EXHIBIT 10(gg)
EMPLOYMENT AGREEMENT DATED AS OF JANUARY 28, 2001
BETWEEN THE COMPANY AND XXXX X. XXXXXXXXX
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is entered into as of January
28, 2001 between CDW Computer Centers, Inc., an Illinois corporation (the
"Company"), and Xxxx X. Xxxxxxxxx (the "Executive").
WHEREAS, the Company desires to employ the Executive to serve as President
and Chief Executive Officer of the Company, and the Executive desires to be
employed by the Company, upon the terms and subject to the conditions set forth
herein.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
contained herein, the Company and the Executive hereby agree as follows:
1. Employment. The Company hereby agrees to employ the Executive and the
Executive hereby agrees to be employed by the Company upon the terms and subject
to the conditions contained in this Agreement. The term of employment of the
Executive by the Company pursuant to this Agreement shall commence on January
28, 2001 (the "Effective Date") and, unless earlier terminated pursuant to
Section 4 hereof, shall end on the fifth anniversary of the Effective Date (the
"Initial Term"); provided that the term of this Agreement shall be extended
automatically for one additional year as of each anniversary of the Effective
Date, commencing with the fourth anniversary of the Effective Date, unless no
later than 90 days prior to any such renewal date either the Board of Directors
of the Company (the "Board"), on behalf of the Company, or the Executive gives
written notice to the other that the term of this Agreement shall not be so
extended. The Initial Term and any extension of the Initial Term pursuant to
this Section 1 shall be referred to herein as the "Employment Period."
2. Position and Duties; Responsibilities; Board Service. (a) Position and
Duties. The Company shall employ the Executive during the Employment Period as
its Chief Executive Officer. Until the Company's 2001 annual meeting of
shareholders, the Executive's title shall be President and Chief Executive
Officer. Immediately following the 2001 annual meeting of shareholders, the
Executive shall be elected to the additional office of Chairman of the Board in
accordance with, and subject to the provisions of, Section 2(c) hereof. The
Executive shall report to the Board. During the Employment Period, the Executive
shall perform faithfully and loyally and to the best of the Executive's
abilities the duties assigned to the Executive hereunder and shall devote the
Executive's full business time, attention and effort to the affairs of the
Company and its subsidiaries and shall use the Executive's reasonable best
efforts to promote the interests of the Company and its subsidiaries. The
Executive may engage in charitable, civic or community activities, manage his
personal investments, continue to serve as a director of Focal Communications
and Household International and, with the prior approval of the Board, may serve
as a director of any other business corporation, provided that such activities
or service do not materially interfere with the Executive's duties hereunder or
violate the terms of any of the covenants contained in Sections 6, 7 or 8
hereof.
(b) Responsibilities. Subject to the powers, authority and responsibilities
vested in the Board and in duly constituted committees of the Board, the
Executive shall have the authority and responsibility for the management,
operation and overall conduct of the business of the Company. The Executive
shall also perform such other duties (not inconsistent with the position of
Chief Executive Officer) on behalf of the Company and its subsidiaries as may
from time to time be authorized or directed by the Board.
(c) Board Service. Promptly following the Effective Date, the Executive
will be appointed as a member of the Board. Provided that the Executive's
employment with the Company has not previously been terminated, the Executive
will be nominated for election as a member of the Board at the Company's 2001
annual meeting of shareholders and at each subsequent annual meeting of
shareholders during the Employment Period. If so appointed and elected, (i) the
Executive agrees that he will serve as a member of the Board and (ii) at the
annual meeting of the Board immediately following the Company's 2001 annual
meeting of shareholders, the Executive shall be elected to the additional office
of Chairman of the Board.
3. Compensation. (a) Base Salary. During the Employment Period, the Company
shall pay to the Executive a base salary at the rate of $600,000 per annum,
payable in accordance with the Company's executive payroll policy. Such base
salary shall be reviewed annually, and shall be subject to such increases (and
not decreases), if any, as determined by the Compensation Committee of the
Board. The Executive's annual base salary in effect from time to time under this
Section 3(a) is hereinafter referred to as "Base Salary."
