbanes-Oxley Act of 2002 (18 U.S.C. Section 1350).

# Indicates management contract or compensatory plan.

 

* In accordance with Item 601(b)(32)(ii) of Regulation S-K and SEC Release Nos. 33-8238 and 34-47986, Final Rule: Management’s Reports on Internal Control Over Financial Reporting and Certification of Disclosure in Exchange Act Periodic Reports, the certifications furnished in Exhibit 32.1 hereto are deemed to accompany this Form 10-Q and will not be deemed “filed” for purpose of Section 18 of the Exchange Act. Such certifications will not be deemed to be incorporated by reference into any filing under the Securities Act or the Exchange Act, except to the extent that the registrant specifically incorporates it by reference.

 

52

Exhibit 10.1

 

SYNNEX CORPORATION

 

2003 EMPLOYEE STOCK PURCHASE PLAN

 

(As amended and restated effective March 31, 2005)


Table of Contents

 

          Page

SECTION 1

           Purpose Of The Plan    1

SECTION 2

           Definitions.    1

(a)

   “Board”    1

(b)

   “Code”    1

(c)

   “Committee”    1

(d)

   “Company”    1

(e)

   “Compensation”    1

(f)

   “Corporate Reorganization”    1

(g)

   “Eligible Employee”    2

(h)

   “Exchange Act”    2

(i)

   “Fair Market Value”    2

(j)

   “IPO”    2

(k)

   “Offering Period”    2

(l)

   “Participant”    2

(m)

   “Participating Company”    2

(n)

   “Plan”    3

(o)

   “Plan Account”    3

(p)

   “Purchase Price”    3

(q)

   “Stock”    3

(r)

   “Subsidiary”    3

SECTION 3

           Administration Of The Plan    3

(a)

   Committee Composition    3

(b)

   Committee Responsibilities    3

SECTION 4

           Enrollment And Participation    3

(a)

   Offering Periods    3

(b)

   Enrollment    3

(c)

   Duration of Participation    3

SECTION 5

           Employee Contributions    4

(a)

   Frequency of Payroll Deductions    4

(b)

   Amount of Payroll Deductions    4

(c)

   Changing Withholding Rate    4

(d)

   Discontinuing Payroll Deductions    4

(e)

   Limit on Number of Elections    5

SECTION 6

           Withdrawal From The Plan    5

(a)

   Withdrawal    5

(b)

   Re-enrollment After Withdrawal    5

SECTION 7

           Change In Employment Status    5

(a)

   Termination of Employment    5

 

- i -


(b)

  Leave of Absence    5

(c)

  Death    5

SECTION 8

          Plan Accounts And Purchase Of Shares    5

(a)

  Plan Accounts    5

(b)

  Purchase Price    5

(c)

  Number of Shares Purchased    6

(d)

  Available Shares Insufficient    6

(e)

  Issuance of Stock    6

(f)

  Unused Cash Balances    7

(g)

  Stockholder Approval    7

SECTION 9

          Limitations On Stock Ownership    7

(a)

  Five Percent Limit    7

(b)

  Dollar Limit    7

SECTION 10

          Rights Not Transferable    8

SECTION 11

          No Rights As An Employee    8

SECTION 12

          No Rights As A Stockholder    8

SECTION 13

          Securities Law Requirements    8

SECTION 14

          Stock Offered Under The Plan    9

(a)

  Authorized Shares    9

(b)

  Antidilution Adjustments    9

(c)

  Reorganizations    9

SECTION 15

          Amendment Or Discontinuance    9

SECTION 16

          Execution    9

 

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SYNNEX CORPORATION

 

2003 EMPLOYEE STOCK PURCHASE PLAN

 

(as amended and restated effective March 31, 2005)

 

SECTION 1 Purpose Of The Plan

 

The Plan was adopted by the Board on September 2, 2003, effective as of the date of the IPO. The Plan is hereby amended and restated effective March 31, 2005. The purpose of the Plan is to provide Eligible Employees with an opportunity to increase their proprietary interest in the success of the Company by purchasing Stock from the Company on favorable terms and to pay for such purchases through payroll deductions. The Plan is intended to qualify under section 423 of the Code.

 

SECTION 2 Definitions.

 

(a) “ Board ” means the Board of Directors of the Company, as constituted from time to time.

 

(b) “ Code ” means the Internal Revenue Code of 1986, as amended.

 

(c) “ Committee ” means a the Compensation Committee of the Board, as described in Section 3.

 

(d) “ Company ” means SYNNEX Corporation, a Delaware Corporation.

 

(e) “ Compensation ” means (i) the compensation paid in cash to a Participant by a Participating Company, including salaries, wages, incentive compensation, bonuses, overtime pay and shift premiums, plus (ii) any pre-tax contributions made by the Participant under section 401(k) or 125 of the Code. “Compensation” shall exclude all non-cash items, commissions, moving or relocation allowances, cost-of-living equalization payments, car allowances, tuition reimbursements, imputed income attributable to cars or life insurance, severance pay, fringe benefits, contributions or benefits received under employee benefit plans, income attributable to the exercise of stock options, and similar items. The Committee shall determine whether a particular item is included in Compensation.

 

(f) “ Corporate Reorganization ” means:

 

(i) The consummation of a merger or consolidation of the Company with or into another entity or any other corporate reorganization in which the Company’s stockholders immediately prior thereto own less than 50% of the voting securities of the Company (or its successor or parent) immediately thereafter; or

 

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(ii) The sale, transfer or other disposition of all or substantially all of the Company’s assets or the complete liquidation or dissolution of the Company.

 

(g) “ Eligible Employee ” means any employee of a Participating Company, whose customary employment is for more than five months per calendar year and for more than 20 hours per week, other than those individuals ranked associate vice president or higher within a Participating Company who qualify as “highly compensated employees” under Section 414(q) of the Code.

 

The foregoing notwithstanding, an individual shall not be considered an Eligible Employee if his or her participation in the Plan is prohibited by the law of any country which has jurisdiction over him or her or if he or she is subject to a collective bargaining agreement that does not provide for participation in the Plan.

 

(h) “ Exchange Act ” means the Securities Exchange Act of 1934, as amended.

 

(i) “ Fair Market Value ” means the market price of Stock, determined by the Committee as follows:

 

(i) If Stock was traded on a stock exchange on the date in question, then the Fair Market Value shall be equal to the closing price reported by the applicable composite transactions report for such date;

 

(ii) If Stock was traded on The Nasdaq National Market on the date in question, then the Fair Market Value shall be equal to the last-transaction price quoted for such date by The Nasdaq National Market; or

 

(iii) If none of the foregoing provisions is applicable, then the Fair Market Value shall be determined by the Committee in good faith on such basis as it deems appropriate.

 

Whenever possible, the determination of Fair Market Value by the Committee shall be based on the prices reported in the Wall Street Journal or as reported directly to the Company by a stock exchange or Nasdaq. Such determination shall be conclusive and binding on all persons.

 

(j) “ IPO ” means the initial offering of Stock to the public pursuant to a registration statement filed by the Company with the Securities and Exchange Commission.

