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EXHIBIT 8.1
[LETTERHEAD OF HOPKINS & SUTTER]
June 16, 2000
Comdisco, Inc.
6111 North River Road
Rosemont, IL 60018
Re: Certain Federal Income Tax Consequences of the Issuance of Tracking
Stock by Comdisco, Inc.
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Ladies and Gentlemen:
We have acted as tax counsel to Comdisco, Inc. ("Comdisco") in connection
with the preparation of its Proxy Statement dated March 20, 2000 (the "Proxy
Statement"), and in connection with the registration of the public offering of
up to $150,000,000 of Comdisco Ventures common stock ("Ventures Tracking
Stock"). (All terms used herein without definition shall have the meanings set
forth in the prospectus (the "Prospectus") that is part of the Registration
Statement on Form S-3 filed by Comdisco with the Securities and Exchange
Commission on April 12, 2000, as amended.) In connection therewith you have
requested our opinion regarding the federal income tax consequences to Comdisco
and its shareholders of the implementation of the Tracking Stock Proposal (as
defined in the Proxy Statement).
In rendering the opinions expressed herein, we have examined (i) the Proxy
Statement, the Prospectus, and the Annexes thereto, (ii) the Amended and
Restated Certificate of Incorporation of Comdisco to be filed upon approval of
the tracking stock proposal (the "Restated Charter"), and (iii) such other
agreements, certificates, or documents as we have deemed necessary or
appropriate for purposes of this opinion (collectively, the "Transaction
Documents"). As to certain factual matters, we have relied solely upon and
assumed the accuracy, completeness, and genuineness of, certificates or
statements of representatives of Comdisco.
In our examination of the Transaction Documents, we have assumed, with your
consent, that all Transaction Documents submitted to us as photocopies, by
telecopy, or by e-mail faithfully reproduce the originals thereof; that the
originals are authentic; that all such Transaction Documents submitted to us
have been or will be duly executed and validly signed (or filed, where
applicable) to the extent required in substantially the same form as they have
been provided to us; that the Restated
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Comdisco, Inc.
June 16, 2000
Page 2
Charter will be adopted in compliance with the terms of the Transaction
Documents in all material respects; that each executed Transaction Document will
constitute the legal, valid, binding, and enforceable agreement of the signatory
parties; that the outstanding instruments designated as the stock of Comdisco
will be treated under Delaware law as validly issued and outstanding shares of
Comdisco stock; that all representations and statements set forth in the
Transaction Documents are and will remain true, accurate, and complete in all
material respects; and that all obligations imposed on, or covenants agreed to
by, the parties pursuant to any of the Transaction Documents have been or will
be performed or satisfied in accordance with their terms in all material
respects.
Based on the foregoing, it is our opinion, as of the date hereof, that:
Ventures Tracking Stock Issuance
(1) Comdisco will not recognize income, gain, or loss on the sale of
Ventures Tracking Stock, the distribution of Ventures Tracking Stock as a
dividend on Comdisco Stock, or the issuance of Ventures Tracking Stock in
exchange for Comdisco Stock (a "Ventures Tracking Stock Issuance").
(2) Ventures Tracking Stock issued in a Ventures Tracking Stock
Issuance will be treated as stock of Comdisco for federal income tax
purposes and will not be "section 306 stock" (within the meaning of Section
306 of the Code) or "nonqualified preferred stock" (within the meaning of
Section 351(g) of the Code).
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Comdisco, Inc.
June 16, 2000
Page 3
(3) If Comdisco distributes Ventures Tracking Stock as a pro rata
dividend on the Comdisco Stock, a holder of Comdisco Stock will not
recognize any income, gain, or loss on the receipt of such stock dividend
(except where cash is received in lieu of a fractional share). The
shareholder will allocate the adjusted tax basis in his or her Comdisco
Stock immediately before the distribution between the Comdisco Stock and
the Ventures Tracking Stock (including any fractional share deemed
received) in proportion to their respective fair market values immediately
after the distribution, and will have a holding period in the Ventures
Tracking Stock that includes the period for which the Comdisco Stock has
been held.
(4) If Comdisco issues Ventures Tracking Stock in exchange for
Comdisco Stock, such exchange will constitute a recapitalization
reorganization within the meaning of Section 368(a)(1)(E) of the Code.
