CDW Corp S-3ASR, filed Aug 2, 2023
CDW Corp (CDW)
Table of Contents
As filed with the Securities and Exchange Commission on August 2, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CDW Corporation*
(Exact name of registrant as specified in its charter)
| Delaware | 26-0273989 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
CDW LLC*
(Exact name of registrant as specified in its charter)
| Illinois | 36-3310735 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
CDW Finance Corporation*
(Exact name of registrant as specified in its charter)
| Delaware | 90-0600013 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
200 N. Milwaukee Avenue
Vernon Hills, Illinois 60061
(847) 465-6000
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Frederick J. Kulevich
Senior Vice President, General Counsel
and Corporate Secretary
CDW Corporation
200 N. Milwaukee Avenue
Vernon Hills, Illinois 60061
(847) 465-6000
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies of all communications, including communications sent to agent for service, should be sent to:
Robert A. Ryan
Sidley Austin LLP
1 South Dearborn Street
Chicago, Illinois 60603
(312) 853-7000
| * | The co-registrants listed on the next page are also included in this Registration Statement on Form S-3 as additional registrants. |
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Approximate date of commencement of proposed sale to the public: From time to time on or after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☒
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☒ | Accelerated filer | ☐ | |||
| Non-accelerated filer | ☐ | Smaller reporting company | ☐ | |||
| Emerging growth company | ☐ | |||||
If emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
Table of Additional Registrants
| Exact Name of Additional Registrant as Specified in its Charter* | Table of Additional Registrants of Incorporation or |
I.R.S. Employer Identification No. |
||||
| CDW Technologies LLC |
Wisconsin | 39-1768725 | ||||
| CDW Direct, LLC |
Illinois | 36-4530079 | ||||
| CDW Government LLC |
Illinois | 36-4230110 | ||||
| CDW Logistics LLC |
Illinois | 38-3679518 | ||||
| Amplified IT LLC |
Virginia | 27-3690926 | ||||
| SCS Holdings I LLC |
Delaware | 20-5731938 | ||||
| Sirius Computer Solutions, LLC |
Texas | 74-2836721 | ||||
| Sirius Federal, LLC |
Maryland | 52-1742191 | ||||
| Sirius Computer Solutions Financial Services, LLC |
Delaware | 36-2734737 | ||||
| * | The address for each of the additional registrants is CDW Corporation, 200 N. Milwaukee Avenue, Vernon Hills, Illinois 60061. The name, address and telephone number of the agent for service for each of the additional registrants is Frederick J. Kulevich, Senior Vice President, General Counsel and Corporate Secretary of CDW Corporation, 200 N. Milwaukee Avenue, Vernon Hills, Illinois 60061, telephone: (847) 465-6000. |
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PROSPECTUS
CDW CORPORATION
Common Stock
Preferred Stock
Depositary Shares
Warrants
Subscription Rights
Debt Securities
Guarantees of Debt Securities
Share Purchase Contracts
Share Purchase Units
CDW LLC
CDW FINANCE CORPORATION
Debt Securities
Guarantees of Debt Securities
CDW Corporation, CDW LLC and CDW Finance Corporation may offer and sell, from time to time, in one or more offerings, any combination of securities we describe in this prospectus. This prospectus also covers guarantees, if any, of our obligations under any debt securities, which may be given by CDW Corporation and/or one or more of our subsidiaries specified in this prospectus or any prospectus supplement. In addition, any selling stockholders to be named in a prospectus supplement may offer and sell, from time to time, in one or more offerings, shares of our common stock. The securities may be offered and sold to or through one or more underwriters, dealers and agents, or directly to purchasers, on a delayed or continuous basis.
This prospectus describes some of the general terms that may apply to these securities and the general manner in which they may be offered. The specific terms of any securities to be offered, and the specific manner in which they may be offered, will be described in one or more supplements to this prospectus.
To the extent that any selling stockholder resells any securities, the selling stockholder may be required to provide you with the prospectus and a prospectus supplement identifying and containing specific information about the selling stockholder and the terms of the securities being offered.
Before investing, you should carefully read this prospectus and any related prospectus supplement.
CDW Corporation’s common stock is listed on the Nasdaq Global Select Market under the symbol “CDW.” If we decide to list or seek a quotation for any other securities, the prospectus supplement relating to those securities will disclose the exchange or market on which those securities will be listed or quoted.
Investing in our securities involves risks. You should refer to “Risk Factors” on page 2 of this prospectus and the risk factors included in our Annual Report on Form 10-K for the year ended December 31, 2022 filed with the Securities and Exchange Commission on February 24, 2023 (which is incorporated by reference herein) and our other periodic reports and other information that we file with the Securities and Exchange Commission incorporated by reference in this prospectus and the applicable prospectus supplement and carefully consider that information before buying our securities.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is August 2, 2023.
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| DESCRIPTION OF SHARE PURCHASE CONTRACTS AND SHARE PURCHASE UNITS |
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This prospectus is a part of a registration statement that we filed with the U.S. Securities and Exchange Commission (the “SEC”) utilizing a “shelf” registration process. Under this shelf registration process, we and/or any selling stockholders may sell any combination of the securities described in this prospectus in one or more offerings from time to time. This prospectus provides you with a general description of the securities we and/or any selling stockholders may offer. Each time we and/or any selling stockholders sell securities under this shelf registration, a prospectus supplement will be provided that will contain specific information about the terms of that offering. The prospectus supplement may also add, update or change information contained in this prospectus. Therefore, if there is any inconsistency between the information contained or incorporated by reference in this prospectus and the prospectus supplement, you should rely on the information in the prospectus supplement (including any information incorporated by reference therein). You should read both this prospectus and any prospectus supplement together with additional information described under the headings “Where You Can Find More Information” and “Incorporation of Certain Information by Reference.”
We and/or any selling stockholders have not authorized any dealer, salesperson or other person to give any information or to make any representation other than those contained or incorporated by reference in this prospectus and the accompanying supplement to this prospectus. You must not rely upon any information or representation not contained or incorporated by reference in this prospectus or the accompanying prospectus supplement. This prospectus and the accompanying prospectus supplement do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the registered securities to which they relate, nor do this prospectus and the accompanying prospectus supplement constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction. You should not assume that the information contained in this prospectus and the accompanying prospectus supplement is accurate on any date subsequent to the date set forth on the front of the document or that any information we have incorporated by reference is correct on any date subsequent to the date of the document incorporated by reference, even though this prospectus and any accompanying prospectus supplement is delivered or securities are sold on a later date.
Unless the context otherwise requires or as otherwise expressly stated, references in this prospectus to the “Company,” “we,” “us” and “our” and similar terms refer to CDW Corporation and its consolidated subsidiaries. References to our “common stock” or our “preferred shares” refer to the common stock or preferred stock of CDW Corporation.
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the SEC. In addition, we have filed with the SEC a Registration Statement on Form S-3 relating to the securities covered by this prospectus. This prospectus, which forms a part of the registration statement, does not contain all the information that is included in the registration statement. You will find additional information about us in the registration statement and the exhibits filed therewith and in our reports and proxy statements and other information incorporated by reference herein. Any statements made in this prospectus concerning the provisions of legal documents are not necessarily complete and you should read the documents that are filed as exhibits to the registration statement or otherwise filed with the SEC for a more complete understanding of the document or matter. Our SEC filings are available to you on the SEC’s website at http://www.sec.gov and through the Nasdaq Global Select Market, 165 Broadway, New York, New York 10006, on which our common stock is listed.
We maintain a website at http://www.cdw.com. You may access our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and amendments to those reports filed pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) with the SEC free of charge at our website as soon as reasonably practicable after such material is electronically filed with, or furnished to, the SEC. Except for the information incorporated by reference as noted below, our website and the information contained on that site, or connected to that site, are not incorporated into and are not a part of this prospectus.
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INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows the “incorporation by reference” of the information filed by us with the SEC into this prospectus, which means that important information can be disclosed to you by referring you to those documents and those documents will be considered part of this prospectus. Information that we file later with the SEC will automatically update and supersede the previously filed information. The documents listed below and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (other than portions of these documents deemed to be “furnished” or not deemed to be “filed,” including the portions of these documents that are either (1) described in paragraphs (d)(1), (d)(2), (d)(3) or (e)(5) of Item 407 of Regulation S-K promulgated by the SEC or (2) furnished under Item 2.02 or Item 7.01 of a Current Report on Form 8-K, including any exhibits included with such Items) after the date of this prospectus and prior to the termination of the offerings under this prospectus are incorporated by reference herein:
| • | Our Annual Report on Form 10-K for the year ended December 31, 2022 filed on February 24, 2023. |
| • | Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2023 and June 30, 2023, filed on May 3, 2023 and August 2, 2023. |
| • | Our Current Reports on Form 8-K or Form 8-K/A, as applicable, filed on January 5, 2023, February 9, 2023, March 28, 2023, May 22, 2023 and August 1, 2023 and with respect to Item 8.01 only, February 8, 2023, May 3, 2023 and August 2, 2023. |
| • | The description of our common stock, par value $0.01 per share, as contained in the Registration Statement on Form S-1 (File No. 333-187472), originally filed with the SEC on March 22, 2013 including any amendment or report filed for the purpose of updating such description. |
Any statement contained in a document incorporated or deemed to be incorporated by reference into this prospectus will be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or any other subsequently filed document that is deemed to be incorporated by reference into this prospectus modifies or supersedes the statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus. Our Commission File Number is 001-35985.
If you make a request for such information in writing or by telephone, we will provide you, without charge, a copy of any or all of the information incorporated by reference into this prospectus. Any such request should be directed to:
CDW Corporation
200 N. Milwaukee Avenue
Vernon Hills, Illinois 60061
(847) 465-6000
Attention: Investor Relations
You should rely only on the information contained in, or incorporated by reference in, this prospectus. We have not authorized anyone else to provide you with different or additional information. This prospectus does not offer to sell or solicit any offer to buy any securities in any jurisdiction where the offer or sale is unlawful. You should not assume that the information in this prospectus or in any document incorporated by reference is accurate as of any date other than the date on the front cover of the applicable document.
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This prospectus, any accompanying prospectus supplement and the documents incorporated by reference herein and therein may contain “forward-looking statements” within the meaning of the federal securities laws. All statements other than statements of historical fact included in this prospectus, any accompanying prospectus supplement and the documents incorporated by reference herein and therein are forward-looking statements. These statements relate to analyses and other information, which are based on forecasts of future results or events and estimates of amounts not yet determinable. These statements also relate to our future prospects, developments and business strategies. We claim the protection of The Private Securities Litigation Reform Act of 1995 for all forward-looking statements in this prospectus, any accompanying prospectus supplement and the documents incorporated by reference herein and therein.
These forward-looking statements are identified by the use of terms and phrases such as “anticipate,” “assume,” “believe,” “estimate,” “expect,” “goal,” “intend,” “plan,” “potential,” “predict,” “project,” “target” and similar terms and phrases or future or conditional verbs such as “could,” “may,” “should,” “will,” and “would.” However, these words are not the exclusive means of identifying such statements. Although we believe that our plans, intentions and other expectations reflected in or suggested by such forward-looking statements are reasonable, we cannot assure you that we will achieve those plans, intentions or expectations. All forward-looking statements are subject to risks and uncertainties that may cause actual results or events to differ materially from those that we expected.
Important factors that could cause actual results or events to differ materially from our expectations, or cautionary statements, are disclosed under the section entitled “Risk Factors” included in our most recent Annual Report on Form 10-K and from time to time in our subsequent Quarterly Reports on Form 10-Q and our other SEC filings. All written and oral forward-looking statements attributable to us, or persons acting on our behalf, are expressly qualified in their entirety by the cautionary statements contained in the section entitled “Risk Factors” included in our most recent Annual Report on Form 10-K as well as other cautionary statements that are made from time to time in our other SEC filings and public communications. You should evaluate all forward-looking statements made in this prospectus, any accompanying prospectus supplement and the documents incorporated by reference herein and therein in the context of these risks and uncertainties.
We caution you that the important factors referenced above may not reflect all of the factors that could cause actual results or events to differ from our expectations. In addition, we cannot assure you that we will realize the results or developments we expect or anticipate or, even if substantially realized, that they will result in the consequences or affect us or our operations in the way we expect. The forward-looking statements included or incorporated by reference herein are made only as of the date hereof or, with respect to any documents incorporated by reference, available at the time such document was prepared or filed with the SEC. We undertake no obligation to publicly update or revise any forward-looking statement as a result of new information, future events or otherwise, except as otherwise required by law.
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We are a Fortune 500 company, member of the S&P 500 Index, and a leading multi-brand provider of information technology (“IT”) solutions to small, medium and large business, government, education and healthcare customers in the United States, the United Kingdom and Canada. Our broad array of offerings ranges from discrete hardware and software products to integrated IT solutions and services that include on-premise and cloud capabilities across hybrid infrastructure, digital experience and security.
We are vendor, technology and consumption model “agnostic,” with a solutions portfolio including more than 100,000 products and services from more than 1,000 leading and emerging brands. Our solutions are delivered in physical, virtual and cloud-based environments through approximately 10,600 customer-facing coworkers, including sellers, highly-skilled technology specialists and advanced service delivery engineers. We are a leading sales channel partner for many original equipment manufacturers, software publishers and cloud providers (collectively, our “vendor partners”), whose products we sell or include in the solutions we offer. We provide our vendor partners with a cost-effective way to reach customers and deliver a consistent brand experience through our established end-market coverage, technical expertise and extensive customer access.
CDW Corporation is a Delaware corporation. CDW LLC is an Illinois limited liability company and a subsidiary of CDW Corporation. CDW Finance Corporation is a Delaware corporation and a subsidiary of CDW Corporation. Our principal executive offices are located at 200 N. Milwaukee Avenue, Vernon Hills, Illinois 60061, and our telephone number at that address is (847) 465-6000. Our website is located at http://www.cdw.com. The information contained on that site, or connected to that site, is not incorporated into and is not a part of this prospectus.
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Our business is subject to uncertainties and risks. You should carefully consider and evaluate all of the information included and incorporated by reference in this prospectus, including the risk factors incorporated by reference from our most recent Annual Report on Form 10-K and our subsequent Quarterly Reports on Form 10-Q. Our business, financial condition, liquidity or results of operations could be materially adversely affected by any of these risks.
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CDW Corporation and certain of CDW LLC’s direct and indirect, wholly-owned, domestic subsidiaries (the “Guarantor Subsidiaries”) may guarantee debt securities of CDW LLC and CDW Finance Corporation as described in “Description of Debt Securities and Guarantees” in this prospectus and as further described in an applicable prospectus supplement. Any such guarantees by CDW Corporation and the Guarantor Subsidiaries will be joint and several, and full and unconditional; provided that guarantees by the Guarantor Subsidiaries are subject to certain customary release provisions contained in the indentures.
We have filed this prospectus with the SEC registering, among other securities, debt securities of CDW LLC and CDW Finance Corporation, which will be fully and unconditionally guaranteed by the Company. Under Rule 3-10 of Regulation S-X, separate consolidated financial statements of our CDW LLC and CDW Finance Corporation have not been presented.
As permitted by Rule 13-01 of Regulation S-X, in lieu of providing such separate consolidated financial statements, we have presented the following supplemental summarized Balance Sheet information as of December 31, 2022 and December 31, 2021, and Statement of Operations information for the years ended December 31, 2022 and 2021 for the accounts of the CDW LLC, CDW Finance Corporation and the accounts of the Guarantor Subsidiaries (the “Obligor Group”). The financial information of the Obligor Group is presented on a combined basis and the intercompany balances and transactions between the Obligor Group have been eliminated.
Balance Sheet Information
| December 31, | ||||||||
| (dollars in millions) | 2022 | 2021 | ||||||
| Current assets |
$ | 5,588.3 | $ | 4,584.1 | ||||
| Goodwill |
3,939.7 | 2,373.1 | ||||||
| Other assets |
2,032.6 | 1,017.3 | ||||||
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| Total Non-current assets |
5,972.3 | 3,390.4 | ||||||
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| Current liabilities |
4,369.3 | 3,393.0 | ||||||
| Long-term debt |
5,792.9 | 6,534.6 | ||||||
| Other liabilities |
641.9 | 562.4 | ||||||
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| Total Long-term liabilities |
6,434.8 | 7,097.0 | ||||||
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Statements of Operations Information
| Year Ended December 31, | ||||||||
| (dollars in millions) | 2022 | 2021 | ||||||
| Net sales |
$ | 20,741.8 | $ | 17,979.4 | ||||
| Gross profit |
4,156.6 | 3,078.0 | ||||||
| Operating income |
1,584.7 | 1,301.9 | ||||||
| Net income |
1,005.8 | 921.3 | ||||||
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Unless otherwise indicated in the applicable prospectus supplement, we will use the net proceeds from the sale of the securities for general corporate purposes, which may include capital expenditures, working capital, acquisitions, investments and the repayment of indebtedness. Pending these uses, the net proceeds may also be temporarily invested in short- and medium-term investments, including, but not limited to, marketable securities.
We will not receive any proceeds from the sale of common stock by any selling stockholders.
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The following summary of certain provisions of our capital stock does not purport to be complete and is subject to our amended and restated certificate of incorporation (the “Certificate of Incorporation”), our amended and restated bylaws (the “Bylaws”) and provisions of applicable law. Copies of our Certificate of Incorporation and Bylaws are incorporated by reference into the registration statement, of which this prospectus is a part.
Authorized Capital Stock
Our authorized capital stock consists of 1,000,000,000 shares of common stock, par value $0.01 per share, and 100,000,000 shares of preferred stock, par value $0.01 per share.
Common Stock Voting Rights
Each holder of common stock is entitled to one vote per share on each matter submitted to a vote of stockholders. Our Bylaws provide that the presence, in person or by proxy, of holders of a majority in voting power of the outstanding capital stock entitled to vote at a stockholders’ meeting shall constitute a quorum. When a quorum is present, the affirmative vote of the majority of voting power of capital stock present in person or represented by proxy at the meeting and entitled to vote on the subject matter is required to take action, unless otherwise specified by law or our Certificate of Incorporation. There are no cumulative voting rights.
Common Stock Dividend Rights
Each holder of shares of common stock is entitled to receive such dividends and other distributions in cash, stock or property as may be declared by our board of directors (“Board”) from time to time out of our assets or funds legally available for dividends or other distributions. These rights are subject to the preferential rights of any other class or series of our preferred stock that we may designate and issue in the future.
The Delaware General Corporation Law (the “DGCL”) permits a corporation to declare and pay dividends out of “surplus” or, if there is no “surplus,” out of its net profits for the fiscal year in which the dividend is declared and/or the preceding fiscal year. “Surplus” is defined as the excess of the net assets of the corporation over the amount determined to be the capital of the corporation by the board of directors. The capital of the corporation is typically calculated to be (and cannot be less than) the aggregate par value of all issued shares of capital stock. Net assets equals the fair value of the total assets minus total liabilities. The DGCL also provides that dividends may not be paid out of net profits if, after the payment of the dividend, remaining capital would be less than the capital represented by the outstanding stock of all classes having a preference upon the distribution of assets.
Declaration and payment of any dividend will be subject to the discretion of the Board. The time and amount of dividends will be dependent upon our results of operations, financial condition, business prospects, capital requirements, contractual restrictions (including in current or future agreements governing our indebtedness), restrictions imposed by applicable law, tax considerations and other factors that the Board deems relevant.
Since the fourth quarter of 2013, we have paid a quarterly cash dividend on our common stock and we currently expect to continue to pay a cash dividend on our common stock. However, any determination to pay dividends in the future will be at the discretion of our board of directors.
Other Rights
Each holder of common stock is subject to, and may be adversely affected by, the rights of the holders of any series of preferred stock that we may designate and issue in the future. Holders of common stock will have no preemptive, conversion or other rights to subscribe for additional shares.
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Liquidation Rights
In the event of any voluntary or involuntary liquidation, dissolution or winding up of our affairs, holders of our common stock would be entitled to share ratably in our assets that are legally available for distribution to stockholders after payment of our debts and other liabilities. If we have any preferred stock outstanding at such time, holders of the preferred stock may be entitled to distribution and/or liquidation preferences. In either such case, we must pay the applicable distribution to the holders of our preferred stock before we may pay distributions to the holders of our common stock.
Preferred Stock
The Board has the authority to issue shares of preferred stock from time to time on terms it may determine, to divide shares of preferred stock into one or more series and to fix the designations, preferences, privileges and restrictions of preferred stock, including dividend rights, conversion rights, voting rights, terms of redemption, liquidation preference, sinking fund terms and the number of shares constituting any series or the designation of any series to the fullest extent permitted by the DGCL. The issuance of our preferred stock could have the effect of decreasing the trading price of our common stock, restricting dividends on our capital stock, diluting the voting power of our common stock, impairing the liquidation rights of our capital stock, or delaying or preventing a change in control of our company. At present, we have no plans to issue preferred stock.
Anti-Takeover Effects of the Certificate of Incorporation and Bylaws
The Certificate of Incorporation and Bylaws contain provisions that may delay, defer or discourage another party from acquiring control of us. We expect that these provisions, which are summarized below, will discourage coercive takeover practices or inadequate takeover bids. These provisions are also designed to encourage persons seeking to acquire control of us to first negotiate with the Board, which we believe may result in an improvement of the terms of any such acquisition in favor of our stockholders. However, they also give the Board the power to discourage acquisitions that some stockholders may favor.
Undesignated Preferred Stock
The ability to authorize undesignated preferred stock will make it possible for the Board to issue preferred stock with super voting, special approval, dividend or other rights or preferences on a discriminatory basis that could impede the success of any attempt to acquire us. These and other provisions may have the effect of deferring, delaying or discouraging hostile takeovers, or changes in control or management of our company.
Stockholder Action by Written Consent
The Certificate of Incorporation provides that any action required or permitted to be taken by our stockholders may be effected only at a duly called annual or special meeting of the stockholders and cannot be taken by written consent in lieu of a meeting.
Special Meeting of Stockholders and Advance Notice Requirements for Stockholder Proposals
The Certificate of Incorporation and Bylaws provide that, except as otherwise required by law, special meetings of the stockholders can only be called (i) by or at the direction of the Board pursuant to a written resolution adopted by the affirmative vote of the majority of the total number of directors that we would have if there were no vacancies or (ii) subject to the requirements and limitations of the Bylaws, by the Secretary, the Chair of the Board or the Board of Directors upon the written request of one or more stockholders entitled to cast on the matter(s) to be brought before a special meeting requested by one or more stockholders pursuant to Section 3 of the Bylaws not less than twenty five percent (25%) of the voting power of all outstanding shares as of the date of the request, which request complies with the procedures for calling a special meeting of
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stockholders as set forth in the Bylaws, as may be amended from time to time. Any business transacted at any special meeting of stockholders shall be limited to matters relating to the purpose or purposes stated in the notice of the meeting.
In addition, the Bylaws require advance notice procedures for stockholder proposals to be brought before an annual meeting of the stockholders, including the nomination of directors. Stockholders at an annual meeting may only consider the proposals specified in the notice of meeting or brought before the meeting by or at the direction of the Board, or by a stockholder of record on the record date for the meeting, who is entitled to vote at the meeting and who has delivered a timely written notice, in proper form to our secretary, of the stockholder’s intention to bring such business before the meeting.
These provisions could have the effect of delaying until the next stockholder meeting any stockholder actions, even if they are favored by the holders of a majority of our outstanding voting securities.
