2,000,000 Shares
CDW Computer Centers, Inc.
Common Stock, $0.01 par value
March 26, 2002
March 26, 2002
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
Xxxxxxx X. Xxxxx (the "Selling Shareholder") of CDW Computer Centers, Inc.,
an Illinois corporation (the "Company"), proposes to sell to the Underwriter
named above (the "Underwriter"), an aggregate of 2,000,000 shares of the Common
Stock, $0.01 par value, of the Company (the "Shares"). The shares of Common
Stock, $0.01 par value, of the Company to be outstanding after giving effect to
the sales contemplated hereby are hereinafter referred to as the "Common Stock".
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Shares. The registration statement as amended at the time it becomes effective,
including the information (if any) deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430A under the
Securities Act of 1933, as amended (the "Securities Act"), is hereinafter
referred to as the "Registration Statement"; the prospectus in the form first
used to confirm sales of Shares is hereinafter referred to as the "Prospectus".
If the Company has filed an abbreviated registration statement to register
additional shares of Common Stock pursuant to Rule 462(b) under the Securities
Act (the "Rule 462 Registration Statement"), then any reference herein to the
term "Registration Statement" shall be deemed to include such Rule 462
Registration Statement (including, in the case of all references to the
Registration Statement and the Prospectus, documents incorporated therein by
reference).
1. Representations and Warranties of the Company. The Company represents
and warrants to and agrees with the Underwriter that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) The Registration Statement, when it became effective, did not
contain and, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, (ii) the Registration Statement and the
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Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder and (iii) the Prospectus
does not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph do not apply to
statements or omissions in the Registration Statement or the Prospectus
based upon information relating to the Underwriter furnished to the Company
in writing by the Underwriter expressly for use therein.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole; and no
proceeding of which the Company has knowledge has been instituted in any
such jurisdiction, revoking, limiting or curtailing, or seeking to revoke,
limit or curtail, such power and authority or qualification.
(d) Each subsidiary of the Company (CDW Government, Inc., an Illinois
corporation ("CDW-G"), and CDW Capital Corp., an Illinois corporation), CDW
ISFC, LLC, a Delaware limited liability company, and CDW Leasing, L.L.C.,
an Illinois limited liability company ("CDW-L"), the joint venture which is
50% owned by CDW Capital Corp. (such subsidiaries and the joint venture are
collectively referred to as the "subsidiaries"), has been duly
incorporated, or formed, as applicable, is validly existing as a
corporation, or limited liability company, as applicable, in good standing
under the laws of the jurisdiction of its incorporation, or formation, as
applicable, has the corporate, or limited liability company, as applicable,
power and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole; and no proceeding of which the
Company has knowledge has been instituted in any such jurisdiction,
revoking, limiting or curtailing, or seeking to revoke, limit or curtail,
such power and authority or qualification; all of the issued shares of
capital stock of each subsidiary of the Company, and all of the issued
limited liability company interests of CDW-L, have been duly and validly
authorized and issued, are fully paid and non-assessable and, with respect
to the Company's corporate subsidiaries, are owned directly by the Company,
free and clear of all liens, encumbrances or claims, and, with respect to
CDW-L, 50% of
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such interests are owned directly by CDW Capital Corp., free and clear of
all liens, encumbrances and claims.
(e) This Agreement has been duly authorized, executed and delivered by
the Company.
(f) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
(g) All shares of Common Stock, including the Shares to be sold by the
Selling Shareholder pursuant to this Agreement, have been duly authorized
and are validly issued, fully paid and non-assessable.
(h) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement will not contravene
any provision of applicable law or the articles of incorporation or by-laws
of the Company or any agreement or other instrument binding upon the
Company or any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or
any subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
execution, delivery and performance by the Company of its obligations under
this Agreement, except such as may be required by the Securities Act or the
securities or Blue Sky laws of the various states in connection with the
offer and sale of the Shares.
(i) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement).
(j) There are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or
any of its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or filed as
required.
(k) The Company is not and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as described
in the Prospectus, will not be required to register as an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended.
(l) The Company and its subsidiaries (i) are in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection
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of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental Laws"),
(ii) have received all permits, licenses or other approvals required of
them under applicable Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and conditions of any
such permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such
permits, licenses or approvals would not, singly or in the aggregate, have
a material adverse effect on the Company and its subsidiaries, taken as a
whole.
(m) Except as previously disclosed in filings by the Company with the
Commission, there are no contracts, agreements or understandings between
the Company and any person granting such person preemptive rights, rights
of first refusal to purchase Common Stock or the right to require the
Company to file a registration statement under the Securities Act with
respect to any securities of the Company or to require the Company to
include such securities with the Shares registered pursuant to the
Registration Statement.
(n) PricewaterhouseCoopers LLP, who have expressed their opinion with
respect to certain of the financial statements and schedules included in
the Registration Statement, are independent accountants as required by the
1933 Act.
(o) The Shares are authorized for trading over-the-counter on the
Nasdaq National Market.
(p) Neither the Company nor any subsidiary is in violation of its
charter or other organizational documents or in default under any consent
decree, or in default with respect to any material provision of any lease,
loan agreement, franchise, license, permit or other contract obligation to
which it is a party; and there does not exist any state of facts which
constitutes an event of default as defined in such documents or which, with
notice or lapse of time or both, would constitute such an event of default,
in each case, except for defaults which neither singly nor in the aggregate
are material to the Company and its subsidiaries taken as a whole.