(b) Annual Incentive Bonus; Special Bonus. Beginning with the 2001 fiscal
year, the Executive shall be entitled to participate in the Company's Senior
Management Incentive Plan (the "Incentive Plan") in accordance with the terms of
such plan. The target incentive bonus opportunity for the Executive for the 2001
fiscal year under the Incentive Plan shall be $640,000 (which amount shall not
be prorated because the Effective Date is later than January 1, 2001). The
actual incentive bonus payable for 2001 and for any subsequent year shall be
based upon objective criteria established and approved by the Compensation
Committee of the Board. In addition to participation in the Incentive Plan, if
the Executive remains employed by the Company on December 31, 2001 or if the
Executive's employment is terminated prior thereto pursuant to Section 4(d) or
4(f) hereof, the Executive shall receive a special bonus of $440,000 for the
2001 fiscal year only (the "Special Bonus"), which amount shall be payable as
soon as administratively practicable following the end of such fiscal year.
(c) Other Benefits. During the Employment Period, the Executive shall be
entitled to participate in the Company's employee benefit plans generally
available to executives of the Company (such benefits being hereinafter referred
to as the "Employee Benefits"). The Executive shall be entitled to take time off
for vacation or illness in accordance with the Company's policies and to receive
all fringe benefits and perquisites as are from time to time made generally
available to senior executives of the Company.
(d) Stock Options. (i) On the Effective Date, in accordance with the
approval of the Compensation Committee of the Board, the Executive shall be
granted non-qualified stock options (the "Options") to purchase 1,600,000 shares
of common stock, par value $.01 per share, of the Company (the "Common Stock").
The exercise price of the Options shall be the fair market value of the Common
Stock on the date of grant, the Options shall have a term of 10 years and
one-fifth of the Options shall become exercisable on each of the first five
anniversaries of the Effective Date. If the Executive's employment is terminated
pursuant to Section 4(a) or 4(b) hereof, any Options then unexercisable shall
immediately become exercisable and may thereafter be exercised until and
including the earlier to occur of (i) the date which is two years following the
termination of employment or (ii) the expiration date of the term of the
Options. If the Executive's employment is terminated pursuant to Section 4(d) or
4(f) hereof, one-half of any Options then unexercisable shall immediately become
exercisable and may thereafter be exercised until and including the earlier to
occur of (i) the date which is two years following the termination of employment
or (ii) the expiration date of the term of the Options. The Options shall be
subject to the terms and provisions of the Company's 2000 Incentive Stock Option
Plan and the Award Notice of Stock Option Grant ("Award Notice") and the Stock
Option Agreement ("Option Agreement") relating to the Options, which Award
Notice and Stock Option Agreement shall be in the form attached hereto as
Exhibit A.
(ii) Beginning with the 2002 fiscal year, subject to the approval of the
Compensation Committee of the Board, the Executive shall be granted annually
non-qualified stock options to purchase 150,000 shares of Common Stock (subject
to adjustment in the event of a stock split, stock dividend, recapitalization,
reorganization, merger, consolidation, combination, exchange of shares,
liquidation, spin-off or other similar change in capitalization or event, or any
distribution to holders of Common Stock other than a regular cash dividend),
each such option to have terms substantially similar to those set forth in
Section 3(d)(i) hereof.
(e) Restricted Stock. On the Effective Date, in accordance with the
approval of the Compensation Committee of the Board, the Executive shall be
granted 100,000 shares of restricted Common Stock on the terms and subject to
the conditions set forth in a Restricted Stock Award Agreement in the form
attached hereto as Exhibit B.
(f) Expense Reimbursement. The Company shall reimburse the Executive, in
accordance with the Company's policies and procedures, for all proper expenses
incurred by the Executive during the Employment Period in the performance of the
Executive's duties hereunder. The Company shall pay the reasonable legal fees
and expenses incurred by the Executive in connection with the negotiation and
preparation of this Agreement in an amount not to exceed $25,000.
