SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12 (b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
COMDISCO HOLDING COMPANY, INC.
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(Exact name of registrant as specified in its charter)
Delaware 54-2066534
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(State of incorporation (I.R.S. Employer
or organization) Identification No.)
6111 North River Road
Rosemont, Illinois 60018
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(Address of principal executive office and zip code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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None N/A
Securities to be registered pursuant to Section 12(g) of the Act:
Contingent Distribution Rights
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(Title of Class)
Item 1. Description of Securities to be Registered.
On July 16, 2001, Comdisco, Inc., a Delaware corporation ("Existing
Comdisco"), and fifty of its domestic subsidiaries filed voluntary petitions
for relief under Chapter 11 of the United States Code, as amended ("the
"Bankruptcy Code"), in the United States Bankruptcy Court for the Northern
District of Illinois, Eastern Division (Existing Comdisco and its domestic
subsidiaries, in such capacity, the "Debtors", and the Bankruptcy Court, the
"Bankruptcy Court"). Since such time, the Debtors have continued to operate
their business and manage their properties as debtors-in-possession.
On June 13, 2002, the Debtors filed with the Bankruptcy Court the
First Amended Joint Plan of Reorganization of Comdisco, Inc. and its
Affiliated Debtors and Debtors in Possession (the "Plan"). The Bankruptcy
Court confirmed the Plan at a hearing on July 30, 2002, as modified by the
Findings of Fact, Conclusions of Law, and Order Under Section 1129 of the
Bankruptcy Code and Rule 3020 of the Bankruptcy Rules Confirming the Plan on
the same date (the "Confirmation Order", the Plan as modified by the
Confirmation Order is referred to herein as the "Final Plan").
Pursuant to Section 7.1 of the Final Plan, prior to the Effective
Date, Existing Comdisco formed Comdisco Holding Company, Inc. (the "Company"),
a Delaware corporation, and the Company formed Comdisco Leasing Merger
Subsidiary, Inc. ("Merger Sub"), a Delaware corporation and a wholly-owned
subsidiary of the Company.
On August 8, 2002, the Company filed a Certificate of Incorporation
with the Delaware Secretary of State (the "Certificate of Incorporation"),
which provides for ten million (10,000,000) shares of authorized common stock,
each share having a par value of one cent ($0.01). In accordance with Section
1123(a)(6) of the Bankruptcy Code, the Certificate of Incorporation prohibits
the issuance of any shares of non-voting securities. On August 12, 2002, the
Final Plan became effective (the "Effective Date").
Pursuant to Section 7.8 of the Final Plan, on the Effective Date, all
the then issued and outstanding shares of Existing Comdisco's
pre-reorganization common stock, par value ten cents ($0.10) per share, were
cancelled. Immediately thereafter, pursuant to Section 7.1 of the Final Plan
and Section 251 and Section 303 of the General Corporation Law of the State of
Delaware (as amended from time to time, the "DGCL"), Merger Sub merged with
and into Existing Comdisco (the "Merger") and Reorganized Comdisco emerged as
the surviving corporation and a wholly-owned subsidiary of the Company.
Pursuant to the Merger, all of the shares of common stock of the
Company that were owned by Existing Comdisco immediately prior to the Merger
were cancelled and all of the shares of Merger Sub common stock, par value one
cent ($0.01) per share, held by the Company prior to the Merger were converted
into the right to receive shares of common stock of Reorganized Comdisco, par
value one cent ($0.01) per share.
As soon as practicable after the Effective Date, the Company will
issue and distribute shares of its common stock, par value $0.01 per share
(the "New Common Shares") and Contingent Distribution Rights (the "Rights"),
pursuant to Section 7.9 of the Final Plan, to the disbursing agent for
distribution in accordance with the Final Plan. Such New Common Shares shall
represent 100% of the issued and outstanding common stock of the Company at
that time.
The following statements with respect to the Rights are subject to
the detailed provisions of the Final Plan and a Rights Agent Agreement
("Rights Agent Agreement") to be entered into between the Company and the
Rights Agent. These statements do not purport to be complete and are qualified
in their entirety by reference to the terms of the Final Plan and to the terms
of the Rights Agent Agreement, which will be filed by amendment to this
registration statement.