(q) The consolidated financial statements and schedules of the Company
and its subsidiaries included or incorporated by reference in the
Registration Statement present fairly the consolidated financial position
of the Company and its subsidiaries as of the respective dates of such
consolidated financial statements, and the consolidated results of
operations and cash flows of the Company and its subsidiaries for the
respective periods covered thereby, all in conformity with generally
accepted accounting principles consistently applied throughout the periods
involved, except as disclosed in the Prospectus; the supporting schedules
included or incorporated by reference in the Registration Statement
present fairly the information required to be stated therein.
(r) The Company has not taken and will not take, directly or
indirectly, any action designed to or which has constituted or which might
reasonably be expected to
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cause or result, under the Exchange Act or otherwise, in stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Shares.
(s) The Company and its subsidiaries have good and marketable title to
all the properties and assets reflected as owned in the financial
statements hereinabove described (or elsewhere in the Prospectus), subject
to no lien, mortgage, pledge, charge or encumbrance of any kind except
those, if any, reflected in such financial statements (or elsewhere in the
Prospectus) or which are not material to the Company and its subsidiaries
taken as a whole. The Company and its subsidiaries hold their respective
leased properties which are material to the Company and its subsidiaries
taken as a whole under valid and binding leases.
(t) The Company together with its subsidiaries owns and possesses all
right, title and interest in and to, or has duly licensed from third
parties, all trademarks, copyrights and other proprietary rights ("Trade
Rights") material to the business of the Company and its subsidiaries taken
as a whole and neither the Company nor its subsidiaries has granted any
lien or encumbrance on, or granted any right of license (other than in the
ordinary course of its business) with respect to, any such material Trade
Rights. Neither the Company nor its subsidiaries have received any notice
of infringement, misappropriation or conflict from any third party as to
such material Trade Rights that has not been resolved or disposed of and
neither the Company nor its subsidiaries have infringed, misappropriated or
otherwise conflicted with material Trade Rights of any third parties, which
infringement, misappropriation or conflict would have a material adverse
effect upon the condition (financial or otherwise), business, assets,
operations or prospects of the Company and its subsidiaries taken as a
whole.
(u) The conduct of the business of the Company and its subsidiaries is
in compliance in all respects with applicable federal, state, local and
foreign laws and regulations, except where the failure to be in compliance
would not have a material adverse effect upon the condition (financial or
otherwise), business, assets, operations or prospects of the Company and
its subsidiaries taken as a whole.
(v) The Company and its subsidiaries have filed all necessary federal
and state income and franchise tax returns and have paid all taxes shown as
due thereon, and there is no tax deficiency that has been, or to the
knowledge of the Company is threatened to be, asserted against the Company
or its subsidiaries or any of their respective properties or assets that
would or could be expected to have a material adverse effect on the
financial condition, assets, operations or prospects of the Company and its
subsidiaries taken as a whole.
2. Representations and Warranties of the Selling Shareholder. The Selling
Shareholder represents and warrants to and agrees with the Underwriter that:
(a) This Agreement has been duly authorized, executed and delivered by
the Selling Shareholder.
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(b) The execution and delivery by the Selling Shareholder of, and the
performance by the Selling Shareholder of his obligations under this
Agreement will not contravene any provision of applicable law, or any
agreement or other instrument binding upon the Selling Shareholder or any
judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Selling Shareholder, and other than the order of
effectiveness issued by the Commission with respect to the Registration
Statement, no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Selling Shareholder of his obligations under this
Agreement, except such as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale of the
Shares.
(c) The Selling Shareholder, on the Closing Date, will have valid
title to the Shares to be sold by the Selling Shareholder and the legal
right and power, and all authorization and approval required by law, to
enter into this Agreement and to sell, transfer and deliver the Shares to
be sold by the Selling Shareholder.
(d) Upon payment for the Shares to be sold by the Selling Shareholder
pursuant to this Agreement, delivery of such Shares, as directed by the
Underwriter, to Cede & Co. ("Cede") or such other nominee as may be
designated by the Depository Trust Company ("DTC"), registration of such
Shares in the name of Cede or such other nominee and the crediting of such
Shares on the books of DTC to securities accounts of the Underwriter
(assuming that neither DTC nor the Underwriter has notice of any adverse
claim (within the meaning of Section 8-105 of the New York Uniform
Commercial Code (the "UCC")) to such Shares), (A) DTC shall be a "protected
purchaser" of such Shares within the meaning of Section 8-303 of the UCC,
(B) under Section 8-501 of the UCC, the Underwriter will acquire a valid
security entitlement in respect of such Shares and (C) no action based on
any "adverse claim", within the meaning of Section 8-102 of the UCC, to
such Shares may be asserted against the Underwriter with respect to such
security entitlement; for purposes of this representation, the Selling
Shareholder may assume that when such payment, delivery and crediting
occur, (x) such Shares will have been registered in the name of Cede or
another nominee designated by DTC, in each case on the Company's share
registry in accordance with its certificate of incorporation, bylaws and
applicable law, (y) DTC will be registered as a "clearing corporation"
within the meaning of Section 8-102 of the UCC and (z) appropriate entries
to the account(s) of the Underwriter on the records of DTC will have been
made pursuant to the UCC.
(e) The Selling Shareholder has not taken and will not take, directly
or indirectly, any action designed to or which might be reasonably expected
to cause or result, under the Exchange Act or otherwise, in stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Shares.
(f) The Selling Shareholder represents and warrants to, and agrees
with, the Company and the Underwriter to the same effect as the
representations and warranties of the Company set forth in Section 1 of
this Agreement.
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(g) In order to document the Underwriter's compliance with the
reporting and withholding requirements of the Internal Revenue Code of
1986, as amended, with respect to the transactions herein contemplated, the
Selling Shareholder agrees to deliver to you prior to or on the Closing
Date, a properly completed and executed United States Treasury Department
Form W-8 or W-9 (or other applicable form or statement specified by
Treasury Department regulations in lieu thereof).
