As filed with the Securities and Exchange Commission January 29, 1998
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. 1998 EMPLOYEE STOCK PURCHASE PLAN
and
COMDISCO, INC. 1998 STOCK OPTION PROGRAM
(Full title of the plans)
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(1) Share(2) Price(2) Fee
Common Stock 10,355,000 $31.625 $327,476,875 $96,625.00
$.10 Par
(1) Based on the estimated maximum number of shares issuable under the
Plans as of January 23, 1998. This Registration Statement shall also
cover any additional shares of Common Stock which may become issuable
under the Comdisco, Inc. 1998 Employee Stock Purchase Plan or the
Comdisco, Inc. 1998 Stock Option Program by reason of any stock
dividend, stock split, recapitalization or other similar transaction
effected without receipt of consideration which results in an increase
in the number of outstanding shares of Common Stock of Comdisco, Inc.
(2) Estimated solely for the purposes of calculating the registration fee
as contemplated by Rule 457(c) and (h)(1) and based on the average of
the high and low prices of the Registrant's Common Stock as reported by
the New York Stock Exchange on January 23, 1998, the latest practicable
date prior to the filing of the Registration Statement.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
This Registration Statement on Form S-8 relates to the registration of
shares of the common stock, $0.10 par value per share (the "Common Stock"), of
Comdisco, Inc. (the "Company" or the "Registrant").
The following documents or portions thereof, filed by the Company with
the Securities and Exchange Commission (the "Commission") (File No. 1-7725) are
incorporated in this Registration Statement by reference and made a part hereof:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended September 30, 1997, and filed with the Commission on
December 23, 1997;
(b) The Company's Current Report on Form 8-K dated November 5,
1997, and filed with the Commission on November 5, 1997;
(c) The Company's Current Report on Form 8-K dated November 5,
1997, and filed with the Commission on November 5, 1997;
(d) The Company's Current Report on Form 8-K dated November 5,
1997, and filed with the Commission on November 6, 1997;
(e) The Company's Current Report on Form 8-K dated November 12,
1997, and filed with the Commission on November 14, 1997;
(f) The Company's Current Report on Form 8-K dated January 7,
1998, and filed with the Commission on January 8, 1998; and
(g) The description of the Common Stock and related Common Stock
Purchase Rights included in the registration statements filed
under the Securities Exchange Act of 1934 (the "Exchange Act")
under File No. 1-7725, including all amendments or reports
filed for the purpose of updating such description.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this Registration
Statement and prior to the filing of a post-effective amendment to this
Registration Statement which indicates that all of the securities offered hereby
have been sold or which deregisters all of such securities then remaining unsold
shall be deemed to be incorporated by reference into this Registration Statement
and to be a part hereof from the date of filing of such documents. Any statement
including financial statements, contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
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 has been passed upon by Jeremiah 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 31,032 shares of Common Stock of the Company and had
outstanding options to purchase 55,134 additional shares.
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Subsection (a) of Section 145 of the Delaware General Corporation Law
(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 claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
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 DGCL further provides that to the extent a present or
former director or officer of a corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in
subsections (a) and (b) of Section 145, 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 any person who is or was a
director, officer, employee or agent 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 VII of the
bylaws 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, as amended.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
<PAGE>
ITEM 8. EXHIBITS.
4.10 Restated Certificate of Incorporation of the Registrant (as
amended to date) (hereby incorporated by reference to Exhibit
4.1 to the Registrant's Registration Statement on Forms S-8
and S-3, File No. 33-20715, filed March 8, 1988)
4.20 Certificate of Designations with respect to the Company's 8
3/4% Cumulative Preferred Stock, Series A, as filed with the
Secretary of State of the State of Delaware on September 18,
1992 (hereby incorporated by reference to Exhibit 4.1 filed
with the Company's Current Report on Form 8-K dated September
17, 1992, as filed with the Commission October 9, 1992, File
No. 1-7725)
4.30 Certificate of Designations with respect to the Company's 8
3/4% Cumulative Preferred Stock, Series B, as filed with the
Secretary of State of the State of Delaware on July 2, 1993
(hereby incorporated by reference to Exhibit 4.1 filed with
the Company's Current Report on Form 8-K dated June 30, 1993,
as filed with the Commission July 21, 1993, File No. 1-7725)
4.40 Certificate of Designation, Preferences and Right of Series C
Junior Participating Preferred Stock (hereby incorporated by
reference to Exhibit 4.1 filed with the Company's Current
Report on Form 8-K dated November 5, 1997, as filed with the
Commission November 6, 1997, File No.
