EXHIBIT 10 (nn)
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made as of
February 5, 2001 between CDW Computer Centers, Inc., an Illinois corporation
(the "Company"), and Daniel B. Kass ("Mr. Kass").
RECITALS
WHEREAS, Mr. Kass is an officer and employee of the Company, in which
capacity he has been granted certain options to acquire from another Company
officer and employee shares (the "Option Shares") of common stock of the
Company, par value $0.01 per share (the "Common Stock"); and
WHEREAS, the Option Shares may, upon vesting and exercise, be sold in
accordance with the provisions of Rule 144 under the Securities Act of 1933 or
pursuant to various exemptions under that Act; and
WHEREAS, in order to provide another means by which Mr. Kass may
efficiently dispose of shares of Common Stock he may own at a time or times when
it is in his interest to do so, while maintaining an orderly public market in
the Common Stock and not interfering with any material financing or other
transactions in which the Company may engage, the parties wish to enter into
this Agreement to set forth certain of Mr. Kass's rights relating to the sale of
shares of Common Stock owned or to be owned by him.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions and Usage.
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1.1. Definitions. As used in this Agreement:
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"Commission" means the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"Common Stock" has the meaning set forth in the Recitals.
"Continuously Effective" with respect to a specified registration
statement, means that such registration statement shall not cease to be
effective and available for Transfers of Registrable Securities thereunder for
longer than either (i) any five (5) consecutive business days, or (ii) an
aggregate of ten (10) business days during the period specified in the relevant
provision of this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934 and the rules
and regulations of the Commission thereunder, all as the same shall be in effect
at the time.
"Market Price" means, for any given day, (i) if the Registrable
Security in question is then listed on a national securities exchange or is
quoted on NASDAQ and is designated as a National Market System security,
1.5(cent) less than the last sale price, regular way, on the immediately
preceding trading day on the principal stock exchange or market system on which
such Registrable Security is then listed or admitted to trading, or, if no such
sale takes place on such day, the average of the closing bid and asked prices
for the Registrable Security on such day as reported on such stock exchange or
market system or (ii) if the Registrable Security in question is not then listed
or admitted to trading on any national securities exchange or designated as a
National Market System security on NASDAQ but is traded over-the-counter,
1.5(cent) less than the average of the closing bid and asked prices for the
Registrable Security on the immediately preceding trading day as reported on
NASDAQ or the Electronic Bulletin Board or in the National Daily Quotation
Sheets, as applicable.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or other agency or political
subdivision thereof.
"Piggyback Registration" has the meaning set forth in Section 7.
"Register, Registered and Registration" refers to a registration
effected by preparing and filing a registration statement or similar document in
compliance with the Securities Act, and the declaration or ordering by the
Commission of effectiveness of such registration statement or document.
"Registrable Securities" means: (i) Common Stock owned by Mr. Kass on
the date hereof, (ii) Common Stock issuable upon the exercise of options (both
options that are currently exercisable and options that are not currently
exercisable) held by Mr. Kass on the date hereof under the MPK Stock Option
Plan; (iii) Common Stock or other securities issued as (or issuable upon the
conversion or exercise of any warrant, right or other security that is issued
as) a dividend or other distribution with respect to, or in exchange by the
Company generally for, or in replacement by the Company generally of, the Common
Stock referred to in (i) and (ii) above; and (iv) any securities issued in
exchange for such Common Stock in any merger or reorganization of the Company;
provided, however, that Registrable Securities shall not include any securities
that after the date hereof have been registered and sold pursuant to the
Securities Act or that have been sold to the public pursuant to Rule 144,
including subsection (k) thereof, or any similar rule promulgated by the
Commission pursuant to the Securities Act.
"Registration Expenses" has the meaning set forth in Section 10.1.
"Repurchase Agreement" has the meaning set forth in Section 3.
"Repurchase Option" has the meaning set forth in Section 2.3.
"Securities Act" means the Securities Act of 1933 and the rules and
regulations of the Commission thereunder, all as the same may be in effect at
the time.
"Selling Holder" means, with respect to a specified registration
statement, a holder whose securities are included in such registration
statement.
"Shelf Registration Statement" has the meaning set forth in Section 4.
"Shelf Registration Option" has the meaning set forth in Section 2.3.
"Stock Purchase Agreement" means that certain Stock Purchase Agreement,
entered into as of February 2, 2001 between the Company and Mr. Kass.
