As filed with the Securities and Exchange Commission September 26, 1996
Registration Statement No. ____________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
COMDISCO, INC.
(Exact name of Registrant as specified in its charter)
Delaware 36-2687938
(State of Incorporation) (I R.S. Employer Identification No.)
6111 North River Road, Rosemont, Illinois 60018
(Address of Principal Executive Offices) (Zip Code)
COMDISCO, INC. 1989 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
COMDISCO, INC. 1995 LONG-TERM STOCK OWNERSHIP INCENTIVE PLAN
(Full title of the plan)
Philip A. Hewes
Senior Vice President/Legal
Comdisco, Inc.
6111 North River Road
Rosemont, Illinois 60018
(Name and address of agent for service)
(847) 698-3000
(Telephone number, including area code, of agent for service)
Calculation of Registration Fee
Title Proposed Proposed
of Maximum Maximum Amount
Securities Amount Offering Aggregate of
to be to be Price Per Offering Registration
Registered Registered Share (*) Price (*) Fee
---------- ---------- --------- --------- ------------
Common Stock 4,065,000 $28.375 $115,344,375 $39,773.92
$.10 Par Shares
(*) Estimated solely for purposes of calculating the registration fee under
Rule 457(h) and Rule 457(c), based upon the average of the high and low
prices for the Company's Common Stock on September 20, 1996 as reported
on the New York Stock Exchange.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Comdisco, Inc. (the "Company") with
the Commission (File No. 1-7725) are incorporated in this Prospectus by
reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 1995 and filed with the Commission on December 20, 1995.
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
December 31, 1995 and filed with the Commission on February 9, 1996.
(c) The Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 1996 and filed with the Commission on May 15, 1996.
(d) The Company's Quarterly Report on Form 10-Q for the quarter ended June
30, 1996 and filed with the Commission on July 30, 1996, as amended by the
Company's Form 10-Q/A dated August 15, 1996 and filed with the Commission
on August 16, 1996.
(e) The Company's Current Report on Form 8-K dated January 12, 1996 and
filed with the Commission on January 17, 1996.
(f) The Company's Current Report on Form 8-K dated February 7, 1996 and
filed with the Commission on February 17, 1996.
(g) The description of Common Stock contained in the Form 8-A Registration
Statement filed by the Company under the Securities Exchange Act of 1934
(the "Exchange Act") on September 15, 1988 and all amendments or reports
filed for the purpose of updating such description.
(h) The description of the Company's Common Stock Purchase Rights contained
in the Form 8-A Registration Statement and filed with the Commission on
November 20, 1987, as amended by Form 8-A/A and filed with the Commission
on December 6, 1994.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act after the effective date of the Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all
securities remaining unsold, shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of the filing of such reports and
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the shares of Common Stock being registered pursuant to
this Registration Statement have been passed upon by Jeremiah M. Fitzgerald,
Esq., Vice President and General Counsel of the Company, 6111 North River Road,
Rosemont, Illinois 60018. As of the date of this Registration Statement, Mr.
Fitzgerald owned 18,686 shares of the Common Stock of the Company and had
outstanding options to purchase 39,226 additional shares.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Subsection (a) of Section 145 of the General Corporation Law of the
State of Delaware (the "DGCL") empowers a corporation to indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
corporation) by reason of the fact that he is or was a director, officer,
employee or agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful.
Subsection (b) of section 145 of the DGCL empowers a corporation to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, except that no indemnification may be made in
respect of any claims issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
Section 145 of the DGCL further provides that to the extent a director
or officer of a corporation has been successful on the merits or otherwise in
the defense of any action, suit or proceeding referred to in subsections (a) and
(b) of Section 145, or in defense of any claim, issue or matter therein, he
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith; that indemnification
provided for by Section 145 shall not be deemed exclusive of any other rights to
which the indemnified party may be entitled; that indemnification provided for
by Section 145 shall, unless otherwise provided when authorized or ratified
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of such person's heirs, executors and
administrators; and empowers the corporation to purchase and maintain insurance
on behalf of a director or officer of the corporation against any liability
asserted against him and incurred by him in any such capacity, or arising out of
his status as such, whether or not the corporation would have the power to
indemnify him against such liabilities under Section 145. Article VIII of the
by-laws of the Registrant provides, in substance that the Registrant will
indemnify its directors and officers to the full extent permitted by Section 145
of the DGCL.
Also, as permitted by the DGCL, Article 13 of the Registrant's Restated
Certificate of Incorporation eliminates the personal liability of each director
of the Registrant to the Registrant or its stockholders for monetary damages
arising out of or resulting from any breach of his fiduciary duty as a director,
except where such director (i) breached his duty of loyalty to the Registrant or
its stockholders, (ii) failed to act in good faith or engaged in intentional
misconduct or a knowing violation of the law, (iii) violated Section 174 of the
DGCL or (iv) obtained an improper personal benefit.
The Registrant maintains policies insuring its and its subsidiaries
officers and directors against certain liabilities for actions taken in such
capacities including subject to certain exemptions, liabilities under the
Securities Act of 1933 (the "Securities Act").
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
4(a) Restated Certificate of Incorporation of Comdisco, Inc. dated
February 12, 1988
Incorporated by references to Exhibit 4.1 filed with the
Company's Registration Statement on Forms S-8 & S-3, File No.
33-20715, filed March 8, 1988.
4(b) By-Laws of Comdisco, Inc., as amended July 23, 1996
4(c) Shareholder Rights Agreement dated November 18, 1987, as
amended and Restated as of November 7, 1994
Incorporated by reference to Exhibit 4.1 filed with the
Company's Current Report on Form 8-K, filed December 6, 1994,
File No. 1-7725.
