Exhibit 10.9
DISBURSING AGENT AGREEMENT
BY AND AMONG
COMDISCO HOLDING COMPANY, INC., as the Reorganized Debtors,
RANDOLPH I. THORNTON, as the Initial Disbursing Agent,
SCOTT P. PELTZ, as the Successor Disbursing Agent,
AND
AMERICAN EXPRESS TAX AND BUSINESS
SERVICES, INC., as the Transition Services Firm,
DATED AS OF MARCH 31, 2004
<PAGE>
TABLE OF CONTENTS
<Table>
<Caption>
Page
<s>
<c>
ARTICLE I
DEFINITIONS.............................................................................2
Section 1.1 Defined
Terms..........................................................2
ARTICLE II
ACCEPTANCE OF POSITIONS BY THE INITIAL
DISBURSING AGENT, SUCCESSOR DISBURSING AGENT AND
THE TRANSITION
SERVICES
FIRM...........................................................................3
Section 2.1 Acceptance by the Initial
Disbursing Agent..............................3
Section 2.2 Acceptance by the Successor
Disbursing Agent............................4
Section 2.3 Acceptance by the Transition
Services Firm..............................4
ARTICLE III
OBLIGATIONS AND POWERS OF THE DISBURSING
AGENT..........................................4
Section 3.1 President, Director and
Secretary of Comdisco Holding...................4
Section 3.2 Obligations and Powers
Pursuant to the Wind Down Order..................6
Section 3.3 Obligations and Powers of
the Disbursing Agent with Respect
to the Implementing the
Plan............................................6
Section 3.4 Transactions with Related
Persons.......................................7
Section 3.5 Investment of
Cash......................................................7
Section 3.6 Treatment of
Accounts...................................................8
Section 3.7 Books, Records, and Tax
Returns.........................................8
Section 3.8 Adherence to Ethical
Standards..........................................8
Section 3.9 Consultation with Successor
Disbursing Agent and Transition Firm........8
Section 3.10 Effectiveness of this
Agreement.........................................8
Section 3.11 Powers of the Disbursing
Agent..........................................9
Section 3.12 Substitution of Resources and
Personnel.................................9
Section 3.13 No Use of Personal
Assets...............................................9
ARTICLE IV
INDEMNIFICATION, INSURANCE AND
COMPENSATION.............................................9
Section 4.1
Indemnification.........................................................9
Section 4.2
Insurance..............................................................10
Section 4.3
Compensation...........................................................10
ARTICLE V
SUCCESSORSHIP
PROVISIONS...............................................................11
Section 5.1
Resignation............................................................11
Section 5.2
Removal................................................................11
Section 5.3 Appointment of Successor
Disbursing Agent..............................11
Section 5.4 Effectiveness of
Succession............................................12
Section 5.5
Continuity.............................................................12
Section 5.6 Reliance by Persons Dealing
with the Disbursing Agent..................12
ARTICLE VI
TERMINATION OF THE
AGREEMENT...........................................................12
Section 6.1
Termination............................................................12
Section 6.2 Obligations of the
Disbursing Agent Upon Termination...................12
ARTICLE VII
MISCELLANEOUS
PROVISIONS...............................................................13
Section 7.1 Descriptive
Headings...................................................13
Section 7.2 Amendment and
Waiver...................................................13
Section 7.3 Governing
Law..........................................................13
Section 7.4 Counterparts;
Effectiveness............................................13
Section 7.5 Severability;
Validity.................................................13
Section 7.6
Notices................................................................13
Section 7.7 Relationship to
Plan...................................................14
Section 7.8 Relationship to the
Litigation Trust...................................14
Section 7.9 Retention of
Jurisdiction..............................................14
Section 7.10 Use of the Company's
Professionals.....................................14
</table>
<PAGE>
DISBURSING AGENT AGREEMENT
PREAMBLE
This
Disbursing
Agent Agreement (the
"Agreement")
dated as of March
31,
2004, is entered into by and among Comdisco
Holding Company, Inc., a Delaware
corporation ("Comdisco Holding" or the "Company," and collectively with its
affiliated reorganized debtors as well as its non-debtor
domestic and
foreign
entities, the "Reorganized Debtors"), Randolph I. Thornton ("Mr.
Thornton" or
the "Initial Disbursing Agent"), Scott P. Peltz ("Mr. Peltz" or the
"Successor
Disbursing Agent") and American Express Tax and Business Services, Inc.
("American Express" or the "Transition
Services Firm").
Capitalized terms
used
herein and not otherwise defined shall have
the meanings ascribed to them in The
First Amended Joint Plan of Reorganization
of Comdisco, Inc. and
its Affiliated
Debtors and Debtors in Possession (the
"Plan").