3. Agreements to Sell and Purchase. The Selling Shareholder hereby
agrees to sell to the Underwriter, and the Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees to purchase from the Selling Shareholder 2,000,000
Shares at $47.70 a share (the "Purchase Price").
The Company and the Selling Shareholder hereby agree that, without the
prior written consent of Xxxxxx Xxxxxxx & Co. Incorporated, neither will, during
the period ending 90 days after the date of the Prospectus (i) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase,
lend, or otherwise transfer or dispose of, directly or indirectly, any shares of
Common Stock or any securities convertible into or exercisable or exchangeable
for Common Stock or (ii) enter into any swap or other arrangement that transfers
to another, in whole or in part, any of the economic consequences of ownership
of the Common Stock, whether any such transaction described in clause (i) or
(ii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to (A)
the Shares to be sold hereunder, (B) the issuance by the Company of shares of
Common Stock (x) upon the exercise of an option or warrant or the conversion of
a security outstanding on the date hereof or the issuance of options pursuant to
the Company's existing benefit plans, (y) to the Company's 401(k) plan in
connection with the election by plan participants to purchase shares of Common
Stock or (z) to employees of the Company pursuant to any Company employee stock
purchase plan, (C) transactions by any person other than the Company relating to
shares of Common Stock or other securities acquired in open market transactions
after the completion of the offering of the Shares or (D) bona fide gifts by any
person other than the Company, provided that (y) the donees or transferees of
any such gifts have agreed in writing to be bound by the foregoing restrictions
and (z) no filings by any party (donor, donee, transferor, or transferee) under
Section 16 of the Exchange Act shall be required or shall be made voluntarily in
connection with such transfer, gift or other distribution (other than a filing
on a Form 5 made during the 90 day period referred to above). In addition, the
Company agrees to obtain similar agreements from each of its directors and
executive officers that is not the Selling Shareholder in substantially the form
attached hereto as Exhibit A-3. The parties acknowledge that the Company may
continue to purchase up to the previously announced maximum number of shares of
its Common Stock pursuant to its stock buyback program. Finally, the Selling
Shareholder agrees that, without the prior written consent of Xxxxxx Xxxxxxx &
Co. Incorporated, it will not, during the period ending 90 days after the date
of the Prospectus, make any demand for, or exercise any right with respect to,
the registration of any shares of Common Stock or any security convertible into
or exercisable or exchangeable for Common Stock.
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4. Terms of Public Offering. The Selling Shareholder is advised by you
that the Underwriter proposes to make a public offering of the Shares as soon
after the Registration Statement and this Agreement have become effective as in
your judgment is advisable. The Selling Shareholder is further advised by you
that the Shares are to be offered to the public initially at $48.00 a share (the
"Public Offering Price") and to certain dealers selected by you at a price that
represents a concession not in excess of $.30 a share under the Public Offering
Price.
5. Payment and Delivery. Payment for the Shares to be sold by the
Selling Shareholder shall be made to the Selling Shareholder in Federal or other
funds immediately available in New York City against delivery of such Shares for
the account of the Underwriter at 10:00 a.m., New York City time, on April 1,
2002, or at such other time on the same or such other date, not later than April
8, 2002, as shall be designated in writing by you. The time and date of such
payment are hereinafter referred to as the "Closing Date".
The Shares shall be in book-entry form and registered in such names
and in such denominations as you shall request in writing not later than one
full business day prior to the Closing Date. The Shares shall be delivered to
you on the Closing Date for the account of the Underwriter, with any transfer
taxes payable in connection with the transfer of the Shares to the Underwriter
duly paid, against payment of the Purchase Price therefor.
6. Conditions to the Underwriter's Obligations. The obligations of the
Selling Shareholder to sell the Shares to the Underwriter and the obligations of
the Underwriter to purchase and pay for the Shares on the Closing Date are
subject to the condition that the Registration Statement shall have become
effective not later than 4:00 p.m. (New York City time) on the date hereof.
The obligations of the Underwriter are subject to the following
further conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any change, or any
development involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and
its subsidiaries, taken as a whole, from that set forth in the Prospectus
(exclusive of any amendments or supplements thereto subsequent to the date
of this Agreement) that, in your judgment, is material and adverse and that
makes it, in your judgment, impracticable to market the Shares on the terms
and in the manner contemplated in the Prospectus.
(b) The Underwriter shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company, to the effect set forth in Section 6(a) above and to the
effect that the representations and warranties of the Company contained in
this Agreement are true and correct as of the Closing Date and that the
Company has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on or before
the Closing Date.
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The officer signing and delivering such certificate may rely upon the
best of his or her knowledge as to proceedings threatened.