4(d) Comdisco, Inc. 1989 Non-Employee Directors' Stock Option Plan
Incorporated by reference to Exhibit 10.08 filed with the
Company's Annual Report for the year ended September 30, 1995
on Form 10-K, File No. 1-7725.
4(e) Comdisco, Inc. 1995 Long-Term Stock Ownership Incentive Plan
Incorporated by reference to Exhibit 10.01 filed with the
Company's Quarterly Report for the quarter ended December 31,
1995 on Form 10-Q.
5. Opinion of Counsel
23. Consent of KPMG Peat Marwick LLP
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(b) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in this Registration Statement; Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b)
promulgated under the Securities Act if, in the aggregate, the
changes in volume and price represent no more than a 20% change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(c) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement,
or any material change to such information in this Registration
Statement;
Provided, however, that paragraphs (1)(a) and (1)(b) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act, that are incorporated by
reference in the Registration Statement;
(2) that, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof;
(3) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering; and
(4) that, for purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by
reference in the Registration Statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described above in Item 6, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable, In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been sealed by controlling
precedents, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing of Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Village of Rosemont, State of Illinois on the 25th day of
September, 1996.
COMDISCO, INC.
By: /s/ Jack Slevin
-------------------
Jack Slevin, President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Jack Slevin Chairman of the Board, September 25, 1996
(Jack Slevin) President and Director
(Principal Executive Officer)
/s/ John J. Vosicky Executive Vice September 25, 1996
(John J. Vosicky President/Chief Financial
Officer and Director
(Principal Financial Officer)
/s/ David J. Keenan Vice President and Controller September 25, 1996
(David J. Keenan) (Principal Accounting Officer)
/s/ Alan J. Andreini Director September 25, 1996
(Alan J. Andreini)
/s/ Robert A. Bardagy Director September 25, 1996
(Robert A. Bardagy)
/s/ Edward H. Fiedler, Jr Director September 25, 1996
(Edward H. Fiedler, Jr.)
/s/ C. Keith Hartley Director September 25, 1996
(C. Keith Hartley)
/s/ Philip A. Hewes Director September 25, 1996
(Philip A. Hewes)
/s/ Rick Kash Director September 25, 1996
(Rick Kash)
/s/ Thomas H. Patrick Director September 25, 1996
(Thomas H. Patrick)
/s/ Nicholas K. Pontikes Director September 25, 1996
(Nicholas K. Pontikes)
/s/ William N. Pontikes Director September 25, 1996
(William N. Pontikes)
/s/ Basil R. Twist, Jr Director September 25, 1996
(Basil R. Twist, Jr.)
</TABLE>
BY-LAWS
of
COMDISCO, INC.
ARTICLE I.
Stockholders
Section 1. Annual Meeting. The annual meeting of the stockholders of
the Corporation shall be held on such date, at such time and at such place
within or without the State of Delaware as may be designated by the Board of
Directors, for the purpose of electing Directors and for the transaction of such
other business as properly may be brought before the meeting.
Section 2. Special Meetings. Special meetings of the stockholders for
any proper purpose or purposes may be called by the Board of Directors, the
Chairman of the Board or the President. Any special meeting shall be held on
such date, at such time and at such place within or without the State of
Delaware as the Board of Directors or the officer calling the meeting may
designate. Only such business shall be conducted at a special meeting as shall
have been stated in the notice of the meeting as the purpose or purposes for the
meeting.
Section 3. Notice and Adjournment of Meetings. The Secretary shall give
written notice of each meeting of the stockholders to the stockholders entitled
to vote thereat not less than ten nor more than sixty days before the meeting,
directed to each such stockholder at his address as it appears on the records of
the Corporation and stating the date, time and place of the meeting and, in the
case of a special meeting, the purpose or purposes for which such meeting is
called. Any previously scheduled meeting of the stockholders may be postponed,
and (unless the Certificate of Incorporation otherwise provides) any special
meeting of the stockholders may be canceled, by resolution of the Board of
Directors, upon public announcement made prior to the date previously scheduled
for such meeting of stockholders.
The Chairman of the meeting or the holders of a majority of the shares
entitled to vote, present in person or by proxy, may adjourn the meeting from
time to time, whether or not there is then a quorum present. When a meeting of
stockholders is adjourned to another date, time or place, notice need not be
given of the adjourned meeting if the date, time and place thereof are announced
at the meeting at which the adjournment is taken; provided, however, that if the
adjournment is for more than thirty days or if, after the adjournment, a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting. At the adjourned meeting any business may be transacted which may have
been transacted at the original meeting.
Section 4. Quorum. At any meeting of the stockholders, the holders of a
majority of all the shares of the capital stock of the Corporation issued and
outstanding and entitled to vote, present in person or represented by proxy,
shall constitute a quorum of the stockholders for all purposes, unless the
representation of a larger number shall be required by law, by the Certificate
of Incorporation or by these By-Laws for the purpose of a quorum, and in that
case the representation of the number so required shall constitute a quorum.
Section 5. Qualifications to Vote. The stockholders of record on the
books of the Corporation at the close of business on the record date as
determined in accordance with these By-Laws and only such stockholders shall be
entitled to vote at any meeting of stockholders or any adjournment thereof.
It shall be the duty of the Secretary, or at his direction an Assistant
Secretary, to prepare and make at least ten days before every meeting of
stockholders a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary, business hours, for a period of at
least ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 6. Organization. The Chairman of the Board or, in his absence,
the President, shall call meetings of the stockholders to order and shall act as
Chairman of such meetings. In the absence of the Chairman of the Board and the
President, the Board of Directors may appoint an officer of the Corporation to
perform these duties.
