-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, O637RTMvk45EFeAnGcusiYHHo9QssXDvGGx9Ik9yX6Lsnfe13v83KHHrLILEjVed RKBhTwwZe8RBAApICtF3nw== 0000722487-00-000013.txt : 20000405 0000722487-00-000013.hdr.sgml : 20000405 ACCESSION NUMBER: 0000722487-00-000013 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20000404 EFFECTIVENESS DATE: 20000404 FILER: COMPANY DATA: COMPANY CONFORMED NAME: COMDISCO INC CENTRAL INDEX KEY: 0000722487 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER RENTAL & LEASING [7377] IRS NUMBER: 362687938 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-34032 FILM NUMBER: 593631 BUSINESS ADDRESS: STREET 1: 6111 N RIVER RD CITY: ROSEMONT STATE: IL ZIP: 60018 BUSINESS PHONE: 8476983000 MAIL ADDRESS: STREET 1: 6111 NOTH RIVER ROAD STREET 2: 6111 NOTH RIVER ROAD CITY: ROSEMONT STATE: IL ZIP: 60018 S-8 1 REGISTRATION STATEMENT 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 EX-5.10 2 OPINION AND CONSENT OF COUNSEL 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 EX-23 3 KPMG CONSENT 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 -----END PRIVACY-ENHANCED MESSAGE-----