(c) The Underwriter shall have received on the Closing Date an opinion
of Xxxxxx Xxxxxx Xxxxx & Xxxx, outside counsel for the Company, dated the
Closing Date, to the effect that:
(i) the Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the jurisdiction
of its incorporation and has the corporate power and authority to own
its property and to conduct its business as described in the
Prospectus;
(ii) CDW-G has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, and has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus;
all of the issued shares of capital stock of CDW-G have been duly and
validly authorized and issued, are fully paid and non-assessable and
to such counsel's knowledge, are owned directly by the Company, free
and clear of all liens, encumbrances or claims;
(iii) the authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus;
(iv) the outstanding shares of Common Stock (including the Shares
to be sold by the Selling Shareholder) have been duly authorized and
are validly issued, fully paid and non-assessable and have not been
issued in violation of the pre-emptive rights granted by the Company
to any person;
(v) this Agreement has been duly authorized, executed and
delivered by the Company;
(vi) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
will not contravene any provision of applicable law or the articles of
incorporation or by-laws of the Company or, to such counsel's
knowledge, any agreement or other instrument binding upon the Company
or any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or, to such counsel's knowledge, any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any subsidiary, and no
consent, approval, authorization or order of, or qualification with,
any governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, except such as may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Shares;
(vii) the statements (A) in the Prospectus under the captions
"Risk Factors--State and local sales/use tax collection obligations
could reduce our
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sales and adversely affect our operating results," "Risk Factors--Due
to his significant shareholdings, Xxxxxxx X. Xxxxxx has the ability to
influence all matters requiring shareholder approval and if he sells
shares of our common stock in the future, such sales may affect our
stock price," "Description of Capital Stock" and "Underwriting" and
(B) in the Registration Statement in Item 15, in each case insofar as
such statements constitute summaries of the legal matters, documents
or proceedings referred to therein, fairly present the information
called for with respect to such legal matters, documents and
proceedings and fairly summarize the matters referred to therein;
(viii) the Company is not required to register as an "investment
company" as such term is defined in the Investment Company Act of
1940, as amended;
(ix) such counsel (A) is of the opinion that the Registration
Statement and Prospectus (except for financial statements and
schedules and other financial and statistical data included therein as
to which such counsel need not express any opinion) comply as to form
in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder, (B) nothing has
come to the attention of such counsel that has caused such counsel to
believe that (except for financial statements and schedules and other
financial and statistical data as to which such counsel need not
express any belief) the Registration Statement and the Prospectus
included therein at the time the Registration Statement became
effective contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (C) nothing has come to
the attention of such counsel that has caused such counsel to believe
that (except for financial statements and schedules and other
financial and statistical data as to which such counsel need not
express any belief) the Prospectus contains any untrue statement of a
material fact or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(x) the shares to be sold hereunder are authorized and qualified
for trading over-the-counter on the Nasdaq National Market;
(xi) the Registration Statement has become effective under the
Securities Act, and, to the best knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted
or are pending or contemplated under the Securities Act; and such
counsel does not know of any legal or governmental proceedings pending
or threatened to which the Company or any of its subsidiaries is a
party or to which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in the
Registration Statement or Prospectus which are not described as
required, nor of any statutes,
11
regulations, contracts or other documents of a character required to
be described in the Registration Statement or Prospectus or to be
filed as exhibits to the Registration Statement which are not
described or filed, as required; and
(xii) all documents incorporated by reference in the Prospectus,
when they were filed with the Commission, complied as to form in all
material respects with the requirements of the Exchange Act; and
nothing has come to the attention of such counsel that has caused such
counsel to believe that any of such documents, when they were so
filed, contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made
when such documents were so filed, not misleading; such counsel need
express no opinion as to the financial statements or other financial
or statistical data contained in any such document.
(d) The Underwriter shall have received on the Closing Date an opinion
of Xxxxxxx & Xxxx, S.C. dated the Closing Date, to the effect that:
(i) the execution and delivery by the Selling Shareholder of, and
the performance by the Selling Shareholder of his obligations under,
this Agreement will not contravene any provision of applicable law,
or, to the best of such counsel's knowledge, any agreement or other
instrument binding upon the Selling Shareholder or, to the best of
such counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the
Selling Shareholder, and no consent, approval, authorization or order
of, or qualification with, any governmental body or agency is required
for the performance by the Selling Shareholder of his obligations
under this Agreement, except such as may be required by the securities
or Blue Sky laws of the various states in connection with offer and
sale of the Shares;
(ii) the Selling Shareholder has valid title to the Shares to be
sold by the Selling Shareholder and the legal right and power, and all
authorization and approval required by law, to enter into this
Agreement and to sell, transfer and deliver the Shares to be sold by
the Selling Shareholder; and
(iii) upon payment for the Shares to be sold by the Selling
Shareholder pursuant to this Agreement, delivery of such Shares, as
directed by the Underwriter, to Cede, as nominee of DTC, or such other
nominee as may be designated by DTC, registration of such Shares in
the name of Cede, as nominee of DTC, or such other nominee and the
crediting of such Shares on the books of DTC to securities accounts of
the Underwriter (assuming that neither DTC nor the Underwriter has
notice of any adverse claim within the meaning of Section 8-105 of the
UCC to such Shares), (A) DTC shall be a "protected purchaser" of such
Shares within the meaning of Section 8-303 of the UCC, (B) under
Section 8-501 of the UCC, the Underwriter will acquire a valid
security entitlement in respect of such Shares and (C) no action based
on any "adverse claim" (within the meaning
12
of section 8-102 of the UCC) to such Shares may be asserted against
the Underwriter with respect to such security entitlement; in giving
this opinion, counsel for the Selling Shareholder may assume that when
such payment, delivery and crediting occur, (x) such Shares will be
have been registered in the name of Cede, as nominee of DTC, or
another nominee designated by DTC, in each case on the Company's share
registry in accordance with its certificate of incorporation, bylaws
and applicable law, (y) DTC will be registered as a "clearing
corporation" within the meaning of Section 8-102 of the UCC and any
nominee of DTC will be a "securities intermediary" within the meaning
of Section 8-102(a)(14) of the UCC and (z) appropriate entries to
credit the Shares to the account(s) of the Underwriter on the records
of DTC will have been made pursuant to the UCC.