"Transfer" means and includes the act of selling, giving, transferring,
creating a trust (voting or otherwise), assigning or otherwise disposing of
(other than pledging, hypothecating or otherwise transferring as security);
provided however, that any transfer or other disposition upon foreclosure or
other exercise of remedies of a secured creditor after an event of default under
or with respect to a pledge, hypothecation or other transfer as security shall
constitute a "Transfer".
"Underwriters' Representative" means the managing underwriter, or, in
the case of a co-managed underwriting, the managing underwriter designated as
the Underwriters' Representative by the co-managers.
"Underwritten Offering Option" has the meaning set forth in Section
2.3.
"Underwritten Offering Registration" has the meaning set forth in
Section 5.
"Underwritten Offering Registration Statement" has the meaning
set forth in Section 5.
"Violation" has the meaning set forth in Section 11.1.
1.2. Usage.
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(i) References to a Person are also references to its assigns and successors in
interest (by means of merger, consolidation or sale of all or substantially all
the assets of such Person or otherwise, as the case may be).
(ii) References to Registrable Securities "owned" by Mr. Kass shall include
Registrable Securities beneficially owned by him but that are held of record in
the name of a nominee, trustee, custodian, or other agent.
(iii) References to a document are to it as amended, waived and otherwise
modified from time to time and references to a statute or other governmental
rule are to it as amended and otherwise modified from time to time (and
references to any provision thereof shall include references to any successor
provision).
(iv) References to Sections are to sections hereof, unless the context
otherwise requires.
(v) The definitions set forth herein are equally applicable both to the singular
and plural forms and the feminine, masculine and neuter forms of the terms
defined.
(vi) The term "including" and correlative terms shall be deemed to be followed
by "without limitation" whether or not followed by such words or words of like
import.
(vii) The term "hereof" and similar terms refer to this Agreement as a whole.
(viii) The "date of" any notice or request given pursuant to this Agreement
shall be determined in accordance with Section 15.2.
SECTION 2. Registration Demands.
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2.1. Registration Demands. Mr. Kass shall have the right, subject to the terms
and conditions stated herein, to present a written demand to the Company that it
register for sale under the Securities Act a specified number of Registrable
Securities (each such demand, a "Registration Demand"); provided, however, that
the Company shall not be obligated to honor more than one Registration Demand in
each of calendar year 2001, 2002 and 2003 and provided further that the Company
shall not be obligated to honor any Registration Demand that is presented at any
time when the Company's registration or purchase obligations pertaining to a
previously-presented Registration Demand have not yet been completed. Any
Registration Demand shall be in writing, addressed to the Company at the address
set forth in Section 15.2 below, and shall specify the number of Registrable
Securities subject to the Registration Demand. Mr. Kass may withdraw a
previously-presented Registration Demand at any time prior to the Transfer of
the Registrable Securities subject to such Registration Demand, but upon such
withdrawal the Company will be deemed to have honored such previously-presented
Registration Demand and the Company shall not be required to honor any
additional Registration Demands made during the same calendar year.
2.2. Previous Intent to Register Securities. The Company shall not be obligated
to honor a Registration Demand if, within 15 days after the date of such
Registration Demand, the Company notifies Mr. Kass that, prior to the Company's
receipt of such Registration Demand, the Company had a plan or intention
promptly to register equity securities under the Securities Act. Mr. Kass shall
have rights to participate in any such registration on the terms provided in
Section 7 hereof. If the Company invokes its right pursuant to Section 2.2 with
respect to a particular Registration Demand, Mr. Kass shall not be deemed, for
purposes of Section 2.1, to have made such Registration Demand during the
relevant calendar year.
2.3. Company Option. If the Company has not provided the notice specified in
Section 2.2 hereof, then within 15 days following the date of a Registration
Demand, the Company will reply (the "Company Reply") to Mr. Kass and notify him
as to whether it has elected to repurchase the Registrable Securities in
accordance with Section 3 hereof (the "Repurchase Option"), to file a Shelf
Registration Statement in accordance with Section 4 hereof (the "Shelf
Registration Option") or to file an Underwritten Offering Registration Statement
in accordance with Section 5 hereof (the "Underwritten Offering Option"). In the
event the Company shall fail to reply within such 15-day period, it shall be
deemed to have elected the Shelf Registration Option. The Company Reply will be
in writing, addressed to Mr. Kass at the address set forth in Section 15.2
hereof.
SECTION 3. Repurchase Option.