 

(k) “ Offering Period ” means a period with respect to which the right to purchase Stock may be granted under the Plan, as determined pursuant to Section 4(a).

 

(l) “ Participant ” means an Eligible Employee who elects to participate in the Plan, as provided in Section 4(b).

 

(m) “ Participating Company ” means (i) the Company and (ii) each present or future Subsidiary designated by the Committee as a Participating Company.

 

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(n) “ Plan ” means this SYNNEX Corporation 2003 Employee Stock Purchase Plan, as it may be amended from time to time.

 

(o) “ Plan Account ” means the account established for each Participant pursuant to Section 8(a).

 

(p) “ Purchase Price ” means the price at which Participants may purchase Stock under the Plan, as determined pursuant to Section 8(b).

 

(q) “ Stock ” means the Common Stock of the Company.

 

(r) “ Subsidiary ” means any corporation (other than the Company) in an unbroken chain of corporations beginning with the Company, if each of the corporations other than the last corporation in the unbroken chain owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain.

 

SECTION 3 Administration Of The Plan .

 

(a) Committee Composition . The Plan shall be administered by the Committee. The Committee shall consist exclusively of one or more directors of the Company, who shall be appointed by the Board.

 

(b) Committee Responsibilities . The Committee shall interpret the Plan and make all other policy decisions relating to the operation of the Plan. The Committee may adopt such rules, guidelines and forms as it deems appropriate to implement the Plan. The Committee’s determinations under the Plan shall be final and binding on all persons.

 

SECTION 4 Enrollment And Participation .

 

(a) Offering Periods . While the Plan is in effect, four Offering Periods shall commence in each calendar year. The Offering Periods shall consist of 3-month periods, unless otherwise determined by the Committee, commencing on January 1, April 1, July 1, and October 1 of each year. Notwithstanding the foregoing, the first Offering Period shall commence on the date of the IPO, and all Offering Periods commencing before April 1, 2005, shall terminate on March 31, 2005.

 

(b) Enrollment . Any individual who, on the day preceding the first day of an Offering Period (other than the initial Offering Period), qualifies as an Eligible Employee may elect to become a Participant in the Plan for such Offering Period by executing the enrollment form prescribed for this purpose by the Committee. The enrollment form shall be filed with the Company at the prescribed location not later than 15 days prior to the commencement of such Offering Period. All Eligible Employees shall be automatically enrolled in the initial Offering Period under the Plan.

 

(c) Duration of Participation . Once enrolled in the Plan, a Participant shall continue to participate in the Plan until he or she ceases to be an Eligible Employee, withdraws from the Plan under Section 6(a) or reaches the end of the Offering Period in which his or her employee

 

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contributions were discontinued under Section 5(d) or Section 9(b). A Participant who discontinued employee contributions under Section 5(d) or withdrew from the Plan under Section 6(a) may again become a Participant, if he or she then is an Eligible Employee, by following the procedure described in Subsection (c) above. A Participant whose employee contributions were discontinued automatically under Section 9(b) shall automatically resume participation at the beginning of the earliest Offering Period ending in the next calendar year, if he or she then is an Eligible Employee. When a Participant reaches the end of an Offering Period but his or her participation is to continue, then such Participant shall automatically be re-enrolled for the Offering Period that commences immediately after the end of the prior Offering Period; provided, however, that for the Offering Period commencing April 1, 2005, new enrollment forms may be required, in accordance with such procedures as may be prescribed by the Company.

 

SECTION 5 Employee Contributions .

 

(a) Frequency of Payroll Deductions . A Participant may purchase shares of Stock under the Plan solely by means of payroll deductions. Payroll deductions, as designated by the Participant pursuant to Subsection (b) below, shall occur on each payday during participation in the Plan.

 

(b) Amount of Payroll Deductions . An Eligible Employee shall designate on the enrollment form the portion of his or her Compensation that he or she elects to have withheld for the purchase of Stock. Such portion shall be a whole percentage of the Eligible Employee’s Compensation, but not less than 1% nor more than 15%. In addition, effective April 1, 2005, the amount of an Eligible Employee’s Compensation that may be withheld for the purchase of Stock shall not exceed $10,000 per calendar year. Notwithstanding the foregoing, for the period April 1, 2005 to December 31, 2005, the amount of an Eligible Employee’s Compensation that may be withheld for the purchase of Stock shall not exceed $7,500.

 

(c) Changing Withholding Rate . If a Participant wishes to change the rate of payroll withholding, he or she may do so by filing a new enrollment form with the Company at the prescribed location at any time. The new withholding rate shall be effective as soon as reasonably practicable after such form has been received by the Company. The new withholding rate shall be a whole percentage of the Eligible Employee’s Compensation, but not less than 1% nor more than 15%.

 

(d) Discontinuing Payroll Deductions . If a Participant wishes to discontinue employee contributions entirely, he or she may do so by filing a new enrollment form with the Company at the prescribed location at any time. Payroll withholding shall cease as soon as reasonably practicable after such form has been received by the Company. In addition, employee contributions may be discontinued automatically pursuant to Section 9(b). A Participant who has discontinued employee contributions may resume such contributions by filing a new enrollment form with the Company at the prescribed location. Payroll withholding shall resume as soon as reasonably practicable after such form has been received by the Company.

 

- 4 -


(e) Limit on Number of Elections . The Committee may limit the number of elections that a Participant may make under Subsection (c) or (d) above during any Offering Period.

 

SECTION 6 Withdrawal From The Plan .

 

(a) Withdrawal . A Participant may elect to withdraw from the Plan by filing the prescribed form with the Company at the prescribed location at any time before the last day of an Offering Period. As soon as reasonably practicable thereafter, payroll deductions shall cease and the entire amount credited to the Participant’s Plan Account shall be refunded to him or her in cash, without interest. No partial withdrawals shall be permitted.

 

(b) Re-enrollment After Withdrawal . A former Participant who has withdrawn from the Plan shall not be a Participant until he or she re-enrolls in the Plan under Section 4(b). Re-enrollment may be effective only at the commencement of an Offering Period.

 

SECTION 7 Change In Employment Status .

 

(a) Termination of Employment . Termination of employment as an Eligible Employee for any reason, including death, shall be treated as an automatic withdrawal from the Plan under Section 6(a). A transfer from one Participating Company to another shall not be treated as a termination of employment.

 

(b) Leave of Absence . For purposes of the Plan, employment shall not be deemed to terminate when the Participant goes on a military leave, a sick leave or another bona fide leave of absence, if the leave was approved by the Company in writing. Employment, however, shall be deemed to terminate 90 days after the Participant goes on a leave, unless a contract or statute guarantees his or her right to return to work. Employment shall be deemed to terminate in any event when the approved leave ends, unless the Participant immediately returns to work.

 

(c) Death . In the event of the Participant’s death, the amount credited to his or her Plan Account shall be paid to a beneficiary designated by him or her for this purpose on the prescribed form or, if none, to the Participant’s estate. Such form shall be valid only if it was filed with the Company at the prescribed location before the Participant’s death.

 

SECTION 8 Plan Accounts And Purchase Of Shares .