(e) The Underwriter shall have received on the Closing Date an opinion
of Xxxxxxx & Xxxxxx, counsel for the Underwriters, dated the Closing Date,
covering the matters referred to in Sections 6(c)(v), 6(c)(vii) (but only
as to the statements in the Prospectus under "Description of Capital Stock"
and "Underwriters") and 6(c)(ix) above.
With respect to Section 6(c)(ix) and 6(c)(xii) above, Xxxxxx Xxxxxx
Xxxxx & Xxxx, and with respect to Section 6(c)(ix), Winston & Xxxxxx, may state
that their opinion and belief are based upon their participation in the
preparation of the Registration Statement and Prospectus and any amendments or
supplements thereto and review and discussion of the contents thereof, but are
without independent check or verification, except as specified. With respect to
Section 6(d) above, Xxxxxxx & Xxxx, S.C. may, with respect to factual matters
and to the extent such counsel deems appropriate, rely upon the representations
of the Selling Shareholder contained herein and in other documents and
instruments; provided that copies of any such other documents and instruments
shall be delivered to you and shall be in form and substance satisfactory to
your counsel.
The opinion of Xxxxxx Xxxxxx Xxxxx & Xxxx described in Section 6(c)
and the opinion of Xxxxxxx & Xxxx S.C. described in Section 6(d) above shall be
rendered to the Underwriter at the request of the Company or the Selling
Shareholder, as the case may be, and shall so state therein.
(f) The Underwriter shall have received, on each of the date hereof
and the Closing Date, a letter dated the date hereof or the Closing Date,
as the case may be, in form and substance satisfactory to the Underwriter,
from PricewaterhouseCoopers LLP, independent public accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements
and certain financial information contained in the Registration Statement
and the Prospectus; provided that the letter delivered on the Closing Date
shall use a "cut-off date" not earlier than the date hereof.
(g) The "lock-up" agreements, each substantially in the form of
Exhibits A-1 to A-3, as applicable, between you and the Selling
Shareholder, between you and the Company and between you and each of the
executive officers and directors of the
13
Company relating to sales and certain other dispositions of shares of
Common Stock or certain other securities, delivered to you on or before the
date hereof, shall be in full force and effect on the Closing Date.
7. Covenants of the Company. In further consideration of the
agreements of the Underwriter herein contained, the Company covenants with the
Underwriter as follows:
(a) To furnish to you, without charge, two (2) signed copies of the
Registration Statement (including exhibits thereto and documents
incorporated therein) and to furnish to you in New York City, without
charge, prior to 10:00 a.m. New York City time on the business day next
succeeding the date of this Agreement and during the period mentioned in
Section 7(c) below, as many copies of the Prospectus and any supplements
and amendments thereto or to the Registration Statement as you may
reasonably request. The terms "supplement" and "amendment" as used in this
Agreement shall include all documents subsequently filed by the Company
with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
(b) Before amending or supplementing the Registration Statement or the
Prospectus, to furnish to you a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to
which you reasonably object, unless in the judgment of the Company and its
counsel, such amendment or supplement is required by law, and to file with
the Commission within the applicable period specified in Rule 424(b) under
the Securities Act any prospectus required to be filed pursuant to such
Rule.
(c) If, during such period after the first date of the public offering
of the Shares as in the opinion of counsel for the Underwriter the
Prospectus is required by law to be delivered in connection with sales by
the Underwriter or dealer, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, or if, in
the opinion of counsel for the Underwriter, it is necessary to amend or
supplement the Prospectus to comply with applicable law, forthwith to
prepare, file with the Commission and furnish, at its own expense, to the
Underwriter and to the dealers (whose names and addresses you will furnish
to the Company) to which Shares may have been sold by you and to any other
dealers upon request, either amendments or supplements to the Prospectus so
that the statements in the Prospectus as so amended or supplemented will
not, in the light of the circumstances when the Prospectus is delivered to
a purchaser, be misleading or so that the Prospectus, as amended or
supplemented, will comply with law.
(d) To endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request; provided that the Company shall not be obligated to qualify as a
foreign corporation or take any action that would subject it to general
service of process in any jurisdiction where it is not now so subject.
14
(e) To make generally available to the Company's security holders and
to you as soon as practicable an earning statement covering the
twelve-month period ending June 30, 2003 that satisfies the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
8. Expenses. Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Company and the
Selling Shareholder agree to pay or cause to be paid all expenses incident to
the performance of their obligations under this Agreement, including: (i) the
fees, disbursements and expenses of the Company's accountants and counsel for
the Selling Shareholder in connection with the registration and delivery of the
Shares under the Securities Act and all other fees or expenses in connection
with the preparation and filing of the Registration Statement, the Prospectus
and amendments and supplements to any of the foregoing, including all printing
costs associated therewith, and the mailing and delivering of copies thereof to
the Underwriter and dealers, in the quantities hereinabove specified, (ii) all
costs and expenses related to the transfer and delivery of the Shares to the
Underwriter, including any transfer or other taxes payable thereon, (iii) the
cost of printing or producing any Blue Sky or Legal Investment memorandum in
connection with the offer and sale of the Shares under state securities laws and
all expenses in connection with the qualification of the Shares for offer and
sale under state securities laws as provided in Section 7(d) hereof, including
filing fees and the reasonable fees and disbursements of counsel for the
Underwriter in connection with such qualification and in connection with the
Blue Sky or Legal Investment memorandum, not to exceed $2,000, (iv) all filing
fees and the reasonable fees and disbursements of counsel to the Underwriter
incurred in connection with the review and qualification of the offering of the
Shares by the National Association of Securities Dealers, Inc., but only in the
event such review and qualification becomes necessary, (v) all costs and
expenses incident to listing the Shares on the Nasdaq National Market, (vi) the
cost of printing certificates representing the Shares, (vii) the costs and
charges of any transfer agent, registrar or depositary and (viii) all other
costs and expenses incident to the performance of the obligations of the Company
hereunder for which provision is not otherwise made in this Section. It is
understood, however, that except as provided in this Section and Section 9
entitled "Indemnity and Contribution", the Underwriters will pay all of their
costs and expenses, including fees and disbursements of their counsel, stock
transfer taxes payable on resale of any of the Shares by them and any
advertising expenses connected with any offers they may make.