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If, following the receipt of a Registration Demand, the
Company timely notifies Mr. Kass that it has chosen the Repurchase Option, the
Company shall purchase from Mr. Kass the Registrable Securities identified in
such Registration Demand. The closing of such purchase shall take place on a
date (the "Closing Date") mutually-agreed upon by the parties, but which shall
in no event be later than 10 days after the date of the Company Reply. The
parties shall enter into an agreement (the "Repurchase Agreement") to effectuate
the purchase. The per share price of the Registrable Securities shall be the
Market Price as of the date of the Company Reply and the Repurchase Agreement
shall have such other terms as are substantially the same as the terms (other
than the terms as to price and quantity) in the Stock Purchase Agreement.
SECTION 4. Shelf Registration Option.
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If, following the receipt of a Registration Demand, the
Company timely notifies or is deemed to notify Mr. Kass that it has chosen the
Shelf Registration Option, the Company shall, within 45 days of the date of the
Registration Demand, cause to be filed with the Commission a registration
statement in accordance with the Securities Act for an offering on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act (a "Shelf
Registration Statement" and the related registration, a "Shelf Registration"),
and the Company shall include therein the Registrable Securities identified in
such Registration Demand. The Company shall keep such Shelf Registration
Statement Continuously Effective for no less than 30 calendar days or until such
earlier date as of which all the Registrable Securities under such Shelf
Registration Statement shall have been disposed of in a manner described in such
Shelf Registration Statement. Notwithstanding the foregoing, if for any reason
the effectiveness or utilization of a Shelf Registration Statement is suspended
as permitted by Section 6.1, the foregoing period shall be extended by the
aggregate number of days of such suspension or postponement.
SECTION 5. Underwritten Offering Option.
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5.1. General. If, following the receipt of a Registration Demand, the Company
timely notifies Mr. Kass that it has chosen the Underwritten Offering Option,
the Company shall, within 75 days of the of the Registration Demand, cause to be
filed with the Commission a registration statement under the Securities Act (an
"Underwritten Offering Registration Statement", and the related registration an
"Underwritten Offering Registration") and the Company shall include therein the
Registrable Securities identified in such Registration Demand. Thereafter, the
Company shall use its reasonable best efforts to have the Underwritten Offering
Registration Statement declared effective under the Securities Act as soon as
reasonably practicable.
5.2. Marketing Campaign. The offering relating to an Underwritten Offering
Registration shall be underwritten. The Company shall cooperate with Mr. Kass
and the underwriter or underwriters for such offering in developing and
conducting an organized marketing campaign and "road show" (the "Marketing
Campaign") relating to such Underwritten Offering Registration. The Marketing
Campaign shall be of such intensity and duration, and have such other features
as are deemed appropriate, taking into account the market value of the
Registrable Securities to be offered, by the Underwriter's Representative. The
Company will make available its officers, accountants, counsel, premises, books
and records for the purpose of developing the Marketing Campaign.
5.3. Effectiveness. The Company shall use its reasonable best efforts to keep
the Underwritten Offering Registration Statement Continuously Effective for up
to 60 calendar days or until such earlier date as of which all the Registrable
Securities under the Underwritten Offering Registration Statement shall have
been disposed of in the manner described in the Underwritten Offering
Registration Statement. Notwithstanding the foregoing, if for any reason the
effectiveness of a Underwritten Offering Registration Statement is suspended or
postponed as permitted by Section 6.1, the foregoing period shall be extended by
the aggregate number of days of such suspension or postponement.
SECTION 6. Restrictions Applicable To All Registration Statements.
6.1. Postponement Due to Material Nonpublic Information. The Company shall be
entitled for up to 100 days to postpone the filing, effectiveness, supplementing
or amending of any registration statement otherwise required to be prepared and
filed pursuant to this Agreement or to suspend the utilization thereof, if the
Board of Directors of the Company determines that such registration and the
Transfer of Registrable Securities contemplated thereby would interfere with any
material financing, acquisition, disposition, reorganization or other
transaction involving the Company or any of its subsidiaries or would require
premature disclosure of any material information relating to the Company and the
Company promptly gives Mr. Kass notice of such determination. Mr. Kass hereby
acknowledges that any notice given by the Company pursuant to this Section 6.1
shall constitute material non-public information and that the United States
securities laws prohibit any Person who has material non-public information
about a company from purchasing or selling securities of such company or from
communicating such information to any other Person under circumstances in which
it is reasonably foreseeable that such Person is likely to purchase or sell such
securities.