Business Combinations with Interested Stockholders
We are subject to Section 203 of the DGCL, an anti-takeover law. In general, Section 203 prohibits a publicly held Delaware corporation from engaging in a business combination, such as a merger, with a person or group owning 15% or more of the corporation’s voting stock for a period of three years following the date the person became an interested stockholder, unless (with certain exceptions) the business combination or the transaction in which the person became an interested stockholder is approved in a prescribed manner.
Exclusive Jurisdiction of Certain Actions
The Certificate of Incorporation requires, to the fullest extent permitted by law, that derivative actions brought in our name, actions against directors, officers and employees for breach of fiduciary duty and other similar actions may be brought only in the Court of Chancery in the State of Delaware. Although we believe this provision benefits us by providing increased consistency in the application of Delaware law in the types of lawsuits to which it applies, the provision may have the effect of discouraging lawsuits against our directors and officers. The enforceability of similar exclusive jurisdiction provisions in other companies’ certificates of incorporation has been challenged in legal proceedings, and it is possible that, in connection with any action, a court could find the exclusive jurisdiction provision contained in the Certificate of Incorporation to be inapplicable or unenforceable in such action.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Computershare Trust Company, N.A.
Listing
Our common stock is listed on the Nasdaq Global Select Market under the trading symbol “CDW.”
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DESCRIPTION OF DEPOSITARY SHARES
The following description of the depositary shares and the terms of the deposit agreement is a summary. It summarizes only those aspects of the depositary shares and those portions of the deposit agreement that we believe will be most important to your decision to invest in our depositary shares. There may be other provisions in the deposit agreement that are also important to you. You should read the deposit agreement for a full description of the terms of the depositary shares. The form of the deposit agreement will be filed or incorporated by reference as an exhibit to the registration statement of which this prospectus is a part.
The particular terms of the depositary shares offered by any prospectus supplement and the extent to which the general provisions described below may apply to such depositary shares will be outlined in the applicable prospectus supplement.
General
We may elect to offer fractional interests in preferred shares, rather than offer whole preferred shares. If we choose to do this, we will provide for the issuance by a depositary to the public of receipts for depositary shares. Each depositary share will represent fractional interests of a particular series of preferred shares.
The shares of any series of preferred shares underlying the depositary shares will be deposited under a separate deposit agreement between us and a bank or trust company, which we will select. The bank or trust company must have its principal office in the United States and a combined capital and surplus of at least $50,000,000. The prospectus supplement relating to a series of depositary shares will state the name and address of the depositary. Unless otherwise provided by the deposit agreement, each owner of depositary shares will be entitled, in proportion to the applicable fractional interests in preferred shares underlying the depositary shares, to all the rights and preferences of the preferred stock underlying the depositary shares including dividend, voting, redemption, conversion and liquidation rights.
The depositary shares will be evidenced by depositary receipts issued under the deposit agreement. Depositary receipts will be distributed to those persons purchasing the fractional interests in shares of the related series of preferred shares in accordance with the terms of the offering described in the related prospectus supplement.
Dividends and Other Distributions
The depositary will distribute all cash dividends or other cash distributions received in respect of preferred shares to the record holders of depositary shares relating to the preferred shares in proportion to the numbers of the depositary shares owned by the holders on the relevant record date. The depositary will distribute only an amount, however, that can be distributed without attributing to any holder of depositary shares a fraction of one cent, and any balance not so distributed will be added to and treated as part of the next sum received by the depositary for distribution to record holders of depositary shares.
If there is a non-cash distribution, the depositary will distribute property received by it to the record holders of depositary shares entitled to it, unless the depositary determines that it is not feasible to make the distribution. If this happens, the depositary may, with our approval, sell the property and distribute the net sale proceeds to the holders. The deposit agreement will also contain provisions relating to the manner in which any subscription or similar rights that we offer to holders of the preferred stock will be made available to the holders of depositary shares.
Redemption of Depositary Shares
If a series of the preferred shares underlying the depositary shares is redeemed in whole or in part, the depositary shares will be redeemed from the redemption proceeds received by the depositary. The depositary will
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mail notice of redemption not less than 30, and not more than 60, days before the date fixed for redemption to the record holders of the depositary shares to be redeemed at their addresses appearing in the depositary’s books. The redemption price for each depositary share will be equal to the applicable fraction of the redemption price for each share payable with respect to the series of the preferred shares. Whenever we redeem preferred shares held by the depositary, the depositary will redeem on the same redemption date the number of depositary shares relating to the preferred shares so redeemed. If less than all of the depositary shares are to be redeemed, the depositary shares to be redeemed will be selected by lot or proportionally as may be determined by the depositary.
After the date fixed for redemption, the depositary shares called for redemption will no longer be considered outstanding and all rights of the holders of the depositary shares will cease, except the right to receive the cash, securities or other property payable upon the redemption and any cash, securities or other property to which the holders of the redeemed depositary shares were entitled upon surrender to the depositary of the depositary receipts evidencing the depositary shares.
The amount distributed in any of the foregoing cases will be reduced by any amount required to be withheld by us or the depositary on account of any taxes.
Voting the Preferred Shares
Upon receipt of notice of any meeting at which the holders of the preferred shares are entitled to vote, the depositary will mail the information contained in the notice of meeting to the record holders of the depositary shares relating to the preferred shares. Each record holder of depositary shares on the record date, which will be the same date as the record date for the preferred shares, will be entitled to instruct the depositary how to exercise the voting rights pertaining to the number of preferred shares underlying the holder’s depositary shares. The depositary will endeavor, to the extent practicable, to vote the number of preferred shares underlying the depositary shares in accordance with these instructions, and we will agree to take all action which the depositary may consider necessary in order to enable the depositary to vote the shares. The depositary will abstain from voting preferred shares to the extent it does not receive specific instructions from the holders of depositary shares representing such preferred shares.
Amendment and Termination of Depositary Agreement
We may enter into an agreement with the depositary at any time to amend the form of depositary receipt evidencing the depositary shares and any provision of the deposit agreement. However, the holders of a majority of the depositary shares must approve any amendment which materially and adversely alters the rights of the existing holders of depositary shares. We or the depositary may terminate the deposit agreement only if (a) all outstanding depositary shares issued under the agreement have been redeemed or (b) a final distribution in connection with any liquidation, dissolution or winding up has been made to the holders of the depositary shares.
Charges of Depositary
We will pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements. We will also pay charges of the depositary in connection with the initial deposit of the preferred shares and any redemption of the preferred shares. Holders of depositary shares will pay transfer and other taxes and governmental charges and such other charges as are expressly provided in the deposit agreement to be for their accounts.
Resignation and Removal of Depositary
The depositary may resign at any time by delivering to us notice of its election to resign, and we may at any time remove the depositary. Any resignation or removal will take effect when a successor depositary has been
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appointed and has accepted the appointment. Appointment must occur within 60 days after delivery of the notice of resignation or removal. The successor depositary must be a bank or trust company having its principal office in the United States and having a combined capital and surplus of at least $50,000,000.
Miscellaneous
The depositary will forward to the holders of depositary shares all reports and communications that we deliver to the depositary and that we are required to furnish to the holders of the preferred shares. Neither the depositary nor we will be liable if it is prevented or delayed by law or any circumstance beyond its control in performing its obligations under the deposit agreement. The obligations of us and the depositary under the deposit agreement will be limited to performance in good faith of their duties under the agreement and they will not be obligated to prosecute or defend any legal proceeding in respect of any depositary shares or preferred shares unless the holders provide them with satisfactory indemnity. They may rely upon written advice of counsel or accountants, or information provided by persons presenting preferred stock for deposit, holders of depositary shares or other persons believed to be competent and on documents they believe to be genuine.
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The following description of the warrants and terms of the warrant agreement is a summary. It summarizes only those aspects of the warrants and those portions of the warrant agreement which we believe will be most important to your decision to invest in our warrants. There may be other provisions in the warrant agreement and the warrant certificate relating to the warrants which are also important to you. You should read these documents for a full description of the terms of the warrants. The forms of the warrant agreement and the warrant certificate will be filed or incorporated by reference as exhibits to the registration statement of which this prospectus is a part.
General
We may issue warrants to purchase debt or equity securities. We may issue warrants independently or together with any offered securities. The warrants may be attached to or separate from those offered securities. We will issue the warrants under warrant agreements to be entered into between us and a bank or trust company, as warrant agent, all as described in the applicable prospectus supplement. The warrant agent will act solely as our agent in connection with the warrants and will not assume any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants.
The prospectus supplement relating to any warrants that we may offer will contain the specific terms of the warrants. These terms may include, but are not limited to, the following:
| • | the title of the warrants; |
| • | the designation, amount and terms of the securities for which the warrants are exercisable; |
| • | the designation and terms of the other securities, if any, with which the warrants are to be issued and the number of warrants issued with each other security; |
| • | the price or prices at which the warrants will be issued; |
| • | the aggregate number of warrants; |
| • | any provisions for adjustment of the number or amount of securities receivable upon exercise of the warrants or the exercise price of the warrants; |
| • | the price or prices at which the securities purchasable upon exercise of the warrants may be purchased; |
| • | the terms of any mandatory or optional redemption provisions relating to the warrants; |
| • | the terms of any right we have to accelerate the exercise of the warrants upon the occurrence of certain events; |
| • | if the warrants will be sold with any other securities, and the date, if any, on and after which those warrants and any other securities will be transferable; |
| • | the identity of the warrant agent; |
| • | if applicable, the date on and after which the warrants and the securities purchasable upon exercise of the warrants will be separately transferable; |
| • | if applicable, a discussion of the material United States federal income tax considerations applicable to the exercise of the warrants; |
| • | any other terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants; |
| • | the date on which the right to exercise the warrants will commence, and the date on which the right will expire; |
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| • | the maximum or minimum number of warrants which may be exercised at any time; and |
| • | information with respect to book-entry procedures, if any. |
Exercise of Warrants
Each warrant will entitle the holder of warrants to purchase for cash the amount of debt or equity securities, at the exercise price stated or determinable in the prospectus supplement for the warrants. Warrants may be exercised at any time up to the close of business on the expiration date shown in the prospectus supplement relating to the warrants, unless otherwise specified in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants will become void. Warrants may be exercised as described in the prospectus supplement relating to the warrants. When the warrant holder makes the payment and properly completes and signs the warrant certificate at the corporate trust office of the warrant agent or any other office indicated in the prospectus supplement, we will, as soon as possible, forward the debt or equity securities that the warrant holder has purchased. If the warrant holder exercises the warrant for less than all of the warrants represented by the warrant certificate, we will issue a new warrant certificate for the remaining warrants.
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DESCRIPTION OF SUBSCRIPTION RIGHTS
This section describes the general terms of the subscription rights to purchase common stock or other securities that we may offer to stockholders using this prospectus. The following description is only a summary and does not purport to be complete. You must look at the applicable forms of subscription agent agreement and subscription certificate for a full understanding of all terms of any series of subscription rights. The forms of the subscription agent agreement and the subscription certificate will be filed or incorporated by reference as exhibits to the registration statement of which this prospectus is a part.
General
Subscription rights may be issued independently or together with any other security and may or may not be transferable. As part of the rights offering, we may enter into a standby underwriting or other arrangement under which the underwriters or any other person would purchase any securities that are not purchased in such rights offering. If we issue subscription rights, they may be governed by a separate subscription agent agreement that we will sign with a bank or trust company, as rights agent, that will be named in the applicable prospectus supplement. The rights agent will act solely as our agent and will not assume any obligation to any holders of rights certificates or beneficial owners of rights.
In general, a right entitles the holder to purchase for cash a specific number of shares of common stock or other securities at a specified exercise price. The rights are normally issued to stockholders as of a specific record date, may be exercised only for a limited period of time and become void following the expiration of such period. If we determine to issue subscription rights, we will accompany this prospectus with a prospectus supplement that will describe, among other things:
| • | the record date for stockholders entitled to receive the rights; |
| • | the number of shares of common stock or other securities that may be purchased upon exercise of each right; |
| • | the exercise price of the rights; |
| • | whether the rights are transferable; |
| • | the period during which the rights may be exercised and when they will expire; |
| • | the steps required to exercise the rights; |
| • | the price, if any, for the subscription rights; |
| • | the number of subscription rights issued; |
| • | the terms of the shares of common stock or shares of preferred stock, debt securities or depositary shares; |
| • | the extent to which the subscription rights are transferable; |
| • | if applicable, the material terms of any standby underwriting or other arrangement entered into by us in connection with the offering of subscription rights; |
| • | the other terms of the subscription rights, including the terms, procedures and limitations relating to the exercise of the subscription rights; |
| • | whether the rights include “oversubscription rights” so that the holder may purchase more securities if other holders do not purchase their full allotments; |
| • | whether we intend to sell the shares of common stock or other securities that are not purchased in the rights offering to an underwriter or other purchaser under a contractual “standby” commitment or other arrangement; and |
| • | any applicable United States federal income tax considerations. |
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If fewer than all of the rights issued in any rights offering are exercised, we may offer any unsubscribed securities directly to persons other than stockholders, to or through agents, underwriters or dealers or through a combination of such methods, including pursuant to standby arrangements, as described in the applicable prospectus supplement.
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DESCRIPTION OF DEBT SECURITIES AND GUARANTEES
The following description discusses the general terms and provisions of the debt securities that we may offer under this prospectus. The debt securities may be issued as senior debt securities or subordinated debt securities. The indebtedness represented by the senior debt securities will rank equally with all of our other unsecured and unsubordinated debt. The senior debt securities will, however, be subordinated in right of payment to all of our secured indebtedness to the extent of the value of the assets securing that indebtedness. The indebtedness represented by the subordinated debt securities will rank junior and be subordinate in right of payment to the prior payment in full of our senior debt, to the extent and in the manner set forth in the applicable prospectus supplement for the securities.
Unless otherwise specified in the applicable prospectus supplement, the senior debt securities and the subordinated debt securities will be issued by CDW LLC and CDW Finance Corporation and will be guaranteed by CDW Corporation and/or one or more of our domestic subsidiaries. The senior debt securities and the subordinated debt securities will be issued under indenture(s) between us and one or more United States banking institutions. Unless otherwise specified in the applicable prospectus supplement, the trustee under the indentures will be U.S. Bank National Association.
The form of the indenture is filed as an exhibit to the registration statement of which this prospectus is a part. The indenture is subject to and governed by the Trust Indenture Act of 1939, as amended, or the Trust Indenture Act, and may be supplemented or amended from time to time following its execution. The form of the indenture gives us broad authority to set the particular terms of each series of debt securities, including the right to modify certain of the terms contained in the indenture. The particular terms of a series of debt securities and the extent, if any, to which the particular terms of the issue modify the terms of the form of indenture will be described in the prospectus supplement relating to such series of debt securities.
CDW LLC and CDW Finance Corporation may also issue additional senior debt securities under the indenture governing their 5.500% Senior Notes due December 2024 (the “December 2024 Senior Notes”), the indenture governing their 4.125% Senior Notes due May 2025 (the “May 2025 Senior Notes”), the indenture governing their 2.670% Senior Notes due December 2026 (the “December 2026 Senior Notes”), the indenture governing their 4.250% Senior Notes due April 2028 (the “April 2028 Senior Notes”), the indenture governing their 3.276% Senior Notes due December 2028 (the “December 2028 Senior Notes”), the indenture governing their 3.250% Senior Notes due February 2029 (the “February 2029 Senior Notes”), or the indenture governing their 3.569% Senior Notes due December 2031 (the “December 2031 Senior Notes”), which will have terms substantially identical in all material respects to the December 2024 Senior Notes, the May 2025 Senior Notes, the December 2026 Senior Notes, the April 2028 Senior Notes, the December 2028 Senior Notes, the February 2029 Senior Notes, or the December 2031 Senior Notes, respectively, and which will be guaranteed by CDW Corporation and certain of our domestic subsidiaries that are guarantors under our senior unsecured term loan facility. The notes issued under any such series and any additional notes issued under such series will be treated as a single class for all purposes of the indenture governing such series. The indentures governing the December 2024 Senior Notes, the May 2025 Senior Notes, the December 2026 Senior Notes, the April 2028 Senior Notes, the December 2028 Senior Notes, the February 2029 Senior Notes and the December 2031 Senior Notes are filed as exhibits to the registration statement of which this prospectus is a part.
The following summary describes selected provisions of the form of indenture. This summary does not describe every aspect of the debt securities or the indenture and is subject to, and qualified in its entirety by reference to, all the provisions of the indenture, including the terms defined in the indenture. We urge you to read the indenture in its entirety. This summary is also subject to, and qualified in its entirety by reference to, the description of the particular debt securities in the applicable prospectus supplement.
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General
The indenture provides that we will be able to issue an unlimited aggregate principal amount of debt securities under the indentures, in one or more series, and in any currency or currency units. We are not required to issue all debt securities of one series at the same time and, unless otherwise provided, we may reopen a series, without the consent of the holders of the debt securities of that series, for issuances of additional debt securities of that series.
Prior to the issuance of each series of debt securities, the terms of the particular securities will be specified in a supplemental indenture or a resolution of our board of directors or in one or more officers’ certificates pursuant to a board resolution. We will describe in the applicable prospectus supplement the terms of the debt securities being offered, including:
| • | the title, and the price at which we will sell, the offered debt securities; |
| • | whether the offered debt securities are senior debt securities or subordinated debt securities; |
| • | the aggregate principal amount of the offered debt securities; |
| • | the date or dates on which principal will be payable or how to determine such date or dates; |
| • | the rate or rates or method of determination of interest; |
| • | the date from which interest will accrue; |
| • | the dates on which interest will be payable and any record dates for the interest payable on the interest payment dates; |
| • | the place of payment on the offered debt securities; |
| • | any obligation or option we have to redeem, purchase or repay the offered debt securities, or any option of the registered holder to require us to redeem, repurchase or repay offered debt securities, and the terms and conditions upon which the offered debt securities will be redeemed, purchased or repaid; |
| • | the currency or currencies, including composite currencies or currency units, in which payment of the principal of (or premium, if any) or interest, if any, on any of the offered debt securities will be payable if other than the currency of the United States of America; |
| • | whether the securities are to be guaranteed and the terms of any guarantees; |
| • | any index, formula or other method used to determine the amount of principal, premium, if any, or interest; |
| • | applicable material federal income tax considerations; |
| • | our right, if any, to defer payment of interest and the maximum length of this deferral period; |
| • | whether the offered debt securities are defeasible; |
| • | any addition to or change in the events of default; |
| • | any addition to or change in the covenants in the indenture; |
| • | the terms of any right to convert the offered debt securities into common shares; and |
| • | any other terms of the offered debt securities not inconsistent with the provisions of the indenture. |
The general provisions of the indentures do not contain any provisions that would limit our ability or the ability of our subsidiaries to incur indebtedness or that would afford holders of our debt securities protection in the event of a highly leveraged or similar transaction involving us or any of our subsidiaries. Please refer to the applicable prospectus supplement for information with respect to any deletions from, modifications of or
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additions to, the events of default described below that are applicable to the offered debt securities or any covenants or other provisions providing event risk or similar protection.
Payment
Unless we state otherwise in the applicable prospectus supplement, we will pay interest on a debt security on each interest payment date to the person in whose name the debt security is registered as of the close of business on the regular record date relating to the interest payment date.
Unless we state otherwise in the applicable prospectus supplement, we will pay principal of and any premium on the debt securities at stated maturity, upon redemption or otherwise, upon presentation of the debt securities at the office of the trustee, as our paying agent, or at other designated places. Any other paying agent initially designated for the debt securities of a particular series will be identified in the applicable prospectus supplement.
Forms, Transfers and Exchanges
The debt securities of each series will be issued only in fully registered form, without interest coupons. Unless we state otherwise in the applicable prospectus supplement, the debt securities will be issued in denominations of $2,000 each and integral multiples of $1,000 in excess of $2,000.
Subject to the terms of the indenture and the limitations applicable to global securities, you may exchange or transfer debt securities at the corporate trust office of the trustee or at any other office or agency maintained by us for that purpose, without the payment of any service charge, except for any tax or governmental charge.
Global Securities
The debt securities of any series may be issued, in whole or in part, by one or more global certificates that will be deposited with the depositary identified in the applicable prospectus supplement.
No global security may be exchanged in whole or in part for the debt securities registered in the name of any person other than the depositary for that global security or any nominee of that depositary except in the following circumstances or as otherwise provided in the applicable prospectus supplement. The depositary may discontinue providing its services as depositary with respect to the securities at any time by giving reasonable notice to us. Under such circumstances, in the event that a successor depositary is not obtained, certificates are required to be printed and delivered. In addition, we may decide to discontinue use of the system of book-entry-only transfers through a depositary. In that event, certificates will be printed and delivered to the depositary.
Unless otherwise stated in any prospectus supplement, The Depository Trust Company (“DTC”) will act as depositary. Beneficial interests in global certificates will be shown on, and transfers of global certificates will be effected only through records maintained by DTC and its participants.
Events of Default
Unless otherwise specified in the applicable prospectus supplement, an event of default occurs with respect to debt securities of any series if:
| • | we default in payment when due and payable, upon redemption, acceleration or otherwise, of principal of, or premium, if any, on the debt securities; |
| • | we default in the payment when due of interest on or with respect to the debt securities and such default continues for a period of 30 days; |
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| • | we default in the performance of, or breach any covenant, warranty or other agreement contained in, the indenture (other than a default in the performance or breach of a covenant, warranty or agreement which is specifically dealt with in the immediately preceding two bullets) and such default or breach continues for a period of 60 days after the notice specified below or 90 days with respect to the covenant described under Section 4.03 of the indenture; |
| • | certain events of bankruptcy affecting us; |
| • | if Article X of the indenture is made applicable with respect to such debt securities, the guarantee of CDW Corporation ceases to be in full force and effect (except as contemplated by the terms hereof); or |
| • | CDW Corporation denies or disaffirms its obligations under any indenture or guarantee, other than by reason of the release of the guarantee in accordance with the terms of any indenture. |
If an event of default (other than an event of default with respect to certain events of bankruptcy affecting us) shall occur and be continuing, the trustee acting at the written direction of the holders of at least 25% in aggregate principal amount of the then total outstanding debt securities of an affected series may declare the principal of the debt securities and any accrued interest on the debt securities to be due and payable by notice in writing to us and the trustee specifying the respective event of default and that it is a “notice of acceleration,” and the same shall become immediately due and payable.
Upon such declaration of acceleration, the aggregate principal amount of, and accrued and unpaid interest, if any, on all of the outstanding debt securities shall ipso facto become and be immediately due and payable in cash without any declaration or other act on the part of the trustee or any holder of the debt securities. After such acceleration, but before a judgment or decree based on acceleration, the holders of a majority in aggregate principal amount of such outstanding debt securities may, under certain circumstances, rescind and annul such acceleration if all events of default, other than the nonpayment of accelerated principal of or interest on such debt securities, have been cured or waived as provided in the indenture.