 

(a) Plan Accounts . The Company shall maintain a Plan Account on its books in the name of each Participant. Whenever an amount is deducted from the Participant’s Compensation under the Plan, such amount shall be credited to the Participant’s Plan Account. Amounts credited to Plan Accounts shall not be trust funds and may be commingled with the Company’s general assets and applied to general corporate purposes. No interest shall be credited to Plan Accounts.

 

(b) Purchase Price .

 

(i) The Purchase Price for each share of Stock purchased at the close of an Offering Period beginning on or after April 1, 2005 shall be the lower of:

 

(A) 95% of the Fair Market Value of such share on the last trading day in such Offering Period; or

 

- 5 -


(B) 95% of the Fair Market Value of such share on the first trading day of the applicable Offering Period.

 

(ii) The Purchase Price for each share of Stock purchased at the close of an Offering Period beginning before April 1, 2005, shall be the lower of:

 

(A) 85% of the Fair Market Value of such share on the last trading day in such Offering Period; or

 

(B) 85% of the Fair Market Value of such share on the first trading day of the applicable Offering Period.

 

(c) Number of Shares Purchased . As of the last day of each Offering Period, each Participant shall be deemed to have elected to purchase the number of shares of Stock calculated in accordance with this Subsection (c), unless the Participant has previously elected to withdraw from the Plan in accordance with Section 6(a). The amount then in the Participant’s Plan Account shall be divided by the Purchase Price, and the number of shares that results shall be purchased from the Company with the funds in the Participant’s Plan Account. The foregoing notwithstanding, no Participant shall purchase more than 625 shares of Stock with respect to any Offering Period commencing on or after April 1, 2005 (nor more than 1,250 shares of Stock with respect to the six-month period ending March 31, 2005 for Offering Periods commencing prior to April 1, 2005), nor more than the amounts of Stock set forth in Section 9(b) and Section 14(a). Any fractional share, as calculated under this Subsection (c), shall be rounded down to the next lower whole share. For each Offering Period, the Committee shall have the authority to establish additional limits on the number of shares purchasable by each Participant or by all Participants in the aggregate.

 

(d) Available Shares Insufficient . In the event that the aggregate number of shares that all Participants elect to purchase during an Offering Period exceeds the maximum number of shares remaining available for issuance under Section 14(a), then the number of shares to which each Participant is entitled shall be determined by multiplying the number of shares available for issuance by a fraction, the numerator of which is the number of shares that such Participant has elected to purchase and the denominator of which is the number of shares that all Participants have elected to purchase.

 

(e) Issuance of Stock . Certificates representing the shares of Stock purchased by a Participant under the Plan shall be issued to him or her as soon as reasonably practicable after the close of the applicable Offering Period, except that the Committee may determine that such shares shall be held for each Participant’s benefit by a broker designated by the Committee (unless the Participant has elected that certificates be issued to him or her). Shares may be registered in the name of the Participant or jointly in the name of the Participant and his or her spouse as joint tenants with right of survivorship or as community property.

 

- 6 -


(f) Unused Cash Balances . An amount remaining in the Participant’s Plan Account that represents the Purchase Price for any fractional share shall be carried over in the Participant’s Plan Account to the next Offering Period or refunded to the Participant in cash, without interest, if his or her participation is not continued. Any amount remaining in the Participant’s Plan Account that represents the Purchase Price for whole shares that could not be purchased by reason of Subsection (c) above, Section 9(b) or Section 14(a) shall be refunded to the Participant in cash, without interest.

 

(g) Stockholder Approval . Any other provision of the Plan notwithstanding, no shares of Stock shall be purchased under the Plan unless and until the Company’s stockholders have approved the adoption of the Plan.

 

SECTION 9 Limitations On Stock Ownership .

 

(a) Five Percent Limit . Any other provision of the Plan notwithstanding, no Participant shall be granted a right to purchase Stock under the Plan if such Participant, immediately after his or her election to purchase such Stock, would own stock possessing 5% or more of the total combined voting power or value of all classes of stock of the Company or any parent or Subsidiary of the Company. For purposes of this Subsection (a), the following rules shall apply:

 

(i) Ownership of stock shall be determined after applying the attribution rules of section 424(d) of the Code;

 

(ii) Each Participant shall be deemed to own any stock that he or she has a right or option to purchase under this or any other plan; and

 

(iii) Each Participant shall be deemed to have the right to purchase up to the maximum number of shares of Stock that may be purchased by a Participant under this Plan under the individual limit specified in Section 8(c) with respect to each Offering Period.

 

(b) Dollar Limit . Any other provision of the Plan notwithstanding, no Participant shall purchase Stock with a Fair Market Value in excess of the following limit:

 

(i) In the case of Stock purchased during an Offering Period that commenced in the current calendar year, the limit shall be equal to (A) $25,000 minus (B) the Fair Market Value of the Stock that the Participant previously purchased in the current calendar year (under this Plan and all other employee stock purchase plans of the Company or any parent or Subsidiary of the Company).

 

(ii) In the case of Stock purchased during an Offering Period that commenced in the immediately preceding calendar year, the limit shall be equal to (A) $50,000 minus (B) the Fair Market Value of the Stock that the Participant previously purchased (under this Plan and all other employee stock purchase plans of the Company or any parent or Subsidiary of the Company) in the current calendar year and in the immediately preceding calendar year.

 

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(iii) In the case of Stock purchased during an Offering Period that commenced in the second preceding calendar year, the limit shall be equal to (A) $75,000 minus (B) the Fair Market Value of the Stock that the Participant previously purchased (under this Plan and all other employee stock purchase plans of the Company or any parent or Subsidiary of the Company) in the current calendar year and in the two preceding calendar years.

 

For purposes of this Subsection (b), the Fair Market Value of Stock shall be determined in each case as of the beginning of the Offering Period in which such Stock is purchased. Employee stock purchase plans not described in section 423 of the Code shall be disregarded. If a Participant is precluded by this Subsection (b) from purchasing additional Stock under the Plan, then his or her employee contributions shall automatically be discontinued and shall resume at the beginning of the earliest Offering Period ending in the next calendar year (if he or she then is an Eligible Employee).

 

SECTION 10 Rights Not Transferable .

 

The rights of any Participant under the Plan, or any Participant’s interest in any Stock or moneys to which he or she may be entitled under the Plan, shall not be transferable by voluntary or involuntary assignment or by operation of law, or in any other manner other than by beneficiary designation or the laws of descent and distribution. If a Participant in any manner attempts to transfer, assign or otherwise encumber his or her rights or interest under the Plan, other than by beneficiary designation or the laws of descent and distribution, then such act shall be treated as an election by the Participant to withdraw from the Plan under Section 6(a).

 

SECTION 11 No Rights As An Employee .

 

Nothing in the Plan or in any right granted under the Plan shall confer upon the Participant any right to continue in the employ of a Participating Company for any period of specific duration or interfere with or otherwise restrict in any way the rights of the Participating Companies or of the Participant, which rights are hereby expressly reserved by each, to terminate his or her employment at any time and for any reason, with or without cause.

 

SECTION 12 No Rights As A Stockholder .

 

A Participant shall have no rights as a stockholder with respect to any shares of Stock that he or she may have a right to purchase under the Plan until such shares have been purchased on the last day of the applicable Offering Period.