The Secretary of the Corporation shall act as Secretary of all meetings
of the stockholders; but in the absence of the Secretary at any meeting of
stockholders, the Chairman may appoint any person to act as Secretary of the
meeting.
Section 7. Voting. Subject to the provisions of the Certificate of
Incorporation or of law, every stockholder shall be entitled to one vote in
person or by proxy for each share of the capital stock registered in the name of
such stockholder upon the books of the Corporation, but no proxy shall be voted
on after three years from its date, unless said proxy provides for a longer
period. The vote for Directors and, upon the demand of any stockholder, the vote
upon any matter before the meeting, shall be by ballot, and except as otherwise
provided by law, by the Certificate of Incorporation or by these By-Laws, all
elections shall be decided by a plurality vote. All other matters brought before
any meeting at which a quorum is present shall be decided by the vote of the
holders of a majority of stock having voting power present in person or by
proxy, unless the question is one upon which by express provision of the
statutes, these By-Laws or of the Certificate of Incorporation (including
Articles 11 and 12 thereof), a different vote is required, in which case such
express provision shall govern and control the decision of such question.
Section 8. Inspectors. At each meeting of the stockholders, the polls
shall be opened and closed, the proxies and ballots shall be received and be
taken in charge, and all questions relating to the qualifications of voters, the
validity of proxies and the acceptance or rejection of votes shall be decided by
one or more Inspectors. Such Inspectors shall be appointed by the Board of
Directors before the meeting or, if no such appointment shall have been made,
then by the presiding officer at the meeting. If, for any reason, any of the
Inspectors previously appointed shall fail to attend, or refuse or be unable to
serve, Inspectors in place of any so failing to attend, or refusing or unable to
attend, shall be appointed in like manner.
Section 9. Procedures Governing Business of Meetings of Stockholders.
At an annual meeting of the stockholders, only such business shall be conducted
as shall have been properly brought before the meeting. To be properly brought
before an annual meeting, business must be (a) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board of
Directors, (b) otherwise properly brought before the meeting by or at the
direction of the Board of Directors, or (c) otherwise properly brought before
the meeting by a stockholder. For business to be properly brought before an
annual meeting by a stockholder, the stockholder must have given timely notice
thereof in writing to the Secretary. To be timely, a stockholder's notice must
be delivered to or mailed and received at the principal executive offices of the
Corporation, (a) not less than 120 days nor more than 150 days in advance of a
day corresponding to the date of mailing the Corporation's proxy statement in
connection with the previous year's annual meeting, or (b) if no annual meeting
was held in the previous year or the date of the applicable annual meeting has
been changed by more than 30 days from the date contemplated at the time of the
previous year's proxy statement, not less than a reasonable time, as determined
by the Board of Directors, prior to the date of the applicable annual meeting.
In no event shall the public announcement of an adjournment of an annual meeting
commence a new time period for the giving of a stockholder's notice as described
above. A stockholder's notice to the Secretary shall set forth as to the matter
the stockholder proposes to bring before the annual meeting (a) a brief
description of the business desired to be brought before the annual meeting,
including the complete text of any resolutions to be presented at the annual
meeting, and the reasons for conducting such business at the annual meeting, (b)
the name and address, as they appear on the Corporation's books, of the
stockholder proposing such business, and of the beneficial owner, if any, on
whose behalf the proposal is made, and of any other stockholder known by such
stockholder to be supporting such proposal on the date of such stockholder's
notice, (c) the class and number of shares of the Corporation which are owned
beneficially and of record by the stockholder, and such beneficial owner and
such other stockholders (d) any material interest of the stockholder in such
business and of such beneficial owner and such other stockholders, and (e) a
representation that the stockholder intends to appear at the meeting in person
or by proxy to submit the business specified in such notice. In addition, the
stockholder making the proposal shall promptly provide any other information
reasonably requested by the Corporation. Notwithstanding anything in the By-Laws
to the contrary, no business shall be conducted at any annual meeting except in
accordance with the procedures set forth in this Section 9 and in Rule 14a-8
under the Securities Exchange Act of 1934 as the same (or any substitute
provision thereof) may be in effect from time to time. The chairman of the
meeting shall, if the facts warrant, determine and declare to the meeting that
business was not properly brought before the meeting in accordance with the
provisions of this Section 9, and if he should so determine, the Chairman shall
so declare to the meeting and any such business not properly brought before the
meeting shall not be transacted. Nothing in this By-Law shall be construed to
prevent the consideration and approval or disapproval at the Annual Meeting of
reports of officers, directors, and committees of the Board of Directors, but in
connection with such reports, no business shall be acted upon at such Annual
Meeting unless the presentation of such business is in compliance with the
provisions of this By-Law. Notwithstanding the foregoing provisions of this
Section 9, a stockholder who seeks to have any proposal included in the
Corporation's proxy statement shall comply with all the requirements of
Regulation 14A under the Exchange Act.