RECITALS
A. On July 16,
2001, Comdisco, Inc.
and fifty of its domestic subsidiaries
and affiliates (the "Debtors") filed
voluntary petitions
for relief under title
11 of chapter 11 of the United
States Code, 11 U.S.C. ss.ss. 101-1330, as
amended (the "Bankruptcy Code"), in the United States Bankruptcy
Court for the
Northern District of Illinois, Eastern
Division (the "Bankruptcy Court").
B. On June 13,
2002 the Debtors filed the Plan with the Bankruptcy Court.
C. On July 30,
2002, the Bankruptcy Court approved the Findings of
Fact,
Conclusions of Law and Order Under 11
U.S.C. ss. ss. 1129(a) and (b) and Fed. R.
Bankr. P. 3020 Confirming the First Amended Joint Plan of
Reorganization
of
Comdisco, Inc. and its Affiliated Debtors and Debtors in Possession (the
"Confirmation Order").
D. The
Confirmation
Order approved the
Certificate of
Incorporation for
Comdisco Holding, which specifically states that "the business purpose
of the
Corporation is to sell, collect or otherwise reduce to money the assets of
the
Corporation in the ordinary course in an
orderly manner,
pay and discharge
the
Corporation's liabilities and distribute any excess to the Corporation's
shareholders in the form of dividends or other
distributions.
The Corporation
shall not be permitted to engage in any activities inconsistent with the
foregoing purpose."
E. On August 12,
2002, the Plan became effective (the "Effective Date").
F. As set
forth in the
Motion for an Order in Furtherance of the First
Amended Joint Plan of Reorganization of Comdisco, Inc. and its Affiliates
Seeking Authority to Complete the
Administration
of the Reorganized
Debtors'
Reorganization Plan and Chapter 11 Cases,
dated February 17,
2004, the Company
has substantially completed the monetization of its assets (the "Wind Down
Motion"), and on April 15, 2004 this Court
entered an Order in
Furtherance of
the First Amended Joint Plan of Reorganization of Comdisco, Inc. and its
Affiliates Seeking Authority to Complete the
Administration of the
Reorganized
Debtors' Reorganization Plan and Chapter 11 Cases (the "Wind Down Order")
approving, among other things, the retention of the Disbursing
Agent, as set
forth herein.
G. The rights,
powers, and duties of the Reorganized Debtors under the Plan
shall be exercised by the Disbursing Agent in his capacity as the
President,
Director and Secretary of each of the
Reorganized Debtors (subject to his rights
and powers to appoint other positions pursuant to Section 3.1(b) of this
Agreement).
H. Mr.
Thornton, who acted as co-chair of the Official Committee of
Unsecured Creditors during the Chapter 11
Cases prior to the Effective Date and
as a member of the board of directors of
Comdisco Holding
since the Effective
Date, has been unanimously selected by the other members of the board of
directors of Comdisco Holding to act as the
Initial Disbursing Agent pursuant to
the Wind Down Motion and this Agreement, in conjunction with Mr. Peltz and
American Express as the Successor
Disbursing Agent and
the Transition
Services
Firm, respectively.
NOW,
THEREFORE,
in consideration of the foregoing and the covenants
and
agreements set forth herein, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1
Defined Terms . As used herein, the terms below shall have the
following meaning:
"Agreement" has
the meaning set forth in the Preamble.
"Bankruptcy
Code" has the meaning set forth in the Recitals.
"Bankruptcy
Court" has the meaning set forth in the Recitals.
"Business Day"
has the meaning set forth in Section 1.16 of the Plan.
"Disbursing
Agent" has the meaning set forth in the Preamble.
"Disbursing
Agent Agreement Effective Date" has the meaning
set forth in
Section 3.10 herein.
"Effective Date"
has the meaning as set forth in the Recitals.
"Litigation
Trust" has the meaning set forth in Section 1.67 of the Plan.
"Master
Service List" means
the parties required
to be served pursuant to
the Supplemental Order Under Fed. R. Bankr.
P. 2002(m) and 9007 Limiting Service
of All Filings entered by the Bankruptcy
Court on July 24, 2003.
"New Common
Shares" has the meaning set forth in Section 1.75 of the Plan.
"Plan" has the
meaning set forth in the Preamble.
"Successor
Disbursing
Agent" has the meaning
set forth in the Preamble as
well as any individual selected to replace Mr. Peltz
pursuant to the terms
of
this Agreement.
"Wind Down
Motion" has the meaning set forth in the Recitals.
"Wind Down
Order" has the meaning set forth in the Recitals.
