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)
1999 Non-Employee Directors Stock Option Plan
(Full Title of the Plan)
Jeremiah M. Fitzgerald
Vice President and Chief Legal Officer
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 of Amount Proposed Proposed Amount of
Securities to be Maximum Maximum Registration
to be Registered Offering Aggregate Fee
Registered (1) Price Per Offering
Share(2) Price(2)
- --------------- ----------- ---------- --------------- ---------------------
Common Stock, 900,000 $43.8750 $39,487,500 $10,424.70
$.10 Par(3)
(1) This Registration Statement shall also cover any additional shares of
Common Stock which may become issuable under the 1999 Non-Employee
Directors Stock Option Plan 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 April 3, 2000, the latest practicable date prior to the
filing of the Registration Statement.
(3) Includes the preferred stock purchase rights associated with the Common
Stock which will be issued for no additional consideration.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN 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
ending on September 30, 1999 and filed with the Commission on
December 22, 1999, and as amended by Form 10-K/A filed with
the Commission on February 24, 2000.
(b) The Company's Quarterly Report for the quarter ended December 31,
1999 on Form 10-Q filed with the Commission on February 14,
2000, and as amended by Form 10-Q/A filed with the Commission
on February 29, 2000.
(c) The Company's Current Report on Form 8-K filed with the
Commission on March 9, 2000.
(d) 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 or the Plan 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 M. Fitzgerald,
Esq., Vice President and Chief Legal Officer of the Company, 6111 North River
Road, Rosemont, Illinois 60018. As of the date of this Registration Statement,
Mr. Fitzgerald owned 71,292 shares of Common Stock of the Company and had
outstanding options to purchase 164,415 additional shares.
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 the person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe the
person's conduct was unlawful.
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 the person in
connection with the defense or settlement of such action or suit if the person
acted in good faith and in a manner the person reasonably believed to be in or
not opposed to the best interests of the corporation, 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, such person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by such person 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, 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 any liability asserted against such person and incurred by such person
in any such capacity, or arising out of such person's status as such, whether or
not the corporation would have the power to indemnify such person 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 (the "Securities Act"). The Registrant has
also agreed to indemnify officers and directors of the Company to the extent
that such insurance does not provide full reimbursement for such liabilities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
4.10 Restated Certificate of Incorporation of Comdisco dated February
12, 1988 which is incorporated by reference to Exhibit 4.10
filed with the Company's Registration Statement on Forms S-8
and S-3, File No. 33-20715, filed March 8, 1988.
4.20 Certificate of Amendment of Restated Certificate of
Incorporation dated February 3, 1998 which is incorporated by
reference to Exhibit 3.02 filed with the Company's Form 10-K
dated September 30, 1998, and filed with the Commission on
December 30, 1998.
4.30 By-Laws of Comdisco dated November 4, 1998 which are
incorporated by reference to Exhibit 3.10 filed with the
Company's Current Report on Form 8-K dated November 12, 1997,
as filed with the Commission November 14, 1997, File No. 1-7725.
4.40 Rights Agreement, dated as of November 17, 1997, between
Comdisco and ChaseMellon Shareholder Services, L.L.C., as Rights
Agent, which includes as Exhibit A thereto the Certificate of
Designation, Preferences and Right of Series C Junior
Participating Preferred Stock and as Exhibit B thereto the Form
of Rights Certificate which is incorporated by reference to
Exhibit 4.10 filed with the Company's Current Report on Form
8-K dated November 6, 1997, as filed with the Commission
November 6, 1997, File No 1-7725.
5.10 Opinion Letter of Jeremiah M. Fitzgerald dated April 4, 2000.
23.10 Consent of Counsel (contained in the opinion letter filed as
Exhibit 5.10 to this Registration Statement)
23.20 Consent of KPMG LLP.
24.10 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;
(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 with or furnished to the
Commission by the Registrant pursuant to Section 13 or 15(d) of
the Exchange Act that are incorporated by reference in this
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.
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 on 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 April 4, 2000.
Comdisco, Inc.
By: /s/ Nicholas K. Pontikes
Name: Nicholas K. Pontikes President
and Chief Executive Officer
POWER OF ATTORNEY AND SIGNATURES
Each person whose signature appears below constitutes and appoints
Philip A. Hewes, 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 indicated and on the dates indicated.
Signature Title
/s/ Nicholas K. Pontikes President, Chief Executive Officer and
Nicholas K. Pontikes Director (Principal Executive Officer)
/s/ John J. Vosicky Executive Vice President / Chief
John J. Vosicky Financial Officer and Director
(Principal Financial Officer)
/s/ David J. Keenan Senior Vice President and Controller
David J. Keenan (Principal Accounting Officer)
/s/ Robert A. Bardagy Director
Robert A. Bardagy
/s/ C. Keith Hartley Director
C. Keith Hartley
/s/ Philip A. Hewes Director
Philip A. Hewes
Director
Rick Kash
/s/ Harry M. Jansen Kraemer, Jr. Director
Harry M. Jansen Kraemer, Jr.
Director
Carolyn L. Murphy
Director
Thomas H. Patrick
/s/ William N. Pontikes Director
William N. Pontikes
Director
Jim Voelker
T
EXHIBIT 5.10
[Letterhead of Comdisco, Inc.]
April 4, 2000
Securities and Exchange Commission
450 Fifth Street, N.W.
Judiciary Plaza
Washington, D.C. 20549
Ladies and Gentlemen:
I am the Vice President and Chief Legal Officer 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 900,000 shares (the "Shares") of the Common Stock, par value $.10 per share,
of the Company to be issued pursuant to awards under the 1999 Comdisco
Non-Employee Directors Plan (the "Plan").
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 Plan, 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.
Very truly yours,
/s/ Jeremiah M. Fitzgerald
Vice President and Chief Legal Officer
EXHIBIT 23.20
[KPMG LLP Letterhead]
Consent of KPMG 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 2, 1999, relating to
the consolidated balance sheets of Comdisco, Inc. and subsidiaries as of
September 30, 1999 and 1998, 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, 1999, and the related financial statement
schedule which reports appear in or are incorporated by reference in the
September 30, 1999 Annual Report on Form 10-K of Comdisco, Inc., as amended by
Form 10-K/A.
/s/ KPMG LLP
Chicago, Illinois
April 4, 2000
