As filed with the Securities and Exchange Commission on July 22, 1999
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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LINC CAPITAL, INC.
(Exact name of registrant as specified in its charter)
Delaware 06-0850149
(State of incorporation) (I.R.S. Employer
Identification No.)
303 East Wacker Drive, Suite 1000
Chicago, Illinois 60601
(312) 946-1000
(Address of principal executive offices)
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LINC Capital, Inc. 1994 Stock Option Plan
LINC Capital, Inc. 1997 Stock Incentive Plan
LINC Capital, Inc. Non-employee Director Option Plan
(Full title of the plans)
--------------
Allen P. Palles
Executive Vice President and Chief Financial Officer
303 East Wacker Drive, Suite 1000
Chicago, Illinois 60601
(312) 946-1000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
Jeffrey S. O'Connor
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
<TABLE>
<CAPTION>
Calculation of Registration Fee
<S> <C> <C> <C> <C>
Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered offering price per aggregate offering registration
share (1) price (1) fee (1)
- ---------------------- ------------ ------------------ ------------------ ------------
Common Stock, par 1,300,277 $8.0612 $10,481,803 $2,914
value $0.001 per share
- ---------------------- ------------ ------------------ ------------------ ------------
</TABLE>
(1) For purposes of computing the registration fee only. The proposed
maximum offering price was calculated with respect to 673,400 shares
based upon the average exercise price per share (approximately $7.10)
of outstanding options for such shares to be registered pursuant to
Rule 457(h), and with respect to the remaining 626,877 shares, the
average of the high and low prices reported on sale NASDAQ on July 19,
1999 ($9.09375), pursuant to Rule 457(c).
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by LINC Capital, Inc. (the
"Company") with the Securities and Exchange Commission are incorporated
herein by reference:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1998.
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999.
(C) The Company's description of its Common Stock contained in the
Registration Statement on Form 8-A filed on November 3, 1997 and
any amendments or reports filed for the purpose of updating such
description.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing
of a post-effective amendment which indicates that all securities offered have
been sold or which registers all securities then remaining unsold, shall be
deemed to be incorporated by reference in the registration statement and to be
part thereof from the date of filing such documents. Any statement 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.
---------------------------------------
Not applicable.
Item 6. Indemnification of Officers and Directors.
------------------------------------------
The Company is incorporated under the laws of the State of Delaware.
Section 145 of the General Corporation Law of the State of Delaware ("Section
145") provides that a Delaware corporation may indemnify any persons who are, or
are threatened to be made, parties 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 such corporation), by
reason of the fact that such person was an officer, director, employee or agent
of such corporation, or is or was serving at the request of such corporation as
a director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided such person acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
corporation's best interests and, with respect to any criminal action or
proceeding, had no reasonable
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cause to believe that his conduct was illegal. A Delaware corporation may
indemnify any persons who are, or are threatened to be made, a party to any
threatened, pending or completed action or suit by or in the right of the
corporation by reason of the fact that such person was a director, officer,
employee or agent of such corporation, or is or was serving at the request of
such corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses (including
attorneys' fees) actually and reasonably incurred by such person in connection
with the defense or settlement of such action or suit, provided such person
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the corporation's best interests except that no indemnification is
permitted without judicial approval if the officer or director is adjudged to be
liable to the corporation. Where an officer or director is successful on the
merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses which such officer or
director has actually and reasonably incurred.
The Company's Certificate of Incorporation and By-laws provide for the
indemnification of Directors and officers of the Company to the fullest extent
permitted by Section 145.
In that regard, the By-laws provide that the Company shall indemnify
any person whom it has the power to indemnify by Section 145 from or against any
and all of the expenses, liabilities or other matters referred to or covered in
Section 145, and such indemnification is not exclusive of other rights to which
such person shall be entitled under any By-law, agreement, vote of stockholders
or disinterested directors or otherwise, both as to action in such person's
official capacity for or in behalf of the Company and/or any subsidiary of the
Company and as to action in another capacity while holding such office and shall
continue as to such person who has ceased to be a director, officer, employee,
or agent of the Company and/or subsidiary of the Company and shall inure to the
benefit of the heirs, executors, and administrators of such person.