6.2. Underwriters. If a Shelf Registration or an Underwritten Offering
Registration pursuant to this Agreement involves an underwritten offering
(whether on a "firm commitment", "best efforts" or "all reasonable efforts"
basis or otherwise), the Company shall select the underwriter or underwriter to
conduct the offering, subject to Mr. Kass's approval; provided, however that
such approval shall not be unreasonably withheld.
6.3. Registration of Multiple Classes of Registrable Securities. Whenever the
Company shall effect an Underwritten Offering Registration or a Shelf
Registration pursuant to this Agreement, if Mr. Kass has requested the inclusion
therein of more than one class of Registrable Securities and the Underwriters'
Representative advises Mr. Kass that, in its opinion, the inclusion of more than
one class of Registrable Securities would adversely affect such offering, Mr.
Kass shall decide which class of Registrable Securities shall be included
therein in such offering and the related registration and the other class shall
be excluded.
SECTION 7. Piggyback Registration.
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7.1. If at any time the Company proposes to register Common Stock under the
Securities Act in connection with a public offering solely for cash on Form S-1,
S-2 or S-3 (or any replacement or successor forms), the Company shall promptly
give Mr. Kass written notice of such registration. Upon the written request of
Mr. Kass given as promptly as practicable but in any event within 20 days
following the date of such notice, the Company shall cause to be included in
such registration statement and use its reasonable efforts to be registered
under the Securities Act all the Registrable Securities that Mr. Kass shall have
requested to be registered (any such registration in which Mr. Kass may
participate pursuant to this Section 7.1 being referred to as a "Piggyback
Registration"); provided, however, that such right of inclusion shall not apply
to any registration statement covering an offering of securities convertible
into or exchangeable for Common Stock. The Company shall have the absolute right
to delay, withdraw or cease to prepare or file any registration statement for
any offering referred to in this Section 7.1 without any obligation or liability
to Mr. Kass, it being understood that any Registrable Securities previously
included in any such withdrawn Registration Statement shall not cease to be
Registrable Securities by reason of such inclusion or withdrawal and it being
further understood that Mr. Kass's rights under Section 2.1 hereof shall not be
affected thereby or by an exclusion of his Registrable Securities under Section
7.2.
7.2. If the Underwriters' Representative shall advise the Company that, in its
opinion, the amount or type of Registrable Securities requested to be included
in such registration would adversely affect such offering, or the timing
thereof, then the Company will include in such registration, to the extent of
the amount and class which the Company is so advised can be sold without such
adverse effect in such offering: first, all securities proposed to be sold by
the Company for its own account; second, the Registrable Securities requested to
be included in such registration pursuant to this Section 7, and all other
securities being registered pursuant to the exercise of contractual rights
comparable to the rights granted in this Section 7, pro rata based on the
estimated gross proceeds from the sale thereof; and third, all other securities
requested to be included in such registration.
SECTION 8. Registration Procedures. Whenever required under this Agreement to
effect the registration of any Registrable Securities, the Company shall:
8.1. Furnish copies to one firm of counsel for Mr. Kass, prior to filing, of any
documents relating to the registration of any Registrable Securities, in the
form substantially as proposed to be filed with the Commission.
8.2. Prepare and file with the Commission such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act and rules thereunder with respect to the disposition of all
securities covered by such registration statement. Subject to Section 6.1, if
the registration is for an underwritten offering, the Company shall amend the
registration statement or supplement the prospectus whenever required by the
terms of the underwriting agreement related to such offering. Subject to Section
6.1, if the registration statement is for a Shelf Registration, the Company
shall amend the registration statement or supplement the prospectus so that it
will remain current and in compliance with the requirements of the Securities
Act for the period specified in Section 4, and if during such period any event
or development occurs as a result of which the registration statement or
prospectus contains a misstatement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, the Company shall promptly notify Mr. Kass, amend the
registration statement or supplement the prospectus so that each will thereafter
comply with the Securities Act and furnish to Mr. Kass such amended or
supplemented prospectus, which Mr. Kass shall thereafter use in the Transfer of
Registrable Securities covered by such registration statement. Pending any such
amendment or supplement described in this Section 8.2, Mr. Kass shall cease
making offers or Transfers of Registrable Shares pursuant to the prior
prospectus. If any Registrable Securities included in a registration statement
subject to, or required by, this Agreement remain unsold at the end of the
period during which the Company is obligated to use its reasonable efforts to
maintain the effectiveness of such registration statement, the Company may file
a post-effective amendment to the registration statement for the purpose of
removing such Registrable Securities from registered status.