ARTICLE II
ACCEPTANCE OF POSITIONS BY THE INITIAL DISBURSING AGENT,
THE SUCCESSOR DISBURSING AGENT AND THE TRANSITION
SERVICES FIRM
Section 2.1
Acceptance by the Initial Disbursing Agent . Mr. Thornton (a)
accepts employment as the Disbursing Agent; (b) accepts appointment as the
President, Director and Secretary of each of
the Reorganized
Debtors; and (c)
agrees to observe and perform all duties and obligations imposed upon the
Disbursing Agent under this Agreement,
the Plan, orders of
the Bankruptcy Court
and applicable law.
Section
2.2 Acceptance by the Successor Disbursing Agent . Mr. Peltz
accepts employment as the Successor
Disbursing Agent. As
Successor
Disbursing
Agent, if Mr. Peltz becomes the
Disbursing Agent
pursuant to this
Agreement,
then Mr. Peltz (a) accepts employment as the Disbursing Agent; (b) accepts
appointment as the President, Director and Secretary of each of
the Reorganized
Debtors; and (c) agrees to observe and perform all duties and obligations
imposed upon the Disbursing Agent under
this Agreement, the
Plan, orders of the
Bankruptcy Court and applicable law. The
Successor Disbursing Agent shall at all
times be a member of the Transition Services Firm and the appointment of any
subsequent Successor Disbursing Agent shall become
effective upon the approval
by the Bankruptcy Court after a hearing before the
Bankruptcy Court on not less
than twenty days' notice to the Master
Service List.
Section 2.3
Acceptance by the Transition Services Firm . American
Express
accepts employment as the Transition Services Firm to assist the Disbursing
Agent with the implementation of the Plan
and the final wind-down of the Company
pursuant to the Wind Down Order and this Agreement. The appointment of a
subsequent Transition Services Firm by the Disbursing Agent shall become
effective upon the approval by the
Bankruptcy
Court after a hearing
before the
Bankruptcy Court on not less than
twenty days' notice to the Master Service
List.
ARTICLE III
OBLIGATIONS AND POWERS OF THE DISBURSING AGENT (1)
Section 3.1
President,
Director and
Secretary of Comdisco
Holding . The
Disbursing Agent shall serve as the President, Director and Secretary of
Comdisco Holding (as well as the other
Reorganized
Debtors) and fulfill such
duties and obligations required by such corporate
offices, including,
but not
limited to:
(a) attending to
corporate governance
issues of the
Reorganized
Debtors,
including maintenance of insurance, human
resource issues
---------------
(1) "Disbursing Agent" shall mean the Initial Disbursing Agent and if
succeeded by the Successor Disbursing
Agent, the Successor Disbursing Agent.
4
<page>
(including maintaining employee benefits
substantially similar to those existing
as of the Disbursing Agent Agreement
Effective Date) and
the administration
of
the compensation plans and the termination
of the retirement plan;
(b) appointing
new officers, managing directors, directors, liquidators and
similar positions of the Reorganized
Debtors' entities in foreign jurisdictions
for the purpose of corporate governance and
dissolution;
(c) authorizing
and paying dividends and making, as appropriate, payments
to holders of contingent distribution
rights;
(d) attending to any securities issues and related filings with the
Securities and Exchange Commission,
including compliance with Sarbanes-Oxley, as
well as any required filings and financial
reports in foreign jurisdictions;
(e) investing
the Reorganized Debtors' Cash pursuant to Section 3.5 herein;
(f) employing,
supervising and
compensating
professionals and consultants
retained to represent the interests of, and
serve on behalf of, the Reorganized
Debtors;
(g) monetizing or otherwise disposing of all remaining assets of the
Reorganized Debtors, both domestically and
internationally;
(h) resolving
any outstanding
litigation against the Reorganized Debtors,
both domestically and internationally;
(i) seeking
determination of tax liability under 11 U.S.C. ss. 505;
(j) making and
filing domestic
and foreign tax returns for any of the
Reorganized Debtors;
(k) dissolving
the Reorganized
Debtors as appropriate
(with the exception
of Comdisco Holding, which will be
dissolved pursuant to the Wind Down Order and
Section 3.2 of this Agreement); and
(l) taking any
and all other actions
necessary or appropriate to implement
or consummate the Plan and the provisions
of this Agreement.
5
<page>
The Transition Services Firm may undertake one or more of the foregoing as
assigned to it from time to time by the Disbursing Agent, but any such
assignment shall at all times be subject to
the supervision
and review of the
Disbursing Agent. The Disbursing Agent shall delegate one or more of the
foregoing as and when in the Disbursing
Agent's reasonable
business judgment it
becomes cost ef