Each of the directors of the Company has entered into an
Indemnification Agreement or Employment Agreement with the Company which
provides that the Company shall hold harmless and indemnify the director (and
his heirs, executors and administrators) to the fullest extent permitted under
applicable law against all expenses and liabilities reasonably incurred by him
in connection with or arising out of any action, suit or proceeding in which he
may be involved by reason of his having been a director or officer, as the case
may be, of the Company (whether or not he continues to be a director or officer
at the time of incurring such expenses or liabilities), including, but not
limited to, judgments, court costs and attorneys' fees and the costs of
reasonable settlements.
Item 7. Exemption from Registration Claimed.
------------------------------------
Not applicable.
Item 8. Exhibits.
---------
The exhibits to this registration statement are listed in the Index of
Exhibits below.
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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 (i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, (ii) to reflect in the prospectus any
facts or events arising after the effective date of the 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
the registration statement, and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement (provided, however, that (i) and (ii) do not apply to information
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in this registration statement); (2)
that, for the purpose of determining any liability under the Securities Act of
1933, 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; and (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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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 of 1933 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 of 1933 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 of 1993 and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-8 and have duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, and in the capacity indicated, in the City of Chicago, State of
Illinois, on the 22nd day of July, 1999.
LINC CAPITAL, INC.
By: /s/ Martin E. Zimmerman
-----------------------
Name: Martin E. Zimmerman
Title: Chairman of the Board and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Martin E. Zimmerman and Allen P. Palles,
and each of them, his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any or all amendments (including
post-effective amendments) to this registration statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
* * * * *
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement and power of attorney have been signed on July 22,
1999, by the following persons in the capacities indicated:
Signature Capacity
--------- --------
/s/ Martin E. Zimmerman Chairman of the Board and Chief Executive Officer
----------------------- (principal-executive-officer)
Martin E. Zimmerman
/s/ Allen P. Palles Director and Chief Financial Officer
------------------- (principal-financial-officer)
Allen P. Palles
/s/ Robert E. Laing Director
-------------------
Robert E. Laing
/s/ Stanley Green Director
-----------------
Stanley Green
/s/ Terrence J. Quinn Director
---------------------
Terrence J. Quinn
/s/ Curtis S. Lane Director
------------------
Curtis S. Lane
/s/ Mark A. Arvin Senior Vice President, Finance
----------------- (principal-accounting-officer)
Mark A. Arvin
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INDEX TO EXHIBITS
Exhibit
No. Description of Exhibits
--- -----------------------
4.1 LINC Capital, Inc. 1994 Stock Option Plan (incorporated by
reference to Exhibit 10.7 to the Company's Form S-1
Registration Statement (Reg. No. 333-34729) ("Registration
Statement 333-34729"))
4.2 LINC Capital, Inc. 1997 Stock Incentive Plan (incorporated by
reference to Exhibit 10.8 to Registration Statement 333-34729)
4.3 Amendment No. 1 to LINC Capital, Inc. 1997 Stock Incentive
Plan (incorporated by reference to Exhibit A-1 to the
Company's Definitive Proxy Statement (File No. 000-23309)
filed on April 30, 1999 (the "1999 Proxy Statement"))
4.5 LINC Capital, Inc. Non-employee Director Option Plan
(incorporated by reference to Exhibit 10.5 to Registration
Statement 333-34729)
4.6 Amendment No. 1 to LINC Capital, Inc. Non-employee Director
Option Plan (incorporated by reference to Exhibit A-2 to the
1999 Proxy Statement)
4.7 Form of Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 to Registration
Statement 333-34729)
4.8 Form of Bylaws of the Company (incorporated by reference to
Exhibit 3.2 to Registration Statement 333-34729)
5.1 Opinion of Kirkland & Ellis with respect to the validity of
the securities being registered
23.1 Consent of KPMG LLP
23.2 Consent of Kirkland & Ellis (included in its opinion filed as
Exhibit 5.1)
24.1 Power of Attorney (included on page 5 hereof)
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EXHIBIT 5.1
[KIRKLAND & ELLIS LETTERHEAD]
July 22, 1999
LINC Capital, Inc.
303 East Wacker Drive
Suite 1000
Chicago, IL 60601
Re: Registration Statement on Form S-8 of LINC Capital, Inc.