8.3. Furnish to Mr. Kass, without charge, such numbers of copies of the
registration statement, any pre-effective or post-effective amendment thereto,
the prospectus, including each preliminary prospectus and any amendments or
supplements thereto, in each case in conformity with the requirements of the
Securities Act, and such other related documents as Mr. Kass may reasonably
request in order to facilitate the disposition of Registrable Securities owned
by him.
8.4. Use its reasonable efforts (i) to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such states where an exemption from registration is not available and as
shall be reasonably requested by any Underwriters' Representative and (ii) to
obtain the withdrawal of any order suspending the effectiveness of a
registration statement, or the lifting of any suspension of the qualification
(or exemption from qualification) of the offer and transfer of any of the
Registrable Securities in any state, at the earliest possible moment; provided,
however, that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to consent to general service of
process in any state.
8.5. In the event of any underwritten offering, use its reasonable efforts to
enter into and perform its obligations under an underwriting agreement
(including indemnification and contribution obligations of underwriters), in
usual and customary form, with the managing underwriter or underwriters of such
offering.
8.6. Promptly notify Mr. Kass of any stop order issued or threatened to be
issued by the Commission in connection therewith and take all reasonable actions
required to prevent the entry of such stop order or to remove it if entered.
8.7. Make available for inspection by Mr. Kass, any underwriter participating in
such offering and the representatives of Mr. Kass and the Underwriter's
Representative, all financial and other information as shall be reasonably
requested by them, and provide Mr. Kass, any underwriter participating in such
offering and the representatives of Mr. Kass and the Underwriters'
Representative the reasonable opportunity to discuss the business affairs of the
Company with its principal executives and with the independent public
accountants who have certified the audited financial statements included in such
registration statement, in each case all as necessary to enable them to exercise
their due diligence responsibility under the Securities Act; provided, however,
that information that the Company determines to be confidential and that the
Company advises such Person in writing is confidential shall not be disclosed
unless such Person signs a confidentiality agreement reasonably satisfactory to
the Company and agrees to be responsible for such Person's breach of
confidentiality on terms reasonably satisfactory to the Company.
8.8. Use its reasonable efforts to obtain a so-called "comfort letter" from the
independent public accountants of the Company, and legal opinions of counsel to
the Company addressed to Mr. Kass, in customary form and covering such matters
of the type customarily covered by such letters, and in a form that shall be
reasonably satisfactory to Mr. Kass. Delivery of any such comfort letter or
opinion shall be subject to the recipient furnishing such written
representations or acknowledgements as are customarily provided by selling
shareholders who receive such comfort letters or opinions.
8.9. Use its reasonable efforts to cause the Registrable Securities covered by
such registration statement (i) if then listed on a securities exchange or
included for quotation in a recognized trading market, to continue to be so
listed or included for a reasonable period of time after the offering, and (ii)
to be registered with or approved by such other United States or state
governmental agencies or authorities as may be necessary by virtue of the
business and operations of the Company to enable Mr. Kass to consummate the
disposition of such Registrable Securities.
8.10. Take such other actions as are reasonably required in order to expedite or
facilitate the disposition of Registrable Securities included in each such
registration.
SECTION 9. Mr. Kass's Obligations. It shall be a condition precedent to the
obligation of the Company to take any action pursuant to this Agreement with
respect to Mr. Kass's Registrable Securities that he shall:
9.1. Furnish to the Company such information regarding himself, the number of
Registrable Securities owned by him, and the intended method of disposition of
such securities as shall be required to effect the registration of his
Registrable Securities, and to cooperate fully with the Company in preparing
such registration.
9.2. In the event of a Piggyback Registration, agree to sell his Registrable
Securities to the underwriters at the same price and on substantially the same
terms and conditions as the Company has agreed to sell its securities, and to
execute the underwriting agreement agreed to by the Company.