The provisions of this Section 8 shall not supersede or otherwise
affect any agreement that the Company and the Selling Shareholder may otherwise
have for the allocation of such expenses among themselves.
9. Indemnity and Contribution.
(a) The Company and the Selling Shareholder, jointly and severally,
agree to indemnify and hold harmless the Underwriter, each person, if any,
who controls the Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and
all losses, claims, damages and liabilities (including, without limitation,
any legal or other expenses reasonably incurred in
15
connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or any amendment thereof or the
Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission
based upon information relating to the Underwriter furnished to the Company
in writing by the Underwriter expressly for use therein.
(b) The Selling Shareholder agrees to indemnify and hold harmless the
Company, its directors, its officers who sign the Registration Statement
and each person, if any, who controls the Company within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably
incurred in connection with defending or investigating any such action or
claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment
thereof or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, but only with reference to information relating to the Selling
Shareholder furnished in writing by or on behalf of the Selling Shareholder
expressly for use in the Registration Statement, the Prospectus or any
amendments or supplements thereto.
(c) The Underwriter agrees to indemnify and hold harmless the Company,
the Selling Shareholder, the directors of the Company, the officers of the
Company who sign the Registration Statement and each person, if any, who
controls the Company or the Selling Shareholder within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act
from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably
incurred in connection with defending or investigating any such action or
claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment
thereof or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, but only with reference to information relating to the
Underwriter furnished to the Company in writing by the Underwriter
expressly for use in the Registration Statement, the Prospectus or any
amendments or supplements thereto.
(d) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may
be sought pursuant to Section 9(a), 9(b) or 9(c), such person (the
"indemnified party") shall promptly notify
16
the person against whom such indemnity may be sought (the "indemnifying
party") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees
and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them.
It is understood that the indemnifying party shall not, in respect of the
legal expenses of any indemnified party in connection with any proceeding
or related proceedings in the same jurisdiction, be liable for (i) the fees
and expenses of more than one separate firm (in addition to any local
counsel) for the Underwriter and all persons, if any, who control the
Underwriter within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act, (ii) the fees and expenses of more than
one separate firm (in addition to any local counsel) for the Company, its
directors, its officers who sign the Registration Statement and each
person, if any, who controls the Company within the meaning of either such
Section and (iii) the fees and expenses of more than one separate firm (in
addition to any local counsel) for the Selling Shareholder, and that all
such fees and expenses shall be reimbursed as they are incurred. In the
case of any such separate firm for the Underwriter and such control persons
and affiliates of the Underwriter, such firm shall be designated in writing
by the Underwriter. In the case of any such separate firm for the Company,
and such directors, officers and control persons of the Company, such firm
shall be designated in writing by the Company. In the case of any such
separate firm for the Selling Shareholder, such firm shall be designated in
writing by Xx. Xxxxx. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel as contemplated by
the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into
more than 30 days after receipt by such indemnifying party of the aforesaid
request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement; provided that the indemnifying party shall not be so liable for
a settlement effected without its written consent so long as it is
reasonably contesting in good faith the amount of fees and expenses of
counsel of the indemnified party that must be reimbursed. No indemnifying
party shall, without the prior written consent of the indemnified party,
effect any settlement of any pending or threatened proceeding in respect of
which any indemnified party is or could have been a
17
party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter
of such proceeding.
(e) To the extent the indemnification provided for in Section 9(a),
9(b) or 9(c) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein,
then each indemnifying party under such paragraph, in lieu of indemnifying
such indemnified party thereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect
the relative benefits received by the indemnifying party or parties on the
one hand and the indemnified party or parties on the other hand from the
offering of the Shares or (ii) if the allocation provided by clause 9(e)(i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
9(e)(i) above but also the relative fault of the indemnifying party or
parties on the one hand and of the indemnified party or parties on the
other hand in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company and
the Selling Shareholder on the one hand and the Underwriters on the other
hand in connection with the offering of the Shares shall be deemed to be in
the same respective proportions as the net proceeds from the offering of
the Shares (before deducting expenses) received by each of the Company and
the Selling Shareholder and the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the
table on the cover of the Prospectus, bear to the aggregate Public Offering
Price of the Shares. The relative fault of the Company and the Selling
Shareholder on the one hand and the Underwriter on the other hand shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company, the Selling Shareholder or by the Underwriter and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(f) The Company, the Selling Shareholder and the Underwriter agree
that it would not be just or equitable if contribution pursuant to this
Section 9 were determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations
referred to in Section 9(e). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages and liabilities referred
to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 9, (i) the Underwriter shall not be required to
contribute any amount in excess of the amount by which the total price at
which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that the
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission and (ii)
18
prior to making demand on the Selling Shareholder to satisfy his or its
obligations under this Section 9, an indemnified party must first make a
written demand on the Company requesting that the Company satisfy its
obligations hereunder. If (A) the Company does not agree to satisfy such
demands by notifying the indemnified party in writing within seven days
after receipt of such demand, or (B) after such seven day period, the
indemnified party, in its sole judgment, believes that the Company has not
fully complied with, or is not, or is not financially capable of, fully
complying with its obligations hereunder, then the indemnified party may,
but is under no obligation to, make demand on the Selling Stockholder to
satisfy his or its obligations hereunder. An indemnified party's failure to
comply with the provisions of this paragraph shall not relieve the Company
or the Selling Shareholder from any liability which it may have to any
indemnified party. Further, notwithstanding the provisions of this Section
9, the Selling Shareholder shall not be required to contribute any amount
in excess of the net proceeds from the offering of the Shares (before
deducting expenses) received by the Selling Shareholder. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The remedies provided for
in this Section 9 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law
or in equity.