The holders of a majority in aggregate principal amount of the debt securities then outstanding by written notice to the trustee may waive any existing default or event of default and its consequences:
| • | if the rescission would not conflict with any judgment or decree; |
| • | if all existing events of default have been cured or waived except nonpayment of principal or interest that has become due solely because of the acceleration; |
| • | to the extent the payment of such interest is lawful, interest on overdue installments of interest and overdue principal, which has become due otherwise than by such declaration of acceleration, has been paid; |
| • | if we have paid the trustee its reasonable compensation and reimbursed the trustee for its expenses, disbursements and advances; and |
| • | in the event of the cure or waiver of an event of default of the type related to certain events of bankruptcy affecting us, the trustee shall have received an officers’ certificate and an opinion of counsel that such event of default has been cured or waived. |
No such rescission shall affect any subsequent default or impair any right consequent thereto.
If an event of default of the type related to certain events of bankruptcy affecting us with respect to us occurs and is continuing, then all unpaid principal of, and premium, if any, and accrued and unpaid interest, if any, on all of the outstanding debt securities shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the trustee or any holder of the securities.
No holder of any debt security will have any right to institute any proceeding with respect to the debt securities or for any remedy thereunder, unless such holder shall have previously given the trustee written notice
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of a continuing event of default and unless also the holders of at least 25% in aggregate principal amount of the then outstanding debt securities shall have made written request, and offered reasonable indemnity satisfactory to the trustee, to the trustee to institute such proceeding as trustee, and the trustee shall not have received from the holders of a majority in aggregate principal amount of the outstanding debt securities a direction inconsistent with such request and shall have failed to institute such proceeding within 60 days. Such limitations do not apply, however, to a suit instituted by a holder of a debt security for enforcement of payment of the principal of (and premium, if any) or interest on such debt security on or after the respective due dates expressed in such debt security.
The holders of not less than a majority in aggregate principal amount of the issued and then outstanding debt securities of the affected series by notice to the trustee may on behalf of the holders of all of the debt securities waive any existing default or event of default under the indenture, and its consequences, except a default in the payment of the principal of, premium, if any, or interest on such debt securities. Upon such waiver such default shall cease to exist with respect to the applicable series, and any event of default arising therefrom shall be deemed to have been cured with respect to the applicable series for every purpose of this indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Holders of the debt securities may not enforce the indenture or such debt securities except as provided in such indenture and under the Trust Indenture Act. Subject to the provisions of the indenture relating to the duties of the trustee, the trustee is under no obligation to exercise any of its rights or powers under the indenture at the request, order or direction of any of the holders of the debt securities, unless such holders have offered to the trustee reasonable indemnity satisfactory to the trustee. Subject to all provisions of the indenture and applicable law, the holders of a majority in aggregate principal amount of the then outstanding debt securities of a series issued under the Indenture have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising any trust or power conferred on the trustee.
We are required to deliver to the trustee annually a statement regarding compliance with the indenture. Upon becoming aware of any default or event of default, we are required to promptly deliver to the trustee a statement specifying such default or event of default (unless such default or event of default has been cured prior to such time).
Merger or Consolidation
The indenture provides that we may not consolidate or merge with or into another person, whether or not we are the surviving entity, and that we may not sell, assign, transfer, convey, lease or otherwise dispose of all or substantially all of our properties and assets in one or more related transactions, to another person, unless:
| • | we are the surviving corporation; or the person formed by or surviving such consolidation or merger (if other than us) or to which such sale, assignment, transfer, conveyance, lease or other disposition has been made is a corporation or limited liability company organized or existing under the laws of the United States, any state of the United States, the District of Columbia or any territory thereof; |
| • | the successor company (if other than us) assumes all of our obligations under the debt securities and the indenture pursuant to agreements reasonably satisfactory to the trustee; |
| • | immediately after such transaction, no default or event of default exists; and |
| • | each guarantor (except if it is party to the transactions described above, in which case the second bullet above shall apply) shall have by supplemental indenture confirmed that its guarantee shall apply to such person’s obligations under the debt securities and the indenture. |
Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of our assets or a guarantor in accordance with the indenture, the successor corporation formed shall succeed to, and be substituted for (so that from and after the date of such consolidation, merger,
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sale, lease, conveyance or other disposition, the provisions of the indenture referring to us shall refer instead to the successor corporation), and shall exercise every right and power of, us under the indenture with the same effect as if such successor person had been named as us; provided that the we shall not be relieved from the obligation to pay the principal of and interest on the debt securities except in the case of a sale, assignment, transfer, conveyance or other disposition of all of our assets.
Modification or Waiver
Without the consent of any holder, we and the trustee may modify the indenture for any of the following purposes:
| • | to cure any ambiguity, omission, mistake, defect or inconsistency, as certified by us; |
| • | to provide for uncertificated debt securities in addition to or in place of certificated debt securities; |
| • | to provide for the assumption by a successor company or a successor company of a guarantor, as applicable, of our or such guarantor’s obligations under the indenture, the debt securities or any guarantee; |
| • | to make any change that would provide any additional rights or benefits to the holders of debt securities or that does not adversely affect the legal rights under the indenture of any such holder; provided that such changes pursuant to this clause shall not adversely affect the interests of the holders in any material respect, as determined in good faith by our board of directors; |
| • | to comply with requirements of the SEC in order to effect or maintain the qualification of the Indenture under the Trust Indenture Act; |
| • | to evidence and provide for the acceptance and appointment of a successor trustee; |
| • | to provide for the issuance of exchange notes or private exchange notes, which are identical to exchange notes except they are not freely transferable; |
| • | to add a guarantee of the debt securities; |
| • | to mortgage, pledge, hypothecate or grant any other lien in favor of the trustee for the benefit of the holders of the debt securities, as security for the payment and performance of all or any portion of the obligations, in any property or assets, or otherwise to secure the debt securities; |
| • | to conform the text of the indenture, the guarantees or the debt securities to any provision of the “Description of New Securities” to the extent that such provision in such “Description of New Securities” was intended to be a verbatim recitation of a provision of the indenture, the guarantee or debt securities, as certified by us; or |
| • | to establish any form of security or guarantee, to provide for the issuance of any series of securities or guarantees thereof, and to set forth the terms thereof and/or add to the rights of the holders of the securities or guarantees of any series. |
We and the trustee may, with some exceptions, amend or modify either indenture with the consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of all series affected by the amendment or modification. However, no amendment or modification may, without the consent of the holder of each outstanding debt security affected thereby:
| • | reduce the principal amount of debt securities issued thereunder whose holders must consent to an amendment, supplement or waiver; |
| • | reduce the principal of or change the fixed final maturity of any debt security or alter the provisions with respect to the redemption of any debt security; |
| • | reduce the rate of or change the time for payment of interest on any debt security issued thereunder; |
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| • | waive a default or event of default in the payment of principal of, premium, if any, or interest on the debt securities issued thereunder (except a rescission of acceleration of the debt securities by the holders of at least a majority in aggregate principal amount of the debt securities of the applicable series then outstanding and a waiver of the payment default that resulted from such acceleration or in respect of a covenant or provision contained in the indenture or any guarantee which cannot be amended or modified without the consent of all holders); |
| • | make any debt security payable in money other than that stated therein; |
| • | make any change in the provisions of any indenture relating to waivers of past defaults or the rights of holders of debt securities to receive payments of principal of, or interest or premium, if any, on the debt securities issued thereunder or impair the right of any holder of debt securities to institute suit for the enforcement of any payment on or with respect to such holder’s debt securities; |
| • | make any change in the preceding amendment and waiver provisions; |
| • | make any change to or modify the ranking of the debt securities that would adversely affect the holders of debt securities; or |
| • | modify the guarantees in any manner adverse to the holders of the debt securities. |
Legal Defeasance and Covenant Defeasance
The indenture provides that we may, at our option and at any time, elect to have all of our obligations and the obligations of the applicable guarantors discharged with respect to any outstanding debt securities issued under the indenture, subject to the terms and conditions as specified in the applicable prospectus supplement, except for:
| • | the rights of holders of outstanding debt securities issued thereunder to receive payments in respect of the principal of, premium, if any, and interest on such debt securities when such payments are due solely out of the trust referred to below; |
| • | our obligations with respect to the debt securities issued thereunder concerning issuing temporary debt securities, registration of such debt securities, mutilated, destroyed, lost or stolen debt securities and the maintenance of an office or agency for payment and money for security payments held in trust; |
| • | the rights, powers, trusts, duties and immunities of the trustee, and our obligations in connection therewith; and |
| • | the legal defeasance provisions of the indenture. |
In addition, we may, at our option and at any time, elect to have our obligations and the obligations of the guarantors released with respect to certain covenants that are described in the indenture and thereafter any omission to comply with those covenants will not constitute a default or event of default with respect to the debt securities issued thereunder. In the event that a covenant defeasance occurs, certain events (not including nonpayment, bankruptcy, receivership, rehabilitation and insolvency events of ours) described under “—Events of Default” will no longer constitute an event of defaults with respect the debt securities issued under the indenture.
In order to exercise either legal defeasance or covenant defeasance under the indenture:
| • | we must irrevocably deposit with the trustee, in trust, for the benefit of the holders of the debt securities of such series, cash in U.S. dollars, non-callable U.S. government securities, or a combination of cash in U.S. dollars and non-callable U.S. government securities, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, to pay the principal of, premium, if any, and interest due on the outstanding debt securities of such series (calculated on the cash interest rate, if applicable) issued thereunder on the stated |
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| maturity date or on the applicable redemption date, as the case may be, of such principal, premium, if any, or interest on such debt securities and we must specify whether such debt securities are being defeased to maturity or to a particular redemption date; |
| • | in the case of legal defeasance, we shall have delivered to the trustee an opinion of counsel reasonably acceptable to the trustee confirming that, subject to customary assumptions and exclusions, (a) we have received from, or there has been published by, the United States Internal Revenue Service a ruling or (b) since the issuance of the debt securities of such series, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, subject to customary assumptions and exclusions, the holders of the outstanding debt securities of such series will not recognize income, gain or loss for U.S. federal income tax purposes, as applicable, as a result of such legal defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such legal defeasance had not occurred; |
| • | in the case of covenant defeasance, we have delivered to the trustee an opinion of counsel reasonably acceptable to the trustee confirming that, subject to customary assumptions and exclusions, the holders of the outstanding debt securities of such series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such covenant defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred; |
| • | no default or event of default has occurred and is continuing on the date of such deposit (other than a default or event of default resulting from the borrowing of funds to be applied to make such deposit and the grant of any lien securing such borrowings); |
| • | such legal defeasance or covenant defeasance will not result in a breach or violation of, or constitute a default under any other material agreement or instrument (other than the indenture) to which we or any guarantor is a party or by which we or any guarantor is bound; |
| • | we must deliver to the trustee an officers’ certificate stating that the deposit was not made by us with the intent of preferring the holders of the debt securities over the other creditors of ours or any guarantor or defeating, hindering, delaying or defrauding creditors of ours or any guarantor or others; and |
| • | we must deliver to the trustee an officers’ certificate and an opinion of counsel (which opinion of counsel may be subject to customary assumptions and exclusions), each stating that all conditions precedent provided for or relating to the legal defeasance or the covenant defeasance, as the case may be, have been complied with. |
Senior Debt Securities
The senior debt securities will be unsecured senior obligations and will rank equally with all other senior unsecured and unsubordinated debt. The senior debt securities will, however, be effectively subordinated in right of payment to all of our secured indebtedness to the extent of the value of the assets securing that indebtedness. Except as provided in the senior indenture or specified in any authorizing resolution or supplemental indenture relating to a series of senior debt securities to be issued, no senior indenture will limit the amount of additional indebtedness that may rank equally with the senior debt securities or the amount of indebtedness, secured or otherwise, that may be incurred or preferred shares that may be issued by any of our subsidiaries.
Subordinated Debt
Subordinated debt securities will be subordinate and junior in right of payment, to the extent and in the manner set forth in the indenture, to all of our “senior indebtedness.” The indenture defines “senior indebtedness” as all obligations or indebtedness of, or guaranteed or assumed by, us for borrowed money whether or not represented by bonds, notes, debentures or other similar instruments, and amendments, renewals, extensions,
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modifications and refundings of any such indebtedness or obligation, in each case, whether outstanding on the date hereof or the date the debt securities are issued or created, incurred, or thereafter guaranteed or assumed. “Senior indebtedness” does not include any subordinated debt securities or any other obligations specifically designated as being subordinate in right of payment to senior indebtedness.
In general, the holders of all senior indebtedness are first entitled to receive payment of the full amount unpaid on senior indebtedness before the holders of any of the subordinated debt securities are entitled to receive a payment on account of the principal or interest on the indebtedness evidenced by the subordinated debt securities in certain events. Because the subordinated debt securities will be our unsecured obligations, our secured debt and other secured obligations will also be effectively senior to the subordinated debt securities to the extent of the value of the assets securing such debt or other obligations.
Corporate Existence
Subject to the terms of the indenture, we will do or cause to be done all things necessary to preserve and keep in full force and effect our corporate (and in the case of CDW LLC, limited liability company) existence, charter and statutory rights and franchises; provided, however, that we will not be required to preserve any right or franchise if we determine that the preservation thereof is no longer desirable in the conduct of our business.
Governing Law
The indentures and our debt securities will be governed by, and construed in accordance with, the law of the State of New York.
Guarantees
If the applicable prospectus supplement relating to a series of debt securities provides that those debt securities will have the benefit of a guarantee by CDW Corporation and/or any of its then existing or future domestic subsidiaries, then the debt securities will be fully and unconditionally guaranteed by such guarantors. Unless otherwise specified in the applicable prospectus supplement, we expect that the debt securities will be guaranteed by the guarantors under our existing indentures and our existing senior credit facilities. The guarantees will be general obligations of each guarantor. The guarantees will be joint and several obligations of the guarantors. If a series of debt securities is so guaranteed, the indenture or a supplemental indenture to the base indenture will be executed by each guarantor. The obligations of each guarantor under its guarantee will be limited as necessary to prevent that guarantee from constituting a fraudulent conveyance under applicable law. The terms of any guarantee and the conditions upon which any guarantor may be released from its obligations under that guarantee will be set forth in the applicable prospectus supplement.
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DESCRIPTION OF SHARE PURCHASE CONTRACTS AND SHARE PURCHASE UNITS
We may issue share purchase contracts, including contracts obligating holders to purchase from us, and us to sell to the holders, a specified number of shares of common stock at a future date or dates. The price per share of common stock and the number of shares of common stock may be fixed at the time the share purchase contracts are issued or may be determined by reference to a specific formula stated in the share purchase contracts.
The share purchase contracts may be issued separately or as part of units that we call “share purchase units.” Share purchase units consist of a share purchase contract and either our debt securities or debt obligations of third parties, including United States treasury securities, securing the holders’ obligations to purchase the common stock under the share purchase contracts.
The share purchase contracts may require us to make periodic payments to the holders of the share purchase units or vice versa, and these payments may be unsecured or refunded on some basis. The share purchase contracts may require holders to secure their obligations in a specified manner.
The applicable prospectus supplement will describe the terms of the share purchase contracts or share purchase units. The description in the prospectus supplement will only be a summary, and you should read the share purchase contracts, and, if applicable, collateral or depositary arrangements, relating to the share purchase contracts or share purchase units. Material United States federal income tax considerations applicable to the share purchase units and the share purchase contracts will also be discussed in the applicable prospectus supplement.
Each share purchase contract or share purchase unit and any related agreement will be governed by, and construed in accordance with, the laws of the State of New York.
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Selling stockholders are persons or entities that, directly or indirectly, have acquired or will from time to time acquire from us, shares of common stock in various private transactions. Such selling stockholders may be parties to registration rights agreements with us, or we otherwise may have agreed or will agree to register their securities for resale. The initial purchasers of our securities, as well as their transferees, pledges, donees or successors, all of whom we refer to as “selling stockholders,” may from time to time offer and sell the securities pursuant to this prospectus and any applicable prospectus supplement.
The applicable prospectus supplement will set forth the name of each of the selling stockholders and the number of shares of our common stock beneficially owned by such selling stockholders that are covered by such prospectus supplement. The applicable prospectus supplement will also disclose whether any of the selling stockholders has held any position or office with, has been employed by or otherwise has had a material relationship with us during the three years prior to the date of the prospectus supplement.
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We may offer and sell the securities described in this prospectus, and certain stockholders may sell common stock, in one or more of the following ways from time to time in one or more transactions:
| • | to underwriters or dealers for resale to the public or to institutional investors; |
| • | directly to institutional investors; |
| • | directly to a limited number of purchasers or to a single purchaser; |
| • | through agents to the public or to institutional investors; or |
| • | through a combination of any of these methods of sale. |
The prospectus supplement with respect to each series of securities will state the terms of the offering of the securities, including:
| • | the name or names of any underwriters, dealers or agents; |
| • | the purchase price of the securities and the net proceeds to be received by us and any selling stockholders from the sale; |
| • | any underwriting discounts or agency fees and other items constituting underwriters’ or agents’ compensation; |
| • | any public offering price; |
| • | any discounts or concessions allowed or reallowed or paid to dealers; and |
| • | any securities exchange or market on which the securities may be listed. |
If we or any selling stockholders use underwriters or dealers in the sale, the securities will be acquired by the underwriters or dealers for their own account and may be resold from time to time in one or more transactions, including:
| • | privately negotiated transactions; |
| • | at a fixed public offering price or prices, which may be changed; |
| • | in “at the market offerings” within the meaning of Rule 415(a)(4) of the Securities Act; |
| • | at prices related to prevailing market prices; or |
| • | at negotiated prices. |
Any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time.
If underwriters are used in the sale of any securities, the securities may be offered either to the public through underwriting syndicates represented by managing underwriters, or directly by underwriters. Generally, the underwriters’ obligations to purchase the securities will be subject to certain conditions precedent. The underwriters will be obligated to purchase all of the securities if they purchase any of the securities.
We may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement indicates, in connection with those derivatives, the third parties may sell securities covered by this prospectus and the applicable prospectus supplement, including short sale transactions. If so, the third party may use securities pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings of stock, and may use securities received from us in settlement of those derivatives to close out any related open borrowings of stock. The third party in such sale transactions will be an underwriter and will be identified in the applicable prospectus supplement or a post-effective amendment to this registration statement.
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If indicated in an applicable prospectus supplement, we and any selling stockholders may sell the securities through agents from time to time. The applicable prospectus supplement will name any agent involved in the offer or sale of the securities and any commissions paid to them. Generally, any agent will be acting on a best efforts basis for the period of its appointment. We and any selling stockholders may authorize underwriters, dealers or agents to solicit offers by certain purchasers to purchase the securities from us and any selling stockholders at the public offering price set forth in the applicable prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. The delayed delivery contracts will be subject only to those conditions set forth in the applicable prospectus supplement, and the applicable prospectus supplement will set forth any commissions paid for solicitation of these delayed delivery contracts.
Offered securities may also be offered and sold, if so indicated in the applicable prospectus supplement, in connection with a remarketing upon their purchase, in accordance with a redemption or repayment pursuant to their terms, or otherwise, by one or more remarketing firms, acting as principals for their own accounts or as agents for us or any selling stockholders. Any remarketing firm will be identified and the terms of its agreements, if any, with us or any selling stockholders and its compensation will be described in the applicable prospectus supplement.
Agents, underwriters and other third parties described above may be entitled to indemnification by us or any selling stockholders against certain civil liabilities under the Securities Act, or to contribution with respect to payments which the agents or underwriters may be required to make in respect thereof. Agents, underwriters and such other third parties may be customers of, engage in transactions with, or perform services for us in the ordinary course of business.
Each series of securities will be a new issue of securities and may not have an established trading market, other than our common stock, which is listed on the Nasdaq Global Select Market. The securities other than the common stock may or may not be listed on a national securities exchange and no assurance can be given that there will be a secondary market for any such securities or liquidity in the secondary market if one develops. Any underwriters to whom securities are sold by us or any selling stockholders for public offering and sale may make a market in the securities, but such underwriters will not be obligated to do so and may discontinue any market making at any time without notice.
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Certain legal matters with regard to the validity of the securities will be passed upon for us by Sidley Austin LLP, Chicago, Illinois. Certain matters under Maryland and Virginia law will be passed upon by DLA Piper LLP (US). Certain matters under Wisconsin law will be passed upon by FisherBroyles, LLP. Any underwriters or agents will be advised about other issues relating to any offering by counsel named in the applicable prospectus supplement.
The consolidated financial statements of CDW Corporation and its subsidiaries appearing in CDW Corporation’s Annual Report (Form 10-K) for the year ended December 31, 2022, and the effectiveness of CDW Corporation and its subsidiaries’ internal control over financial reporting as of December 31, 2022, have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their reports thereon, included therein, and incorporated herein by reference. Such financial statements are, and audited financial statements to be included in subsequently filed documents will be, incorporated herein in reliance upon the reports of Ernst & Young LLP pertaining to such financial statements and the effectiveness of our internal control over financial reporting as of the respective dates (to the extent covered by consents filed with the Securities and Exchange Commission) given on the authority of such firm as experts in accounting and auditing.
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CDW CORPORATION
Common Stock
Preferred Stock
Depositary Shares
Warrants
Subscription Rights
Debt Securities
Guarantees of Debt Securities
Share Purchase Contracts
Share Purchase Units
CDW LLC
CDW FINANCE CORPORATION
Debt Securities
Guarantees of Debt Securities
PROSPECTUS
The date of this prospectus is August 2, 2023.
You should rely only on the information contained or incorporated by reference in this prospectus. We have not authorized anyone to provide you with different information. You should not assume that the information contained or incorporated by reference in this prospectus is accurate as of any date other than the date of this prospectus. We are not making an offer of these securities in any state where the offer is not permitted.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following is a statement of the estimated expenses, other than underwriting discounts and commissions payable by us or any selling stockholders, to be incurred by the registrants in connection with the issuance and distribution of securities registered under this Registration Statement on Form S-3.
| Securities and Exchange Commission Registration Fee |
$ | (1) | ||
| Legal Fees and Expenses |
(2) | |||
| Accounting Fees and Expenses |
(2) | |||
| Trustees’ Fees and Expenses (including Counsel’s Fees) |
(2) | |||
| Printing and Delivery Expenses |
(2) | |||
| Rating Agency Fees and Expenses |
(2) | |||
| Miscellaneous Expenses |
(2) | |||
|
|
|
|||
| Total |
$ | (2) | ||
|
|
|
| (1) | In accordance with Rules 456(b) and Rule 457(c), we are deferring payment of the registration fee. |
| (2) | Estimated expenses are not presently known. The foregoing sets forth the general categories of expenses (other than underwriting discounts and commissions) that we anticipate we will incur in connection with the offering of securities under this Registration Statement on Form S-3. An estimate of the aggregate expenses in connection with the issuance and distribution of the securities being offered will be included in the applicable prospectus supplement. |
Item 15. Indemnification of Directors and Officers.
We currently have directors’ and officers’ liability insurance policies to insure our directors and officers against liability for actions or omissions occurring in their capacity as a director or officer, subject to certain exclusions or limitations. There is currently no pending material litigation or proceeding involving any of our directors, officers or employees for which indemnification is sought.
We have also entered into indemnification agreements with each of our executive officers and directors. The indemnification agreements provide the executive officers and directors with contractual rights to indemnification, expense advancement and reimbursement, to the fullest extent permitted under Delaware law.
Delaware
CDW Corporation and CDW Finance Corporation are each incorporated under the laws of the State of Delaware.