Section 10. Notice of Stockholder Nominations. Only persons who are
nominated in accordance with the procedures set forth in this Section 10 shall
be eligible for election as Directors by the stockholders. Nominations of
persons for election to the Board of Directors of the Corporation may be made at
a meeting of stockholders (i) by or at the direction of the Board of Directors
or (ii) by any stockholder of the Corporation entitled to vote for the election
of Directors at the meeting who complies with the notice procedures set forth in
this Section 10. Such nominations, other than those made by or at the direction
of the Board of Directors, shall be made pursuant to timely notice in writing to
the Secretary. To be timely, a stockholder's notice shall be delivered to or
mailed and received at the principal executive offices of the Corporation (a)
not less than 120 days nor more than 150 days in advance of a day corresponding
to the date of mailing the Corporation's proxy statement in connection with the
previous year's annual meeting or (b) if no annual meeting was held in the
previous year or the date of the applicable annual meeting has been changed by
more than 30 days for the date contemplated at the time of the previous year's
proxy statement, not less than reasonable time, as determined by the Board of
Directors, prior to the date of the applicable annual meeting. Such
stockholder's notice shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or re-election as a Director, (i) the name,
age, business address and residence address of such person, (ii) the principal
occupation or employment of such person, (iii) the class and number of shares of
the Corporation which are beneficially owned by such person, (iv) a
representation that the stockholder intends to appear at the meeting in person
or by proxy to make the nomination specified in such notice, (v) a description
of all arrangements or understandings among the stockholder and each nominee and
any other person or persons (naming such persons or persons) pursuant to which
the nomination or nominations are to be made by the stockholder, and (vi) any
other information relating to such person that is required to be disclosed in
solicitations of proxies for election of Directors, or is otherwise required, in
each case pursuant to Regulation 14A under the Securities Exchange Act of 1934,
as amended (including without limitation such person's written consent to being
named in the proxy statement as a nominee and to serving as a Director if
elected); and (b) as to the stockholder giving the notice and the beneficial
owner, if any, on whose behalf the nomination is made, (i) the name and address,
as they appear on the Corporation's books, of such stockholder and such
beneficial owner and any other stockholder known by such stockholder to be
supporting such nominee on the date of such stockholder notice and (ii) the
class and number of shares of the Corporation which are beneficially owned and
of record by such stockholder and such beneficial owner and any other
stockholder known by such stockholder to be supporting such nominee on the date
of such stockholder notice. At the request of the Board of Directors any person
nominated by the Board of Directors for election as a Director shall furnish to
the Secretary, that information required to be set forth in a stockholder's
notice of nomination which pertains to the nominee. No person shall be eligible
for election as a Director of the Corporation unless nominated in accordance
with the procedures set forth in this Section 10. The chairman of the meeting
shall, if the facts warrant, determine and declare to the meeting that a
nomination was not made in accordance with the procedures prescribed by the
By-Laws, and if he should so determine, he shall so declare to the meeting and
the defective nomination shall be disregarded.
Section 11. Action by Consent. (a) Unless otherwise provided in the
Certificate of Incorporation, any action which is required to be or may be taken
at any annual or special meeting of stockholders of the Corporation, subject to
the provisions of subsections (b), (c), and (d) of this Section 11, may be taken
without a meeting, without prior notice and without a vote, if a consent or
consents in writing, setting forth the action so taken, shall have been signed
by the holders of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or to take such action at a meeting
at which all shares entitled to vote thereon were present and voted and shall be
delivered to the Corporation. Prompt notice of the taking of the corporate
action without a meeting and by less than unanimous written consent shall be
given to those stockholders who have not consented in writing.
(b) Every written consent shall bear the date of signature of each
stockholder who signs the consent and no written consent shall be effective to
take the corporate action referred to therein unless, within sixty days of the
earliest dated consent delivered to the Corporation, written consents signed by
a sufficient number of holders to take action are delivered to the Corporation
by delivery to its registered office in Delaware, its principal place of
business, or an officer or agent of the Corporation having custody of the book
in which proceedings of the meetings of stockholders are recorded. Delivery made
to the Corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested.
(c) The record date for determining stockholders entitled to consent to
corporate action in writing without a meeting shall be fixed by the Board of
Directors. Any stockholder seeking to have the stockholders authorize or take
corporate action by written consent without a meeting shall, by written notice
to the Secretary, request the Board of Directors to fix a record date. Upon
receipt of such a request, the Secretary shall, as promptly as practicable, call
a special meeting of the Board of Directors to be held as promptly as
practicable, but in any event not more than 10 days following the date of
receipt of such a request. At such meeting, the Board of Directors shall fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which date shall not be more than 10 days after the date upon which the
resolution fixing the record date is adopted by the Board of Directors. Notice
of the record date shall be published in accordance with the rules and policies
of the principal stock exchange in the United States on which securities of the
Corporation are then listed. If no record date has been so fixed by the Board of
Directors, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting, when no prior action by the Board
of Directors is required by the Delaware General Corporation Law, shall be the
first date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the Corporation, by delivery to its
registered office in Delaware, its principal place of business, or an officer or
agent of the Corporation having custody of the book in which proceedings of the
meetings of stockholders are recorded. Delivery made to the Corporation's
registered office shall be by hand or by certified or registered mail, return
receipt requested. If no record date has been fixed by the Board of Directors
and prior action by the Board of Directors is required by the Delaware General
Corporation Law, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting shall be at the close
of business on the day on which the Board of Directors adopts the resolution
taking such prior action.
(d) In the event of the delivery, in the manner provided by Paragraph
(c), to the Corporation of the requisite written consent or consents to take
corporate action and any related revocation or revocations, the Corporation may
engage nationally recognized independent inspectors of elections for the purpose
of promptly performing a ministerial review of the validity of the consents and
revocations. For the purpose of permitting the inspectors to perform such
review, no action by written consent without a meeting shall be effective until
such date as the independent inspectors certify to the Corporation that the
consents delivered to the Corporation in accordance with Paragraph (c) represent
at least the minimum number of votes that would be necessary to take the
corporate action. Nothing contained in this paragraph shall in any way be
construed to suggest or imply that the Board of Directors or any stockholder
shall not be entitled to contest the validity of any consent or revocation
thereof, whether before or after such certification by the independent
inspectors, or to take any other action (including , without limitation, the
commencement, prosecution or defense of any litigation with respect thereto, and
the seeking of injunctive relief in such litigation).