4. Termination. (a) Death. Upon the death of the Executive, all rights of
the Executive and the Executive's heirs, executors and administrators to
compensation and other benefits under this Agreement shall cease immediately,
except that the Executive's heirs, executors or administrators, as the case may
be, shall be entitled to:
(i) accrued Base Salary through and including the Executive's date of
death;
(ii) the amount of any bonus earned and payable but not yet paid for the
fiscal year prior to the year in which the Executive's termination of employment
occurs;
(iii) prorated annual incentive bonus (based on the target bonus under the
Incentive Plan or any successor plan for the fiscal year in which the
Executive's termination of employment occurs) through and including the
Executive's date of death and, in the case of the 2001 fiscal year only, a
prorated Special Bonus through and including the Executive's date of death;
(iv) other Employee Benefits to which the Executive was entitled on the
date of death in accordance with the terms of the plans and programs of the
Company; and
(v) the treatment of the options granted to the Executive pursuant to
Section 3(d) hereof in accordance with the terms thereof.
(b) Disability. The Company may, at its option, terminate the Executive's
employment upon written notice to the Executive if the Executive, because of
physical or mental incapacity or disability, fails to perform the essential
functions of the Executive's position, with or without reasonable accommodation,
required of the Executive hereunder for a continuous period of 120 days or any
180 days within any 12-month period. Upon such termination, the Executive's
entitlement to compensation and benefits shall cease immediately, except that
the Executive shall be entitled to:
(i) accrued Base Salary through and including the effective date of the
Executive's termination of employment;
(ii) the amount of any bonus earned and payable but not yet paid for the
fiscal year prior to the year in which the Executive's termination of employment
occurs;
(iii) prorated annual incentive bonus (based on the target bonus under the
Incentive Plan or any successor plan for the fiscal year in which the
Executive's termination of employment occurs) through and including the
effective date of the Executive's termination of employment and, in the case of
the 2001 fiscal year only, a prorated Special Bonus through and including the
effective date of the Executive's termination of employment;
(iv) other Employee Benefits to which the Executive is entitled upon
termination of employment in accordance with the terms of the plans and programs
of the Company; and
(v) the treatment of the options granted to the Executive pursuant to
Section 3(d) hereof in accordance with the terms thereof.
In the event of any dispute regarding the existence of the Executive's
incapacity or disability hereunder, the matter shall be resolved by the
determination of a physician selected by the Board and reasonably acceptable to
the Executive. The Executive shall submit to appropriate medical examinations
for purposes of such determination.
(c) Cause. (i) The Company may, at its option, terminate the Executive's
employment under this Agreement for Cause (as hereinafter defined) upon written
notice to the Executive (the "Cause Notice"). The Cause Notice shall state the
particular action(s) or inaction(s) giving rise to termination for Cause. No
action(s) or inaction(s) will constitute Cause unless (1) a resolution finding
that Cause exists has been approved by a majority of all of the members of the
Board at a meeting at which the Executive is allowed to appear with his legal
counsel and (2) where remedial action is feasible, the Executive fails to remedy
the action(s) or inaction(s) within 10 days after receiving the Cause Notice. If
the Executive so effects a cure to the satisfaction of the Board, the Cause
Notice shall be deemed rescinded and of no force or effect.
(ii) As used in this Agreement, the term "Cause" shall mean any one or more
of the following:
(A) any willful refusal by the Executive to follow lawful directives of the
Board which are consistent with the scope and nature of the Executive's duties
and responsibilities as set forth herein;
(B) the Executive's conviction of, or plea of guilty or nolo contendere to,
a felony or of any crime involving moral turpitude, fraud or embezzlement;
(C) any gross negligence or willful misconduct of the Executive resulting
in a material loss to the Company or any of its subsidiaries, or material damage
to the reputation of the Company or any of its subsidiaries;
(D) any material breach by the Executive of any one or more of the
covenants contained in Section 6, 7 or 8 hereof; or
(E) any violation of any statutory or common law duty of loyalty to the
Company or any of its subsidiaries.