Section 145 (“Section 145”) of the Delaware General Corporation Law, as the same exists or may hereafter be amended (the “DGCL”), provides that a Delaware corporation may indemnify any persons who were, are or are threatened to be made, parties to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person is or was an officer, director, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation’s best interests and, with respect to any criminal action or proceeding, had no reasonable cause to
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believe that his conduct was illegal. A Delaware corporation may indemnify any persons who are, were or are threatened to be made, a party to any threatened, pending or completed action or suit by or in the right of the corporation by reasons of the fact that such person was a director, officer, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit, provided such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation’s best interests, provided that no indemnification is permitted without judicial approval if the officer, director, employee or agent is adjudged to be liable to the corporation. Where an officer, director, employee or agent is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him against the expenses which such officer or director has actually and reasonably incurred.
Section 145 further authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or enterprise, against any liability asserted against him and incurred by him in any such capacity, arising out of his status as such, whether or not the corporation would otherwise have the power to indemnify him under Section 145.
CDW Corporation’s amended and restated certificate of incorporation limits, to the maximum extent permitted by Delaware law, the personal liability of directors and officers for monetary damages for breach of their fiduciary duties as a director or officer. CDW Finance Corporation’s certificate of incorporation limits, to the maximum extent permitted by Delaware law, the personal liability of directors for monetary damages for breach of their fiduciary duties as a director. CDW Corporation’s amended and restated bylaws and CDW Finance Corporation’s bylaws provide that directors, officers and employees will be indemnified to the fullest extent authorized by the DGCL with respect to actions, suits or proceedings. CDW Corporation’s amended and restated bylaws and CDW Finance Corporation’s bylaws require CDW Corporation or CDW Finance Corporation, as applicable, to pay all expenses incurred by a director, officer or employee in defending any such proceeding.
SCS Holdings I LLC and Sirius Computer Solutions Financial Services, LLC are each organized under the laws of the State of Delaware.
Section 18-108 of the Delaware Limited Liability Company Act provides that, subject to the standards and restrictions, if any, as are set forth in its limited liability company agreement, a limited liability company may, and shall have the power to, indemnify and hold harmless any member or manager or other person from and against any and all claims and demands whatsoever.
SCS Holdings I LLC and Sirius Computer Solutions Financial Services, LLC’s limited liability company agreements each provide that their respective members shall not have any liability for their respective debts, obligations or liabilities.
Each of SCS Holdings I LLC and Sirius Computer Solutions Financial Services, LLC’s limited liability company agreements allows for each person or entity who was or is, or is threatened to be made a party to or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, arbitrative (a “Proceeding”), or any appeal in such a Proceeding or any inquiry or investigation that could lead to such a Proceeding, by reason of the fact that such person, or a person of whom such person the legal representative, is or was an officer of SCS Holdings I LLC or Sirius Computer Solutions Financial Services, LLC or, while an officer of SCS Holdings I LLC or Sirius Computer Solutions Financial Services, LLC, is or was serving at their request as a manager, director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic limited liability company, corporation, partnership, joint venture, sole proprietorship, trust or other enterprise, shall be indemnified to the fullest extent permitted under applicable law against judgments, penalties, fines, settlements and reasonable expenses (including, without
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limitation, reasonable attorneys’ fees) actually incurred by such person in connection with such Proceeding; provided that (a) such person’s course of conduct was pursued in good faith and believed to be the best interests of the Company and (b) such course of conduct did not constitute gross negligence, intentional misconduct, or knowing violation of law.
Each of SCS Holdings I LLC and Sirius Computer Solutions Financial Services, LLC’s limited liability company agreements allows it to purchase and maintain insurance, at its expense, to protect itself and any person who is or was serving as an officer, employee or agent of SCS Holdings I LLC or Sirius Computer Solutions Financial Services, LLC or is or was serving at the request of SCS Holdings I LLC or Sirius Computer Solutions Financial Services, LLC as a manager, director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic limited liability company, corporation, partnership, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise, against any expense, liability or loss, in each case regardless of whether SCS Holdings I LLC or Sirius Computer Solutions Financial Services, LLC would have the obligation to indemnify such person.
These provisions of each agreement shall continue with respect to a person who has ceased to serve in the capacity which initially entitled such person to indemnity.
Illinois
CDW LLC, CDW Direct, LLC, CDW Government LLC and CDW Logistics LLC are each formed under the laws of the State of Illinois.
Section 15-7 of the Illinois Limited Liability Company Act (“ILLCA”) authorizes a limited liability company to indemnify a member or manager for liabilities incurred by the member or manager in the ordinary course of the business of the company or for the preservation of its business or property.
The limited liability company agreement of each of CDW LLC, CDW Direct, LLC, CDW Government LLC and CDW Logistics LLC provide for indemnification of all current and former managers and officers to the fullest extent of the ILLCA.
Maryland
Sirius Federal, LLC was organized under the laws of the State of Maryland.
Section 203 of the Maryland Limited Liability Company Act provides that, unless otherwise provided by law or its articles of organization, a limited liability company has the general powers, whether or not set forth in its articles of organization, to indemnify and hold harmless any member, agent, or employee from and against any and all claims and demands, except in the case of action or failure to act by the member, agent, or employee which constitutes willful misconduct or recklessness, and subject to the standards and restrictions, if any, set forth in the articles of organization or operating agreement.
The limited liability company agreement provides that each person or entity who was or is made a party or is threatened to be made a party to or is involved in any threatened, pending or completed Proceeding, or any appeal in such a Proceeding or any inquiry or investigation that could lead to such a Proceeding, by reason of the fact such person, or a person of whom such person is the legal representative, is or was an officer of Sirius Federal, LLC or, while an officer of Sirius Federal, LLC, is or was serving at the request of Sirius Federal, LLC as a manager, director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic limited liability company, corporation, partnership, joint venture, sole proprietorship, trust or other enterprise, shall be indemnified by Sirius Federal, LLC to the fullest extent permitted under the Maryland Limited Liability Company Act, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits Sirius Federal, LLC to provide broader
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indemnification rights than said law permitted Sirius Federal, LLC to provide prior to such amendment) against judgments, penalties, fines, settlements and reasonable expenses (including, without limitation, reasonable attorneys’ fees) actually incurred by such person in connection with such Proceeding; provided that (a) such person’s course of conduct was pursued in good faith and believed by such person to be in the best interests of Sirius Federal, LLC and (b) such course of conduct did not constitute gross negligence, intentional misconduct, or knowing violation of law on the part of such person.
Texas
Sirius Computer Solutions, LLC is organized under the laws of Texas.
Section 101.402 of the Texas Business Organizations Code permits a Texas limited liability company to (i) indemnify a person, (ii) pay in advance or reimburse expenses incurred by a person and (iii) purchase or procure or establish and maintain insurance or another arrangement to indemnify or hold harmless a person.
The limited liability company agreement of Sirius Computer Solutions, LLC provides that the entity shall indemnify any person who was or is made a party or is threatened to be made a party or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was a member or officer of such entity, or is or was a member or officer of the entity serving at the request of the entity as a manager, director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic limited liability company, corporation, partnership, joint venture, sole proprietorship, trust or other enterprise shall be indemnified by Sirius Computer Solutions, LLC to the fullest extent permitted by the Texas Business Corporation Act, as the same exist or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits Sirius Computer Solutions, LLC to provide broader indemnification rights than said law permitted Sirius Computer Solutions, LLC to provide prior to such amendment) against judgments, penalties, fines, settlements and reasonable expenses (including, without limitation, reasonable attorneys’ fees) actually incurred by such Person in connection with such Proceeding, provided that (a) such person’s course of conduct was pursued in good faith and believed by such person to be in the best interests of Sirius Computer Solutions, LLC and (b) such course of conduct did not constitute gross negligence, intentional misconduct or knowing violation of law.
Virginia
Amplified IT LLC is organized under the laws of the Commonwealth of Virginia.
Section 13.1-1009(16) of the Virginia Limited Liability Company Act (“VLLCA”) permits a limited liability company to indemnify and hold harmless any member or manager or other person from and against any and all claims and demands whatsoever, and to pay for or reimburse any member or manager or other person for reasonable expenses incurred by such a person who is a party to a proceeding in advance of final disposition of the proceeding.
The operating agreement of Amplified IT LLC provides for indemnification of its officers, or, while an officer, or those serving at the request of the Company as a manager, director, officer, partner, venturer, proprietor, trustee, employee, agent, or similar functionary of another foreign or domestic limited liability company, corporation, partnership, joint venture, sole proprietorship, trustee or other enterprise to the fullest extent of the VLLCA, provided that such conduct was pursued in good faith and believed to be in the best interests of the company, and such course of conduct did not constitute gross negligence, intentional misconduct, or a knowing violation of the law and otherwise was materially in accordance with the terms of the operating agreement. Such rights are not exclusive or any other rights under the law.
Wisconsin
CDW Technologies LLC is organized under the laws of the State of Wisconsin.
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Section 183.0106(2)(m) of the Wisconsin Limited Liability Company Act (“WLLCA”) permits a limited liability company to indemnify a member, manager, employee, officer or agent or any other person. Section 183.0403(2) of the WLLCA provides that a company shall indemnify or allow reasonable expenses to and pay liabilities of each member and, if management of the limited liability company is vested in one or more managers, of each manager, incurred with respect to a proceeding if that member or manager was a party to the proceeding in the capacity of a member or manager. However, the WLLCA does not permit a limited liability company to indemnify a member or manager for liabilities, or permit a member or manager to retain any allowance for such expenses, unless it is determined by or on behalf of the limited liability company that the liabilities or expenses did not result from the member’s or manager’s breach or failure to perform a duty to the limited liability company.
The operating agreement for CDW Technologies LLC provides for indemnification of all current and former managers and officers to the fullest extent of the WLLCA.
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Item 16. Exhibits.
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| * | To be filed as an exhibit to a Current Report on Form 8-K or other document to be incorporated by reference herein or to a post-effective amendment hereto, if applicable. |
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Item 17. Undertakings.
(a) Each of the undersigned registrants hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933, as amended (the “Securities Act”), shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
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(5) That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) Each of the undersigned registrants hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of such annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) If the securities being registered are offered to existing security holders pursuant to warrants or subscription rights and any securities not taken by security holders are to be reoffered to the public, each undersigned registrant hereby undertakes to supplement the prospectus, after the expiration of the subscription period, to set forth the results of the subscription offer, the transactions by the underwriters during the subscription period, the amount of unsubscribed securities to be purchased by the underwriters, and the terms of any subsequent reoffering thereof. If any public offering by the underwriters is to be made on terms differing from those set forth on the cover page of the prospectus or applicable prospectus supplement, a post-effective amendment will be filed to set forth the terms of such offering.
(d) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions referred to in Item 15, or otherwise, each of the registrants has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by such registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, such registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Vernon Hills, State of Illinois, on August 2, 2023.
| CDW CORPORATION | ||
| By: | /s/ Christine A. Leahy | |
| Name: | Christine A. Leahy | |
| Title: | Chair, President, Chief Executive Officer and Director | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Albert J. Miralles, Chief Financial Officer of the Registrant, and Robert J. Welyki, Treasurer of the Registrant, or any other person holding the position of Chief Financial Officer or Treasurer of the Registrant from time to time, and each of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and revocation, for him or her and in his or her name, place and stead, in any and all capacities, to execute any or all amendments including any post-effective amendments and supplements to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form S-3 and power of attorney have been signed by the following persons in the capacities and on the dates indicated on August 2, 2023.
| Signature |
Title | |
| /s/ Christine A. Leahy Christine A. Leahy |
Chair, President and Chief Executive Officer (principal executive officer) and Director | |
| /s/ Albert J. Miralles Albert J. Miralles |
Senior Vice President and Chief Financial Officer (principal financial officer) | |
| /s/ Peter R. Locy Peter R. Locy |
Vice President, Controller and Chief Accounting Officer (principal accounting officer) | |
| /s/ Virginia C. Addicott Virginia C. Addicott |
Director | |
| /s/ James A. Bell James A. Bell |
Director | |
| /s/ Lynda M. Clarizio Lynda M. Clarizio |
Director | |
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| Signature |
Title | |
|
/s/ Anthony R. Foxx Anthony R. Foxx |
Director | |
| /s/ Kelly J. Grier Kelly J. Grier |
Director | |
| /s/ Marc E. Jones |
Director | |
| Marc E. Jones | ||
| /s/ Sanjay Mehrotra Sanjay Mehrotra |
Director | |
| /s/ David W. Nelms David W. Nelms |
Director | |
| /s/ Joseph R. Swedish Joseph R. Swedish |
Director | |
| /s/ Donna F. Zarcone Donna F. Zarcone |
Director | |
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Vernon Hills, State of Illinois, on August 2, 2023.
| CDW LLC | ||
| By: | /s/ Christine A. Leahy | |
| Name: | Christine A. Leahy | |
| Title: | Chair, President, Chief Executive Officer and Manager | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Albert J. Miralles, Chief Financial Officer of the Registrant, and Robert J. Welyki, Treasurer of the Registrant, or any other person holding the position of Chief Financial Officer or Treasurer of the Registrant from time to time, and each of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and revocation, for him or her and in his or her name, place and stead, in any and all capacities, to execute any or all amendments including any post-effective amendments and supplements to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form S-3 and power of attorney have been signed by the following persons in the capacities and on the dates indicated on August 2, 2023.
| Signature |
Title | |
| /s/ Christine A. Leahy Christine A. Leahy |
Chair, President and Chief Executive Officer (principal executive officer) and Manager | |
| /s/ Albert J. Miralles Albert J. Miralles |
Senior Vice President and Chief Financial Officer (principal financial officer) | |
| /s/ Peter R. Locy Peter R. Locy |
Vice President, Controller and Chief Accounting Officer (principal accounting officer) | |
| /s/ Virginia C. Addicott Virginia C. Addicott |
Manager | |
| /s/ James A. Bell James A. Bell |
Manager | |
| /s/ Lynda M. Clarizio Lynda M. Clarizio |
Manager | |
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| Signature |
Title | |
|
/s/ Anthony R. Foxx Anthony R. Foxx |
Manager | |
| /s/ Kelly J. Grier |
Manager | |
| Kelly J. Grier | ||
| /s/ Marc E. Jones Marc E. Jones |
Manager | |
| /s/ Sanjay Mehrotra Sanjay Mehrotra |
Manager | |
| /s/ David W. Nelms David W. Nelms |
Manager | |
| /s/ Joseph R. Swedish Joseph R. Swedish |
Manager | |
| /s/ Donna F. Zarcone Donna F. Zarcone |
Manager | |
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Vernon Hills, State of Illinois, on August 2, 2023.
| CDW FINANCE CORPORATION | ||
| By: | /s/ Christine A. Leahy | |
| Name: | Christine A. Leahy | |
| Title: | President, Chief Executive Officer and Director | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Albert J. Miralles, Chief Financial Officer of the Registrant, and Robert J. Welyki, Treasurer of the Registrant, or any other person holding the position of Chief Financial Officer or Treasurer of the Registrant from time to time, and each of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and revocation, for him or her and in his or her name, place and stead, in any and all capacities, to execute any or all amendments including any post-effective amendments and supplements to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form S-3 and power of attorney have been signed by the following persons in the capacities and on the dates indicated on August 2, 2023.
| Signature |
Title | |
| /s/ Christine A. Leahy Christine A. Leahy |
President, Chief Executive Officer (principal executive officer) and Director | |
| /s/ Albert J. Miralles Albert J. Miralles |
Senior Vice President, Chief Financial Officer (principal financial officer) and Director | |
| /s/ Peter R. Locy Peter R. Locy |
Vice President, Controller and Chief Accounting Officer (principal accounting officer) | |
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Vernon Hills, State of Illinois, on August 2, 2023.
| CDW TECHNOLOGIES LLC | ||
| By: | /s/ Christine A. Leahy | |
| Name: | Christine A. Leahy | |
| Title: | President and Chief Executive Officer | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Albert J. Miralles, Chief Financial Officer of the Registrant, and Robert J. Welyki, Treasurer of the Registrant, or any other person holding the position of Chief Financial Officer or Treasurer of the Registrant from time to time, and each of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and revocation, for him or her and in his or her name, place and stead, in any and all capacities, to execute any or all amendments including any post-effective amendments and supplements to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form S-3 and power of attorney have been signed by the following persons in the capacities and on the dates indicated on August 2, 2023.
| Signature |
Title | |
| /s/ Christine A. Leahy Christine A. Leahy |
President and Chief Executive Officer (principal executive officer) | |
| /s/ Albert J. Miralles Albert J. Miralles |
Senior Vice President and Chief Financial Officer (principal financial officer) | |
| /s/ Peter R. Locy Peter R. Locy |
Vice President, Controller and Chief Accounting Officer (principal accounting officer) | |
| CDW LLC | Sole Member | |
| By: | /s/ Christine A. Leahy | |
| Christine A. Leahy President and Chief Executive Officer |
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Vernon Hills, State of Illinois, on August 2, 2023.
| CDW DIRECT, LLC | ||
| By: | /s/ Christine A. Leahy | |
| Name: | Christine A. Leahy | |
| Title: | President and Chief Executive Officer | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Albert J. Miralles, Chief Financial Officer of the Registrant, and Robert J. Welyki, Treasurer of the Registrant, or any other person holding the position of Chief Financial Officer or Treasurer of the Registrant from time to time, and each of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and revocation, for him or her and in his or her name, place and stead, in any and all capacities, to execute any or all amendments including any post-effective amendments and supplements to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form S-3 and power of attorney have been signed by the following persons in the capacities and on the dates indicated on August 2, 2023.
| Signature |
Title | |
| /s/ Christine A. Leahy Christine A. Leahy |
President and Chief Executive Officer (principal executive officer) | |
| /s/ Albert J. Miralles Albert J. Miralles |
Senior Vice President and Chief Financial Officer (principal financial officer) | |
| /s/ Peter R. Locy Peter R. Locy |
Vice President, Controller and Chief Accounting Officer (principal accounting officer) | |
| CDW LLC | Sole Member | |
| By: | /s/ Christine A. Leahy | |
| Christine A. Leahy President and Chief Executive Officer |
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Vernon Hills, State of Illinois, on August 2, 2023.
| CDW GOVERNMENT LLC | ||
| By: | /s/ Robert F. Kirby | |
| Name: | Robert F. Kirby | |
| Title: | President and Manager | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Albert J. Miralles, Chief Financial Officer of the Registrant, and Robert J. Welyki, Treasurer of the Registrant, or any other person holding the position of Chief Financial Officer or Treasurer of the Registrant from time to time, and each of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and revocation, for him or her and in his or her name, place and stead, in any and all capacities, to execute any or all amendments including any post-effective amendments and supplements to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form S-3 and power of attorney have been signed by the following persons in the capacities and on the dates indicated on August 2, 2023.
| Signature |
Title | |
| /s/ Robert F. Kirby Robert F. Kirby |
President and Manager (principal executive officer) | |
| /s/ Albert J. Miralles Albert J. Miralles |
Senior Vice President and Chief Financial Officer (principal financial officer) | |
| /s/ Peter R. Locy Peter R. Locy |
Vice President, Controller and Chief Accounting Officer (principal accounting officer) | |
| /s/ Christine A. Leahy Christine A. Leahy |
Manager | |
| /s/ Christina M. Corley Christina M. Corley |
Manager | |
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Vernon Hills, State of Illinois, on August 2, 2023.
| CDW LOGISTICS LLC | ||
| By: | /s/ Christine A. Leahy | |
| Name: | Christine A. Leahy | |
| Title: | Chief Executive Officer | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Albert J. Miralles, Chief Financial Officer of the Registrant, and Robert J. Welyki, Treasurer of the Registrant, or any other person holding the position of Chief Financial Officer or Treasurer of the Registrant from time to time, and each of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and revocation, for him or her and in his or her name, place and stead, in any and all capacities, to execute any or all amendments including any post-effective amendments and supplements to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form S-3 and power of attorney have been signed by the following persons in the capacities and on the dates indicated on August 2, 2023.
| Signature |
Title | |
| /s/ Christine A. Leahy Christine A. Leahy |
Chief Executive Officer (principal executive officer) | |
| /s/ Albert J. Miralles Albert J. Miralles |
Senior Vice President and Chief Financial Officer (principal financial officer) | |
| /s/ Peter R. Locy Peter R. Locy |
Vice President, Controller and Chief Accounting Officer (principal accounting officer) | |
| CDW LLC | Sole Member | |
| By: | /s/ Christine A. Leahy | |
| Christine A. Leahy President and Chief Executive Officer |
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Vernon Hills, State of Illinois, on August 2, 2023.
| AMPLIFIED IT LLC | ||
| By: | /s/ Christine A. Leahy | |
| Name: | Christine A. Leahy | |
| Title: | Chief Executive Officer | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Albert J. Miralles, Chief Financial Officer of the Registrant, and Robert J. Welyki, Treasurer of the Registrant, or any other person holding the position of Chief Financial Officer or Treasurer of the Registrant from time to time, and each of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and revocation, for him or her and in his or her name, place and stead, in any and all capacities, to execute any or all amendments including any post-effective amendments and supplements to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form S-3 and power of attorney have been signed by the following persons in the capacities and on the dates indicated on August 2, 2023.
| Signature |
Title | |
| /s/ Christine A. Leahy Christine A. Leahy |
Chief Executive Officer (principal executive officer) | |
| /s/ Albert J. Miralles Albert J. Miralles |
Senior Vice President and Chief Financial Officer (principal financial officer) | |
| /s/ Peter R. Locy Peter R. Locy |
Vice President, Controller and Chief Accounting Officer (principal accounting officer) | |
| CDW TECHNOLOGIES LLC | Sole Member | |
| By: | /s/ Christine A. Leahy | |
| Christine A. Leahy President and Chief Executive Officer |
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Vernon Hills, State of Illinois, on August 2, 2023.
| SCS HOLDINGS I LLC
By: CDW LLC, Sole Member | ||
| By: | /s/ Christine A. Leahy | |
| Name: | Christine A. Leahy | |
| Title: | President and Chief Executive Officer | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Albert J. Miralles, Chief Financial Officer of the Registrant, and Robert J. Welyki, Treasurer of the Registrant, or any other person holding the position of Chief Financial Officer or Treasurer of the Registrant from time to time, and each of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and revocation, for him or her and in his or her name, place and stead, in any and all capacities, to execute any or all amendments including any post-effective amendments and supplements to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form S-3 and power of attorney have been signed by the following persons in the capacities and on the dates indicated on August 2, 2023.
| Signature |
Title | |
| CDW LLC | Sole Member | |
| By: | /s/ Christine A. Leahy | |
| Christine A. Leahy President and Chief Executive Officer | ||
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Vernon Hills, State of Illinois, on August 2, 2023.
| SIRIUS COMPUTER SOLUTIONS, LLC | ||
| By: | /s/ Christine A. Leahy | |
| Name: | Christine A. Leahy | |
| Title: | President and Chief Executive Officer | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Albert J. Miralles, Chief Financial Officer of the Registrant, and Robert J. Welyki, Treasurer of the Registrant, or any other person holding the position of Chief Financial Officer or Treasurer of the Registrant from time to time, and each of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and revocation, for him or her and in his or her name, place and stead, in any and all capacities, to execute any or all amendments including any post-effective amendments and supplements to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form S-3 and power of attorney have been signed by the following persons in the capacities and on the dates indicated on August 2, 2023.
| Signature |
Title | |
| /s/ Christine A. Leahy Christine A. Leahy |
President and Chief Executive Officer (principal executive officer) | |
| /s/ Albert J. Miralles Albert J. Miralles |
Senior Vice President and Chief Financial Officer (principal financial officer) | |
| /s/ Peter R. Locy Peter R. Locy |
Vice President, Controller and Chief Accounting Officer (principal accounting officer) | |
| /s/ Christina M. Corley Christina M. Corley |
Manager | |
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Vernon Hills, State of Illinois, on August 2, 2023.
| SIRIUS FEDERAL, LLC | ||
| By: | /s/ Robert F. Kirby | |
| Name: | Robert F. Kirby | |
| Title: | President | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Albert J. Miralles, Chief Financial Officer of the Registrant, and Robert J. Welyki, Treasurer of the Registrant, or any other person holding the position of Chief Financial Officer or Treasurer of the Registrant from time to time, and each of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and revocation, for him or her and in his or her name, place and stead, in any and all capacities, to execute any or all amendments including any post-effective amendments and supplements to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form S-3 and power of attorney have been signed by the following persons in the capacities and on the dates indicated on August 2, 2023.
| Signature |
Title | |
| /s/ Robert F. Kirby Robert F. Kirby |
President (principal executive officer) | |
| /s/ Albert J. Miralles Albert J. Miralles |
Senior Vice President and Chief Financial Officer (principal financial officer) | |
| /s/ Peter R. Locy Peter R. Locy |
Vice President, Controller and Chief Accounting Officer (principal accounting officer) | |
| CDW GOVERNMENT LLC | Sole Member | |
| By: | /s/ Robert F. Kirby | |
| Robert F. Kirby President |
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Vernon Hills, State of Illinois, on August 2, 2023.
| SIRIUS COMPUTER SOLUTIONS FINANCIAL SERVICES, LLC | ||
| By: | /s/ Christine A. Leahy | |
| Name: | Christine A. Leahy | |
| Title: | Chief Executive Officer | |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Albert J. Miralles, Chief Financial Officer of the Registrant, and Robert J. Welyki, Treasurer of the Registrant, or any other person holding the position of Chief Financial Officer or Treasurer of the Registrant from time to time, and each of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and revocation, for him or her and in his or her name, place and stead, in any and all capacities, to execute any or all amendments including any post-effective amendments and supplements to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form S-3 and power of attorney have been signed by the following persons in the capacities and on the dates indicated on August 2, 2023.
| Signature |
Title | |
| /s/ Christine A. Leahy Christine A. Leahy |
Chief Executive Officer (principal executive officer) | |
| /s/ Albert J. Miralles Albert J. Miralles |
Senior Vice President and Chief Financial Officer (principal financial officer) | |
| /s/ Peter R. Locy Peter R. Locy |
Vice President, Controller and Chief Accounting Officer (principal accounting officer) | |
| SIRIUS COMPUTER SOLUTIONS, LLC | Sole Member | |
| By: | /s/ Christine A. Leahy | |
| Christine A. Leahy President and Chief Executive Officer |
Exhibit 3.15
ARTICLES OF ORGANIZATION
OF
AMPLIFIED IT LLC
Pursuant to Chapter 12 of Title 13.1 of the Code of Virginia the undersigned states as follows:
ARTICLE I
The name of the limited liability company is AMPLIFIED IT LLC.