 

SECTION 13 Securities Law Requirements .

 

Shares of Stock shall not be issued under the Plan unless the issuance and delivery of such shares comply with (or are exempt from) all applicable requirements of law, including (without limitation) the Securities Act of 1933, as amended, the rules and regulations promulgated thereunder, state securities laws and regulations, and the regulations of any stock exchange or other securities market on which the Company’s securities may then be traded.

 

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SECTION 14 Stock Offered Under The Plan .

 

(a) Authorized Shares . The maximum aggregate number of shares of Stock available for purchase under the Plan is Five Hundred Thousand (500,000) shares. The aggregate number of shares available for purchase under the Plan shall at all times be subject to adjustment pursuant to Section 14. All share amounts set forth in the Plan have been adjusted to give effect to a 2 for 1 reverse stock split of the Stock which was effected on November 12, 2003.

 

(b) Antidilution Adjustments . The aggregate number of shares of Stock offered under the Plan, the individual Participant share limitation described in Section 8(c) and the price of shares that any Participant has elected to purchase shall be adjusted proportionately by the Committee for any increase or decrease in the number of outstanding shares of Stock resulting from a subdivision or consolidation of shares or the payment of a stock dividend, any other increase or decrease in such shares effected without receipt or payment of consideration by the Company, the distribution of the shares of a Subsidiary to the Company’s stockholders or a similar event.

 

(c) Reorganizations . Any other provision of the Plan notwithstanding, immediately prior to the effective time of a Corporate Reorganization, the Offering Period then in progress shall terminate and shares shall be purchased pursuant to Section 8, unless the Plan is assumed by the surviving corporation or its parent corporation pursuant to the plan of merger or consolidation. The Plan shall in no event be construed to restrict in any way the Company’s right to undertake a dissolution, liquidation, merger, consolidation or other reorganization.

 

SECTION 15 Amendment Or Discontinuance .

 

The Board shall have the right to amend, suspend or terminate the Plan at any time and without notice. Unless earlier terminated by the Board, the Plan shall terminate on September 1, 2013. Except as provided in Section 14, any increase in the aggregate number of shares of Stock to be issued under the Plan shall be subject to approval by a vote of the stockholders of the Company. In addition, any other amendment of the Plan shall be subject to approval by a vote of the stockholders of the Company to the extent required by an applicable law or regulation.

 

SECTION 16 Execution .

 

To record the amendment and restatement of the Plan by the Board on March 21, 2005, the Company has caused its authorized officer to execute the same.

 

SYNNEX C ORPORATION
By:  

/ S /    S IMON L EUNG


    Simon Leung
    General Counsel and Secretary

 

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Exhibit 10.2

 

MASTER AGREEMENT

AND PLAN OF REORGANIZATION

 

AMONG

 

SYNNEX Corporation,

 

SYNNEX K.K.,

 

AND

 

MCJ Co., Ltd.

 

Dated as of

 

March 29, 2005


MASTER AGREEMENT AND PLAN OF REORGANIZATION

 

This MASTER AGREEMENT AND PLAN OF REORGANIZATION (this “Agreement”) is made and entered into this 29 th day of March, 2005, by and between SYNNEX Corporation (“SYNNEX”), a corporation organized and existing under the laws of the State of Delaware, U.S.A. having its registered office at 44201 Nobel Drive, Fremont, CA, 94538, U.S.A., SYNNEX K.K. (“SYNNEX JAPAN”), a corporation organized and existing under the laws of Japan having its registered office at 2-5, Ueno 3-chome, Taito-ku, Tokyo 110-0005, Japan, and MCJ, Co. Ltd. (“MCJ”), a corporation organized and existing under the laws of Japan having its registered office at 1-14-11 Sugito, Sugito-cho, Kitakatsushika-gun, Saitama-ken 345-0036, Japan;

 

WITNESSETH:

 

WHEREAS , SYNNEX desires to exchange with MCJ and MCJ is willing to acquire from SYNNEX 4,236,000 shares of SYNNEX JAPAN held by SYNNEX (“Target Shares”), representing approximately 80.38% of total issued common stock of SYNNEX JAPAN (“Target Shares Transaction”),

 

WHEREAS , MCJ has agreed to issue to SYNNEX 8,603 new shares of common stock of MCJ (“Acquisition Consideration Shares”), in exchange for the Target Shares constituting approximately 6. 82% of the issued and outstanding capital stock of MCJ on a fully diluted basis (“Acquisition Consideration Shares Transaction”),

 

WHEREAS, the Parties intend that the stock for stock exchange described in this Agreement be a tax-free reorganization described in §368(a)(1)(B) of the Code (defined below), and the parties intend that this Agreement constitute a plan of reorganization as defined in §368(b) of the Internal Revenue Code and the Treasury regulations promulgated thereunder (the “Code”); and

 

NOW, THEREFORE , in consideration of the premises made herein, the parties agree as follows:

 

ARTICLE 1

 

EXCHANGE OF THE TRANSFER SHARES

 

1.1 Target Shares . Upon the terms and subject to the conditions of this Agreement, SYNNEX shall exchange and MCJ shall acquire the Target Shares for an amount of shares of MCJ voting capital stock which is valued on the Target Shares Transaction Date in an aggregate equal to 2,408,840,000 yen.

 

1


1.2 Target Shares Transaction Date . The closing will take place at the office of MCJ at 10:00A.M. local time on April 19, 2005 (“Target Shares Transaction Date”). On the Target Shares Transaction Date, SYNNEX will deliver to MCJ the share certificates indicating and representing the Target Shares.

 

ARTICLE 2

 

ISSUE OF AND SUBSCRIPTION FOR ACQUISITION CONSIDERATION SHARES

 

2.1 Acquisition Consideration Shares Issuance Date . Upon the terms and subject to the conditions of this Agreement, including the effectiveness of the registration relating to the issue of the Acquisition Consideration Shares made under the Securities and Exchange Law of Japan (“Securities and Exchange Law”), MCJ shall issue the Acquisition Consideration Shares to SYNNEX on April 22, 2005 (“Acquisition Consideration Shares Issuance Date”).

 

2.2 Acquisition Consideration Shares Certificates . After MCJ’s receipt of the Target Shares by MCJ or MCJ’s agent, MCJ will transfer to SYNNEX the certificates representing the Acquisition Consideration Shares, free and clear of all Liens, at such time as SYNNEX and MCJ will mutually agree.

 

ARTICLE 3

 

REPRESENTATIONS AND WARANTTIES OF SYNNEX AND SYNNEX JAPAN

 

SYNNEX and SYNNEX JAPAN severally and jointly represent and warrant to MCJ as at the date of execution of this Agreement as follows:

 

3.1 Organisation . SYNNEX JAPAN is a corporation duly organised and validly existing under the laws of Japan and has all requisite legal and corporate power and authority to carry on its business as now conducted.

 

3.2 Authorisation . SYNNEX JAPAN has all requisite legal and corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder; and all corporate and other actions on the part of SYNNEX JAPAN necessary for the execution and delivery of this Agreement and the performance of all of its obligations hereunder have been taken in accordance with the provisions of this Agreement.