Ladies and Gentlemen:
We have acted as special counsel to LINC Capital, Inc., a
Delaware corporation (the "Company"), in connection with the registration by the
Company of 1,300,277 shares of the Company's Common Stock, par value $0.001 per
share (the "Shares"), pursuant to a Registration Statement on Form S-8 filed on
or about the date hereof with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act") (such
Registration Statement, as amended or supplemented, is hereinafter referred to
as the "Registration Statement"). The Shares are to be issued by the Company
from time to time in connection with the exercise of stock options granted under
the LINC Capital, Inc. 1994 Stock Options Plan, the LINC Capital, Inc. 1997
Stock Incentive Plan and the LINC Capital, Inc. Non-employee Director Option
Plan (each, a "Plan" and, together, the "Plans").
In that connection, we have examined originals, or copies,
certified or otherwise identified to our satisfaction, of such documents,
corporate records and other instruments as we have deemed necessary for the
purposes of this letter, including (i) the Amended and Restated Certificate of
Incorporation and By-Laws of the Company, (ii) minutes and records of the
corporate proceedings of the Company (including the Board of Directors,
Committees thereof, and the Stockholders of the Company) with respect to the
Shares and the Plans, (iii) the Registration Statement and exhibits thereto,
(iv) the Plans, and (v) such other documents and instruments as we have deemed
necessary for the expression of the opinions contained herein.
For purposes of this letter, we have assumed the authenticity
of all documents submitted to us as originals, the conformity to the originals
of all documents submitted to us as copies and the authenticity of the originals
of all documents submitted to us as copies. We have also assumed the genuineness
of the signatures of persons signing all documents in connection with
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which this letter is rendered, the authority of such persons signing on behalf
of the parties thereto and the due authorization, execution and delivery of all
documents by the parties thereto. In preparing this letter, we have relied
without independent verification upon: (i) information contained in certificates
obtained from governmental authorities; (ii) factual information provided to us
by the Company or its representatives; and (iii) factual information we have
obtained from such other sources as we have deemed reasonable. We have assumed
that there has been no relevant change or development between the dates as of
which the information cited in the preceding sentence was given and the date of
this letter and that the information upon which we have relied is accurate and
does not omit disclosures necessary to prevent such information from being
misleading. We have assumed that the options pursuant to which any Shares are to
be issued are, or at the time of issuance of any related Shares will be, validly
issued and outstanding.
Our advice on every legal issue addressed in this letter is
based exclusively on the General Corporation Law of the State of Delaware and
the federal law of the United States, and represents our opinion as to how that
issue would be resolved were it to be considered by the highest court in the
jurisdiction which enacted such law.
Based upon and subject to the foregoing qualifications,
assumptions and limitations and the further limitations set forth below, we are
of the opinion that the issuance of the Shares has been duly authorized and that
(i) upon effectiveness under the Act of the Registration Statement, and (ii)
when appropriate certificates representing the Shares are duly countersigned by
the Company's transfer agent/registrar and delivered against payment of the
agreed consideration therefor, all in accordance with the terms and conditions
of the applicable Plan and the applicable option agreement entered into in
connection therewith, the Shares will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this letter with the
Commission as Exhibit 5.1 to the Registration Statement.
This letter is limited to the specific issues addressed
herein, and no opinion may be inferred or implied beyond that expressly stated
herein. This letter speaks as of the time of its delivery on the date it bears.
We do not assume any obligation to provide you with any subsequent opinion or
advice by reason of any fact about which we did not have knowledge at that time,
by reason of any change subsequent to that time in any law or fact or
interpretation thereof covered by any of our opinions or advice, or for any
other reason.
This is furnished to you in connection with the filing of the
Registration Statement and is not to be used, circulated, quoted or otherwise
relied upon for any other purpose.
Very truly yours,
/s/ Kirkland & Ellis
KIRKLAND & ELLIS
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EXHIBIT 23.1
[KPMG LLP LETTERHEAD]
CONSENT OF KPMG LLP
The Board of Directors
LINC Capital, Inc.
We consent to incorporation by reference in this registration statement on Form
S-8 of LINC Capital, Inc. of our reports dated February 17, 1999, relating to
the consolidated balance sheets of LINC Capital, Inc. and subsidiaries as of
December 31, 1998 and 1997, and the related consolidated statement of earnings,
stockholders' equity, and cash flows for each of the years in the three-year
period ended December 31, 1998 and the related schedule, which reports appear in
the December 31, 1998 annual report on Form 10-K of LINC Capital, Inc.
/s/ KPMG LLP
Chicago, Illinois
July 22, 1999