(iii) The exercise of the right of the Company to terminate this Agreement
pursuant to this Section 4(c) shall not abrogate the rights or remedies of the
Company in respect of the breach giving rise to such termination.
(iv) If the Company terminates the Executive's employment for Cause, the
Executive's entitlement to compensation and benefits shall cease immediately,
except that the Executive shall be entitled to the payments and benefits
specified in Sections 4(b)(i), 4(b)(ii) and 4(b)(iv) hereof.
(d) Termination Without Cause. The Company may, at its option, terminate
the Executive's employment under this Agreement upon written notice to the
Executive for a reason other than a reason set forth in Section 4(a), 4(b) or
4(c). Any such termination shall be authorized by the Board. If the Company
terminates the Executive's employment for any such reason, the Executive's
entitlement to compensation and benefits shall cease immediately, except that
the Executive shall be entitled to:
(i) the payments and benefits specified in Sections 4(b)(i) through
4(b)(iv) hereof, inclusive;
(ii) the treatment of the options granted to the Executive pursuant to
Section 3(d) hereof in accordance with the terms thereof; and
(iii) a lump sum cash payment equal to the product of (x) two, and (y) the
sum of the Base Salary and the Prior Bonus (as defined below).
As used in this Agreement, the term "Prior Bonus" shall mean the average of
the annual incentive bonus earned under the Incentive Plan or any comparable
bonus earned under any successor plan (including any bonus earned and payable
but not yet paid) for the last three full fiscal years (or such shorter period
during which the Executive has been an employee of the Company); provided that,
(x) if the Executive is not employed by the Company on December 31, 2001, the
Prior Bonus for the 2001 fiscal year only shall be the sum of the target
incentive bonus for such year and the Special Bonus for such year and (y) if the
Executive has been continuously employed by the Company through December 31,
2001, for purposes of calculating Prior Bonus, the Prior Bonus for the 2001
fiscal year shall be the sum of the incentive bonus for such year and the
Special Bonus for such year.
(e) Voluntary Termination. Upon 60 days prior written notice to the Company
(or such shorter period as may be permitted by the Board), the Executive may
voluntarily terminate the Executive's employment with the Company for any
reason. If the Executive voluntarily terminates the Executive's employment
pursuant to this Section 4(e), the Executive's entitlement to compensation and
benefits shall cease immediately, except that the Executive shall be entitled to
the payments and benefits specified in Sections 4(b)(i), 4(b)(ii) and 4(b)(iv)
hereof.
(f) Termination for Good Reason. (i) Upon 30 days prior written notice to
the Company (or such shorter period as may be permitted by the Board), the
Executive may voluntarily terminate the Executive's employment with Good Reason
(as hereinafter defined). If the Executive voluntarily terminates the
Executive's employment pursuant to this Section 4(f), the Executive's
entitlement to compensation and benefits shall cease immediately, except that
the Executive shall be entitled to:
(A) the payments and benefits specified in Sections 4(b)(i) through
4(b)(iv) hereof, inclusive;
(B) the treatment of the options granted to the Executive pursuant to
Section 3(d) hereof in accordance with the terms thereof; and
(C) a lump sum cash payment equal to the product of (x) two, and (y) the
sum of the Base Salary and the Prior Bonus.