SECTION 10. Expenses of Registration. Expenses in connection with registrations
pursuant to this Agreement shall be allocated and paid as follows:
10.1. With respect to each Underwritten Offering Registration and Shelf
Registration, the Company shall bear and pay all expenses incurred in connection
with any registration, filing, or qualification of Registrable Securities with
respect to such Registration, including all registration, filing and National
Association of Securities Dealers, Inc. fees, all fees and expenses of complying
with securities or blue sky laws, all printing expenses, messenger and delivery
expenses, the fees and disbursements of counsel for the Company, and of the
independent public accountants for the Company, including the expenses of
"comfort" letters required by or incident to such performance and compliance
(the "Registration Expenses"), but excluding underwriting discounts and
commissions relating to Registrable Securities, Commission filing fees relating
to Registrable Securities and all fees and expenses of counsel for Mr. Kass,
which expenses shall be paid by Mr. Kass; provided, however, that the Company
shall not be required to pay for any expenses of any registration proceeding
begun pursuant to this Agreement if the registration is subsequently withdrawn
at Mr. Kass's request (in which case Mr. Kass shall bear such expenses).
10.2. The Company shall bear and pay all Registration Expenses incurred in
connection with any Piggyback Registrations pursuant to Section 7 but excluding
underwriting discounts and commissions relating to Registrable Securities, the
portion of the Commission filing fee attributable to the Registrable Securities
and all fees and expenses of counsel for Mr. Kass, which expenses shall be paid
by Mr. Kass.
SECTION 11. Indemnification; Contribution. If any Registrable Securities are
included in a registration statement under this Agreement:
11.1. To the extent permitted by applicable law, the Company shall indemnify and
hold harmless Mr. Kass against any and all losses, claims, damages, liabilities
and expenses (joint or several), including reasonable attorneys' fees and
disbursements and reasonable expenses of investigation, incurred by such party
pursuant to any actual or threatened action, suit, proceeding or investigation,
or to which any of the foregoing Persons may otherwise become subject under the
Securities Act, the Exchange Act or other federal or state laws, insofar as such
losses, claims, damages, liabilities and expenses arise out of or are based upon
any of the following statements, omissions or violations (collectively a
"Violation"):
(i) Any untrue statement or alleged untrue statement of a material fact
contained in such registration statement, including any preliminary prospectus
or final prospectus contained therein, or any amendments or supplements thereto;
or
(ii) The omission or alleged omission to state therein a material fact required
to be stated therein, or necessary to make the statements therein not
misleading; provided, however, that the indemnification required by this Section
11.1 shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or expense if such settlement is effected without the consent
of the Company (which consent shall not be unreasonably withheld), nor shall the
Company be liable in any such case for any such loss, claim, damage, liability
or expense to the extent that it arises out of or is based upon a Violation that
occurs in reliance upon and in conformity with information furnished in writing
to the Company by the indemnified party expressly for use in connection with
such registration.
11.2. To the extent permitted by applicable law, Mr. Kass shall indemnify and
hold harmless the Company, each of the directors of the Company, each of the
officers of the Company who shall have signed the registration statement, each
Person, if any, who controls the Company within the meaning of the Securities
Act, any other Selling Holder, any controlling Person of any such other Selling
Holder and each officer, director, partner, and employee of such other Selling
Holder and such controlling Person, against any and all losses, claims, damages,
liabilities and expenses (joint and several), including reasonable attorneys'
fees and disbursements and reasonable expenses of investigation, incurred by
such party pursuant to any actual or threatened action, suit, proceeding or
investigation, or to which any of the foregoing Persons may otherwise become
subject under the Securities Act, the Exchange Act or other federal or state
laws, but only insofar as such losses, claims, damages, liabilities and expenses
arise out of or are based upon any Violation, in each case to the extent that
such Violation arises out of or is based upon information furnished by Mr. Kass
in writing expressly for use in connection with such registration; provided,
however, that (x) any indemnification required by this Section 11.2 shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability
or expense if such settlement is effected without the consent of Mr. Kass (which
consent shall not be unreasonably withheld) and (y) in no event shall the amount
of any indemnity under this Section 11.2 exceed the gross proceeds from the
applicable offering received by Mr. Kass.