Terms of the Rights
The Rights require the Company, after the Present Value of
Distributions to Creditors equals or exceeds 85% of the amount of Allowed
Claims in Class C-4, at the election of the Company to either (a) issue to the
holders of Rights the appropriate percentage of New Common Shares or (b) pay
to the holders of Rights the applicable amounts of cash, or any combination of
(a) and (b), based upon the then-existing Present Value of Distributions to
Creditors in accordance with the table below. At the time Distributions to
Creditors reach a "Recovery Threshold" set forth below, the Company shall
elect the form of consideration to be issued to holders of Rights (New Common
Shares or distributions of cash, or a specified combination of the two), which
election shall apply to the form of consideration to be issued to holders of
Rights until the next higher Recovery Threshold is reached, at which time the
Company may make a new election applicable to the form of future consideration
to be issued to holders of Rights until the next Recovery Threshold is reached.
o After the Present Value of Distributions to Creditors equals or
exceeds 85% of the amount of Allowed Claims in Class C-4 (the "85%
Recovery Threshold"), the holders of Rights shall be entitled to
receive, at the Company's election, either New Common Shares
aggregating 3% of the total number of Creditor Shares then issued and
outstanding (including any shares held in the Disputed Claims
Reserve), or cash equal to 3% of all amounts constituting
Distributions to Creditors in excess of such 85% Recovery Threshold,
when and as such Distributions to Creditors are made, or in the case
of a Liquidity Event, when such Liquidity Event occurs; or any such
combination of New Common Shares and cash distributions.
o After the Present Value of Distributions to Creditors equals or
exceeds 91% of the amount of Allowed Claims in Class C-4 (the "91%
Recovery Threshold"), the holders of Rights shall be entitled to
receive, at the Company's election, either New Common Shares
aggregating 9% (i.e., an additional 6%) of the total number of
Creditor Shares issued and outstanding (including any shares held in
the Disputed Claims Reserve), or cash equal to 9% of all
Distributions to Creditors in excess of such 91% Recovery Threshold,
when and as such Distributions to Creditors are made, or in the case
of a Liquidity Event, when such Liquidity Event occurs; or any such
combination of New Common Shares and cash distributions.
o After the Present Value of Distributions to Creditors equals or
exceeds 95% of the amount of Allowed Claims in Class C-4 (the "95%
Recovery Threshold"), the holders of Rights shall be entitled to
receive, at the Company's election, either New Common Shares
aggregating 21% (i.e., an additional 12%) of the total number of
Creditor Shares issued and outstanding (including any shares held in
the Disputed Claims Reserve), or cash equal to 21% of all
Distributions to Creditors in excess of such 95% Recovery Threshold,
when and as such Distributions to Creditors are made, or in the case
of a Liquidity Event, when such Liquidity Event occurs; or any such
combination of New Common Shares and cash distributions.
o After the Present Value of Distributions to Creditors equals or
exceeds 100% of the amount of Allowed Claims in Class C-4 (the "100%
Recovery Threshold"), the holders of Rights shall be entitled to
receive, at the Company's election, either New Common Shares
aggregating 37% (i.e., an additional 16%) of the total number of
Creditor Shares issued and outstanding (including any shares held in
the Disputed Claims Reserve), or cash equal to 37% of all
Distributions to Creditors in excess of such 100% Recovery, when and
as such Distributions to Creditors are made, or in the case of a
Liquidity Event, when such Liquidity Event occurs; or any such
combination of New Common Shares and cash distributions.
Contingent Distribution Thresholds
Creditor Equity Received
Recovery % Aggregate %
85.0% 3.0% 3.0%
91.0% 6.0% 9.0%
95.0% 12.0% 21.0%
100.0% 16.0% 37.0%
Calculation of Present Value of Distributions to Creditors
"Present Value of Distributions to Creditors" means, at any time, the present
value of Distributions to Creditors discounted on a per annum basis from the
date such distribution was made to the Effective Date using the per annum
discount rate set forth in the footnotes on the last page of Appendix E to the
Disclosure Statement with respect to the Final Plan and applicable to the
sources of cash or other property comprising each distribution, except that
the value of Creditor Shares that are includable in the case of a Liquidity
Event as a Distribution to Creditors pursuant to clause (v) of the definition
of Distributions to Creditors shall be discounted from the date the Liquidity
Event occurs to the Effective Date at a per annum discount rate equal to
11.92%. In calculating the Present Value of Distributions to Creditors, the
same categories of sources of distributed cash or property shall be used as
are used in calculating the present value of returns and upside sharing under
the Management Incentive Plan.