ARTICLE II.
Board of Directors
Section 1. Powers. The business and affairs of the Corporation shall be
managed by the Board of Directors which may exercise all powers of the
Corporation and do all lawful acts and things not by statute or by the
Certificate of Incorporation or these By-Laws required to be exercised or done
by the stockholders.
Section 2. Number, Classes and Term of Office. The Board of Directors
shall consist of not less than four nor more than fifteen members which may have
an office and keep the books of the Corporation (except as may be otherwise
provided by law) in such place or places within or without the State of Delaware
as the Board of Directors from time to time by resolution may determine. Within
the limits specified above, the number of Directors shall be fixed from time to
time by the Board of Directors by resolution and the number so fixed shall
constitute the whole Board of Directors. The Directors shall be divided into
three classes as nearly equal in number as possible. At the annual meeting held
in 1986, one class of directors (Class I) was elected for a one-year term, one
class (Class II) was elected for a two-year term and one class (Class III) was
elected for a three year term. At each succeeding annual meeting of
stockholders, successors to the class of directors whose term expires in that
year will be elected for a three-year term. None of the Directors need be a
stockholder of the Corporation and none need be a resident of the State of
Delaware. The Directors shall, except as hereinafter otherwise provided for
filling vacancies, be elected by ballot at the annual meeting of the
stockholders in the manner set forth in Article I of these By-Laws, and shall
continue in office until the annual meeting for the year in which their term
expires or until their successors shall have been elected and shall qualify. In
case any increase in the number of Directors shall be effected at any time or
from time to time by the Board of Directors pursuant to this Section, the
additional offices so created may be filled as vacancies by affirmative vote of
a majority of the Directors in office at the time such increase becomes
effective. The Directors elected to such additional offices shall serve until
the annual meeting for the year in which their term expires and until their
successors have been elected and shall qualify.
Section 3. Removal and Vacancies. Vacancies and newly created
directorships within any class resulting from any increase in the authorized
number of Directors, may be filled by a majority of Directors then in office,
though less than a quorum, and any Director so chosen shall hold office for a
term which shall coincide with the term of such class to which he is elected. If
there are no Directors in office, then an election of Directors may be held in
the manner provided by statute. If, at the time of filling any vacancy or any
newly created directorship within any class, the Directors then in office shall
constitute less than a majority of the whole board (as constituted immediately
prior to any such increase), the Court of Chancery may, upon application of any
stockholder or stockholders holding at least ten percent of the total number of
the shares at the time outstanding having the right to vote for such Directors,
summarily order an election to be held to fill any such vacancies or newly
created directorships, or to replace the Directors chosen by the Directors then
in office. Sections 1 and 2 of this Article II may only be amended by the Board
of Directors pursuant to Section 4 of Article II of these By-Laws or by the
affirmative vote of not less than 66 2/3% of the stock then entitled to vote in
an election of Directors.
Section 4. Meetings and Consents in Lieu of Meetings. Meetings of the
Board of Directors shall be held on such dates, at such times and at such places
within or without the State of Delaware as the Board by resolution may from time
to time determine or as called by or at the order of the Chairman of the Board
or by a majority of the Directors then in office.
Regular meetings of the Board of Directors may be held without other
notice at such time and place as shall from time to time be determined by
resolution of the Board of Directors . Special meetings of the Board of
Directors may be called by the Chairman of the Board or the President or upon
request of two directors.
The Secretary shall give notice of the date, time and place of each
meeting by mailing the same at least five days before the meeting or by
facsimile the same at least one day before the meeting, to each Director, but
such notice may be waived by any Director.
Any action required or permitted to be taken at any meeting of the
Board of Directors may be taken without a meeting if each of the Directors or
any committee thereof consent thereto in writing and the writing or writings are
filed with the minutes of proceedings of the Board or committee.
Section 5. Quorum. A majority of the whole Board of Directors shall
constitute a quorum for the transaction of business and the vote of a majority
of the Directors present at a meeting at which a quorum is present shall be the
act of the Board, except as may be otherwise specifically provided by statute or
by the Certificate of Incorporation. If at any meeting of the Board there be
less than a quorum present, a majority of those present may adjourn the meeting
from time to time without notice other than announcement at the meeting, until a
quorum shall be obtained. All Directors present at any meeting of the Board may
be counted in determining the presence of a quorum for all purposes and for all
matters before the meeting regardless of the interest a Director may have in any
matter brought before the meeting.
Section 6. Organization. At all meetings of the Board of Directors,
the Chairman of the Board shall preside. In the absence of the Chairman of
the Board, the Directors present shall appoint a chairman of the meeting.
Section 7. Compensation of Directors. Each Director not an officer or
an employee of the Corporation shall be entitled to receive as compensation
(payable in cash or equity in the Corporation) for his services an annual fee
and, for each day on which he shall be present at any meeting of the Board of
Directors, a meeting fee in amounts which the Board by resolution may from time
to time determine. Each Director, whether or not an officer or employee of the
Corporation, shall be entitled to reimbursement for all expenses incurred by him
in attending any meeting of the Board of Directors. Such meeting fee and
reimbursement for expenses shall be payable even though the meeting is adjourned
because of the absence of a quorum.
ARTICLE III.