 

3.3 Validity of this Agreement . This Agreement constitutes a valid and legally binding obligation of SYNNEX and SYNNEX JAPAN, enforceable against them in accordance with its terms, except (a)as limited by applicable bankruptcy, insolvency, reorganisation and other laws of general application affecting enforcement of creditors’ rights generally and (b)as limited by laws relating to the availability of specific performance.

 

2


3.4 Capitalisation .

 

(a) As at the date of execution of this Agreement, the authorized share capital of SYNNEX JAPAN consists of 21,080,000 shares of the common stock, of which 5,270,000 shares are currently in issue.

 

(b) SYNNEX JAPAN has issued no bonds, notes or other securities convertible into, exchangeable for, or otherwise linked with, shares of the common stock of SYNNEX JAPAN, nor has it granted any option or right to purchase, subscribe for or otherwise acquire shares of the common stock of SYNNEX JAPAN, except as previously disclosed to MCJ.

 

3.5 Complaints and Claims . SYNNEX JAPAN has received no material adverse complaint from any customer concerning the products and/or services sold by it, nor has it received any other material adverse complaint or claim, which would reasonably be expected to materially and adversely affect its financial condition, results of operations or business.

 

3.6 Litigation . There is no legal action, proceeding or investigation pending or, to the best of SYNNEX’s and SYNNEX JAPAN’s knowledge, currently threatened against SYNNEX JAPAN, nor is there any order, injunction, judgment or decree of any court or government agency or instrumentality to which SYNNEX JAPAN is a party or subject, in each case, that questions the validity of this Agreement or the right of SYNNEX JAPAN to enter into this Agreement, or to consummate the transactions contemplated hereby, or that might reasonably be expected to result, either individually or in the aggregate, in any material adverse change in the properties or assets, condition or affairs of SYNNEX JAPAN, financially or otherwise, or any material change in the current equity ownership of SYNNEX JAPAN.

 

3.7 Permits . SYNNEX JAPAN has all franchises, permits, licences and any similar authority necessary for the conduct of its business as now being conducted by it, the lack of which would materially and adversely affect the business, properties, assets, prospects or financial condition of SYNNEX JAPAN, and is not in default in any respect under any of such franchises, permits, licences or other similar authority.

 

3.8 Financial Statements .

 

(a) The audited annual financial statements of SYNNEX JAPAN for the fiscal year ended on November 30, 2004 (“Financial Statements”) have been prepared in accordance with generally accepted accounting principles in Japan, and fairly present the financial condition and operating results of SYNNEX JAPAN as at the dates, and for the periods, indicated therein.

 

(b) SYNNEX JAPAN is not a major guarantor or indemnitor of any indebtedness of any other person, firm or corporation. SYNNEX JAPAN maintains and will continue to maintain a standard system of accounting established and administered in accordance with generally accepted accounting principles in Japan.

 

3


3.9 Changes . Since November 30, 2004, there has not been:

 

(a) any material change in the properties, assets, liabilities, financial condition or operating results of SYNNEX JAPAN as reflected in the Financial Statements, except changes in the ordinary course of business;

 

(b) any damage, destruction or loss, whether or not covered by insurance, materially and adversely affecting the properties, assets, financial condition, operating results or business of SYNNEX JAPAN;

 

(c) any waiver by SYNNEX JAPAN of a valuable right or of a material debt owed to it;

 

(d) any satisfaction or discharge of any mortgage, pledge, lien, claim or encumbrance or payment of any obligation by SYNNEX JAPAN, except in the ordinary course of business and that is not material to the properties, assets, financial condition, operating results or business of SYNNEX JAPAN;

 

(e) any material change or amendment to a material contract or arrangement by which SYNNEX JAPAN or any of its assets or properties is bound or subject;

 

(f) any material change in any compensation arrangement or agreement with any employee;

 

(g) any sale, assignment or transfer of any patents, trademarks, copyrights, trade secrets or other intangible assets except in the ordinary course of business;

 

(h) any resignation or termination of employment of any key officer or key employee of SYNNEX JAPAN, and SYNNEX JAPAN does not know of the impending resignation or termination of employment of any such key officer or key employee;

 

(i) receipt of notice that there has been a loss of, or material order cancellation by, any major customer of SYNNEX JAPAN;

 

(j) any mortgage, pledge, transfer of a security interest in, or lien, created by SYNNEX JAPAN, with respect to any of its material properties or assets, except as disclosed in the Financial Statements or created in the ordinary course of business;

 

(k) any declaration, setting aside or payment or other distribution in respect of any of SYNNEX JAPAN’s capital stock, or any direct or indirect redemption, purchase or other acquisition of any of such stock by SYNNEX JAPAN;

 

(l) to SYNNEX’s and SYNNEX JAPAN’ knowledge, any other event or condition of any character that would reasonably be expected to materially and adversely affect the properties, assets, financial condition, operating results or business of SYNNEX JAPAN; or

 

(m) any agreement or commitment by SYNNEX or SYNNEX JAPAN to do any of the things described in this Section 3.9.

 

3.10

Tax Returns . SYNNEX JAPAN has filed all tax returns and reports as required by law. These returns and reports are true and correct in all material respects. SYNNEX JAPAN has paid all taxes and other assessments due. Within the past three (3) years, SYNNEX JAPAN has never had any tax deficiency proposed or assessed against it and has not executed any

 

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waiver of any statute of limitations on the assessment or collection of any tax or governmental charge. SYNNEX JAPAN has withheld or collected from each payment made to each of its employees the amount of all taxes required to be withheld or collected therefrom, and has paid the same to the proper tax office.

 

3.11 Insurance . SYNNEX JAPAN has in full force and effect fire and casualty insurance policies, with extended coverage, sufficient in amount to allow it to replace any of its properties that might be damaged or destroyed.

 

3.12 Outstanding Debt . SYNNEX JAPAN has no outstanding indebtedness for borrowed money, and is not a guarantor or otherwise contingently liable for any such indebtedness, except as set out in the Financial Statements. There exists no material default under the provisions of any instrument evidencing any such indebtedness or of any agreement relating thereto.

 

ARTICLE 4

 

REPRESENTATIONS AND WARRANTIES OF MCJ

 

MCJ represents and warrants to SYNNEX as at the date of execution of this Agreement as follows:

 

4.1 Organisation . MCJ is a corporation duly organised and validly existing under the laws of Japan.

 

4.2 Authorisation . MCJ has all requisite legal and corporate power to execute and deliver this Agreement and to perform its obligations hereunder, and all corporate and other actions, including governmental approvals, authorisations and filings, on the part of MCJ necessary for the execution, delivery and performance of this Agreement have been taken. MCJ is financially capable of performing its obligations hereunder.

 

4.3 Validity of this Agreement . This Agreement constitutes a valid and legally binding obligation of MCJ, enforceable against it in accordance with its terms, except (a)as limited by applicable bankruptcy, insolvency, reorganisation and other laws of general application affecting enforcement of creditors’ rights generally, and (b)as limited by laws relating to the availability of specific performance.