ARTICLE II
The limited liability company’s initial registered agent shall be Tim Lee, who is a resident of Virginia and a member of the limited liability company.
ARTICLE III
The limited liability company’s initial registered office address, which is identical to the business office of the initial registered agent, is 1707 North Main Street, Suffolk, Virginia 23434, which is located in the City of Suffolk.
ARTICLE IV
The limited liability company’s principal office is located at 1707 North Main Street, Suffolk, Virginia 23434, which is located in the City of Suffolk.
ARTICLE IV
The limited liability company shall be managed by at least one (1) manager.
| /s/ Jeanette L. Ojeda |
10/12/2010 | |||||
| Jeanette L. Ojeda (Organizer) | Date | |||||
Exhibit 3.16
OPERATING AGREEMENT
OF
AMPLIFIED IT LLC
This OPERATING AGREEMENT (this “Agreement”) of Amplified IT LLC, a Virginia limited liability company (the “Company”), is dated and effective as of the 15th day of March, 2021, by and between the Company and CDW Technologies, LLC, an Illinois limited liability company, as the sole member of the Company (the “Member”).
RECITAL
The Company was organized as a Virginia limited liability company on October 14, 2010, pursuant to the Articles of Organization filed with the Virginia Secretary of State (“VSOS”).
ARTICLE I
The Limited Liability Company
1.1 Formation. The Company was organized as a Virginia limited liability company effective October 14, 2010, pursuant to the Articles of Organization executed and with VSOS in accordance with Section 13.1-1002 of the Virginia Limited Liability Company Act, as amended and in effect from time to time (the “Act”).
1.2 Name. The name of the Company is “Amplified IT LLC” and its business shall be carried on in such name with such variations and changes as the Member shall determine or deem necessary to comply with requirements of the jurisdictions in which the Company’s operations are conducted. Any change in the Company’s name shall be made by the Member in accordance with and pursuant to the Act.
1.3 Business Purpose; Powers. The Company is formed for the purpose of engaging in any lawful purpose or business for which limited liability companies may be formed under the Act. The Company shall have and may exercise all the powers and privileges granted by the Act or by any other law or by this Agreement, together with any powers incidental thereto, so far as such powers are necessary or convenient to effect any or all of the purposes for which the Company is organized.
1.4 Principal Business Office. The principal place of business of the Company shall be located at 812 Granby St., Norfolk, VA 23510, or at such other or additional locations within or without the State of Virginia as the Member, in its discretion, may determine.
1.5 Registered Office and Agent. The location of the registered office of the Company in the State of Virginia is 100 Shockoe Slip, 2nd Floor, Richmond, Virginia 23219. The Company’s Registered Agent at such address is Corporation Service Company. The registered office and/or registered agent of the Company may be changed from time to time at the discretion of the Member.
1.6 Qualification in Other Jurisdictions. The Member shall have authority to cause the Company to do business in jurisdictions other than the State of Virginia.
1.7 Term. Subject to the provisions of Article VII below, the Company shall have perpetual existence.
ARTICLE II
The Member
2.1 The Member. The name and address of the Member is as follows:
| Name |
Address | |
| CDW Technologies, LLC |
200 North Milwaukee Avenue Vernon Hills, IL 60061 | |
2.2 Actions by the Member; Meetings. The Member may approve a matter or take any action at a meeting or without a meeting by the written consent of the Member. Meetings of the Member may be called at any time by the Member.
2.3 Liability of the Member. All debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company and the Member shall not be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a member.
2.4 Power to Bind the Company. The Member (acting in its capacity as such) shall have the authority to bind the Company to any third party with respect to any matter.
2.5 Management. The management, operation and policy of the Company shall be vested exclusively in the Member. The Member, acting through its duly authorized agents, is authorized and empowered on behalf and in the name of the Company to perform all acts and engage in all activities and transactions which it may in its sole discretion deem necessary or advisable in order to cause the Company to carry out its purpose and exercise the powers granted to the Company hereunder and under the Act. The Member is an agent of the Company and the actions of the Member in such capacity shall be binding on the Company without liability to the Member.
ARTICLE III
Officers
3.1 Designation of Officers. The Member may, from time to time, designate one or more individuals to be officers of and to act for the Company. No officer need be a resident of the State of Virginia. Any officers so designated shall have such authority and perform such duties as the Member may, from time to time, prescribe or as may be provided in this Agreement, including the power to execute documents on behalf of the Company subject to the limits set forth herein. The Member may assign titles to particular officers. Unless the Member otherwise specifies, if the title is one commonly used for officers of a business corporation, the assignment of such title shall constitute the delegation to such officer of the authority, duties and ability to
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bind the Company that are normally associated with that office under the laws of the State of Virginia, subject to any specific limitations on authority and duties made to such officer by the Member pursuant to this Section 3.1. Each officer shall hold office until his or her successor shall be duly designated and shall qualify or until his or her death or until he or she shall resign or shall have been removed. Any number of offices may be held by the same individual.
3.2 Resignation., Removal. Any officer may resign as such at any time. Such resignation shall be made in writing and shall take effect at the time specified therein, or if no time be specified, at the time of its receipt by the Member. Any officer may be removed as such, either with or without cause, by the Member; provided that such removal shall be without prejudice to the contract rights, if any, of the individual so removed. Designation of an officer shall not of itself create any contract rights, except as otherwise set forth herein. Any vacancy occurring in any office of the Company may be filled by the Member.
3.3 Duties of Officers Generally. Except as otherwise set forth in this Agreement, each officer shall owe to the Company and its Member the same fiduciary duties (including the duties of care and loyalty) that such individuals would owe to a Virginia corporation and its shareholders as an officer thereof.
3.4 Appointed Officers. In addition to officers designated by the Member in accordance with this Article III, the Chief Executive Officer may appoint other officers below the level of Member-appointed Vice President as the Chief Executive Officer may from time to time deem expedient and may designate for such officers titles that appropriately reflect their positions and responsibilities. Such appointed officers shall have such powers and shall perform such duties as may be assigned to them by the Chief Executive Officer or the senior officer to whom they report, consistent with corporate policies. An appointed officer shall serve until the earlier of such officer’s resignation or such officer’s removal by the Chief Executive Officer at any time, either with or without cause.
ARTICLE IV
Capital Structure and Contributions
4.1 Capital Structure and Contributions.
(a) The capital structure of the Company shall consist of one class of common units (the “Common Units”). All Common Units shall be identical with each other in every respect. The Member shall own all of the Common Units issued and outstanding, as set forth on Schedule A attached hereto. The Board may in its discretion issue certificates to the Member representing the Common Units held by such Member. The Member hereby agrees that the Common Units shall be securities governed by the Uniform Commercial Code of the applicable jurisdiction.
(b) The Member shall have the right, at any time and from time to time, to make any optional contributions to the capital of the Company in the form of cash, property, promissory note or services, or any combination thereof.
(c) The Company shall be permitted to incur indebtedness for borrowed money, from the Member or otherwise, with the Member’s consent and approval.
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ARTICLE V
Distributions
5.1 Distributions. The Member shall determine profits available for distribution and the amount, if any, to be distributed to the Member, and shall authorize and distribute to the Member, the determined amount when, as and if declared by the Member. The distributions of the Company shall be distributed entirely to the Member.
ARTICLE VI
Events of Dissolution
The Company shall be dissolved upon the first of the following events to occur:
(a) The consent of the Member at any time to dissolve and wind up the affairs of the Company; or
(b) The occurrence of any other event that causes the dissolution of a limited liability company under the Act.
In the event of any dissolution of the Company, the Member shall be in charge of such dissolution, and the Member shall immediately proceed with an orderly winding up of the Company’s business and affairs and the orderly liquidation of the Company and its assets and make final distributions as provided in the Act; provided, that until all final distributions are made, the Member shall continue to operate the Company. The duties of care and loyalty described in the Act still apply to the Member during the winding up and liquidation period. The costs of liquidation shall be borne as a Company expense. The Member shall not receive any additional compensation for services rendered during the winding up and liquidation of the Company.
Notwithstanding any provisions of the Act or other applicable law, an insolvency event, including a bankruptcy filing, by or against the Company or a Member shall not cause a dissolution of the Company nor shall such an insolvency event, including a bankruptcy filing, by or against a Member effect a deemed assignment, transfer, withdrawal or dissociation of such Member’s interest in the Company or otherwise have any effect whatsoever on such Member’s interest.
ARTICLE VII
Transfer of the Member’s Common Units
The Member may sell, assign, transfer, convey, gift, exchange, pledge or otherwise dispose of any or all of its Common Units and, upon receipt by the Company of a written agreement executed by the person or entity to whom such Common Units are to be transferred agreeing to be bound by the terms of this Agreement as amended from time to time, such person shall be admitted as a member.
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ARTICLE VIII
Exculpation and Indemnification
8.1 Exculpation. No officer of the Company or member of the Board of Directors or Managers (each a “Manager”) or officer of any of its direct or indirect subsidiaries (each a “Subsidiary,” and collectively, “Subsidiaries”) shall be liable to the Company or such Subsidiary, any other officer of the Company or any other officer or Manager of any Subsidiary or to any Member for any loss suffered by the Company or any Subsidiary unless such loss is caused by such officer of the Company’s or such Manager or officer of such Subsidiary’s gross negligence, willful misconduct, knowing violation of law or material breach of this Agreement or any other agreement between the Company or any Subsidiary and such officer of the Company or such Manager or officer of such Subsidiary. No officer of the Company and no Manager or officer of any direct or indirect Subsidiary shall be liable to the Company or such Subsidiary, any other Manager or officer or any Member for errors in judgment or for any acts or omissions that do not constitute gross negligence, intentional misconduct, knowing violation of law or material breach of this Agreement or other agreement with the Company or its Subsidiaries. Any officer of the Company and any Manager or officer of any of its Subsidiaries may consult with the Company’s and such Subsidiary’s counsel and accountants in respect of the Company’s and such Subsidiary’s affairs, and provided such officer of the Company or Manager or officer of such Subsidiary, as the case may be, acts in good faith reliance upon the advice or opinion of such counsel or accountants, such officer of the Company or such Manager or officer of such Subsidiary, as the case may be, shall not be liable for any loss suffered by the Company or such Subsidiary in reliance thereon.
8.2 Right to Indemnification. Subject to the limitations and conditions as provided in this Article VIII, each person or entity (“Person”) who was or is made a party or is threatened to be made a party to or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, arbitrative (hereinafter a “Proceeding”), or any appeal in such a Proceeding or any inquiry or investigation that could lead to such a Proceeding, by reason of the fact that he or she, or a Person of whom he or she is the legal representative, is or was an officer of the Company or, while an officer of the Company, is or was serving at the request of the Company as a manager, director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic limited liability company, corporation, partnership, joint venture, sole proprietorship, trust or other enterprise, shall be indemnified by the Company to the fullest extent permitted under applicable law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than said law permitted the Company to provide prior to such amendment) against judgments, penalties, fines, settlements and reasonable expenses (including, without limitation, reasonable attorneys’ fees) actually incurred by such Person in connection with such Proceeding; provided that (a) such Person’s course of conduct was pursued in good faith and believed by him to be in the best interests of the Company and (b) such course of conduct did not constitute gross negligence, intentional misconduct, or knowing violation of law on the part of such Person and otherwise was materially in accordance with the terms of this Agreement. Indemnification under this Article VIII shall continue with respect to a Person who has ceased to serve in the capacity which initially entitled such Person to indemnity hereunder. The rights granted pursuant to this Article VIII shall be deemed contractual rights, and no amendment, modification or repeal of this Article VIII shall have the effect of limiting or denying any such rights with respect to actions taken or Proceedings arising prior to any amendment, modification or repeal. It is expressly acknowledged that the indemnification provided in this Article VIII could involve indemnification for negligence other than gross negligence.
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8.3 Advance Payment. The right to indemnification conferred in this Article VIII shall, upon approval by the Member in each instance, include the right to be paid or reimbursed by the Company the reasonable expenses incurred by a Person of the type entitled to be indemnified under Section 8.2 who was, is or is threatened to be made a named defendant or respondent in a Proceeding in advance of the final disposition of the Proceeding and without any determination as to the Person’s ultimate entitlement to indemnification; provided that the payment of such expenses incurred by any such Person in advance of the final disposition of a Proceeding shall be made only upon delivery to the Company of a written affirmation by such Person of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification under Article VIII and a written undertaking, by or on behalf of such Person, to repay all amounts so advanced if it shall ultimately be determined that such indemnified Person is not entitled to be indemnified under this Article VIII or otherwise.
8.4 Indemnification of Employees and Agents. The Company may indemnify and advance expenses to any Person, as determined by the Member, by reason of the fact that such Person was an employee or agent of the Company or is or was serving at the request of the Company as a manager, director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic limited liability company, corporation, partnership, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise, against any liability asserted against him or her and incurred by him or her in such a capacity or arising out of his or her status as such a Person to the same extent that it shall indemnify and advance expenses to Managers and officers under this Article VIII.
8.5 Appearance as a Witness. Notwithstanding any other provision of this Article VIII, the Company may pay or reimburse reasonable out-of-pocket expenses incurred by a Manager, officer or employee in connection with his or her appearance as a witness or other participation in a Proceeding related to or arising out of the business of the Company at a time when he or she is not a named defendant or respondent in the Proceeding.
8.6 Non-exclusivity of Rights. The right to indemnification and the advancement and payment of expenses conferred in this Article VIII shall not be exclusive of any other right which a Manager, officer or other Person indemnified pursuant to this Article VIII may have or hereafter acquire under any law (common or statutory), any provision of the Articles of Organization or this Agreement, any other separate contractual arrangement, any vote of the Member or disinterested Managers, or otherwise.
8.7 Insurance. The Company may purchase and maintain insurance, at its expense, to protect itself and any Person who is or was serving as an officer, employee or agent of the Company or is or was serving at the request of the Company as a manager, director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic limited liability company, corporation, partnership, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise, against any expense, liability or loss, whether or not the Company would have the obligation to indemnify such Person against such expense, liability or loss under this Article VIII.
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8.8 Savings Clause. If this Article VIII or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Manager, officer or any other Person indemnified pursuant to this Article VIII as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any action, suit or proceeding, whether civil, criminal, administrative or investigative to the fullest extent permitted by any applicable portion of this Article VIII that shall not have been invalidated and to the fullest extent permitted by applicable law.
8.9 Limitation. The exculpation provisions and indemnification obligations set forth in this Article VIII shall not apply to any acts or omissions that occur at or prior to the consummation of the transactions contemplated by that certain Equity Purchase Agreement, dated as of March 15, 2021, by and among CDW Technologies, LLC, a Wisconsin limited liability company, the Company, Chesapeake IT, Inc., a Delaware corporation, and Timothy Lee, an individual resident of the Commonwealth of Virginia.
ARTICLE IX
Miscellaneous
9.1 Tax Treatment. The Company shall be taxed as a disregarded entity for U.S. federal income tax purposes (as well as for any analogous state or local tax purposes), and the Member and the Company shall timely make any and all necessary elections and filings for the Company treated as a disregarded entity for U.S. federal income tax purposes (as well as for any analogous state or local tax purposes).
9.2 Amendments. Amendments to this Agreement and to the Articles of Organization shall be approved in writing by the Member. An amendment shall become effective as of the date specified in the approval of the Member or if none is specified as of the date of such approval or as otherwise provided in the Act.
9.3 Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, such provision shall be ineffective to the extent of such invalidity or unenforceability; provided, however, that the remaining provisions will continue in full force without being impaired or invalidated in any way unless such invalid or unenforceable provision or clause shall be so significant as to materially affect the expectations of the Member regarding this Agreement. Otherwise, any invalid or unenforceable provision shall be replaced by the Member with a valid provision which most closely approximates the intent and economic effect of the invalid or unenforceable provision.
9.4 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to the principles of conflicts of laws thereof.
9.5 Limited Liability Company. The Member intends to form a limited liability company and does not intend to form a partnership under the laws of the State of Virginia or any other laws.
9.6 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the instrument.
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IN WITNESS WHEREOF, the undersigned has duly executed this Operating Agreement as of the day first above written.
| CDW TECHNOLOGIES LLC | ||
| By: | /s/ Robert J. Welyki | |
| Name: | Robert J. Welyki | |
| Its: | Vice President, Treasurer and Assistant Secretary | |
| Amplified IT LLC | ||
| By: | /s/ Robert J. Welyki | |
| Name: | Robert J. Welyki | |
| Its: | Vice President, Treasurer and Assistant Secretary | |
SCHEDULE A
| Name of Member |
Number of Common Units |
|||
| CDW Technologies, LLC |
1 | |||
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Exhibit 3.17
| State of Delaware Secretary of State Division of Corporations Delivered 09:37 AM 12/22/2021 FILED 09:37 AM 12/22/2021 SR 20214185246 - File Number 4235082 |
EXECUTION VERSION |
STATE OF DELAWARE
CERTIFICATE OF CONVERSION
FROM A DELAWARE CORPORATION TO A
DELAWARE LIMITED LIABILITY COMPANY
PURSUANT TO SECTION 18-214 OF THE
DELAWARE LIMITED LIABILITY COMPANY ACT
December 22, 2021
| 1. | The jurisdiction where the Corporation first formed is Delaware. |
| 2. | The jurisdiction immediately prior to filing this Certificate is Delaware. |
| 3. | The date the Corporation first formed is October 13, 2006. |
| 4. | The name of the Corporation immediately prior to filing this Certificate is SCS Holdings I Inc. |
| 5. | The name of the Limited Liability Company as set forth in the Certificate of Formation is SCS Holdings I LLC. |
* * * * * * *
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Conversion as of the date first set forth above.
| By: | /s/ Frederick J. Kulevich | |
| Name: | Frederick J. Kulevich | |
| Title: | Authorized Person |
| State of Delaware Secretary of State Division of Corporations Delivered 09:37 AM 12/22/2021 FILED 09:37 AM 12/22/2021 SR 20214185246 - File Number 4235082 |
CERTIFICATE OF FORMATION
OF
SCS HOLDINGS I LLC
December 22, 2021
The undersigned authorized person, desiring to form a limited liability company pursuant to the Limited Liability Company Act of the State of Delaware, hereby certifies as follows:
| 1. | The name of the limited liability company is SCS Holdings I LLC. |
| 2. | The address of the registered office of the limited liability company in the State of Delaware is 251 Little Falls Drive, Wilmington, Delaware 19808, New Castle County. The name of the registered agent of the limited liability company for service of process at such address is Corporation Service Company. |
* * * * * *
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation as of the date first above written.
| By: | /s/ Frederick J. Kulevich | |
| Name: | Frederick J. Kulevich | |
| Title: | Authorized Person |
Exhibit 3.18
EXECUTION VERSION
LIMITED LIABILITY COMPANY AGREEMENT
OF
SCS HOLDINGS I LLC
This LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”) of SCS HOLDINGS I LLC, a Delaware limited liability company (the “Company”), is dated and effective as of the 22nd day of December, 2021, by and between the Company and CDW LLC, an Illinois limited liability company, as the sole member of the Company (the “Member”).
RECITAL
The Company was organized as a Delaware limited liability company on December 22, 2021, pursuant to the Certificate of Formation filed with the Delaware Secretary of State (“DSOS”).
ARTICLE I
The Limited Liability Company
1.1 Formation. The Company was organized as a Delaware limited liability company effective December 22, 2021, pursuant to the Certificate of Formation executed and with DSOS in accordance with Section 18-201 of the Delaware Limited Liability Company Act, as amended and in effect from time to time (the “Act”).
1.2 Name. The name of the Company is “SCS HOLDINGS I LLC” and its business shall be carried on in such name with such variations and changes as the Member shall determine or deem necessary to comply with requirements of the jurisdictions in which the Company’s operations are conducted. Any change in the Company’s name shall be made by the Member in accordance with and pursuant to the Act.
1.3 Business Purpose; Powers. The Company is formed for the purpose of engaging in any lawful purpose or business for which limited liability companies may be formed under the Act. The Company shall have and may exercise all the powers and privileges granted by the Act or by any other law or by this Agreement, together with any powers incidental thereto, so far as such powers are necessary or convenient to effect any or all of the purposes for which the Company is organized.