Committees
Section 1. Executive Committee. The Board of Directors, by a resolution
passed by a majority of the whole Board, may appoint from among its members an
Executive Committee, such members to serve at the pleasure of the Board. The
number of Directors to be appointed as members of the Executive Committee shall
be fixed from time to time by resolution of the Board. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of each absent or disqualified
member. The Executive Committee shall concern itself with all matters affecting
the fiscal policies and financial affairs of the Corporation and shall have and
may exercise, when the Board is not in session, all the powers of the Board in
the management of the business and affairs of the Corporation, except that it
shall not have any of the powers of the Board in connection with (i) adopting an
agreement of merger or consolidation, (ii) recommending to the stockholders the
sale, lease or exchange of all or substantially all of the Corporation's
property and assets, (iii) recommending to the stockholders a dissolution of the
Corporation or a revocation of a dissolution, (iv) authorizing issuing shares of
stock of the Corporation, (v) declaring dividends, (vi) altering or amending the
Certificate of Incorporation of the Corporation or (vii) altering, amending or
repealing these By-Laws or any resolution of the Board of Directors that by its
terms provides that the Executive Committee shall not alter, amend or repeal it.
The Executive Committee may authorize the seal of the Corporation to be affixed
to all papers that may require it.
Section 2. Other Committees. The Board of Directors, by a resolution
passed by a majority of the whole Board, may create from time to time additional
committees to be constituted in such manner and to have such organization and
powers as the Board of Directors in such resolution shall provide (subject to
the restrictions set forth in (i) through (vii) of the preceding Section). All
of the members of any such committee having any of the powers of the Board of
Directors shall be Directors, and the members of any such committee not having
any of the powers of the Board of Directors need not be Directors.
Section 3. Alternate Members. The Board of Directors, by a resolution
passed by a majority of the whole Board, may designate alternate members of any
committee who shall possess the same qualifications for eligibility as regular
members and who may replace any absent or disqualified member at any meeting of
the committee in the order, if any, designated in the resolution appointing such
alternate members. In the absence or disqualification of a committee member, the
member or members present at any meeting and not disqualified from voting, may
unanimously appoint another member of the Board of Directors to act at the
meeting in place of any such absent or disqualified member.
Section 4. Committee Proceedings. A quorum for transacting business by
any committee shall be one-third of the number of members of the committee as
then constituted, not including the number of alternate members, but the
alternate members present at any meeting shall be counted for the purpose of
determining if a quorum is present at the meeting. The vote of a majority of the
members, including alternate members sitting as members, present at a meeting at
which a quorum is present shall be the act of the committee. All members present
at any meeting of a committee may be counted in determining the presence of a
quorum for all purposes and for all matters before the meeting regardless of the
interest a member may have in any matter brought before the meeting. Each of the
committees may appoint a secretary of the committee, who need not be a Director.
Each of the committees shall have power to fix the date, time and place of
holding its meetings and the method of giving notice thereof and to adopt its
own rules of procedure. Each of them shall keep minutes of all its meetings
which shall be open to the inspection of any Director at any time.
Section 5. Compensation. Each member of a committee, and each alternate
member of a committee, who is not an officer or an employee of the Corporation
shall be entitled to receive, for his services as a member or as an alternate
member of such committee, compensation (in cash or equity in the Corporation) in
such amounts as the Board of Directors by resolution may from time to time
determine. Each member of a committee, and each alternate member of a committee,
whether or not an officer or an employee of the Corporation, shall be entitled
to reimbursement for all expenses incurred by him in attending any meeting of
such committee.
ARTICLE IV.
Officers
Section 1. Officers. The officers of the Corporation shall be a
Chairman of the Board, a Chief Executive Officer, a President, one or more
Executive Vice Presidents, one or more Senior Vice Presidents, one or more Vice
Presidents, a Controller, a Treasurer and a Secretary. Any number of offices may
be held by the same person. All such officers shall be elected by the Board of
Directors at the meeting of the Board of Directors held on the date of each
annual meeting of the stockholders. The Board of Directors may elect such other
officers as they deem necessary, who shall have such authority and shall perform
such duties as the Board of Directors from time to time prescribe. In its
discretion, the Board of Directors may leave any office unfilled.
All officers shall be subject to removal at any time by the affirmative
vote of a majority of the whole Board of Directors or by the Executive Committee
of the Board of Directors.
The President may also appoint officers of the Corporation's divisions
or business units, but such individuals will not be deemed to be officers of the
Corporation.
Section 2. Powers and Duties of the Chairman of the Board. The Chairman
of the Board shall preside at all meetings of the stockholders and of the Board
of Directors. He shall from time to time secure information concerning the
business and affairs of the Corporation and shall promptly lay such information
before the Board of Directors. He shall communicate to the Board all matters
presented by any officer of the Corporation for its consideration, and shall
from time to time communicate to the officers such action of the Board of
Directors as may in his judgment affect the performance of their official
duties.
Section 3. Powers and Duties of the Chief Executive Officer. The Chief
Executive Officer shall be the chief executive and policy officer of the
Corporation and shall have such powers and perform such duties as may from time
to time be assigned to him by these By-Laws, the Board of Directors or the
Chairman of the Board.
Section 4. Powers and Duties of the President. The President shall have
such powers and perform such duties as may from time to time be assigned to him
by these By-Laws, the Board of Directors, the Chairman of the Board or the Chief
Executive Officer.
Section 5. Powers and Duties of the Executive Vice Presidents, Senior
Vice Presidents and Vice Presidents. Each Executive Vice President, each Senior
Vice President and each Vice President shall have such powers and perform such
duties as may from time to time be assigned to him by these By-Laws, the Board
of Directors, the Chairman of the Board, the Chief Executive Officer or the
President.
Section 6. Powers and Duties of the Controller. The Controller shall be
the principal officer in charge of the accounts of the Corporation, and shall
perform such duties as from time to time may be assigned to him by the Board of
Directors, the Chairman of the Board, the Chief Executive Officer or the
President.