"Creditor Securities" means Creditor Shares, PIK Notes and Senior Notes,
including any notes or securities issued by the Company with respect thereto
pursuant to the accrual of interest or any stock split, stock dividend,
recapitalization or similar transaction.
"Creditor Shares" means New Common Shares issued to holders of Allowed Claims
in Class C-4 pursuant to Section 5.1(d)(v) of the Final Plan and any
securities of the Company issued with respect thereto pursuant to a stock
split, stock dividend, recapitalization or similar transaction.
"Distributions to Creditors" means, at any time, the sum of any and all cash
or other property (other than Creditor Securities) distributed to holders of
Allowed Claims in Class C-4 in respect of such Allowed Claims, including
without limitation (i) the Net Available Comdisco Cash actually distributed to
holders of Allowed Claims in Class C-4 pursuant to Section 5.1(d)(i) of the
Final Plan, (ii) cash payments of principal, interest and premiums actually
made in respect of the New Senior Notes and the New PIK Notes issued to
holders of Allowed Claims in Class C-4, (iii) distributions of cash actually
made to holders of Allowed Claims in Class C-4 from the proceeds of Trust
Assets, (iv) distributions of cash or property in kind (other than Creditor
Securities) actually made in respect of Creditor Securities, (specifically
excluding therefrom any distributions made in respect of New Common Shares
issued to holders of Claims or Interests in Class C-5A, C-5B, or to any other
person or entity, including any securities issued by the Company or its
subsidiary Affiliates with respect thereto pursuant to a stock split, stock
dividend, recapitalization or similar transaction), plus (v) if, but only if,
a Liquidity Event has occurred, the value of the consideration received or, if
applicable, receivable by (or deemed to be received or receivable by), the
holders of Creditor Shares in exchange for such Creditor Shares. No party to a
Liquidity Event may assume any obligations to make, or otherwise make,
payments under a Creditor Security that is not a Creditor Share (e.g. the New
Senior Notes and the New PIK Notes) without also assuming obligations to make
ongoing distributions under the Rights as if such successor was a party to the
Final Plan. For the avoidance of doubt, any amounts held in the Disputed
Claims Reserve shall not constitute a Distribution to Creditors unless and
until distributed to the holder of an Allowed Claim.
In calculating the nominal value of distributions of property in kind
received in respect of Creditor Securities, the same nominal value as is used
by the Company for purposes of calculating the returns and upside sharing
under the Management Incentive Plan, as determined by the Board of Directors
of the Company, shall be used and shall be conclusive of the value of such
distributions. In calculating the value of Creditor Shares in respect of a
Liquidity Event, such Creditor Shares shall be given the value ascribed to
them in connection with a merger or sale of the Company, or if no merger or
sale is occurring, shall be given a value equal to the average closing price
of the Creditor Shares during the twenty (20) trading days immediately
preceding the occurrence of such Liquidity Event.
"Liquidity Events" shall consist of: (i) consummation of a merger;
(ii) closing of the sale of more than 80% of the issued and outstanding New
Common Shares of the Company in a transaction or series of related
transactions to a person or a group of persons acting in concert through
tender offer or otherwise; or (iii) provided that the New Senior Notes and the
New PIK Notes have been fully paid and discharged, if, but only if, the
Company's shareholders rescind the first two sentences of Clause THIRD of the
Certification of Incorporation, at any time for a period of twenty (20)
consecutive trading days thereafter the Present Value of Distributions to
Creditors, based upon the mean average closing price of the Creditor Shares
during each of such twenty (20) trading days, equals or exceeds the 85%
Recovery Threshold.
No Fractional Rights and No Fractional Shares.
We will not issue fractional Rights or Right Certificates evidencing
fractional rights. If we choose to make distributions to right holders of New
Common Shares, we will not issue fractional shares of New Common Shares but
will instead distribute to those right holders the cash value of the
fractional shares.
Rights of Right Holders
In consideration for the Rights, the holders of Rights agree to be
bound and limited by the purposes of the Company as set forth in the
Certificate of Incorporation and the By-laws.
Prior to the issuance of New Common Shares to the holders of Rights,
a Rights holder shall have no rights as a stockholder. Holders of Rights will
have no voting rights, no liquidation preferences and no rights to dividends
or other distributions in their capacity as a Right holder.