 

4.4 Capitalisation .

 

(a) As at the date of execution of this Agreement, the authorized share capital of MCJ consists of 422,160 shares of the common stock, of which 117,540 shares are currently in issue.

 

(b) MCJ has issued no bonds, notes or other securities convertible into, exchangeable for, or otherwise linked with, shares of the common stock of MCJ, nor has it granted any option or right to purchase, subscribe for or otherwise acquire shares of the common stock of MCJ, except as previously disclosed to SYNNEX JAPAN.

 

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4.5 Complaints and Claims . MCJ has received no material adverse complaint from any customer concerning the products and/or services sold by it, nor has it received any other material adverse complaint or claim, which may adversely affect its financial condition, results of operations or business.

 

4.6 Litigation . There is no legal action, proceeding or investigation pending or, to MCJ’s knowledge, currently threatened against MCJ, nor is there any order, injunction, judgment or decree of any court or government agency or instrumentality to which MCJ is a party or subject, in each case, that questions the validity of this Agreement or the right of MCJ to enter into this Agreement, or to consummate the transactions contemplated hereby, or that might reasonably be expected to result, either individually or in the aggregate, in any material adverse change in the properties or assets, condition or affairs of MCJ, financially or otherwise, or any material change in the current equity ownership of MCJ.

 

4.7 Permits . MCJ has all franchises, permits, licences and any similar authority necessary for the conduct of its business as now being conducted by it, the lack of which could reasonably be expected to materially and adversely affect the business, properties, assets, prospects or financial condition of MCJ, and is not in default in any respect under any of such franchises, permits, licences or other similar authority.

 

4.8 Financial Statements . (a) The audited annual financial statements of MCJ for the fiscal year ended on March 31, 2004 and the interim financial statements for the fiscal period ended on September 30, 2004 (collectively, “MCJ Financial Statements”) have been prepared in accordance with generally accepted accounting principles in Japan, and fairly present the financial condition and operating results of MCJ as at the dates, and for the periods, indicated therein.

 

(b) MCJ is not a major guarantor or indemnitor of any indebtedness of any other person, firm or corporation. MCJ maintains and will continue to maintain a standard system of accounting established and administered in accordance with generally accepted accounting principles in Japan.

 

4.9 Changes . Since September 30, 2004, there has not been:

 

(a) any material change in the properties, assets, liabilities, financial condition or operating results of MCJ as reflected in the MCJ Financial Statements, except changes in the ordinary course of business;

 

(b) any damage, destruction or loss, whether or not covered by insurance, materially and adversely affecting the properties, assets, financial condition, operating results or business of MCJ;

 

(c) any waiver by MCJ of a valuable right or of a material debt owed to it;

 

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(d) any satisfaction or discharge of any mortgage, pledge, lien, claim or encumbrance or payment of any obligation by MCJ, except in the ordinary course of business and that is not material to the properties, assets, financial condition, operating results or business of MCJ;

 

(e) any material change or amendment to a material contract or arrangement by which MCJ or any of its assets or properties is bound or subject;

 

(f) any material change in any compensation arrangement or agreement with any employee;

 

(g) any sale, assignment or transfer of any patents, trademarks, copyrights, trade secrets or other intangible assets except in the ordinary course of business;

 

(h) any resignation or termination of employment of any key officer or key employee of MCJ, and MCJ does not know of the impending resignation or termination of employment of any such key officer or key employee;

 

(i) receipt of notice that there has been a loss of, or material order cancellation by, any major customer of MCJ;

 

(j) any mortgage, pledge, transfer of a security interest in, or lien, created by MCJ, with respect to any of its material properties or assets, except as disclosed in the Financial Statements or created in the ordinary course of business;

 

(k) any declaration, setting aside or payment or other distribution in respect of any of MCJ’s capital stock, or any direct or indirect redemption, purchase or other acquisition of any of such stock by MCJ;

 

(l) to MCJ’s knowledge, any other event or condition of any character that would reasonably be expected to materially and adversely affect the properties, assets, financial condition, operating results or business of MCJ; or

 

(m) any agreement or commitment by MCJ to do any of the things described in this Section 4.9.

 

4.10 Tax Returns . MCJ has filed all tax returns and reports as required by law. These returns and reports are true and correct in all material respects. MCJ has paid all taxes and other assessments due. Within the past three (3) years, MCJ has never had any tax deficiency proposed or assessed against it and has not executed any waiver of any statute of limitations on the assessment or collection of any tax or governmental charge. MCJ has withheld or collected from each payment made to each of its employees the amount of all taxes required to be withheld or collected therefrom, and has paid the same to the proper tax office.

 

4.11 Insurance . MCJ has in full force and effect fire and casualty insurance policies, with extended coverage, sufficient in amount to allow it to replace any of its properties that might be damaged or destroyed.

 

4.12 Outstanding Debt . MCJ has no outstanding indebtedness for borrowed money, and is not a guarantor or otherwise contingently liable for any such indebtedness, except as set out in the MCJ Financial Statements. There exists no material default under the provisions of any instrument evidencing any such indebtedness or of any agreement relating thereto.

 

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ARTICLE 5

 

TAX REPRESENTATIONS

 

5.1 Tax Free Plan of Reorganization . The parties hereby adopt this Agreement as a plan of reorganization and to consummate the transactions contemplated by this Agreement in which the Target Shares are acquired by MCJ solely in exchange for voting stock of MCJ as a reorganization described in §368(a)(1)(B) of the Code. The parties also hereby agree that they shall not take a position on any tax returns or any action inconsistent with this Section 5.1.

 

5.2 Tax Representations and Warranties of SYNNEX and SYNNEX JAPAN Pertaining to §368 . SYYNEX JAPAN hereby represents and warrants to MCJ that each of the following representations and statements in Section 5.2 are true and correct as of the Target Shares Transaction Date, and thereafter as relevant.

 

(a) The fair market value of the MCJ stock received by SYYNEX will be approximately equal to the fair market value of the Target Shares surrendered in the exchange.

 

( b ) SYNNEX JAPAN has no plan or intention to issue additional shares of its stock that would result in MCJ losing control of SYNNEX JAPAN within the meaning of §368(c)(1) of the Code.

 

( c ) SYNNEX JAPAN and SYNNEX will pay their respective expenses, if any, incurred in connection with the transactions contemplated by this Agreement, and no part of such SYNNEX JAPAN or SYNNEX expenses shall be paid by MCJ.

 

( d ) At the date of the Target Shares Transaction, SYNNEX JAPAN will not have outstanding any warrants, options, convertible securities, or any other type of right pursuant to which any person could acquire stock in SYNNEX JAPAN that, if exercised or converted, would effect MCJ’s acquisition or retention of control of SYNNEX JAPAN, as defined in §368(c)(1) of the Code.

 

( e ) SYNNEX JAPAN is not an investment company as defined in §§368(a)(2)(f)(iii) and (iv) of the Code.

 

( f ) There will be no dissenting shareholders of SYNNEX JAPAN to the transactions contemplated in this Agreement.

 

( g) On the Target Shares Transaction Date, the fair market value of the assets of SYNNEX JAPAN will exceed the sum of its liabilities plus the liabilities, if any, to which the assets of SYNNEX JAPAN are subject.