(g) The indemnity and contribution provisions contained in this
Section 9 and the representations, warranties and other statements of the
Company and the Selling Shareholder contained in this Agreement shall
remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf
of the Underwriter, any person controlling the Underwriter or any affiliate
of the Underwriter; the Selling Shareholder; or the Company, its officers
or directors or any person controlling the Company and (iii) acceptance of
and payment for any of the Shares.
19
10. Termination. The Underwriter may terminate this Agreement by notice
given by you to the Company, if after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the Nasdaq National Market,
the Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board of Trade, (ii) trading of any securities of the Company shall have
been suspended on any exchange or in any over-the-counter market, (iii) a
material disruption in securities settlement, payment or clearance services in
the United States shall have occurred, (iv) any moratorium on commercial banking
activities shall have been declared by Federal or New York State authorities or
(v) there shall have occurred any outbreak or escalation of hostilities, or any
calamity or crisis that, in your judgment, is material and adverse and which,
singly or together with any other such event specified in this clause (v), makes
it, in your judgment, impracticable or inadvisable to proceed with the offer,
sale or delivery of the Shares on the terms and in the manner contemplated in
the Prospectus.
11. Effectiveness. This Agreement shall become effective upon the execution
and delivery hereof by the parties hereto.
12. Counterparts. This Agreement may be signed in two or more counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
15. Notices. All communications hereunder will be in writing, mailed,
delivered or telecopied and confirmed as follows:
if sent to the Underwriter:
---------------------------
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax (000) 000-0000
with a copy to:
Xxxxxx X. Xxxx, Esq.
Winston & Xxxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax (000) 000-0000
20
if sent to the Company:
-----------------------
CDW Computer Centers, Inc.
000 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxxx Xxxxx
General Counsel
Fax (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxxxx, Esq.
Xxxxxx Xxxxxx Xxxxx & Xxxx
Bank Xxx Xxxxx
00 Xxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax (000) 000-0000
if sent to Xx. Xxxxx:
---------------------
Xxxxxxx X. Xxxxx
000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Fax (000) 000-0000
with a copy to:
Xxxxxxx X. Xxxxxxxx, Esq.
Xxxxxxx & Xxxx S.C.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Fax (000) 000-0000
16. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors, personal
representatives and assigns, and no other person will have any right or
obligation hereunder. The term "successors" shall not include any purchaser of
the Shares as such from the Underwriter merely by reason of such purchase.
17. Partial Unenforceability. If any section, paragraph or provision of
this Agreement is for any reason determined to be invalid or unenforceable, such
determination shall not affect the validity or enforceability of any other
section, paragraph or provision hereof.
21
Very truly yours,
CDW Computer Centers, Inc.
By:______________________________________
Name: __________________________________
Title: _________________________________
_________________________________________
Xxxxxxx X. Xxxxx
Accepted as of the date hereof:
Xxxxxx Xxxxxxx & Co. Incorporated
By:______________________________________
Name: __________________________________
Title: _________________________________
22
Exhibit A-1
[Form of Lock-up Letter - Xx. Xxxxxxx X. Xxxxx]
March ___, 2002
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Dear Sirs and Mesdames:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx
Xxxxxxx") proposes to enter into an Underwriting Agreement (the "Underwriting
Agreement") with CDW Computer Centers, Inc., an Illinois corporation (the
"Company"), and the Selling Shareholder (as defined in the Underwriting
Agreement) providing for the public offering (the "Public Offering") by Xxxxxx
Xxxxxxx (the "Underwriter"), of 2,000,000 shares (the "Shares") of the Common
Stock, $0.01 par value of the Company (the "Common Stock").
To induce the Underwriter to continue its efforts in connection with the
Public Offering, the undersigned hereby agrees that, without the prior written
consent of Xxxxxx Xxxxxxx, he will not, during the period commencing on the date
hereof and ending 90 days after the date of the final prospectus relating to the
Public Offering (the "Prospectus"), (1) offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, lend, or otherwise
transfer or dispose of, directly or indirectly, any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock
or (2) enter into any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of ownership of Common Stock,
whether any such transaction described in clause (1) or (2) above is to be
settled by delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (a) the sale of any Shares
to the Underwriter pursuant to the Underwriting Agreement, (b) transactions
relating to shares of Common Stock or other securities acquired in open market
transactions after the completion of the Public Offering or (c) bona fide gifts,
provided that (y) the donees or transferees of any such gifts have agreed in
writing to be bound by the foregoing restrictions and (z) no filings by any
party (donor, donee, transferor, or transferee) under Section 16 of the Exchange
Act shall be required or shall be made voluntarily in connection with such gift,
transfer or distribution (other than a filing on a Form 5 made during the 90 day
period referred to above). In addition, the undersigned agrees that, without the
prior written consent of Xxxxxx Xxxxxxx, he will not, during the period
commencing on the date hereof and ending 90 days after the date of the
Prospectus, make any demand for or exercise any right with respect to, the
registration of any shares of Common Stock or any security convertible into or
exercisable or exchangeable for Common Stock. The undersigned also agrees and
consents to the entry of stop transfer instructions with the Company's transfer
agent and registrar against the transfer of the undersigned's shares of Common
Stock except in compliance with the foregoing restrictions.