11.3. Promptly after receipt by an indemnified party under this Section 11 of
notice of the commencement of any action, suit, proceeding, investigation or
threat thereof made in writing for which such indemnified party may make a claim
under this Section 11, such indemnified party shall deliver to the indemnifying
party a written notice thereof and the indemnifying party shall have the right
to participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume the defense
thereof with counsel mutually satisfactory to the parties; provided, however,
that an indemnified party shall have the right to retain its own counsel, with
the fees and disbursements and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time following the commencement of any
such action, if prejudicial to its ability to defend such action, shall relieve
such indemnifying party of any liability to the indemnified party under this
Section 11 to the extent of such prejudice but shall not relieve the
indemnifying party of any liability that it may have to any indemnified party
otherwise than pursuant to this Section 11. Any fees and expenses incurred by
the indemnified party (including any fees and expenses incurred in connection
with investigating or preparing to defend such action or proceeding) shall be
paid to the indemnified party, as incurred, within thirty (30) days of written
notice thereof to the indemnifying party (regardless of whether it is ultimately
determined that an indemnified party is not entitled to indemnification
hereunder). Any such indemnified party shall have the right to employ separate
counsel in any such action, claim or proceeding and to participate in the
defense thereof, but the fees and expenses of such counsel shall be the expenses
of such indemnified party unless (i) the indemnifying party has agreed to pay
such fees and expenses or (ii) the indemnifying party shall have failed to
promptly assume the defense of such action, claim or proceeding or (iii) the
named parties to any such action, claim or proceeding (including any impleaded
parties) include both such indemnified party and the indemnifying party, and
such indemnified party shall have been advised by counsel that there may be one
or more legal defenses available to it that are different from or in addition to
those available to the indemnifying party and that the assertion of such
defenses would create a conflict of interest such that counsel employed by the
indemnifying party could not faithfully represent the indemnified party (in
which case, if such indemnified party notifies the indemnifying party in writing
that it elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the defense of
such action, claim or proceeding on behalf of such indemnified party, it being
understood, however, that the indemnifying party shall not, in connection with
any one such action, claim or proceeding or separate but substantially similar
or related actions, claims or proceedings in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys (together with
appropriate local counsel) at any time for all such indemnified parties, unless
in the reasonable judgment of such indemnified party a conflict of interest may
exist between such indemnified party and any other of such indemnified parties
with respect to such action, claim or proceeding, in which event the
indemnifying party shall be obligated to pay the fees and expenses of such
additional counsel or counsels).
11.4. If the indemnification required by this Section 11 from the indemnifying
party is unavailable to an indemnified party hereunder in respect of any losses,
claims, damages, liabilities or expenses referred to in this Section 11:
(i) The indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified parties in connection with the actions that resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of such indemnifying party
and indemnified parties shall be determined by reference to, among other things,
whether any Violation has been committed by, or relates to information supplied
by, such indemnifying party or indemnified parties, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such Violation. The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in Section 11.1 and Section 11.2,
any legal or other fees or expenses reasonably incurred by such party in
connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 11.4 were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in Section 11.4(i). 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.
11.5. If indemnification is available under this Section 11, the indemnifying
parties shall indemnify each indemnified party to the full extent provided in
this Section 11 without regard to the relative fault of such indemnifying party
or indemnified party or any other equitable consideration referred to in Section
11.4.
11.6. The obligations of the Company and Mr. Kass under this Section 11 shall
survive the termination of this Agreement.
SECTION 12. Holdback. (a) Mr. Kass, if so requested by the Underwriters'
Representative in connection with an offering of any securities covered by a
registration statement filed by the Company, whether or not his securities are
included therein, shall not effect any public sale or distribution of Common
Stock or any securities convertible into or exchangeable or exercisable for
Common Stock, including a sale pursuant to Rule 144 under the Securities Act
(except as part of such underwritten registration), during the 15-day period
prior to, and during the 90-day period beginning on, the date such registration
statement is declared effective under the Securities Act by the Commission. In
order to enforce the foregoing covenant, the Company shall be entitled to impose
stop-transfer instructions with respect to Mr. Kass's Registrable Securities
until the end of such period. Mr. Kass shall have the right to participate in
any such registration on the terms provided in Section 7 hereof.
(b) The Company agrees not to effect any public sale or
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the 15-day period prior
to and during the 90-day period beginning on the effective date of any Shelf
Registration Statement or Underwritten Offering Registration Statement (except
pursuant to (i) registrations on Form S-8 or any successor form, (ii)
registrations on Form S-4 or any successor form and (iii) registrations of
securities in connection with a dividend reinvestment plan on form(s) applicable
to such securities) unless the Underwriter's Representative for such Shelf
Registration or Underwritten Offering Registration otherwise agrees.
SECTION 13. Amendment, Modification and Waivers; Further Assurances.
(i) This Agreement may be amended only with the express written consent of the
Company and Mr. Kass.