Except to assert in the Bankruptcy Court (or, if the Bankruptcy Court
no longer has jurisdiction, in any court of competent jurisdiction) (i)
enforcement of their rights under the Final Plan or (ii) claims based upon
fraud or other willful misconduct, the holders of Rights shall have no right
or standing to, and agree not to, institute suit or make any claim against the
Company or its directors or officers arising out of the Rights or the related
Final Plan provisions (a) so long as any New Senior Notes or any New PIK Notes
are outstanding, without the written consent of the holders of at least
two-thirds in amount and one-half in number of the outstanding New Senior
Notes and New PIK Notes, and (b) after the New Senior Notes and the New PIK
Notes have been fully paid and discharged, without the consent of the holders
of two-thirds of the New Common Shares. The consent of a majority in amount of
each of the New Senior Notes and the New PIK Notes, and a majority of the
issued and outstanding New Common Shares, as applicable, shall be required to
conduct such a vote. The holders of Rights by their acceptance of the Rights
acknowledge and agree that holders of New Senior Notes, New PIK Notes, and New
Common Shares shall have and owe no duties whatsoever, whether under the Final
Plan, in contract, by statute, by case law, in equity or otherwise, to the
holders of Rights to cause any vote to be taken or to consent to the
institution or making of any claim or lawsuit and may act solely in their own
self-interest with respect to all such matters. Nothing in the Final Plan,
Rights Agent Agreement or related Rights documentation shall be construed to
give a holder of Rights any right or standing that a Rights holder does not
otherwise have under applicable law to assert claims based upon fraud or other
willful misconduct, and nothing therein shall constitute an agreement or
admission that a holder of Rights has standing or is entitled to assert such
claims under applicable law.
Minimum Payout to Right Holders in the Event of a Liquidity Event
Upon the occurrence prior to one year after the Effective Date of (a)
a Liquidity Event under clauses (i) or (ii) of the definition set forth above,
or (b) consummation of the sale of all or substantially all of the assets of
the Company in a single transaction or a series of related transactions, in
either case that results in a Present Value of Distributions to Creditors that
equals or exceeds the 85% Recovery Threshold, the Rights holders in the
aggregate shall receive a minimum distribution in cash of Three Million
Dollars ($3,000,000).
New Common Shares Issued Pursuant to the Rights
New Common Shares issued to holders of Rights, upon such issuance,
will be duly and validly authorized and issued and fully paid and
non-assessable.
Amendment of the Rights Agent Agreement
From time to time, we may amend or supplement the Rights Agent
Agreement, so long as our amendments or supplements do not have an adverse
effect on the interests of the Right holders and do not allow us to amend or
supplement the Rights Agent Agreement (other than as provided in the Rights
Agreement) without the consent of the right holders.
Public Reporting
So long as any of the Rights remain outstanding, we will include
information regarding the Present Value of Distributions to Creditors in our
annual and quarterly reports that we file with the Securities and Exchange
Commission.
The Rights Agent
Mellon Investor Services LLC is expected to serve as rights agent
for the Rights, subject to the execution of a definitive agreement. The rights
agent maintains books for registration and transfer of the Rights. Mellon
Investor Services LLC currently serves as the transfer agent for our common
stock.
Item 2. Exhibits.
Exhibit Description
1.1 Rights Agent Agreement, dated as of August ___, 2002,
between Comdisco Holdings Company, Inc. and
____________ as Rights Agent (to be filed by amendment).
1.2 First Amended Joint Plan of Reorganization of Comdisco, Inc.
and its Affiliated Debtors and Debtors in Possession, as
confirmed on July 30, 2002 (incorporated by reference
from Exhibit T3E-2 to Amendment No. 2 to the Application
for Qualification on Form T-3, File No. 022-28608, filed
with the Securities and Exchange Commission by the Company
and Comdisco, Inc., on August 9, 2002).
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
COMDISCO HOLDING COMPANY, INC.
Date: August 12, 2002 By: /s/ Ronald C. Mishler
Name: Ronald C. Mishler
Title: Chief Executive Officer
EXHIBIT INDEX
Exhibit Description
1.1 Rights Agent Agreement, dated as of August ___, 2002, between
Comdisco Holdings Company, Inc. and ____________ as Rights
Agent (to be filed by amendment).
1.2 First Amended Joint Plan of Reorganization of Comdisco, Inc.
and its Affiliated Debtors and Debtors in Possession, as
confirmed on July 30, 2002 (incorporated by reference from
Exhibit T3E-2 to Amendment No. 2 to the Application for
Qualification on Form T-3, File No. 022-28608, filed with the
Securities and Exchange Commission by the Company and Comdisco,
Inc., on August 9, 2002).