1.4 Principal Business Office. The principal place of business of the Company shall be located at 10100 Reunion Place, Suite 500, San Antonio, Texas 78216, or at such other or additional locations within or without the State of Delaware as the Member, in its discretion, may determine.
1.5 Registered Office and Agent. The location of the registered office of the Company in the State of Delaware is 251 Little Falls Drive, Wilmington, Delaware 19808. The Company’s Registered Agent at such address is Corporation Service Company. The registered office and/or registered agent of the Company may be changed from time to time at the discretion of the Member.
1.6 Qualification in Other Jurisdictions. The Member shall have authority to cause the Company to do business in jurisdictions other than the State of Delaware.
1.7 Term. Subject to the provisions of Article VII below, the Company shall have perpetual existence.
ARTICLE II
The Member
2.1 The Member. The name and address of the Member is as follows:
| Name | Address | |||
| CDW LLC | 75 Tri-State International Lincolnshire, IL 60069 |
2.2 Actions by the Member; Meetings. The Member may approve a matter or take any action at a meeting or without a meeting by the written consent of the Member. Meetings of the Member may be called at any time by the Member.
2.3 Liability of the Member. All debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company and the Member shall not be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a member.
2.4 Power to Bind the Company. The Member (acting in its capacity as such) shall have the authority to bind the Company to any third party with respect to any matter.
2.5 Management. The management, operation and policy of the Company shall be vested exclusively in the Member. The Member, acting through its duly authorized agents, is authorized and empowered on behalf and in the name of the Company to perform all acts and engage in all activities and transactions which it may in its sole discretion deem necessary or advisable in order to cause the Company to carry out its purpose and exercise the powers granted to the Company hereunder and under the Act. The Member is an agent of the Company and the actions of the Member in such capacity shall be binding on the Company without liability to the Member.
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ARTICLE III
Officers
3.1 Designation of Officers. The Member may, from time to time, designate one or more individuals to be officers of and to act for the Company. No officer need be a resident of the State of Delaware. Any officers so designated shall have such authority and perform such duties as the Member may, from time to time, prescribe or as may be provided in this Agreement, including the power to execute documents on behalf of the Company subject to the limits set forth herein. The Member may assign titles to particular officers. Unless the Member otherwise specifies, if the title is one commonly used for officers of a business corporation, the assignment of such title shall constitute the delegation to such officer of the authority, duties and ability to bind the Company that are normally associated with that office under the laws of the State of Delaware, subject to any specific limitations on authority and duties made to such officer by the Member pursuant to this Section 3.1. Each officer shall hold office until his or her successor shall be duly designated and shall qualify or until his or her death or until he or she shall resign or shall have been removed. Any number of offices may be held by the same individual.
3.2 Resignation; Removal. Any officer may resign as such at any time. Such resignation shall be made in writing and shall take effect at the time specified therein, or if no time be specified, at the time of its receipt by the Member. Any officer may be removed as such, either with or without cause, by the Member; provided that such removal shall be without prejudice to the contract rights, if any, of the individual so removed. Designation of an officer shall not of itself create any contract rights, except as otherwise set forth herein. Any vacancy occurring in any office of the Company may be filled by the Member.
3.3 Duties of Officers Generally. Except as otherwise set forth in this Agreement, each officer shall owe to the Company and its Member the same fiduciary duties (including the duties of care and loyalty) that such individuals would owe to a Delaware corporation and its shareholders as an officer thereof.
3.4 Appointed Officers. In addition to officers designated by the Member in accordance with this Article III, the President may appoint other officers below the level of Member-appointed Vice President as the President may from time to time deem expedient and may designate for such officers titles that appropriately reflect their positions and responsibilities. Such appointed officers shall have such powers and shall perform such duties as may be assigned to them by the President or the senior officer to whom they report, consistent with corporate policies. An appointed officer shall serve until the earlier of such officer’s resignation or such officer’s removal by the President at any time, either with or without cause.
ARTICLE IV
Capital Structure and Contributions
4.1 Capital Structure and Contributions.
(a) The capital structure of the Company shall consist of one class of common units (the “Common Units”). All Common Units shall be identical with each other in every respect. The Member shall own all of the Common Units issued and outstanding, as set forth on Schedule A attached hereto. The Company may in its discretion issue certificates to the Member representing the Common Units held by such Member. The Member hereby agrees that the Common Units shall be securities governed by the Uniform Commercial Code of the applicable jurisdiction.
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(b) The Member shall have the right, at any time and from time to time, to make any optional contributions to the capital of the Company in the form of cash, property, promissory note or services, or any combination thereof.
(c) The Company shall be permitted to incur indebtedness for borrowed money, from the Member or otherwise, with the Member’s consent and approval.
ARTICLE V
Distributions
5.1 Distributions. The Member shall determine profits available for distribution and the amount, if any, to be distributed to the Member, and shall authorize and distribute to the Member, the determined amount when, as and if declared by the Member. The distributions of the Company shall be distributed entirely to the Member.
ARTICLE VI
Events of Dissolution
The Company shall be dissolved upon the first of the following events to occur:
(a) The consent of the Member at any time to dissolve and wind up the affairs of the Company; or
(b) The occurrence of any other event that causes the dissolution of a limited liability company under the Act.
In the event of any dissolution of the Company, the Member shall be in charge of such dissolution, and the Member shall immediately proceed with an orderly winding up of the Company’s business and affairs and the orderly liquidation of the Company and its assets and make final distributions as provided in the Act; provided, that until all final distributions are made, the Member shall continue to operate the Company. The duties of care and loyalty described in the Act still apply to the Member during the winding up and liquidation period. The costs of liquidation shall be borne as a Company expense. The Member shall not receive any additional compensation for services rendered during the winding up and liquidation of the Company.
Notwithstanding any provisions of the Act or other applicable law, an insolvency event, including a bankruptcy filing, by or against the Company or a Member shall not cause a dissolution of the Company nor shall such an insolvency event, including a bankruptcy filing, by or against a Member effect a deemed assignment, transfer, withdrawal or dissociation of such Member’s interest in the Company or otherwise have any effect whatsoever on such Member’s interest.
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ARTICLE VII
Transfer of the Member’s Common Units
The Member may sell, assign, transfer, convey, gift, exchange, pledge or otherwise dispose of any or all of its Common Units and, upon receipt by the Company of a written agreement executed by the person or entity to whom such Common Units are to be transferred agreeing to be bound by the terms of this Agreement as amended from time to time, such person shall be admitted as a member.
ARTICLE VIII
Exculpation and Indemnification
8.1 Exculpation. No officer of the Company or member of the Board of Directors or Managers (each a “Manager”) or officer of any of its direct or indirect subsidiaries (each a “Subsidiary,” and collectively, “Subsidiaries”) shall be liable to the Company or such Subsidiary, any other officer of the Company or any other officer or Manager of any Subsidiary or to any Member for any loss suffered by the Company or any Subsidiary unless such loss is caused by such officer of the Company’s or such Manager or officer of such Subsidiary’s gross negligence, willful misconduct, knowing violation of law or material breach of this Agreement or any other agreement between the Company or any Subsidiary and such officer of the Company or such Manager or officer of such Subsidiary. No officer of the Company and no Manager or officer of any direct or indirect Subsidiary shall be liable to the Company or such Subsidiary, any other Manager or officer or any Member for errors in judgment or for any acts or omissions that do not constitute gross negligence, intentional misconduct, knowing violation of law or material breach of this Agreement or other agreement with the Company or its Subsidiaries. Any officer of the Company and any Manager or officer of any of its Subsidiaries may consult with the Company’s and such Subsidiary’s counsel and accountants in respect of the Company’s and such Subsidiary’s affairs, and provided such officer of the Company or Manager or officer of such Subsidiary, as the case may be, acts in good faith reliance upon the advice or opinion of such counsel or accountants, such officer of the Company or such Manager or officer of such Subsidiary, as the case may be, shall not be liable for any loss suffered by the Company or such Subsidiary in reliance thereon.
8.2 Right to Indemnification. Subject to the limitations and conditions as provided in this Article VIII, each person or entity (“Person”) who was or is made a party or is threatened to be made a party to or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, arbitrative (hereinafter a “Proceeding”), or any appeal in such a Proceeding or any inquiry or investigation that could lead to such a Proceeding, by reason of the fact that he or she, or a Person of whom he or she is the legal representative, is or was an officer of the Company or, while an officer of the Company, is or was serving at the request of the Company as a manager, director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic limited liability company, corporation, partnership, joint venture, sole proprietorship, trust or other enterprise, shall be indemnified by the Company to the fullest extent permitted under applicable law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than said law permitted the Company to provide prior to such amendment) against judgments, penalties,
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fines, settlements and reasonable expenses (including, without limitation, reasonable attorneys’ fees) actually incurred by such Person in connection with such Proceeding; provided that (a) such Person’s course of conduct was pursued in good faith and believed by him to be in the best interests of the Company and (b) such course of conduct did not constitute gross negligence, intentional misconduct, or knowing violation of law on the part of such Person and otherwise was materially in accordance with the terms of this Agreement. Indemnification under this Article VIII shall continue with respect to a Person who has ceased to serve in the capacity which initially entitled such Person to indemnity hereunder. The rights granted pursuant to this Article VIII shall be deemed contractual rights, and no amendment, modification or repeal of this Article VIII shall have the effect of limiting or denying any such rights with respect to actions taken or Proceedings arising prior to any amendment, modification or repeal. It is expressly acknowledged that the indemnification provided in this Article VIII could involve indemnification for negligence other than gross negligence.
8.3 Advance Payment. The right to indemnification conferred in this Article VIII shall, upon approval by the Member in each instance, include the right to be paid or reimbursed by the Company the reasonable expenses incurred by a Person of the type entitled to be indemnified under Section 8.2 who was, is or is threatened to be made a named defendant or respondent in a Proceeding in advance of the final disposition of the Proceeding and without any determination as to the Person’s ultimate entitlement to indemnification; provided that the payment of such expenses incurred by any such Person in advance of the final disposition of a Proceeding shall be made only upon delivery to the Company of a written affirmation by such Person of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification under Article VIII and a written undertaking, by or on behalf of such Person, to repay all amounts so advanced if it shall ultimately be determined that such indemnified Person is not entitled to be indemnified under this Article VIII or otherwise.
8.4 Indemnification of Employees and Agents. The Company may indemnify and advance expenses to any Person, as determined by the Member, by reason of the fact that such Person was an employee or agent of the Company or is or was serving at the request of the Company as a manager, director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic limited liability company, corporation, partnership, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise, against any liability asserted against him or her and incurred by him or her in such a capacity or arising out of his or her status as such a Person to the same extent that it shall indemnify and advance expenses to Managers and officers under this Article VIII.
8.5 Appearance as a Witness. Notwithstanding any other provision of this Article VIII, the Company may pay or reimburse reasonable out-of-pocket expenses incurred by a Manager, officer or employee in connection with his or her appearance as a witness or other participation in a Proceeding related to or arising out of the business of the Company at a time when he or she is not a named defendant or respondent in the Proceeding.
8.6 Non-exclusivity of Rights. The right to indemnification and the advancement and payment of expenses conferred in this Article VIII shall not be exclusive of any other right which a Manager, officer or other Person indemnified pursuant to this Article VIII may have or hereafter acquire under any law (common or statutory), any provision of the Certificate of Formation or this Agreement, any other separate contractual arrangement, any vote of the Member or disinterested Managers, or otherwise.
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8.7 Insurance. The Company may purchase and maintain insurance, at its expense, to protect itself and any Person who is or was serving as an officer, employee or agent of the Company or is or was serving at the request of the Company as a manager, director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic limited liability company, corporation, partnership, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise, against any expense, liability or loss, whether or not the Company would have the obligation to indemnify such Person against such expense, liability or loss under this Article VIII.
8.8 Savings Clause. If this Article VIII or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Manager, officer or any other Person indemnified pursuant to this Article VIII as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any action, suit or proceeding, whether civil, criminal, administrative or investigative to the fullest extent permitted by any applicable portion of this Article VIII that shall not have been invalidated and to the fullest extent permitted by applicable law.
8.9 Limitation. The exculpation provisions and indemnification obligations set forth in this Article VIII shall not apply to any acts or omissions that occur at or prior to the consummation of the transactions contemplated by that certain Purchase and Sale Agreement, dated as of October 15, 2021, by and between CDW LLC, an Illinois limited liability company, and Sirius Computer Solutions Holdco, LP, a Delaware limited partnership.
ARTICLE IX
Miscellaneous
9.1 Tax Treatment. The Company shall be taxed as a disregarded entity for U.S. federal income tax purposes (as well as for any analogous state or local tax purposes), and the Member and the Company shall timely make any and all necessary elections and filings for the Company treated as a disregarded entity for U.S. federal income tax purposes (as well as for any analogous state or local tax purposes).
9.2 Amendments. Amendments to this Agreement and to the Certificate of Formation shall be approved in writing by the Member. An amendment shall become effective as of the date specified in the approval of the Member or if none is specified as of the date of such approval or as otherwise provided in the Act.
9.3 Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, such provision shall be ineffective to the extent of such invalidity or unenforceability; provided, however, that the remaining provisions will continue in full force without being impaired or invalidated in any way unless such invalid or unenforceable provision or clause shall be so significant as to materially affect the expectations of the Member regarding this Agreement. Otherwise, any invalid or unenforceable provision shall be replaced by the Member with a valid provision which most closely approximates the intent and economic effect of the invalid or unenforceable provision.
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9.4 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to the principles of conflicts of laws thereof.
9.5 Limited Liability Company. The Member intends to form a limited liability company and does not intend to form a partnership under the laws of the State of Delaware or any other laws.
9.6 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the instrument.
[Signature page follows]
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IN WITNESS WHEREOF, the undersigned have duly executed this Limited Liability Company Agreement as of the day first above written.
| CDW LLC | ||
| By: | /s/ Frederick J. Kulevich | |
| Name: | Frederick J. Kulevich | |
| Its: | Senior Vice President, General Counsel & Corporate Secretary | |
| SCS HOLDINGS I LLC | ||
| By: | /s/ Frederick J. Kulevich | |
| Name: | Frederick J. Kulevich | |
| Its: | Secretary | |
[Signature Page to SCS Holdings I LLC Limited Liability Company Agreement]
SCHEDULE A
| Name of Member |
Number of Common Units | |
| CDW LLC |
100 |
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Exhibit 3.19
| Form 632 |
Certificate of Conversion of a Corporation Converting to a Limited Liability Company |
This space reserved for office use. | ||
| (Revised 05/11)
|
||||
| Return in duplicate to: | ||||
| Secretary of State | ||||
| P.O. Box 13697 | ||||
| Austin, TX 78711-3697 | ||||
| 512 463-5555 | ||||
| FAX: 512 463-5709 | ||||
|
Filing Fee: See instructions |
Converting Entity Information
| The name of the converting corporation is: |
| Sirius Computer Solutions, Inc. |
| The jurisdiction of formation of the corporation is: Texas |
| The date of formation of the corporation is: December 31, 1998 |
| The file number, if any, issued to the corporation by the secretary of state, is: 0151792000 |
| Plan of Conversion—Alternative Statements |
| The corporation named above is converting to a limited liability company. The name of the limited liability company is: |
| Sirius Computer Solutions, LLC |
| The limited liability company will be formed under the laws of: Texas |
| ☑ The plan of conversion is attached. |
| If the plan of conversion is not attached, the following statements must be completed. |
| ☐ Instead of attaching the plan of conversion, the corporation certifies to the following statements: |
| A signed plan of conversion is on file at the principal place of business of the corporation, the converting entity. The address of the principal place of business of the corporation is: |
| Street or Mailing Address | City | State Country Zip Code | ||
| A signed plan of conversion will be on file after the conversion at the principal place of business of the limited liability company, the converted entity. The address of the principal place of business of the limited liability company is: | ||||
| Street or Mailing Address | City | State Country Zip Code | ||
| A copy of the plan of conversion will be furnished on written request without cost by the converting entity before the conversion or by the converted entity after the conversion to any owner or member of the converting or converted entity. | ||||
| Form 632 | 4 |
Certificate of Formation for the Converted Entity
☑ The converted entity is a Texas limited liability company. The certificate of formation of the Texas limited liability company is attached to this certificate either as an attachment or exhibit to the plan of conversion, or as an attachment or exhibit to this certificate of conversion if the plan has not been attached to the certificate of conversion.
Approval of the Plan of Conversion
The plan of conversion has been approved as required by the laws of the jurisdiction of formation and the governing documents of the converting entity.
Effectiveness of Filing (Select either A, B, or C.)
A. ☑ This document becomes effective when the document is accepted and filed by the secretary of state.
B. ☐ This document becomes effective at a later date, which is not more than ninety (90) days from the date of signing. The delayed effective date is:
C. ☐ This document takes effect upon the occurrence of the future event or fact, other than the passage of time. The 90th day after the date of signing is:
The following event or fact will cause the document to take effect in the manner described below:
Tax Certificate
| ☐ | Attached hereto is a certificate from the comptroller of public accounts that all taxes under title 2, Tax Code, have been paid by the corporation. |
| ☑ | In lieu of providing the tax certificate, the limited liability company as the converted entity is liable for the payment of any franchise taxes. |
Execution
The undersigned signs this document subject to the penalties imposed by law for the submission of a materially false or fraudulent instrument.
| Date: 12/28/2021 | ||||||
| /s/ Hemant Kapadia | ||||||
| Hemant Kapadia, Chief Financial Officer - Secretary and Treasurer Signature and title of authorized person on behalf of the converting entity | ||||||
| Form 632 | 5 |
EXECUTION VERSION
PLAN OF CONVERSION
OF
SIRIUS COMPUTER SOLUTIONS, INC., A TEXAS CORPORATION
INTO
SIRIUS COMPUTER SOLUTIONS, LLC, A TEXAS LIMITED LIABILITY COMPANY
This Plan of Conversion (the “Plan of Conversion”) is adopted as of December 28, 2021 to convert Sirius Computer Solutions, Inc., a Texas corporation (the “Converting Entity”), into a Texas limited liability company to be known as “Sirius Computer Solutions, LLC” (the “Converted Entity”).
| 1. | The name of the Converting Entity is Sirius Computer Solutions, Inc. |
| 2. | The name of the Converted Entity is Sirius Computer Solutions, LLC. |
| 3. | The Converting Entity is continuing its existence in the organizational form of the Converted Entity. |
| 4. | The Converted Entity shall be a limited liability company formed in the state of Texas in accordance with the Texas Business Organizations Code. |
| 5. | The outstanding shares in the Converting Entity shall be converted into an equal number of equity interests in the Converted Entity. |
| 6. | Attached as Exhibit A is the Certificate of Formation of the Converted Entity. |
[Signature page follows.]
IN WITNESS WHEREOF, the undersigned has executed this Plan of Conversion as of the first date written above.
| SIRIUS COMPUTER SOLUTIONS, INC. | ||
| By: | /s/ Hemant Kapadia | |
| Name: | Hemant Kapadia | |
| Title: | Chief Financial Officer - Secretary and Treasurer | |
[Signature Page to Plan of Conversion of Sirius Computer Solutions, Inc. into Sirius Computer Solutions, LLC]
Exhibit A
Certificate of Formation
| Form 205 |
Certificate of Formation Limited Liability Company |
This space reserved for office use. | ||
| (Revised 05/11)
|
||||
| Submit in duplicate to: | ||||
| Secretary of State | ||||
| P.O. Box 13697 | ||||
| Austin, TX 78711-3697 | ||||
| 512 463-5555 | ||||
| FAX: 512 463-5709 | ||||
| Filing Fee: $300 |
Article 1 - Entity Name and Type
The filing entity being formed is a limited liability company. The name of the entity is:
Sirius Computer Solutions, LLC
The name must contain the words “limited liability company,” “limited company,” or an abbreviation of one of these phrases.
Article 2 - Registered Agent and Registered Office
(See instructions. Select and complete either A or B and complete C.)
☑ A. The initial registered agent is an organization (cannot be entity named above) by the name of:
Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company
OR
☐ B. The initial registered agent is an individual resident of the state whose name is set forth below:
| First Name | M.I. | Last Name | Suffix |
C. The business address of the registered agent and the registered office address is:
| 211 East 7th Street, Suite 620 | Austin | TX | 78701-3218 | |||
| Street Address | City | State | Zip Code |
Article 3—Governing Authority
(Select and complete either A or B and provide the name and address of each governing person.)
☑ A. The limited liability company will have managers. The name and address of each initial manager are set forth below.
☐ B. The limited liability company will not have managers. The company will be governed by its members, and the name and address of each initial member are set forth below.
| GOVERNING PERSON 1 | ||||||||||||
| NAME (Enter the name of either an individual or an organization, but not both.)
IF INDIVIDUAL
|
||||||||||||
| Carlton |
J | Mertens | II | |||||||||
| First Name |
M.I. | Last Name | Suffix | |||||||||
|
OR
IF ORGANIZATION
|
||||||||||||
| Organization Name |
||||||||||||
|
ADDRESS
10100 Reunion Place, Suite 500 |
San Antonio | TX | USA | 78216 | ||||||||
| Street or Mailing Address | City | State | Country | Zip Code | ||||||||
| Form 205 | 4 |
| GOVERNING PERSON 2 | ||||||||||||
| NAME (Enter the name of either an individual or an organization, but not both.) | ||||||||||||
| IF INDIVIDUAL
|
||||||||||||
| First Name |
M.I. | Last Name | Suffix | |||||||||
| OR |
||||||||||||
|
IF ORGANIZATION
|
||||||||||||
| Organization Name |
||||||||||||
| ADDRESS
|
||||||||||||
| Street or Mailing Address | City | State | Country | Zip Code | ||||||||
| GOVERNING PERSON 3 | ||||||||||
| NAME (Enter the name of either an individual or an organization, but not both.) | ||||||||||
| IF INDIVIDUAL
|
||||||||||
| First Name |
M.I. | Last Name | Suffix | |||||||
| OR |
||||||||||
|
IF ORGANIZATION |
||||||||||
| Organization Name |
||||||||||
| ADDRESS
|
||||||||||
| Street or Mailing Address | City | State | Country | Zip Code | ||||||
Article 4 - Purpose
The purpose for which the company is formed is for the transaction of any and all lawful purposes for which a limited liability company may be organized under the Texas Business Organizations Code.
Supplemental Provisions/Information
Text Area: [The attached addendum, if any, is incorporated herein by reference.]
| Sirius Computer Solutions, LLC is formed as a Texas limited liability company under a plan of conversion.
Prior to the conversion, Sirius Computer Solutions, LLC was a corporation organized and existing under the laws of the State of Texas, under the name Sirius Computer Solutions, Inc., with its Certificate of Incorporation having initially been filed in the Office of the Secretary of State of the State of Texas on December 31, 1998, and with its address at 10100 Reunion Place, Suite 500, San Antonio, TX 78216. |
| Form 205 | 5 |
Organizer
The name and address of the organizer:
| SCS Holdings I LLC | ||||
| Name | ||||
| 10100 Reunion Place, Suite 500 | San Antonio | TX | 78216 | |||
| Street or Mailing Address | City | State | Zip Code |
Effectiveness Of Filing (Select either A, B, or C.)