Section 7. Powers and Duties of the Treasurer. The Treasurer shall have
custody of all the funds and securities of the Corporation which may have come
into his hands; when necessary or proper, he may endorse or cause to be endorsed
on behalf of the Corporation for collection, checks, notes and other obligations
and shall deposit the same to the credit of the Corporation in such bank or
banks or depository or depositories as may have been designated by the Board of
Directors or the Executive Committee or by any officer authorized by the Board
of Directors or the Executive Committee to make such designation; whenever
required by the Board of Directors or Executive Committee he shall render a
statement of the funds and securities of the Corporation in his custody; and he
shall perform all acts incident to the position of Treasurer, subject to the
control of the Board of Directors and the Executive Committee.
Section 8. Powers and Duties of the Secretary. The Secretary shall keep
the minutes of all meetings of the Board of Directors and the minutes of all
meetings of the stockholders in books provided for that purpose; he shall attend
to the giving or serving of all notices of the Corporation; he may sign with the
Chairman of the Board, the President, any Executive Vice President, any Senior
Vice President or any Vice President, in the name of the Corporation, all
contracts authorized by the Board of Directors or by any committee of the
Corporation having the requisite authority and, when so ordered by the Board of
Directors or such committee, he shall affix the seal of the Corporation thereto;
he shall have charge of the stock certificate books, transfer books and stock
ledgers and such other books and papers as the Board of Directors or the
Executive Committee shall direct, all of which shall at all reasonable times be
open to the examination of any Director, upon application at the office of the
Corporation during business hours; and he shall in general perform all the
duties incident to the office of Secretary, subject to the control of the Board
of Directors and the Executive Committee.
Section 9. Powers and Duties of Additional Officers. The Board of
Directors or the Executive Committee may from time to time by resolution
delegate to any Assistant Vice President or Vice President, Assistant Controller
or Controllers, any Assistant Treasurer or Treasurers and/or any Assistant
Secretary or Secretaries, elected by the Board, any of the powers or duties
herein assigned to the Vice President, Controller, the Treasurer or the
Secretary, respectively.
Section 10. Giving of Bond by Officers. All officers of the
Corporation, if required to do so by the Board of Directors, shall furnish bonds
to the Corporation for the faithful performance of their duties, in such
penalties and with such conditions and security as said Board may require.
ARTICLE V.
Capital Stock - Seal - Fiscal Year
Section 1. Certificates for Shares. The certificates for shares of the
capital stock of the Corporation shall be in such form not inconsistent with the
Certificate of Incorporation as shall be approved by the Board of Directors. The
certificates shall be signed by the Chairman of the Board or the President and
also by the Secretary or the Treasurer and shall not be valid unless so signed.
If a certificate is counter-signed (1) by a transfer agent other than the
Corporation or its employee, or (2) by a registrar other than the Corporation or
its employee, any other signature on the certificate may be a facsimile. If any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued
by the Corporation with the same effect as though he were such officer, transfer
agent or registrar at the date of issue.
All certificates shall be consecutively numbered. The name of the
person owning the shares represented thereby with the number of such shares and
the date of issue thereof shall be entered in the Corporation's books. The
Corporation shall be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares to receive dividends, and to vote
as such owner, and to hold liable for calls and assessments a person registered
on its books as the owner of shares, and shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on the part of
any other person, whether or not it shall have express or other notice thereof,
except as otherwise provided by the laws of Delaware.
Except as hereinafter provided, all certificates surrendered to the
Corporation shall be canceled and no new certificates shall be issued until
former certificates for the same number of shares of the same class shall have
been surrendered and canceled.
Section 2. Replacing Lost, Stolen, Destroyed or Escheated Stock
Certificates. The Board of Directors of the Corporation, or any officer or
officers of the Corporation to whom the Board of Directors has delegated
authority, may authorize any transfer agent of the Corporation to issue at any
time and from time to time until otherwise directed new certificates of stock in
the place of certificates previously issued by the Corporation, alleged to have
been lost, stolen or destroyed, upon receipt by the transfer agent of (a)
evidence of loss, theft or destruction (which may be the affidavit of the
applicant), (b) an undertaking to indemnify the Corporation and any transfer
agent and registrar of stock of the Corporation against claims that may be made
against it or them on account of the lost, stolen or destroyed certificate or
the issue of a new certificate, (c) a bond of indemnity to secure such
undertaking, of such kind, in such amount (which may be either a fixed or open
amount), and secured by such surety, as the Board of Directors, any financial
officer, or any other authorized officer or officers shall have authorized the
transfer agent to accept generally or as the Board of Directors or such officer
or officers shall approve in particular cases, and (d) any other documents or
instruments that the Board of Directors or an authorized officer or officers may
from time to time require.
The Board of Directors of the Corporation, or any officer or officers
of the Corporation to whom the Board of Directors has delegated authority, may
authorize any transfer agent of the Corporation to issue at any time and from
time to time until otherwise directed new certificates of stock, in the place of
certificates previously issued by the Corporation, representing shares of stock
of the Corporation which, together with all unclaimed dividends thereon, are
claimed and demanded by any State of the United States in accordance with
escheat laws, or unclaimed or abandoned property laws which contain a statutory
provision which relieves the issuing corporation, and any transfer agent,
registrar or other person acting for the corporation from all liability to any
person or from any loss or damage resulting from the issuance and delivery of
any such replacement certificates to the State.