(ii) As used in this Agreement, the term "Good Reason" shall mean during
the Employment Period, without the written consent of the Executive, any one or
more of the following, provided that an isolated, insubstantial or inadvertent
action not taken in bad faith or failure not occurring in bad faith which is
remedied by the Company promptly after receipt of notice thereof given by the
Executive shall not constitute Good Reason:
(A) the assignment to the Executive of any duties materially inconsistent
in any respect with the Executive's position (including status, offices, titles
and reporting requirements), authority, duties or responsibilities as
contemplated by this Agreement;
(B) any failure by the Company to comply with the provisions of Section 3
hereof;
(C) any requirement by the Company that the Executive's principal office be
located more than 50 miles outside of the greater Chicago metropolitan area;
(D) the failure to elect the Executive to the additional office of Chairman
of the Board immediately following the Company's 2001 annual meeting of
shareholders and immediately following each subsequent annual meeting of
shareholders during the Employment Period; or
(E) any other material breach by the Company of this Agreement.
5. Federal and State Withholding. The Company shall deduct from the amounts
payable to the Executive pursuant to this Agreement the amount of all required
federal, state and local withholding taxes in accordance with the Executive's
Form W-4 on file with the Company, and all applicable federal employment taxes.
6. Noncompetition; Nonsolicitation. (a) General. The Executive acknowledges
that in the course of the Executive's employment with the Company the Executive
has and will become familiar with trade secrets and other confidential
information concerning the Company and its subsidiaries and that the Executive's
services will be of special, unique and extraordinary value to the Company and
its subsidiaries.
(b) Noncompetition. The Executive agrees that during the period of the
Executive's employment with the Company and for a period of two years thereafter
(the "Noncompetition Period"), the Executive shall not in any manner, directly
or indirectly, through any person, firm or corporation, alone or as a member of
a partnership or as an officer, director, stockholder, investor or employee of
or consultant to any other corporation or enterprise or otherwise, engage or be
engaged, or assist any other person, firm, corporation or enterprise in engaging
or being engaged, in any business, in which the Executive was involved or had
knowledge, being conducted by, or being planned by, the Company or any of its
subsidiaries as of the termination of the Executive's employment in any
geographic area in which the Company or any of its subsidiaries is then
conducting such business.
(c) Nonsolicitation. The Executive further agrees that during the
Noncompetition Period the Executive shall not (i) in any manner, directly or
indirectly, induce or attempt to induce any employee of the Company or any of
its subsidiaries to terminate or abandon his or her employment for any purpose
whatsoever or (ii) in connection with any business to which Section 6(b)
applies, call on, service, solicit or otherwise do business with any customer of
the Company or any of its subsidiaries.
(d) Exceptions. Nothing in this Section 6 shall prohibit the Executive from
being (i) a stockholder in a mutual fund or a diversified investment company or
(ii) an owner of not more than two percent of the outstanding stock of any class
of a corporation, any securities of which are publicly traded, so long as the
Executive has no active participation in the business of such corporation.
(e) Reformation. If, at any time of enforcement of this Section 6, a court
or an arbitrator holds that the restrictions stated herein are unreasonable
under circumstances then existing, the parties hereto agree that the maximum
period, scope or geographical area reasonable under such circumstances shall be
substituted for the stated period, scope or area and that the court or
arbitrator shall be allowed to revise the restrictions contained herein to cover
the maximum period, scope and area permitted by law. This Agreement shall not
authorize a court or arbitrator to increase or broaden any of the restrictions
in this Section 6.
7. Confidentiality. The Executive shall not, at any time during the
Employment Period or thereafter, make use of or disclose, directly or
indirectly, any (i) trade secret or other confidential or secret information of
the Company or of any of its subsidiaries or (ii) other technical, business,
proprietary or financial information of the Company or of any of its
subsidiaries not available to the public generally or to the competitors of the
Company or to the competitors of any of its subsidiaries ("Confidential
Information"), except to the extent that such Confidential Information (a)
becomes a matter of public record or is published in a newspaper, magazine or
other periodical or on electronic or other media available to the general
public, other than as a result of any act or omission of the Executive, (b) is
required to be disclosed by any law, regulation or order of any court or
regulatory commission, department or agency, provided that the Executive gives
prompt notice of such requirement to the Company to enable the Company to seek
an appropriate protective order, or (c) is required to be used or disclosed by
the Executive to perform properly the Executive's duties under this Agreement.