A. ☑ This document becomes effective when the document is filed by the secretary of state.
B. ☐ This document becomes effective at a later date, which is not more than ninety (90) days from the date of signing. The delayed effective date is:
C. ☐ This document takes effect upon the occurrence of the future event or fact, other than the passage of time. The 90th day after the date of signing is:
The following event or fact will cause the document to take effect in the manner described below:
Execution
The undersigned affirms that the person designated as registered agent has consented to the appointment. The undersigned signs this document subject to the penalties imposed by law for the submission of a materially false or fraudulent instrument and certifies under penalty of perjury that the undersigned is authorized to execute the filing instrument.
| Date: 12/28/2021 | ||||||
| /s/ Hemant Kapadia | ||||||
| Signature of organizer | ||||||
| Hemant Kapadia, Authorized Person | ||||||
| Printed or typed name of organizer | ||||||
| Form 205 | 6 |
Exhibit 3.20
EXECUTION VERSION
LIMITED LIABILITY COMPANY AGREEMENT
OF
SIRIUS COMPUTER SOLUTIONS, LLC
This LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”) of Sirius Computer Solutions, LLC (the “Company”) is dated and effective as of the 28th day of December, 2021, by SCS HOLDINGS I LLC, a Delaware limited liability company, as the sole member (the “Member”) of the Company.
RECITAL
The Company was formed by the Member as a limited liability company under the laws of the State of Texas on December 28, 2021.
ARTICLE I
The Limited Liability Company
1.1 Formation. The Company was formed on December 28, 2021, upon the execution and filing of the Certificate of Formation (“Certificate of Formation”) with the Secretary of State of the State of Texas in accordance with the provisions of the Texas Business Organizations Code, as amended (the “TBOC”).
1.2 Name. The name of the Company is “Sirius Computer Solutions, LLC” and its business shall be carried on in such name with such variations and changes as the Board (as hereinafter defined) shall determine or deem necessary to comply with requirements of the jurisdictions in which the Company’s operations are conducted. Any change in the Company’s name shall be made by the Member in accordance with and pursuant to the TBOC.
1.3 Business Purpose; Powers. The Company is formed for the purpose of engaging in any lawful purpose or business for which limited liability companies may be formed under the TBOC. The Company shall have and may exercise all the powers and privileges granted by the TBOC or by any other law or by this Agreement, together with any powers incidental thereto, so far as such powers are necessary or convenient to effect any or all of the purposes for which the Company is organized.
1.4 Principal Business Office. The principal place of business of the Company shall be located at 10100 Reunion Place, Suite 500, San Antonio, Texas 78216, or at such other or additional locations within the State of Texas as the Board, in its discretion, may determine.
1.5 Registered Office and Agent. The location of the registered office of the Company in the State of Texas is 211 East 7th Street, Suite 620, Austin, Texas, 78701-3218. The Company’s Registered Agent at such address is Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company. The registered office and/or registered agent of the Company may be changed from time to time at the discretion of the Board.
1.6 Qualification in Other Jurisdictions. The Member shall have authority to cause the Company to do business in jurisdictions other than the State of Texas.
1.7 Term. Subject to the provisions of Article VII below, the Company shall have perpetual existence.
ARTICLE II
The Member
2.1 The Member. The name and address of the Member is as follows:
| Name |
Address | |
| SCS HOLDINGS I LLC |
10100 Reunion Place, Suite 500 San Antonio, Texas 78216 |
2.2 Actions by the Member; Meetings. The Member may approve a matter or take any action at a meeting or without a meeting by the written consent of the Member. Meetings of the Member may be called at any time by the Member. The general management of the Company will rest with the Board (as hereinafter defined), and the Member will only approve a matter or take any action on such items for which the Member’s approval is required under the TBOC.
2.3 Liability of the Member. All debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company and the Member shall not be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a member.
2.4 Power to Bind the Company. Subject to Section 3.1 below, the Member (acting in its capacity as such) shall have the authority to bind the Company to any third party with respect to any matter.
ARTICLE III
The Board
3.1 Management by Board of Managers.
(a) Subject to such matters which are expressly reserved hereunder or under the TBOC to the Member for decision, the business and affairs of the Company shall be managed by a board of managers (the “Board”), which shall be responsible for policy setting, approving the overall direction of the Company and making all decisions affecting the business and affairs of the Company. The Board shall be initially comprised of one person and shall thereafter be comprised of such size to be determined from time to time by the Member (each, a “Manager”).
(b) Each Manager shall be elected by the Member and shall serve until his or her successor has been duly elected and qualified, or until his or her earlier removal, resignation, death or disability. The Member may remove any Manager from the Board or from any other capacity with the Company at any time, with or without cause. A Manager may resign at any time upon written notice to the Member.
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(c) Any vacancy occurring on the Board as a result of the resignation, removal, death or disability of a Manager or an increase in the size of the Board may be filled by the Member.
3.2 Action by the Board.
(a) Meetings of the Board may be called by any Manager upon two (2) days prior written notice, either personally, by telephone, by mail, by e-mail or by facsimile to each Manager. If notice is delivered by any means, such notice shall be deemed to be received when delivered. The presence of a majority of the Managers then in office shall constitute a quorum at any meeting of the Board. All actions of the Board shall require the affirmative vote of a majority of the Managers then in office.
(b) Notice of any meeting may be waived by any Manager. The attendance of a Manager at any meeting shall constitute a waiver of notice of such meeting, except where a Manager attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Managers need be specified in the notice or waiver of notice of such meeting.
(c) Meetings of the Board may be conducted in person or by conference telephone facilities. Any action required or permitted to be taken at any meeting of the Board or any committee thereof may be taken without a meeting if consented thereto in writing setting forth the action so taken and signed by all of the Managers.
(d) At any meeting of the Board, a Manager may vote by proxy executed in writing by such Manager in favor of another Manager.
(e) The Company shall pay the reasonable out-of-pocket travel expenses incurred by each Manager in connection with attending such meetings and any meetings of committees of the Board. Upon approval by the Board, the Company may agree to pay reasonable fees to any or all of the Managers.
(f) If all of the Managers meet at any time and place (including telephonically) and consent to the holding of a meeting at such time and place, such meeting shall be valid without call or notice, and any Company action which may be taken at a meeting of the Board may be taken at such meeting.
3.3 Power to Bind Company. None of the Managers (acting in their capacity as such) shall have authority to bind the Company to any third party with respect to any matter (including, without limitation, transferring or affecting the Company’s interest in real property) unless the Board shall have approved such matter and authorized such Manager(s) to bind the Company with respect thereto.
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3.4 Duties of the Managers. Except as otherwise set forth in this Agreement, each Manager shall owe the same fiduciary duties to the Company and its Member that such individual would owe to a Texas corporation and its shareholders as a member of the board of directors of such Texas corporation; provided that, to the maximum extent permitted by the TBOC, such duties shall not include any requirement that the Company be offered an opportunity to participate in any business opportunity that is presented to any Manager.
3.5 Committees. The Board may, from time to time, designate one or more committees, each of which shall include at least two (2) Managers. Any such committee, to the extent provided in the enabling resolution, shall have and may exercise all or any of the authority of the Board. At every meeting of any such committee, the presence of a majority of all the members thereof shall constitute a quorum, and the affirmative vote of a majority of the members present shall be necessary for the adoption of any resolution. The Board may dissolve any committee at any time.
ARTICLE IV
Officers
4.1 Designation of Officers. The Board may, from time to time, designate one or more individuals to be officers of and to act for the Company. No officer need be a resident of the State of Texas. Any officers so designated shall have such authority and perform such duties as the Board may, from time to time, prescribe or as may be provided in this Agreement, including the power to execute documents on behalf of the Company subject to the limits set forth herein. The Board may assign titles to particular officers. Unless the Board otherwise specifies, if the title is one commonly used for officers of a business corporation, the assignment of such title shall constitute the delegation to such officer of the authority, duties and ability to bind the Company that are normally associated with that office under the laws of the State of Texas, subject to any specific limitations on authority and duties made to such officer by the Board pursuant to this Section 4.1. Each officer shall hold office until his or her successor shall be duly designated and shall qualify or until his or her death or until he or she shall resign or shall have been removed. Any number of offices may be held by the same individual.
4.2 Resignation; Removal. Any officer may resign as such at any time. Such resignation shall be made in writing and shall take effect at the time specified therein, or if no time be specified, at the time of its receipt by the Board. Any officer may be removed as such, either with or without cause, by the Board; provided that such removal shall be without prejudice to the contract rights, if any, of the individual so removed. Designation of an officer shall not of itself create any contract rights, except as otherwise set forth herein. Any vacancy occurring in any office of the Company may be filled by the Board.
4.3 Duties of Officers Generally. Except as otherwise set forth in this Agreement, each officer shall owe to the Company and its Member the same fiduciary duties (including the duties of care and loyalty) that such individuals would owe to a Texas corporation and its shareholders as an officer thereof.
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4.4 Appointed Officers. In addition to officers designated by the Board in accordance with this Article IV, the Chairman of the Board may appoint other officers below the level of Board-appointed Vice President as the Chairman of the Board may from time to time deem expedient and may designate for such officers titles that appropriately reflect their positions and responsibilities. Such appointed officers shall have such powers and shall perform such duties as may be assigned to them by the Chairman of the Board or the senior officer to whom they report, consistent with corporate policies. An appointed officer shall serve until the earlier of such officer’s resignation or such officer’s removal by the Chairman of the Board at any time, either with or without cause.
ARTICLE V
Capital Structure and Contributions
5.1 Capital Structure. The capital structure of the Company shall consist of one class of common units (the “Common Units”). All Common Units shall be identical with each other in every respect. The Member shall own all of the Common Units issued and outstanding, as set forth on Schedule A attached hereto. The Board may in its discretion issue certificates to the Member representing the Common Units held by such Member. The Member hereby agrees that the Common Units shall be securities governed by the Uniform Commercial Code of the State of Texas (and Uniform Commercial Code of any other applicable jurisdiction.)
5.2 Capital Contributions. From time to time, the Board may determine that the Company requires capital and may request the Member to make capital contribution(s) in an amount determined by the Board; provided, however, that the Member is not required to make such capital contribution(s).
ARTICLE VI
Distributions
6.1 Distributions. The Board shall determine profits available for distribution and the amount, if any, to be distributed to the Member, and shall authorize and distribute to the Member, the determined amount when, as and if declared by the Board. The distributions of the Company shall be distributed entirely to the Member.
ARTICLE VII
Events of Dissolution
The Company shall be dissolved upon the first of the following events to occur:
(a) The consent of the Member at any time to dissolve and wind up the affairs of the Company; or
(b) The occurrence of any other event that causes the dissolution of a limited liability company under the TBOC.
In the event of any dissolution of the Company, the Member shall be in charge of such dissolution, and the Member shall immediately proceed with an orderly winding up of the Company’s business and affairs and the orderly liquidation of the Company and its assets and make final distributions as provided in the TBOC; provided, that until all final distributions are
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made, the Member shall continue to operate the Company with all power and authority of the Board. The duties of care and loyalty described in the TBOC still apply to the Member during the winding up and liquidation period. The costs of liquidation shall be borne as a Company expense. The Member shall not receive any additional compensation for services rendered during the winding up and liquidation of the Company.
Notwithstanding any provisions of the TBOC or other applicable law, an insolvency event, including a bankruptcy filing, by or against the Company or a Member shall not cause a dissolution of the Company nor shall such an insolvency event, including a bankruptcy filing, by or against a Member effect a deemed assignment, transfer, withdrawal or dissociation of such Member’s interest in the Company or otherwise have any effect whatsoever on such Member’s interest.
ARTICLE VIII
Transfer of the Member’s Common Units
The Member may sell, assign, transfer, convey, gift, exchange, pledge or otherwise dispose of any or all of its Common Units and, upon receipt by the Company of a written agreement executed by the person or entity to whom such Common Units are to be transferred agreeing to be bound by the terms of this Agreement as amended from time to time, such person shall be admitted as a member.
ARTICLE IX
Exculpation and Indemnification
9.1 Exculpation. No Manager or officer of the Company or any of its direct or indirect subsidiaries (each a “Subsidiary,” and collectively, “Subsidiaries”) shall be liable to the Company or such Subsidiary, any other Manager, any other officer of the Company or any Subsidiary or to any Member for any loss suffered by the Company or any Subsidiary unless such loss is caused by such Manager’s or such officer of the Company’s or such Subsidiary’s gross negligence, willful misconduct, knowing violation of law or material breach of this Agreement or any other agreement between the Company or any Subsidiary and such Manager or officer of the Company or such Subsidiary. No Manager or officer of the Company or any direct or indirect Subsidiary shall be liable to the Company or such Subsidiary, any other Manager or officer or any Member for errors in judgment or for any acts or omissions that do not constitute gross negligence, intentional misconduct, knowing violation of law or material breach of this Agreement or other agreement with the Company or its Subsidiaries. Any Manager and any officer of the Company and any of its Subsidiaries may consult with the Company’s and such Subsidiary’s counsel and accountants in respect of the Company’s and such Subsidiary’s affairs, and provided such Manager or officer of the Company or such Subsidiary, as the case may be, acts in good faith reliance upon the advice or opinion of such counsel or accountants, such Manager or such officer of the Company or such Subsidiary, as the case may be, shall not be liable for any loss suffered by the Company or such Subsidiary in reliance thereon.
9.2 Right to Indemnification. Subject to the limitations and conditions as provided in this Article IX, each person or entity (“Person”) who was or is made a party or is threatened to be made a party to or is involved in any threatened, pending or completed action, suit or proceeding,
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whether civil, criminal, administrative, arbitrative (hereinafter a “Proceeding”), or any appeal in such a Proceeding or any inquiry or investigation that could lead to such a Proceeding, by reason of the fact that he or she, or a Person of whom he or she is the legal representative, is or was an officer or Manager of the Company or, while an officer or Manager of the Company, is or was serving at the request of the Company as a manager, director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic limited liability company, corporation, partnership, joint venture, sole proprietorship, trust or other enterprise, shall be indemnified by the Company to the fullest extent permitted under applicable law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than said law permitted the Company to provide prior to such amendment) against judgments, penalties, fines, settlements and reasonable expenses (including, without limitation, reasonable attorneys’ fees) actually incurred by such Person in connection with such Proceeding; provided that (a) such Person’s course of conduct was pursued in good faith and believed by him to be in the best interests of the Company and (b) such course of conduct did not constitute gross negligence, intentional misconduct or knowing violation of law on the part of such Person and otherwise was materially in accordance with the terms of this Agreement. Indemnification under this Article IX shall continue with respect to a Person who has ceased to serve in the capacity which initially entitled such Person to indemnity hereunder. The rights granted pursuant to this Article IX shall be deemed contractual rights, and no amendment, modification or repeal of this Article IX shall have the effect of limiting or denying any such rights with respect to actions taken or Proceedings arising prior to any amendment, modification or repeal. It is expressly acknowledged that the indemnification provided in this Article IX could involve indemnification for negligence other than gross negligence.
9.3 Advance Payment. The right to indemnification conferred in this Article IX shall, upon approval by the Board in each instance, include the right to be paid or reimbursed by the Company the reasonable expenses incurred by a Person of the type entitled to be indemnified under Section 9.2 who was, is or is threatened to be made a named defendant or respondent in a Proceeding in advance of the final disposition of the Proceeding and without any determination as to the Person’s ultimate entitlement to indemnification; provided that the payment of such expenses incurred by any such Person in advance of the final disposition of a Proceeding shall be made only upon delivery to the Company of a written affirmation by such Person of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification under Article IX and a written undertaking, by or on behalf of such Person, to repay all amounts so advanced if it shall ultimately be determined that such indemnified Person is not entitled to be indemnified under this Article IX or otherwise.
9.4 Indemnification of Employees and Agents. The Company may indemnify and advance expenses to any Person, as determined by the Board, by reason of the fact that such Person was an employee or agent of the Company or is or was serving at the request of the Company as a manager, director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic limited liability company, corporation, partnership, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise, against any liability asserted against him or her and incurred by him or her in such a capacity or arising out of his or her status as such a Person to the same extent that it shall indemnify and advance expenses to Managers and officers under this Article IX.
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9.5 Appearance as a Witness. Notwithstanding any other provision of this Article IX, the Company may pay or reimburse reasonable out-of-pocket expenses incurred by a Manager, officer or employee in connection with his or her appearance as a witness or other participation in a Proceeding related to or arising out of the business of the Company at a time when he or she is not a named defendant or respondent in the Proceeding.
9.6 Non-exclusivity of Rights. The right to indemnification and the advancement and payment of expenses conferred in this Article IX shall not be exclusive of any other right which a Manager, officer or other Person indemnified pursuant to this Article IX may have or hereafter acquire under any law (common or statutory), any provision of the Certificate of Formation or this Agreement, any other separate contractual arrangement, any vote of the Member or disinterested Managers, or otherwise.
9.7 Insurance. The Company may purchase and maintain insurance, at its expense, to protect itself and any Person who is or was serving as a Manager, officer, employee or agent of the Company or is or was serving at the request of the Company as a manager, director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic limited liability company, corporation, partnership, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise, against any expense, liability or loss, whether or not the Company would have the obligation to indemnify such Person against such expense, liability or loss under this Article IX.
9.8 Savings Clause. If this Article IX or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Manager, officer or any other Person indemnified pursuant to this Article IX as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any action, suit or proceeding, whether civil, criminal, administrative or investigative to the fullest extent permitted by any applicable portion of this Article IX that shall not have been invalidated and to the fullest extent permitted by applicable law.
9.9 Limitation. The exculpation provisions and indemnification obligations set forth in this Article IX shall not apply to any acts or omissions that occur at or prior to the consummation of the transactions contemplated by that certain Purchase and Sale Agreement, dated as of October 15, 2021, by and between CDW LLC, an Illinois limited liability company, and Sirius Computer Solutions Holdco, LP, a Delaware limited partnership.
ARTICLE X
Miscellaneous
10.1 Tax Treatment. The Company shall be taxed as a disregarded entity for U.S. federal income tax purposes (as well as for any analogous state or local tax purposes), and the Member and the Company shall timely make any and all necessary elections and filings for the Company treated as a disregarded entity for U.S. federal income tax purposes (as well as for any analogous state or local tax purposes).
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10.2 Amendments. Amendments to this Agreement and to the Certificate of Formation shall be approved in writing by the Member. An amendment shall become effective as of the date specified in the approval of the Member or if none is specified as of the date of such approval or as otherwise provided in the TBOC.
10.3 Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, such provision shall be ineffective to the extent of such invalidity or unenforceability; provided, however, that the remaining provisions will continue in full force without being impaired or invalidated in any way unless such invalid or unenforceable provision or clause shall be so significant as to materially affect the expectations of the Member regarding this Agreement. Otherwise, any invalid or unenforceable provision shall be replaced by the Member with a valid provision which most closely approximates the intent and economic effect of the invalid or unenforceable provision.
10.4 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas without regard to the principles of conflicts of laws thereof.
10.5 Limited Liability Company. The Member intends to form a limited liability company and does not intend to form a partnership under the laws of the State of Texas or any other laws.
10.6 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the instrument.
[Signature page follows]
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IN WITNESS WHEREOF, the undersigned have duly executed this Limited Liability Company Agreement as of the day first above written.
| SIRIUS COMPUTER SOLUTIONS, LLC | ||
| By: | /s/ Hemant Kapadia | |
| Name: | Hemant Kapadia | |
| Its: | Chief Financial Officer- Secretary and Treasurer | |
| SCS HOLDINGS I LLC | ||
| By: | /s/ Frederick J. Kulevich | |
| Name: | Frederick J. Kulevich | |
| Its: | Secretary | |
[Signature Page to Sirius Computer Solutions, LLC Limited Liability Company Agreement]
SCHEDULE A
| Name of Member |
Number of Common Units | |
| SCS HOLDINGS I LLC |
1,000 |
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Exhibit 3.21
| Authentication Number: oceOafvAvEO3kSc0UewlNg | Page 1 of 4 |
ARTICLES OF CONVERSION
converting
FORCE 3, INC.
a Maryland corporation
to
FORCE 3, LLC
a Maryland limited liability company
THIS IS TO CERTIFY THAT:
FIRST: Force 3, Inc. is a corporation formed on August 13, 1991 under the Maryland General Corporation Law (the “Converting Corporation”), and, by virtue of these Articles of Conversion and Articles of Organization filed for record herewith, is converting (the “Conversion”) to Force 3, LLC, a limited liability company formed under the Maryland Limited Liability Company Act (the “Converted LLC”), on the terms and conditions set forth herein.
SECOND: Upon the completion of the Conversion in accordance with the Maryland General Corporation Law and the Maryland Limited Liability Company Act, the Converted LLC shall, for all purposes of the laws of the State of Maryland, continue as the same entity as the Converting Corporation, and the Conversion will have the effects set forth herein and in the Maryland General Corporation Law and the Maryland Limited Liability Company Act. Upon the completion of the Conversion:
(a) All of the issued and outstanding shares of common stock of the Converting Corporation, without par value (the “Converting Corporation Common Shares”), are held legally and beneficially by a single stockholder and shall, without any action on the part of the stockholder, be converted into and exchanged for one hundred percent (100%) of the limited liability company membership interest in the Converted LLC.
(b) No shares of the Converting Corporation of any class or series other than Converting Corporation Common Shares are issued or outstanding.
THIRD: The Conversion has been approved in accordance with the provisions of Subtitle 9 of the Maryland General Corporation Law and Subtitle 11 of the Maryland Limited Liability Company Act.
FOURTH. These Articles of Conversion shall become effective upon acceptance for record of these Articles of Conversion by the State Department of Assessments and Taxation of Maryland.
| Authentication Number: oceOafvAvEO3kSc0UewlNg | Page 2 of 4 |
FIFTH: The undersigned acknowledges these Articles of Conversion to be the act and deed of the Converting Corporation and, further, as to all matters or facts required to be verified under oath, the undersigned officer acknowledges that, to the best of his knowledge, information and belief, these matters and facts relating to the Converting Corporation are true in all material respects and that this statement is made under the penalties of perjury.
- Signature page follows -
- 2 -
| Authentication Number: oceOafvAvEO3kSc0UewlNg | Page 3 of 4 |
IN WITNESS WHEREOF, these Articles of Conversion have been duly executed and attested on behalf of the Converting Corporation as of the 30th day of March, 2016.
| ATTEST: | FORCE 3, INC. a Maryland corporation | |||||||
| /s/ Steve Scribner | By: | /s/ Michael Greaney | ||||||
| Name: | Steve Scribner | Name: | Michael Greaney | |||||
| Title: | Secretary and Chief Financial Officer | Title: | President and Chief Executive Officer | |||||
CUST ID: 0003399686
WORK ORDER: 0004616264
DATE: 03-30-2016 12:48 PM
AMT. PAID: $194.00
| Authentication Number: oceOafvAvEO3kSc0UewlNg | Page 4 of 4 |
Exhibit 3.22
ARTICLES OF AMENDMENT
Changing the name of
Force 3, LLC,
a Maryland limited liability company
to
Sirius Federal, LLC,
a Maryland limited liability company
EXPLANATORY STATEMENT
The undersigned being authorized to execute and file these Articles of Amendment for purposes of changing the name of Force 3, LLC, a Maryland limited liability company, which was formed by the filing of Articles of Conversion on March 30, 2016, which converted Force 3, Inc., a Maryland corporation, into Force 3, LLC, to Sirius Federal, LLC, hereby acknowledges and certifies that:
Amendment to Articles of Organization
Section 1 of the Articles of Organization shall be deleted in its entity and replaced with the following:
| 1. | Name. The name of the LLC is: |
Sirius Federal, LLC
Except as amended above, the Articles of Organization shall remain in full force and effect.