(ii) No waiver of any term or condition of this Agreement shall operate as a
waiver of any other breach of such term and condition or any other term or
condition, nor shall any failure to enforce any provision hereof operate as a
waiver of such provision or of any other provision hereof. No written waiver
hereunder, unless it by its own terms explicitly provides to the contrary, shall
be construed to effect a continuing waiver of the provisions being waived and no
such waiver in any instance shall constitute a waiver in any other instance or
for any other purpose or impair the right of the party against whom such waiver
is claimed in all other instances or for all other purposes to require full
compliance with such provision.
(iii) Each of the parties hereto shall execute all such further instruments and
documents and take all such further action as any other party hereto may
reasonably require in order to effectuate the terms and purposes of this
Agreement.
SECTION 14. Assignment. Neither party shall assign its rights and obligations
under this agreement without the express written consent of the other party.
SECTION 15. Miscellaneous.
15.1. Governing Law. This Agreement, and the application or interpretation
thereof, shall be governed exclusively by its terms and by the internal laws of
the State of Illinois, without regard to principles of conflicts of laws as
applied in the State of Illinois or any other jurisdiction which, if applied,
would result in the application of any laws other than the internal laws of the
State of Illinois.
15.2. Notices. All notices and requests given pursuant to this Agreement shall
be in writing and shall be made by hand-delivery, first-class mail (registered
or certified, return receipt requested), confirmed facsimile or overnight air
courier guaranteeing next business day delivery to the relevant address
specified below. Except as otherwise provided in this Agreement, the date of
each such notice and request shall be deemed to be, and the date on which each
such notice and request shall be deemed given shall be: at the time delivered,
if personally delivered or mailed; when receipt is confirmed, if sent by
facsimile; and the next business day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next business day delivery.
If to the Company, to:
CDW Computer Centers, Inc.
200 North Milwaukee Ave.
Vernon Hills, IL 60061
Attention: Chief Financial Officer
Facsimile No.: (847) 465-6826
with a copy to:
Sidley & Austin
Bank One Plaza
10 South Dearborn Street
Chicago, IL 60603
Attn: Thomas A. Cole
Facsimile No.: (312) 853-7036
If to Mr. Kass, to:
Daniel B. Kass
21875 West Riviera Court
Ivanhoe, IL 60060
Facsimile No.: (847) 949-8221
with a copy to:
Quarles & Brady
Firstar Plaza
1 South Pinckney Street
Madison, WI 53703
Attn: Jeffrey B. Bartell
Facsimile: (608) 251-9166
15.3. Entire Agreement; Integration. This Agreement supersedes all prior
agreements between or among any of the parties hereto with respect to the
subject matter contained herein and therein, and embodies the entire
understanding among the parties relating to such subject matter.
15.4. Section Headings. Section headings are for convenience of reference only
and shall not affect the meaning of any provision of this Agreement.
15.5. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, and all of which shall
together constitute one and the same instrument. All signatures need not be on
the same counterpart.
15.6. Severability. If any provision of this Agreement shall be invalid or
unenforceable, such invalidity or unenforceability shall not affect the validity
and enforceability of the remaining provisions of this Agreement, unless the
result thereof would be unreasonable, in which case the parties hereto shall
negotiate in good faith as to appropriate amendments hereto.
15.7. Termination. This Agreement may be terminated at any time by a written
instrument signed by the Company and Mr. Kass. Unless sooner terminated in
accordance with the preceding sentence, this Agreement (other than Section 11)
shall terminate in its entirety on the earlier of (a) the date on which Mr. Kass
shall no longer hold any Registrable Securities and (b) the later of (i)
December 31, 2003 and (ii) the completion of transactions contemplated by any
Registration Demand presented during calendar year 2003.
15.8. Submission to Jurisdiction. Each of the parties hereto irrevocably submits
and consents to the jurisdiction of the United States District Court for the
Northern District of Illinois in connection with any action or proceeding
arising out of or relating to this Agreement, and irrevocably waives any
immunity from jurisdiction thereof and any claim of improper venue, forum non
conveniens or any similar basis to which it might otherwise be entitled in any
such action or proceeding.
IN WITNESS WHEREOF, this Agreement has been duly executed by
the parties hereto as of the date first written above.
CDW COMPUTER CENTERS, INC.
By: /s/ Harry J. Harczak
--------------------
Name: Harry J. Harczak
Its: Chief Financial Officer,
Treasurer and Secretary
/s/ Daniel B. Kass
--------------------
Daniel B. Kass