Accordingly, an exchanging shareholder will not recognize any income, gain,
or loss on the exchange (except where cash is received in lieu of a
fractional share), and will have the same tax basis and holding period in
the Ventures Tracking Stock received (including any fractional share deemed
received) as he or she has in the Comdisco Stock surrendered.
(5) A shareholder who receives cash in lieu of a fractional share of
Ventures Tracking Stock in a transaction described in paragraph (6) or (7)
above will be deemed to receive the fractional share and then sell it back
to Comdisco for the cash received in a redemption. He or she will
recognize gain or loss equal to the difference, if any, between the tax
basis in the fractional share deemed received and the amount of cash
received for such fractional share.
Conversion
(6) If Comdisco converts Ventures Tracking Stock into Comdisco Stock
under the circumstances described in the Prospectus and pursuant to the
conversion provisions in the Restated Charter, such conversion will
constitute a recapitalization reorganization within the meaning of Section
368(a)(1)(E) of the Code. Accordingly, exchanging shareholders will not
recognize any income, gain, or loss on the receipt of the Comdisco Stock in
exchange for Ventures Tracking Stock (except where cash is received in lieu
of fractional shares), and will have the same tax basis and holding period
in the Comdisco Stock received in the exchange (including any fractional
share deemed received) as they have in the Ventures Tracking Stock
surrendered.
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Comdisco, Inc.
June 16, 2000
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The opinions expressed in paragraphs (1)-(6), inclusive, apply only to
persons (other than Non-U.S. Holders) who hold their stock as capital assets
within the meaning of Section 1221 of the Code, and are not applicable (i) to
shareholders who, for federal income tax purposes, are subject to special tax
treatment, such as, without limitation, insurance companies, corporations
subject to the alternative minimum tax, banks, dealers in securities, tax-exempt
organizations, persons that hold the stock as part of straddle, hedging, or
conversion transaction, persons whose functional currency is not the U.S.
dollar, or (ii) to shareholders who acquired their stock pursuant to the
exercise of employee stock options or otherwise as compensation.
The opinions expressed herein are based upon existing statutory,
regulatory, administrative, and judicial authority in effect as of the date of
this letter, any of which may be changed at any time with retroactive effect.
In particular, we note that the Clinton Administration proposed legislative
changes earlier this year which would, if enacted, apply to tracking stock, and
our opinion assumes that no such legislation, or regulations issued thereunder,
will apply to any of the Comdisco Stock, the Ventures Tracking Stock, or the
transactions addressed herein.
Further, our opinions are based solely on the documents that we have
examined and the additional information that we have obtained and the
representations referred to herein that we have assumed with your consent to be
true, accurate, and complete on the date hereof. Our opinions cannot be relied
upon if any of the material facts contained in such documents or any such
additional information is, or later becomes, materially inaccurate or if any of
the representations referred to herein is, or later becomes, materially
inaccurate.
Our opinions represent our legal judgment, have no official status of any
kind, and are not binding upon the Internal Revenue Service or any court. In
this regard we note that no existing authority directly addresses the federal
income tax classification of tracking stock, and that the current policy of the
Internal Revenue Service is to refuse to issue private letter rulings as to the
federal income tax classification of tracking stock.
Finally, our opinion is limited to the tax matters specifically addressed
herein. We have not been asked to address, nor have we addressed, any other tax
consequences of the Tracking Stock Proposal or other transactions described in
the Prospectus or Proxy Statement, including, but not limited to, any state,
local, or foreign tax consequences.
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Comdisco, Inc.
June 16, 2000
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This letter is furnished by us as counsel to Comdisco solely in connection
with the Tracking Stock Proposal and is for the benefit of Comdisco and its
subsidiaries and may not be relied upon for any other purpose without our
express written consent. We hereby consent, however, to the filing of this
opinion as an exhibit to the Registration Statement and to reference of our name
under the captions "Material U.S. Federal Income Tax Considerations" and "Legal
Matters" in the Prospectus. In giving such consent, we do not thereby admit that
we are included within the category of persons whose consent is required under
Section 7 of the Securities Act of 1933 or rules and regulations promulgated
thereunder.
Very truly yours,
HOPKINS & SUTTER
By: /s/ John B. Palmer III, a Partner
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John B. Palmer III, a Partner