 

( h ) SYNNEX JAPAN shall not redeem any of its stock for cash or other property to be furnished by MCJ or any affiliate of MCJ. Further, no liabilities of SYNNEX JAPAN or SYNNEX will be assumed by MCJ or any affiliate of MCJ, nor will any of the SYNNEX JAPAN stock to be transferred be subject to any liabilities.

 

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5.3 Tax Representations and Warranties of MCJ Pertaining to §368 . MCJ hereby represents and warrants to SYNNEX JAPAN and SYNNEX that each of the following representations and statements in this Section 5.3 are true and correct as of the date of the Target Shares Transaction, and thereafter, as relevant.

 

(a) MCJ has no plan or intention to liquidate SYNNEX JAPAN; to merge SYNNEX JAPAN into another corporation; to cause SYNNEX JAPAN to sell or otherwise dispose of any of its assets, except for dispositions made in the ordinary course of business; or to sell or otherwise dispose of any of the SYNNEX JAPAN stock acquired in the transaction, except for transfers described in and permitted by §368(a)(2)(C) of the Code and the Treasury regulations promulgated thereunder.

 

(b) MCJ has no plan or intention to acquire any of its stock issued in the transaction to SYNNEX.

 

(c) MCJ will pay its own expenses, if any, incurred in connection with the transactions contemplated by this Agreement.

 

(d) MCJ will acquire SYNNEX JAPAN stock solely in exchange for MCJ voting common stock. SYNNEX JAPAN shall not redeem any of its stock for cash or other property furnished by MCJ or any affiliate of MCJ. Further, no liabilities of SYNNEX JAPAN or the SYNNEX will be assumed by MCJ or any affiliate of MCJ, nor will any of the SYNNEX JAPAN stock to be acquired be subject to any liabilities.

 

(e) MCJ does not own, directly or indirectly, nor has it owned during the past five years, directly or indirectly, any stock of SYNNEX JAPAN.

 

(f) Following the transaction, SYNNEX JAPAN will continue its historic business or use a significant portion of its historic business assets in any business.

 

(g) Following the transactions contemplated in this Agreement, MCJ will own stock of SYNNEX JAPAN which constitutes control of SYNNEX JAPAN within the meaning of §368(c) of the Code.

 

(h) MCJ has been engaged in an active trade or business outside the United States for the entire 36-month period ending on the Target Shares Transaction Date. MCJ has no intention to substantially dispose of or discontinue such trade or business activities. On the Target Shares Transaction Date, the fair market value of MCJ will be at least equal to the fair market value of SYNNEX JAPAN, and on such date fifty percent (50%) or less of both the total voting power and the total value of the stock of MCJ will be received by SYNNEX as a result of the transactions contemplated in this Agreement. Because SYNNEX may own five percent (5%) or more of either the total voting power or the total value of the stock of MCJ on the Targtet Shares Transaction Date, MCJ will notify SYNNEX before MCJ consummates any transaction to dispose of the stock of SYNNEX JAPAN during the five (5) year period beginning on the Target Shares Transaction Date.

 

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ARTICLE 6

 

COVENANTS

 

6.1 Continuous Equity Ownership by SYNNEX .

 

(a) Lock-Up of Acquisition Consideration Shares . During the period from the Acquisition Consideration Shares Transaction Date to the first anniversary date thereof, SYNNEX shall not sell, transfer or otherwise dispose any of the Acquisition Consideration Shares subscribed as defined in Article 2 of this Agreement. This provision shall terminate upon the earliest of the following to occur: (1) expiration of such first anniversary date, (2) merger of or sale of substantially all the assets of MCJ, or (3) bankruptcy, insolvency, reorganization, liquidation, dissolution, or change in ownership or control of MCJ or SYNNEX JAPAN. Upon such termination, SYNNEX may sell, transfer or otherwise dispose any Acquisition Consideration Shares without restriction.

 

ARTICLE 7

 

CONDITIONS PRECEDENT

 

7.1 The obligation of SYNNEX to consummate the transactions under this Agreement is subject to the fulfilment of each of the following conditions, any of which may be waived by SYNNEX:

 

(a) Representations and Warranties . The representations and warranties of MCJ contained in Article 4 shall be true and correct on the Acquisition Consideration Shares Issuance Date with the same effect as though such representations and warranties had been made on the Acquisition Consideration Shares Issuance Date.

 

(b) Registration . The registration relating to the issue of the Acquisition Consideration Shares made under the Securities and Exchange Law shall be effective on the Acquisition Consideration Issuance Date.

 

(c) No Adverse Change . During the period from the date hereof to the Acquisition Consideration Shares Issuance Date, there shall have been no material adverse change in the properties, assets, financial condition, operating results, business or prospects of MCJ.

 

7.2 The obligation of MCJ to consummate the transactions under this Agreement is subject to the fulfilment of each of the following conditions, any of which may be waived by MCJ:

 

(a) Representations and Warranties . The representations and warranties of SYNNEX and SYNNEX JAPAN contained in Article 3 shall be true and correct on the Target Shares Transaction Date with the same effect as though such representations and warranties had been made on the Target Shares Transaction Date.

 

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(b) Registration . The registration relating to the issue of the Acquisition Consideration Shares made under the Securities and Exchange Law shall be effective on the Target Shares Transaction Date.

 

(c) No Adverse Change . During the period from the date hereof to the Target Shares Transaction Date, there shall have been no material adverse change in the properties, assets, financial condition, operating results, business or prospects of SYNNEX JAPAN.

 

7.3 This Agreement may be terminated in accordance with the following provisions of this Section 7.3:

 

(a) Termination by SYNNEX . If any of the conditions set out in Section 7.1 has not been satisfied and has not been waived by SYNNEX, prior to June 30, 2005, SYNNEX shall have the right to terminate this Agreement by giving written notice to MCJ.

 

(b) Termination by MCJ . If any of the conditions set out in Section 7.2 has not been satisfied and has not been waived by MCJ prior to June 30, 2005, MCJ shall have the right to terminate this Agreement by giving written notice to SYNNEX.

 

7.4 Upon termination of this Agreement pursuant to Section 7.3, each party hereto shall be released from its obligations hereunder; provided, however, that such termination shall not affect (i) any party’s liability for its antecedent breach of this Agreement and (ii) the transactions (if any) which shall have been consummated hereunder.

 

ARTICLE 8

 

MISCELLANEOUS

 

8.1 Confidentiality and Joint Announcement .

 

(a) The terms and conditions of this Agreement, and all discussions and documents involved in the negotiation, or provided in accordance with, of this Agreement, are and shall remain confidential, unless disclosure thereof is necessary under any applicable laws or regulations or any applicable rules of Tokyo Stock Exchanges, the New York Stock Exchange, the U.S. Securities and Exchange Commission or the JSDA, or in connection with the maintenance of the registration of the common stock with Tokyo Stock Exchanges as Mother’s stock, the issue of the Acquisition Consideration Shares, or any future offering of the common stock or any other securities by MCJ. The confidentiality provisions of this paragraph shall survive for a period of two years after the termination of this Agreement.