The undersigned understands that the Company and the Underwriter are
relying upon this Lock-Up Agreement in proceeding toward consummation of the
Public Offering. The undersigned
further understands that this Lock-Up Agreement is irrevocable and shall be
binding upon the undersigned's heirs, legal representatives, successors and
assigns.
Whether or not the Public Offering actually occurs depends on a number of
factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company, the Selling Shareholder and the Underwriter.
Very truly yours,
-----------------------------------------
Xxxxxxx X. Xxxxx
----------------------------------------
(Address)
Exhibit A-2
[Form of Lock-up Letter - CDW Computer Centers, Inc.]
March __, 2002
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Dear Sirs and Mesdames:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx
Xxxxxxx") proposes to enter into an Underwriting Agreement (the "Underwriting
Agreement") with CDW Computer Centers, Inc., an Illinois corporation (the
"Company"), and the Selling Shareholder (as defined in the Underwriting
Agreement) providing for the public offering (the "Public Offering") by Xxxxxx
Xxxxxxx (the "Underwriter"), of 2,000,000 shares (the "Shares") of the Common
Stock, $0.01 par value of the Company (the "Common Stock").
To induce the Underwriter to continue its efforts in connection with the
Public Offering, the undersigned hereby agrees that, without the prior written
consent of Xxxxxx Xxxxxxx, it will not, during the period commencing on the date
hereof and ending 90 days after the date of the final prospectus relating to the
Public Offering (the "Prospectus"), (1) offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, lend, or otherwise
transfer or dispose of, directly or indirectly, any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock
or (2) enter into any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of ownership of Common Stock,
whether any such transaction described in clause (1) or (2) above is to be
settled by delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to the issuance by the Company
of shares of Common Stock (x) upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof or the issuance of
options pursuant to the Company's existing benefit plans, (y) in connection with
the election by participants in the Company's 401(k) plan to purchase shares of
Common Stock or (z) to employees of the Company pursuant to any Company employee
stock purchase plan. The parties hereto acknowledge and agree that the Company
may continue to purchase up to the previously announced maximum number of shares
of Common Stock pursuant to its stock buyback program. In addition, the
undersigned agrees and consents to the entry of stop transfer instructions with
the Company's transfer agent and registrar against the transfer of the
undersigned's shares of Common Stock except in compliance with the foregoing
restrictions.
The undersigned understands that the Company, the Selling Shareholder and
the Underwriter are relying upon this Lock-Up Agreement in proceeding toward
consummation of the Public Offering. The undersigned further understands that
this Lock-Up Agreement is irrevocable and shall be binding upon the
undersigned's legal representatives, successors and assigns. Notwithstanding
anything to the contrary set forth herein, if the Underwriting Agreement is
terminated pursuant to its terms, the restrictions set forth herein on the
undersigned shall terminate.
Whether or not the Public Offering actually occurs depends on a number
of factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company, the Selling Shareholder and the Underwriter.
Very truly yours,
CDW Computer Centers, Inc.
By: ___________________________________
Name: ___________________________________
Title:___________________________________
000 X. Xxxxxxxxx Xxxxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
Exhibit A-3
Form of Lock-up Letter - Directors and Executive Officers
---------------------------------------------------------
March __, 2002
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Dear Sirs and Mesdames:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx
Xxxxxxx") proposes to enter into an Underwriting Agreement (the "Underwriting
Agreement") with CDW Computer Centers, Inc., an Illinois corporation (the
"Company"), and the Selling Shareholder (as defined in the
Underwriting Agreement) providing for the public offering (the "Public
Offering") by Xxxxxx Xxxxxxx (the "Underwriter"), of 2,000,000 shares (the
"Shares") of the Common Stock, $0.01 par value of the Company (the "Common
Stock").
To induce the Underwriter to continue its efforts in connection with the
Public Offering, the undersigned hereby agrees that, without the prior written
consent of Xxxxxx Xxxxxxx, the undersigned will not, during the period
commencing on the date hereof and ending 90 days after the date of the final
prospectus relating to the Public Offering (the "Prospectus"), (1) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or (2) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic consequences
of ownership of Common Stock, whether any such transaction described in clause
(1) or (2) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to (a)
transactions relating to shares of Common Stock or other securities acquired in
open market transactions after the completion of the Public Offering or (b) bona
fide gifts, provided that (y) the donees or transferees of any such gifts have
agreed in writing to be bound by the foregoing restrictions and (z) no filings
by any party (donor, donee, transferor, or transferee) under Section 16 of the
Exchange Act shall be required or shall be made voluntarily in connection with
such gift, transfer or distribution (other than a filing on a Form 5 made during
the 90 day period referred to above). The undersigned also agrees and consents
to the entry of stop transfer instructions with the Company's transfer agent and
registrar against the transfer of the undersigned's shares of Common Stock
except in compliance with the foregoing restrictions.
The undersigned understands that the Company, the Selling Shareholder and
the Underwriter are relying upon this Lock-Up Agreement in proceeding toward
consummation of the Public Offering. The undersigned further understands that
this Lock-Up Agreement is irrevocable and shall be binding upon the
undersigned's heirs, legal representatives, successors and assigns.
Notwithstanding anything to the contrary set forth herein, if the Underwriting
Agreement is terminated pursuant to its terms, the restrictions set forth herein
on the undersigned shall terminate.
Whether or not the Public Offering actually occurs depends on a number
of factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company, the Selling Shareholder and the Underwriter.
Very truly yours,
-----------------------------------------
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(Address)