1-7725)
4.50 By-Laws of Registrant dated November 4, 1997 (incorporated by
reference to Exhibit 3.1 filed with the Company's Current
Report on Form 8-K dated November 12, 1997, as filed with the
Commission on November 14, 1997, File No. 1-7725)
5.00 Opinion of Counsel
23.10 Consent of Counsel (contained in the opinion filed as Exhibit
5 to this Registration Statement)
23.20 Consent of KPMG Peat Marwick LLP
24.00 Power of Attorney (included on the signature page of this
Registration Statement)
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 of 1933, as amended (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;
<PAGE>
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 with or furnished to the Commission by
the Registrant pursuant to Section 13 or 15(d) of the Exchange
Act of 1934, as amended (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 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's
annual report pursuant to 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 therein, 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 foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant 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 January 29, 1998.
Comdisco, Inc.
By: /s/ Jack Slevin
Name: Jack Slevin
Title: President
POWER OF ATTORNEY AND SIGNATURES
Each person whose signature appears below constitutes and appoints Jack
Slevin, John J. Vosicky, and Nicholas K. Pontikes, or any one of them, each with
full power of substitution and resubstitution, such person's true and lawful
attorney-in-fact and agent, in such person's name and on such person's behalf,
in any and all capacities, to sign any and all amendments to this Registration
Statement, including any post-effective amendments, and to file the same, with
all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission.
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.
Signature Title
/s/ Jack Slevin President, Chief Executive
Jack Slevin Officer, Chairman of the
Board and Director
(Principal Executive Officer)
/s/ John J.Vosicky Executive Vice President/
John J. Vosicky Chief Financial Officer and Director
(Principal Financial Officer)
/s/ David J. Keenan Senior Vice President and Controller
David J. Keenan (Principal Accounting Officer)
/s/ Alan J. Andreini Director
Alan J. Andreini
/s/ Robert A. Bardagy Director
Robert A. Bardagy
/s/ C. Keith Hartley Director
C. Keith Hartley
/s/ Philip A. Hewes Director
Philip A. Hewes
/s/ Harry M. Jansen Kraemer, Jr. Director
Harry M. Jansen Kraemer, Jr.
/s/ Rick Kash Director
Rick Kash
/s/ Carolyn L. Murphy Director
Carolyn L. Murphy
/s/ Thomas H. Patrick Director
Thomas H. Patrick
/s/ Nicholas K. Pontikes Director
Nicholas K. Pontikes
/s/ William N. Pontikes Director
William N. Pontikes
Exhibit 5
[Letterhead of Comdisco, Inc.]
January 29, 1998
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 10,355,000 shares (the "Shares") of the Common Stock, par value $.10 per
share, of the Company to be issued pursuant to awards under the Company's 1998
Stock Option Program and the Company's 1998 Employee Stock Purchase Plan
(collectively, the "Plans").
Assuming the Registration Statement is filed with and accepted by the
Securities and Exchange Commission, the 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 and General Counsel
Exhibit 23(b)
[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, 1997, relating to
the consolidated balance sheets of Comdisco, Inc. and subsidiaries as of
September 30, 1997 and 1996, 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, 1997, and the related financial statement
schedule which reports appear in or are incorporated by reference in the
September 30, 1997 annual report on Form 10-K of Comdisco, Inc.
/s/ KPMG Peat Marwick LLP
January 29, 1998
Chicago, Illinois