Promptly following the termination of the Employment Period, the Executive shall
surrender to the Company all records, memoranda, notes, plans, reports, computer
tapes and software and other documents and data which constitute Confidential
Information which the Executive may then possess or have under the Executive's
control (together with all copies thereof).
8. Intellectual Property. The Executive shall not, at any time, have or
claim any right, title or interest in any trade name, patent, trademark,
copyright, trade secret, intellectual property, methodologies, technologies,
procedures, concepts, ideas or other similar rights (collectively, "Intellectual
Property") belonging to the Company or any of its affiliates and shall not have
or claim any right, title or interest in or to any material or matter of any
kind prepared for or used in connection with the business or promotion of the
Company or any of its affiliates, whether produced, prepared or published in
whole or in part by the Executive or by the Company or any of its affiliates.
All Intellectual Property that is conceived, devised, made, developed or
perfected by the Executive, alone or with others, during the Executive's
employment that is related in any way to the Company's or any of its affiliates'
business or is devised, made, developed or perfected utilizing equipment or
facilities of the Company or its affiliates shall be promptly disclosed to the
Board, are works for hire and become the sole, absolute and exclusive property
of the Company. If and to the extent that any of such Intellectual Property
should be determined for any reason not to be a work for hire, the Executive
hereby assigns to the Company all of the Executive's right, title and interest
in and to such Intellectual Property. At the reasonable request and expense of
the Company but without charge to the Company, whether during or at any time
after the Executive's employment with the Company, the Executive shall cooperate
fully with the Company and its affiliates in the securing of any trade name,
patent, trademark, copyright or intellectual property protection or other
similar rights in the United States and in foreign countries, including without
limitation, the execution and delivery of assignments, patent applications and
other documents or papers. In accordance with the Illinois Employee Patent Act,
765 ILCS 1060, the Executive is hereby notified by the Company, and understands,
that the foregoing provisions do not apply to an invention for which no
equipment, supplies, facilities or trade secret information of the Company was
used and which was developed entirely on the Executive's own time, unless (i)
the invention relates (A) to the business of the Company or (B) to the Company's
actual or demonstrably anticipated research and development, or (ii) the
invention results from any work performed by the Executive for the Company.
9. Enforcement. The parties hereto agree that the Company and its
subsidiaries would be damaged irreparably in the event that any provision of
Section 6, 7 or 8 of this Agreement were not performed in accordance with its
terms or were otherwise breached and that money damages would be an inadequate
remedy for any such nonperformance or breach. Accordingly, the Company and its
successors and permitted assigns shall be entitled, in addition to other rights
and remedies existing in their favor, to seek an injunction or injunctions to
prevent any breach or threatened breach of any of such provisions and to enforce
such provisions specifically (without posting a bond or other security). The
Executive agrees that the Executive will submit to the personal jurisdiction of
the courts of the State of Illinois in any action by the Company to enforce an
arbitration award against the Executive or to obtain interim injunctive or other
relief pending an arbitration decision.
10. Representations. The Executive represents and warrants to the Company
that (a) the execution, delivery and performance of this Agreement by the
Executive does not and will not conflict with, breach, violate or cause a
default under any contract, agreement, instrument, order, judgment or decree to
which the Executive is a party or by which the Executive is bound, (b) the
Executive is not a party to or bound by any employment agreement, noncompetition
agreement or confidentiality agreement with any other person or entity that
would interfere with the execution, delivery or performance of this Agreement by
the Executive, and (c) upon the execution and delivery of this Agreement by the
Company, this Agreement shall be the valid and binding obligation of the
Executive, enforceable in accordance with its terms.
11. Survival. This Agreement shall survive and continue in full force and
effect in accordance with its terms, notwithstanding any termination of the
Employment Period.