 

(b) Notwithstanding the provisions of paragraph (a) above, it is understood by the parties hereto that, upon execution of this Agreement, MCJ, SYNNEX and SYNNEX JAPAN will jointly make a public announcement in respect of the execution of this Agreement and the transactions contemplated hereby.

 

8.2

Notices . Unless otherwise provided, any notice required or permitted under this Agreement shall be given in writing and shall be deemed effectively given upon personal delivery to the

 

11


 

party to be notified or upon delivery by facsimile or by courier (air-courier if sent abroad) or upon deposit with any post office, by registered mail (registered air-mail if sent abroad) addressed to the party to be notified at the address set out below, or at such other address as such party may designate by 10 days’ advance written notice to the other parties.

 

(a) Notice to SYNNEX :

 

Attention: Mr. Dennis Polk, Chief Financial Officer

 

Fax No: (510) 668-3707

 

(b) Notice to SYNNEX JAPAN:

 

Attention: Mr. Akio Sekido, President and Representative Director

 

Fax No:

 

(c) Notice to MCJ:

 

Attention: Mr. Kaoru Uesawa, Director, Management Planning Group

 

Fax No: +81-3-3801-3803

 

8.3 Expenses . Regardless of whether or not the transactions contemplated by this Agreement are consummated, each party shall bear its own fees, expenses and taxes incurred in connection with such transactions.

 

8.4 Survival of Warranties . The representations, warranties and covenants of the parties hereto contained in or made pursuant to this Agreement shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby for a period of one year, and shall in no way be affected by any investigation of the subject matter thereof made by or on behalf of the respective parties. Any party hereto which has breached any of its representations, warranties or covenants contained or made pursuant to this Agreement shall indemnify and hold harmless any other party hereto from any and all damages, losses, liabilities, costs and expenses (including reasonable amounts of legal fees) (“Damages”) suffered or incurred by such other party as a result of, or in connection with, such breach, provided, however, that in no event shall a party’s liability exceed 240,877,497 yen in the aggregate for any such breaches of representations, warranties or covenants, and provided, further, however, that no party shall have liability until the amount of such damages, losses, liabilities, costs and expenses shall exceed (and only to the extent of such excess) 25,947,500 yen.

 

8.5 Resolution of Claims . As used herein, “Claim” means a claim for indemnification under Section 8.4 of this Agreement. A party making a Claim shall give written notice of a Claim executed by an officer of such party (a “Notice of Claim”). A Notice of Claim shall be delivered within 10 days after such party becomes aware of the existence of any potential Claim for indemnity.

 

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Each Notice of Claim shall contain the following information:

 

(a) that the party has incurred or paid, Damages described in Section 8.4 as applicable, in an aggregate stated amount arising from such Claim; and

 

(b) a description, in reasonable detail, of the facts, circumstances or events giving rise to the alleged Damages, including the date each such item was incurred or paid, and the specific nature of the breach to which such item is related.

 

8.6 Any Notice of Claim will be resolved as follows:

 

(i) Uncontested Claims . If, within 30 days after a Notice of Claim is received, the receiving party does not contest such Notice of Claim in writing to the other party, the receiving party will be conclusively deemed to have consented to the recovery of the full amount specified in the Notice of Claim.

 

(ii) Contested Claims . If the receiving party gives the other party written notice contesting all or any portion of a Notice of Claim (a “Contested Claim”) within the 30-day period, then such Contested Claim will be resolved by either: (i) a written settlement agreement executed by the parties; or (ii) in the absence of such a written settlement agreement, by arbitration as set forth in Section 8.13.

 

8.7 Amendments and Waivers . This Agreement may not be amended or supplemented except by written agreement executed by the parties hereto. Any waiver of any provision, right or remedy under this Agreement on any one or more occasions shall not constitute a waiver of the same or any other provision, right or remedy under this Agreement on any other occasion.

 

8.8 Successors and Assigns . Except as otherwise provided herein, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties hereto. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.

 

8.9 Entire Agreement . This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and no party shall be liable or bound to any other party in any manner by any warranties, representations or covenants except as specifically set out herein.

 

8.10 Titles and Subtitles . The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.

 

8.11 Effective Date . This Agreement shall become effective on the date of execution of this Agreement.

 

8.12 Governing Law . This Agreement shall be governed by and construed in accordance with the laws of Japan.

 

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8.13 Arbitration . Any dispute arising between any parties hereto in connection with this Agreement, the construction of any provision of this Agreement or the rights, obligations or liabilities of any party hereunder shall be finally settled by arbitration pursuant to the rules of the Japan Commercial Arbitration Association by one or more arbitrators appointed in accordance with the said rules. Arbitration shall be held in the Japanese language in Tokyo.

 

8.14 Controlling Version . The English language version of this Agreement shall be the official and binding agreement between the parties hereto. Should this Agreement be translated into any other language, the English version shall control and govern.

 

8.15 Counterparts . This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

 

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IN WITNESS WHEREOF , the parties hereto have executed this Agreement as at the date first above written.

 

SYNNEX CORPORATION

/ S /    R OBERT T. H UANG


Robert T. Huang
President and Chief Executive Officer
SYNNEX K.K.

/ S /    A KIO S EKIDO


Akio Sekido
President and Representative Director
MCJ Co., Ltd.

/ S /    Y UJI T AKASHIMA


Yuji Takashima
President and Chief Executive Officer

 

15

EXHIBIT 31.1

 

CERTIFICATION

 

I, Robert Huang, certify that:

 

1. I have reviewed this Form 10-Q of SYNNEX Corporation;

 

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for the periods presented in this report;

 

4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

  a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

  b) designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

  c) evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

  d) disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of registrant’s Board of Directors (or persons performing the equivalent functions):

 

  a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

  b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

Date: July 11, 2005
By:  

/s/    R OBERT H UANG


    Robert Huang
    Chief Executive Officer

EXHIBIT 31.2

 

CERTIFICATION

 

I, Dennis Polk, certify that:

 

1. I have reviewed this Form 10-Q of SYNNEX Corporation;

 

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for the periods presented in this report;

 

4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

  a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

  b) designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

  c) evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

  d) disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of registrant’s Board of Directors (or persons performing the equivalent functions):

 

  a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

  b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

Date: July 11, 2005
By:  

/s/    D ENNIS P OLK


    Dennis Polk
    Chief Financial Officer

EXHIBIT 32.1

 

STATEMENT OF CHIEF EXECUTIVE OFFICER AND CHIEF FINANCIAL OFFICER UNDER 18 U.S.C. § 1350

 

We, Robert Huang, the chief executive officer of SYNNEX Corporation (the “Company”), and Dennis Polk, the chief financial officer of the Company, certify for the purposes of section 1350 of chapter 63 of title 18 of the United States Code that, to the best of our knowledge,

 

(i) the Quarterly Report of the Company on Form 10-Q for the period ended May 31, 2005 (the “Report”), fully complies with the requirements of section 13(a) of the Securities Exchange Act of 1934, and

 

(ii) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

Dated: July 11, 2005

 

/s/    R OBERT H UANG


Robert Huang

/s/    D ENNIS P OLK


Dennis Polk