Section 3. Transfer of Shares. A transfer book shall be kept by the
Corporation or by one or more agents appointed by it, in which the shares of the
capital stock of the Corporation shall be transferred. Shares of the capital
stock of the Corporation shall be transferred on the books of the Corporation by
the holder thereof in person or by his attorney duly authorized in writing, upon
surrender and cancellation of certificates for a like number of shares.
Section 4. Regulations. The Board of Directors shall have power and
authority to make all such rules and regulations as it may deem expedient
concerning the issue, transfer and registration of certificates for shares of
the capital stock of the Corporation.
The Board of Directors may appoint one or more transfer agents and
registrars of transfers and may require all stock certificates to bear the
signature of one of the transfer agents and of one of the registrars of
transfers so appointed.
Section 5. Fixing of Record Dates. In order to determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action (other than action by consent, which is the subject of
Article I, Section 11 of these By-Laws), the Board of Directors may fix a record
date, which record date shall not precede the date upon which the resolution
fixing the record date is adopted by the Board of Directors, and which record
date shall not be more than sixty nor less than ten days before the date of such
meeting, nor more than sixty days prior to any other action. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting, provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
Section 6. Dividends. Subject to the provisions of the Certificate of
Incorporation of the Corporation, the Board of Directors may declare dividends
from the surplus of the Corporation or from the net profits arising from its
business.
Subject to the provisions of the Certificate of Incorporation of the
Corporation, the dividends on any class of stock of the Corporation, if
declared, shall be payable on dates to be fixed by the Board of Directors.
Section 7. Corporate Seal. The Board of Directors may provide a
suitable seal, containing the name of the Corporation, which seal shall be in
the charge of the Secretary. If and when so directed by the Board of Directors,
a duplicate of the seal may be kept and be used by the Treasurer, any Assistant
Secretary or any Assistant Treasurer.
Section 8. Fiscal Year. The fiscal year of the Corporation shall
begin on the first day of October and terminate on the thirtieth day of
September in each year.
ARTICLE VI.
Signing of Checks, Notes, Etc.
All checks, drafts, bills of exchange, notes or other obligations or
orders for the payment of money shall be signed by such officer or officers or
employee or employees of the Corporation and in such manner as shall from time
to time be determined by resolution of the Board of Directors or by any officer
of the Corporation authorized by resolution of the Board of Directors to sign on
behalf of the Corporation with respect to such obligations.
ARTICLE VII.
Indemnification.
Section 1. The Corporation (i) shall indemnify every person who is or
was a director or officer of the corporation or is or was serving at the
Corporation's request as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise; and (ii) shall, if the
Board of Directors so directs, indemnify any person who is or was an employee or
agent of the Corporation or is or was serving at the Corporation's request as an
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise to the extent, in the manner, and subject to compliance with
the applicable standards of conduct, provided by Section 145 of the General
Corporation Law of the State of Delaware as the same (or any substitute
provision thereof) may be in effect from time to time.
Such indemnification (i) shall not be deemed exclusive of any other
rights to which any person seeking indemnification under or apart from this
Article VI be entitled under any by-law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office, and (ii) shall
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and administrators
of such a person.
ARTICLE VIII.
Offices.
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, state of Delaware.
Section 2. The Corporation may also have offices at such other places
both within and without the State of Delaware as the Board of Directors may from
time to time determine or the business of the Corporation may require.
ARTICLE IX.
Amendments.
Except as provided in the Certificate of Incorporation of the
Corporation, these By-Laws may be altered, amended or repealed, or new By-Laws
may be adopted, by the Board of Directors or by the stockholders at any meeting
the notice of which shall have stated the amendment of the By-Laws as one of the
purposes of the meeting. Any By-Laws adopted by the Board of Directors may be
altered, amended or repealed by the stockholders at any annual meeting or at any
special meeting, provided that notice of such proposed alteration, amendment or
repeal shall have been given in the notice of the meeting.
Exhibit 5
[Letterhead of Comdisco, Inc.]
September 26, 1996
Securities and Exchange Commission
450 Fifth Street, N. W.
Judiciary Plaza
Washington, D.C. 20549
Ladies and Gentlemen:
I am the Vice President and General Counsel of Comdisco, Inc., a Delaware
corporation (the "Company"). The Company is filing a Registration Statement on
Form S-8 ("Registration Statement") under the Securities Act of 1933, as amended
(the "Act"), in connection with the registration under the Act of 4,065,000
shares (the "Award Shares") of the Common Stock, par value $0.10 per share, of
the Company to be issued pursuant to awards under the Company's 1989
Non-Employee Directors' Stock Option Plan and the Company's 1995 Long-Term Stock
Ownership Incentive Plan (collectively, the "Plans").
Assuming the Registration Statement is filed with and accepted by the
Commission, the Award Shares, when issued and paid for in accordance with the
Plans, will be legally issued, fully paid and non-assessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and the reference to me under the heading "Legal
Opinions" in the Registration Statement.
Very truly yours,
/s/ Jeremiah M. Fitzgerald
--------------------------
Vice President & General Counsel
Exhibit 23
[KPMG Peat Marwick LLP Letterhead]
Consent of KPMG Peat Marwick LLP
The Board of Directors
Comdisco, Inc.
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of Comdisco, Inc. of our reports dated November 7, 1995, relating to
the consolidated balance sheets of Comdisco, Inc. and subsidiaries as of
September 30, 1995 and 1994, and the related consolidated statements of
earnings, stockholders' equity, and cash flows for each of the years in the
three-year period ended September 30, 1995, and the related financial statement
schedule, which reports appear in or are incorporated by reference in the
September 30, 1995 annual report on Form 10-K of Comdisco, Inc.
/s/ KPMG Peat Marwick LLP
September 25, 1996
Chicago, Illinois