12. Arbitration. Except as otherwise set forth in Section 9 hereof, any
dispute or controversy between the Company and the Executive, whether arising
out of or relating to this Agreement, the breach of this Agreement, or
otherwise, shall be settled by arbitration in Chicago, Illinois administered by
the American Arbitration Association, with any such dispute or controversy
arising under this Agreement being so administered in accordance with its
Commercial Rules then in effect, and judgment on the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. The
arbitrator shall have the authority to award any remedy or relief that a court
of competent jurisdiction could order or grant, including, without limitation,
the issuance of an injunction. However, either party may, without inconsistency
with this arbitration provision, apply to any court having jurisdiction over
such dispute or controversy and seek interim provisional, injunctive or other
equitable relief until the arbitration award is rendered or the controversy is
otherwise resolved. Except as necessary in court proceedings to enforce this
arbitration provision or an award rendered hereunder, or to obtain interim
relief, neither a party nor an arbitrator may disclose the existence, content or
results of any arbitration hereunder without the prior written consent of the
Company and the Executive. The Company and the Executive acknowledge that this
Agreement evidences a transaction involving interstate commerce. Notwithstanding
any choice of law provision included in this Agreement, the United States
Federal Arbitration Act shall govern the interpretation and enforcement of this
arbitration provision.
13. Notices. All notices and other communications required or permitted
hereunder shall be in writing and shall be deemed given when (a) delivered
personally or by overnight courier to the following address of the other party
hereto (or such other address for such party as shall be specified by notice
given pursuant to this Section) or (b) sent by facsimile, with the confirmatory
copy delivered by overnight courier to the address of such party pursuant to
this Section 13:
If to the Company, to:
CDW Computer Centers, Inc.
000 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxx Xxxxx, XX 00000
Attention: Chief Financial Officer
with a copy to:
Sidley & Austin
Bank One Plaza
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
If to the Executive, to the last known mailing address for the
Executive contained in the records of the Company, with a copy
to:
Xxxxxx Price Xxxxxxx & Kammholz
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
14. Severability. Whenever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under applicable law or rule in any jurisdiction,
such invalidity, illegality or unenforceability shall not affect the validity,
legality or enforceability of any other provision of this Agreement or the
validity, legality or enforceability of such provision in any other
jurisdiction, but this Agreement shall be reformed, construed and enforced in
such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
15. Change in Control. Simultaneously with the execution and delivery of
this Agreement, the parties also are executing and delivering a Transitional
Compensation Agreement in the form attached hereto as Exhibit C. In the event of
a "Change in Control," as defined in the Transitional Compensation Agreement,
the Transitional Compensation Agreement shall exclusively govern, and this
Agreement shall not govern, the employment relationship between the Company and
the Executive after such Change in Control.
16. Entire Agreement. This Agreement, the exhibits hereto and the
agreements in the form of the exhibits hereto constitute the entire agreement
and understanding between the parties with respect to the subject matter hereof
or thereof and supersede and preempt any prior understandings, agreements or
representations by or between the parties, written or oral, which may have
related in any manner to the subject matter hereof or thereof.
17. No Mitigation. In no event shall the Executive be obligated to seek
other employment or take any other action by way of mitigation of the amounts
payable to the Executive under any of the provisions of this Agreement, and such
amounts shall not be reduced whether or not the Executive obtains other
employment.
18. Successors and Assigns. This Agreement shall be enforceable by the
Executive and the Executive's heirs, executors, administrators and legal
representatives, and by the Company and its successors and assigns.
19. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of Illinois without
regard to principles of conflict of laws.
20. Amendment and Waiver. The provisions of this Agreement may be amended
or waived only by the written agreement of the Company and the Executive, and no
course of conduct or failure or delay in enforcing the provisions of this
Agreement shall affect the validity, binding effect or enforceability of this
Agreement.
21. Counterparts. This Agreement may be executed in two counterparts, each
of which shall be deemed to be an original and both of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
CDW COMPUTER CENTERS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chairman of the Board
EXECUTIVE
/s/ Xxxx X. Xxxxxxxxx
-----------------------------
Xxxx X. Xxxxxxxxx