IN WITNESS WHEREOF, the undersigned has executed these Articles of Amendment under oath and penalty of perjury on this 19th day of November, 2020.
| /s/ C. Joseph Mertens II |
| C. Joseph Mertens II, Authorized Person |
| Authentication Number: QmSNihXDv0G8Z_fDDnVIEQ | Page 1 of 1 |
Exhibit 3.23
AMENDED & RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
SIRIUS FEDERAL, LLC
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”) of SIRIUS FEDERAL, LLC, a Maryland limited liability company (the “Company”), is dated and effective as of the 1st day of July, 2022, by and between the Company and CDW Government LLC, an Illinois limited liability company, as the sole member of the Company (the “Member”).
RECITAL
The Company was organized as a Maryland limited liability company on March 30, 2016, pursuant to the Articles of Organization filed with the Maryland Secretary of State (“MSOS”).
Prior to December 28, 2021, the sole member of the Company was Sirius Computer Solutions, Inc., a Texas corporation. On December 28, 2021, Sirius Computer Solutions, Inc. converted into a Texas limited liability company under the name Sirius Computer Solutions, LLC. Then, on July 1, 2022, Sirius Computer Solutions, LLC distributed 100% of its membership interests in the Company up-the-chain to CDW LLC, an Illinois limited liability company, and subsequently, on July 1, 2022, CDW LLC contributed 100% of its membership interests in the Company to CDW Government LLC, an Illinois limited liability company. Therefore, the Company now desires to amend and restate its Operating Agreement to admit CDW Government LLC as the sole member of the Company.
ARTICLE I
The Limited Liability Company
1.1 Formation. The Company was organized as a Maryland limited liability company effective March 30, 2016, pursuant to the Articles of Organization executed and filed with MSOS in accordance with the applicable laws of the Maryland Limited Liability Company Act, as amended and in effect from time to time (the “Act”).
1.2 Name. The name of the Company is “SIRIUS FEDERAL, LLC” and its business shall be carried on in such name with such variations and changes as the Member shall determine or deem necessary to comply with requirements of the jurisdictions in which the Company’s operations are conducted. Any change in the Company’s name shall be made by the Member in accordance with and pursuant to the Act.
1.3 Business Purpose; Powers. The Company is formed for the purpose of engaging in any lawful purpose or business for which limited liability companies may be formed under the Act. The Company shall have and may exercise all the powers and privileges granted by the Act or by any other law or by this Agreement, together with any powers incidental thereto, so far as such powers are necessary or convenient to effect any or all of the purposes for which the Company is organized.
1.4 Principal Business Office. The principal place of business of the Company shall be located at 2151 Priest Bridge Drive, Crofton, MD 21114, or at such other or additional locations within or without the State of Maryland as the Member, in its discretion, may determine.
1.5 Registered Office and Agent. The location of the registered office of the Company in the State of Maryland is 2405 York Road, Suite 201, Lutherville Timonium, MD 21093-2264. The Company’s Registered Agent at such address is The Corporation Trust Incorporated. The registered office and/or registered agent of the Company may be changed from time to time at the discretion of the Member.
1.6 Qualification in Other Jurisdictions. The Member shall have authority to cause the Company to do business in jurisdictions other than the State of Maryland.
1.7 Term. Subject to the provisions of Article VII below, the Company shall have perpetual existence.
ARTICLE II
The Member
2.1 The Member. The name and address of the Member is as follows:
| Name | Address | |
| CDW Government LLC | 230 N. Milwaukee Avenue, Vernon Hills, IL 60061 | |
2.2 Actions by the Member; Meetings. The Member may approve a matter or take any action at a meeting or without a meeting by the written consent of the Member. Meetings of the Member may be called at any time by the Member.
2.3 Liability of the Member. All debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company and the Member shall not be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a member.
2.4 Power to Bind the Company. The Member (acting in its capacity as such) shall have the authority to bind the Company to any third party with respect to any matter.
2.5 Management. The management, operation and policy of the Company shall be vested exclusively in the Member. The Member, acting through its duly authorized agents, is authorized and empowered on behalf and in the name of the Company to perform all acts and engage in all activities and transactions which it may in its sole discretion deem necessary or advisable in order to cause the Company to carry out its purpose and exercise the powers granted to the Company hereunder and under the Act. The Member is an agent of the Company and the actions of the Member in such capacity shall be binding on the Company without liability to the Member.
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ARTICLE III
Officers
3.1 Designation of Officers. The Member may, from time to time, designate one or more individuals to be officers of and to act for the Company. No officer need be a resident of the State of Maryland. Any officers so designated shall have such authority and perform such duties as the Member may, from time to time, prescribe or as may be provided in this Agreement, including the power to execute documents on behalf of the Company subject to the limits set forth herein. The Member may assign titles to particular officers. Unless the Member otherwise specifies, if the title is one commonly used for officers of a business corporation, the assignment of such title shall constitute the delegation to such officer of the authority, duties and ability to bind the Company that are normally associated with that office under the laws of the State of Maryland, subject to any specific limitations on authority and duties made to such officer by the Member pursuant to this Section 3.1. Each officer shall hold office until his or her successor shall be duly designated and shall qualify or until his or her death or until he or she shall resign or shall have been removed. Any number of offices may be held by the same individual.
3.2 Resignation; Removal. Any officer may resign as such at any time. Such resignation shall be made in writing and shall take effect at the time specified therein, or if no time be specified, at the time of its receipt by the Member. Any officer may be removed as such, either with or without cause, by the Member; provided that such removal shall be without prejudice to the contract rights, if any, of the individual so removed. Designation of an officer shall not of itself create any contract rights, except as otherwise set forth herein. Any vacancy occurring in any office of the Company may be filled by the Member.
3.3 Duties of Officers Generally. Except as otherwise set forth in this Agreement, each officer shall owe to the Company and its Member the same fiduciary duties (including the duties of care and loyalty) that such individuals would owe to a Maryland corporation and its shareholders as an officer thereof.
3.4 Appointed Officers. In addition to officers designated by the Member in accordance with this Article III, the President may appoint other officers below the level of Member-appointed Vice President as the President may from time to time deem expedient and may designate for such officers titles that appropriately reflect their positions and responsibilities. Such appointed officers shall have such powers and shall perform such duties as may be assigned to them by the President or the senior officer to whom they report, consistent with corporate policies. An appointed officer shall serve until the earlier of such officer’s resignation or such officer’s removal by the President at any time, either with or without cause.
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ARTICLE IV
Capital Structure and Contributions
4.1 Capital Structure and Contributions.
(a) The capital structure of the Company shall consist of membership interests (the “Membership Interests”). All Membership Interests shall be identical with each other in every respect. The Member shall own one hundred percent (100%) of the Membership Interests issued and outstanding, as set forth on Schedule A attached hereto. The Company may in its discretion issue certificates to the Member representing the Membership Interests held by such Member. The Member hereby agrees that the Membership Interests shall be securities governed by the Uniform Commercial Code of the applicable jurisdiction.
(b) The Member shall have the right, at any time and from time to time, to make any optional contributions to the capital of the Company in the form of cash, property, promissory note or services, or any combination thereof.
(c) The Company shall be permitted to incur indebtedness for borrowed money, from the Member or otherwise, with the Member’s consent and approval.
ARTICLE V
Distributions
5.1 Distributions. The Member shall determine profits available for distribution and the amount, if any, to be distributed to the Member, and shall authorize and distribute to the Member, the determined amount when, as and if declared by the Member. The distributions of the Company shall be distributed entirely to the Member.
ARTICLE VI
Events of Dissolution
The Company shall be dissolved upon the first of the following events to occur:
(a) The consent of the Member at any time to dissolve and wind up the affairs of the Company; or
(b) The occurrence of any other event that causes the dissolution of a limited liability company under the Act.
In the event of any dissolution of the Company, the Member shall be in charge of such dissolution, and the Member shall immediately proceed with an orderly winding up of the Company’s business and affairs and the orderly liquidation of the Company and its assets and make final distributions as provided in the Act; provided, that until all final distributions are made, the Member shall continue to operate the Company. The duties of care and loyalty described in the Act still apply to the Member during the winding up and liquidation period. The costs of liquidation shall be borne as a Company expense. The Member shall not receive any additional compensation for services rendered during the winding up and liquidation of the Company.
Notwithstanding any provisions of the Act or other applicable law, an insolvency event, including a bankruptcy filing, by or against the Company or a Member shall not cause a dissolution of the Company nor shall such an insolvency event, including a bankruptcy filing, by or against a Member effect a deemed assignment, transfer, withdrawal or dissociation of such Member’s interest in the Company or otherwise have any effect whatsoever on such Member’s interest.
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ARTICLE VII
Transfer of the Member’s Membership Interests
The Member may sell, assign, transfer, convey, gift, exchange, pledge or otherwise dispose of any or all of its Membership Interests and, upon receipt by the Company of a written agreement executed by the person or entity to whom such Membership Interests are to be transferred agreeing to be bound by the terms of this Agreement as amended from time to time, such person shall be admitted as a member.
ARTICLE VIII
Exculpation and Indemnification
8.1 Exculpation. No officer of the Company or member of the Board of Directors or Managers (each a “Manager”) or officer of any of its direct or indirect subsidiaries (each a “Subsidiary,” and collectively, “Subsidiaries”) shall be liable to the Company or such Subsidiary, any other officer of the Company or any other officer or Manager of any Subsidiary or to any Member for any loss suffered by the Company or any Subsidiary unless such loss is caused by such officer of the Company’s or such Manager or officer of such Subsidiary’s gross negligence, willful misconduct, knowing violation of law or material breach of this Agreement or any other agreement between the Company or any Subsidiary and such officer of the Company or such Manager or officer of such Subsidiary. No officer of the Company and no Manager or officer of any direct or indirect Subsidiary shall be liable to the Company or such Subsidiary, any other Manager or officer or any Member for errors in judgment or for any acts or omissions that do not constitute gross negligence, intentional misconduct, knowing violation of law or material breach of this Agreement or other agreement with the Company or its Subsidiaries. Any officer of the Company and any Manager or officer of any of its Subsidiaries may consult with the Company’s and such Subsidiary’s counsel and accountants in respect of the Company’s and such Subsidiary’s affairs, and provided such officer of the Company or Manager or officer of such Subsidiary, as the case may be, acts in good faith reliance upon the advice or opinion of such counsel or accountants, such officer of the Company or such Manager or officer of such Subsidiary, as the case may be, shall not be liable for any loss suffered by the Company or such Subsidiary in reliance thereon.
8.2 Right to Indemnification. Subject to the limitations and conditions as provided in this Article VIII, each person or entity (“Person”) who was or is made a party or is threatened to be made a party to or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, arbitrative (hereinafter a “Proceeding”), or any appeal in such a Proceeding or any inquiry or investigation that could lead to such a Proceeding, by reason of the fact that he or she, or a Person of whom he or she is the legal representative, is or was an officer of the Company or, while an officer of the Company, is or was serving at the request of the Company as a manager, director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic limited liability company, corporation, partnership, joint venture, sole proprietorship, trust or other enterprise, shall be indemnified by the Company to the fullest extent permitted under applicable law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than said law permitted the Company to provide prior to such amendment) against judgments, penalties, fines, settlements and reasonable expenses (including, without limitation, reasonable attorneys’
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fees) actually incurred by such Person in connection with such Proceeding; provided that (a) such Person’s course of conduct was pursued in good faith and believed by him to be in the best interests of the Company and (b) such course of conduct did not constitute gross negligence, intentional misconduct, or knowing violation of law on the part of such Person and otherwise was materially in accordance with the terms of this Agreement. Indemnification under this Article VIII shall continue with respect to a Person who has ceased to serve in the capacity which initially entitled such Person to indemnity hereunder. The rights granted pursuant to this Article VIII shall be deemed contractual rights, and no amendment, modification or repeal of this Article VIII shall have the effect of limiting or denying any such rights with respect to actions taken or Proceedings arising prior to any amendment, modification or repeal. It is expressly acknowledged that the indemnification provided in this Article VIII could involve indemnification for negligence other than gross negligence.
8.3 Advance Payment. The right to indemnification conferred in this Article VIII shall, upon approval by the Member in each instance, include the right to be paid or reimbursed by the Company the reasonable expenses incurred by a Person of the type entitled to be indemnified under Section 8.2 who was, is or is threatened to be made a named defendant or respondent in a Proceeding in advance of the final disposition of the Proceeding and without any determination as to the Person’s ultimate entitlement to indemnification; provided that the payment of such expenses incurred by any such Person in advance of the final disposition of a Proceeding shall be made only upon delivery to the Company of a written affirmation by such Person of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification under Article VIII and a written undertaking, by or on behalf of such Person, to repay all amounts so advanced if it shall ultimately be determined that such indemnified Person is not entitled to be indemnified under this Article VIII or otherwise.
8.4 Indemnification of Employees and Agents. The Company may indemnify and advance expenses to any Person, as determined by the Member, by reason of the fact that such Person was an employee or agent of the Company or is or was serving at the request of the Company as a manager, director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic limited liability company, corporation, partnership, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise, against any liability asserted against him or her and incurred by him or her in such a capacity or arising out of his or her status as such a Person to the same extent that it shall indemnify and advance expenses to Managers and officers under this Article VIII.
8.5 Appearance as a Witness. Notwithstanding any other provision of this Article VIII, the Company may pay or reimburse reasonable out-of-pocket expenses incurred by a Manager, officer or employee in connection with his or her appearance as a witness or other participation in a Proceeding related to or arising out of the business of the Company at a time when he or she is not a named defendant or respondent in the Proceeding.
8.6 Non-exclusivity of Rights. The right to indemnification and the advancement and payment of expenses conferred in this Article VIII shall not be exclusive of any other right which a Manager, officer or other Person indemnified pursuant to this Article VIII may have or hereafter acquire under any law (common or statutory), any provision of the Articles of Organization or this Agreement, any other separate contractual arrangement, any vote of the Member or disinterested Managers, or otherwise.
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8. 7 Insurance. The Company may purchase and maintain insurance, at its expense, to protect itself and any Person who is or was serving as an officer, employee or agent of the Company or is or was serving at the request of the Company as a manager, director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic limited liability company, corporation, partnership, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise, against any expense, liability or loss, whether or not the Company would have the obligation to indemnify such Person against such expense, liability or loss under this Article VIII.
8.8 Savings Clause. If this Article VIII or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Manager, officer or any other Person indemnified pursuant to this Article VIII as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any action, suit or proceeding, whether civil, criminal, administrative or investigative to the fullest extent permitted by any applicable portion of this Article VIII that shall not have been invalidated and to the fullest extent permitted by applicable law.
8.9 Limitation. The exculpation provisions and indemnification obligations set forth in this Article VIII shall not apply to any acts or omissions that occur at or prior to the consummation of the transactions contemplated by that certain Purchase and Sale Agreement, dated as of October 15, 2021, by and between CDW LLC, an Illinois limited liability company, and Sirius Computer Solutions Holdco, LP, a Delaware limited partnership.
ARTICLE IX
Miscellaneous
9.1 Tax Treatment. The Company shall be taxed as a disregarded entity for U.S. federal income tax purposes (as well as for any analogous state or local tax purposes), and the Member and the Company shall timely make any and all necessary elections and filings for the Company treated as a disregarded entity for U.S. federal income tax purposes (as well as for any analogous state or local tax purposes).
9.2 Amendments. Amendments to this Agreement and to the Articles of Organization shall be approved in writing by the Member. An amendment shall become effective as of the date specified in the approval of the Member or if none is specified as of the date of such approval or as otherwise provided in the Act.
9.3 Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, such provision shall be ineffective to the extent of such invalidity or unenforceability; provided, however, that the remaining provisions will continue in full force without being impaired or invalidated in any way unless such invalid or unenforceable provision or clause shall be so significant as to materially affect the expectations of the Member regarding this Agreement. Otherwise, any invalid or unenforceable provision shall be replaced by the Member with a valid provision which most closely approximates the intent and economic effect of the invalid or unenforceable provision.
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9.4 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Maryland without regard to the principles of conflicts of laws thereof.
9.5 Limited Liability Company. The Member intends to form a limited liability company and does not intend to form a partnership under the laws of the State of Maryland or any other laws.
9.6 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the instrument.
[Signature page follows]
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IN WITNESS WHEREOF, the undersigned have duly executed this Amended and Restated Limited Liability Company Agreement as of the day first above written.
| CDW GOVERNMENT LLC | ||
| By: | /s/ Frederick J. Kulevich | |
| Name: | Frederick J. Kulevich | |
| Its: | Secretary | |
| SIRIUS FEDERAL, LLC | ||
| By: | /s/ Frederick J. Kulevich | |
| Name: | Frederick J. Kulevich | |
| Its: | Secretary | |
[Signature Page to Sirius Federal, LLC Amended and Restated Limited Liability Company Agreement]
SCHEDULE A
| Name of Member |
Percentage of Membership Interests | |||
| CDW Government LLC |
100 | % | ||
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Exhibit 3.24
CERTIFICATE OF FORMATION
OF
FORSYTHE/MCARTHUR ASSOCIATES, LLC
| 1. | Name. The name of the limited liability company formed hereby is Forsythe/McArthur Associates, LLC (the “Company”). |
| 2. | Registered Office and Registered Agent. The address of the registered office of the Company in the State of Delaware is 1209 Orange Street in the City of Wilmington, County of New Castle, 19801. The name of its registered agent at such address is The Corporation Trust Company. |
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation on December 21,2017.
| /s/ Steven A. Elder |
| Steven A. Elder, Organizer |
| State of Delaware Secretary of State Division of Corporations Delivered 07:07 PM 12/21/2017 FILED 07:07 PM 12/21/2017 SR 20177730061 - File Number 6674013 |
| State of Delaware Secretary of State Division of Corporations Delivered 03:09 PM 12/28/2017 FILED 03:09 PM 12/28/2017 SR 20177823751 - File Number 6674013 |
CERTIFICATE OF MERGER
of
FORSYTHE/MCARTHUR ASSOCIATES, INC.
(an Illinois corporation)
with and into
FORSYTHE/MCARTHUR ASSOCIATES, LLC
(a Delaware limited liability company)
December 27, 2017
Pursuant to Title 6, Section 18-209 of the Limited Liability Company Act of the State of Delaware (the “DLLCA”), FORSYTHE/MCARTHUR ASSOCIATES, LLC, a Delaware limited liability company (the “Company”), hereby certifies to the following information relating to the merger FORSYTHE/MCARTHUR ASSOCIATES, INC., an Illinois corporation, with and into the Company (the “Merger”):
1. The names and states of formation and incorporation, as applicable, of the Company and FORSYTHE/MCARTHUR ASSOCIATES, INC., which are the constituent companies (the “Constituent Companies”) in the Merger are as follows:
| Name |
State | |
| FORSYTHE/MCARTHUR ASSOCIATES, LLC | Delaware | |
| FORSYTHE/MCARTHUR ASSOCIATES, INC. | Illinois |
2. The Agreement and Plan of Merger (the “Merger Agreement”), dated as of December 27, 2017, by and between the Constituent Companies, setting forth the terms and conditions of the Merger, has been approved, adopted, executed and acknowledged by each of the Constituent Companies in accordance with the provisions of the DLLCA and the Business Corporation Act of 1983 of the State of Illinois, as amended (the “IBCA”).
3. The name of the limited liability company surviving the merger is FORSYTHE/MCARTHUR ASSOCIATES, LLC (the “Surviving LLC”).
4. The Merger shall be effective at 11:58 p.m. EST on December 31, 2017 in accordance with the Merger Agreement, the DLLCA and the IBCA.
5. The Merger Agreement is on file at the principal place of business of the Surviving LLC, which is located at 10100 Reunion PI. #500, San Antonio, Texas 78216.
6. A copy of the Merger Agreement will be furnished by the Surviving LLC, on request and without cost, to any stockholder or member, as applicable, of Constituent Companies.
IN WITNESS WHEREOF, the undersigned party, as the Surviving LLC, has duly executed this Certificate of Merger as of the date first written above.
| FORSYTHE/MCARTHUR ASSOCIATES, LLC | ||
| By: | /s/ C. Joseph Mertens, II | |
| C. Joseph Mertens, II, Manager | ||
| State of Delaware Secretary of State Division of Corporations Delivered 12:20 PM 04/30/2018 FILED 12:20 PM 04/30/2018 SR 20183152758 - File Number 6674013 |
STATE OF DELAWARE
CERTIFICATE OF AMENDMENT
| 1. | Name of Limited Liability Company: Forsythe/McArthur Associates, LLC |
| 2. | The Certificate of Formation of the limited liability company is hereby amended as follows: |
1. Name. The name of the limited liability company formed hereby is Sirius Financing Solutions, LLC (the “Company”).
IN WITNESS WHEREOF, the undersigned have executed this Certificate on the 30th day of April, A.D. 2018.
| By: | /s/ C. Joseph Mertens, II | |
| Authorized Person(s) | ||
| Name: | C. Joseph Mertens, II | |
| Print or Type | ||
| State of Delaware Secretary of State Division of Corporations Delivered 01:00 PM 05/03/2018 FILED 01:00 PM 05/03/2018 SR 20183308981 - File Number 6674013 |
State of Delaware
Certificate of Correction
of a Limited Liability Company
to be filed pursuant to Section 18-211(a)
| 1. | The name of the Limited Liability Company is: Sirius Financing Solutions, LLC. |
| 2. | That a Certificate of Amendment was filed by the Secretary of State of Delaware on April 30, 2018, and that said Certificate requires correction as permitted by Section 18-211 of the Limited Liability Company Act. |
| 3. | The inaccuracy or defect of said Certificate is: (must give specific reason) |
The name of the limited liability company was incorrectly listed as “Sirius Financing Solutions, LLC”.
| 4. | The Certificate is hereby corrected to read as follows: |
The name of the limited liability company is: “Sirius Computer Solutions Financial Services, LLC”.
IN WITNESS WHEREOF, the undersigned have executed this Certificate on the 3rd day of May, A.D. 2018.
| By: | /s/ C. Joseph Mertens, II | |
| Authorized Person | ||
| Name: | C. Joseph Mertens, II | |
| Print or Type | ||
Exhibit 3.25
EXECUTION VERSION
SECOND AMENDED & RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
SIRIUS COMPUTER SOLUTIONS FINANCIAL SERVICES, LLC
This SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”) of SIRIUS COMPUTER SOLUTIONS FINANCIAL SERVICES, LLC, a Delaware limited liability company (the “Company”), is dated and effective as of the 28th day of December, 2021, by and between the Company and Sirius Computer Solutions, LLC, a Texas limited liability company, as the sole member of the Company (the “Member”).
RECITAL
The Company was organized as a Delaware limited liability company on December 21, 2017, pursuant to the Certificate of Formation filed with the Delaware Secretary of State (“DSOS”).
Prior to December 28, 2021, the sole member of the Company was Sirius Computer Solutions, Inc., a Texas corporation, and on December 28, 2021, Sirius Computer Solutions, Inc. converted into a Texas limited liability company under the name Sirius Computer Solutions, LLC. Therefore, the Company now desires to amend and restate its Amended and Restated Limited Liability Company Agreement, dated December 1, 2021, to admit Sirius Computer Solutions, LLC as the sole member of the Company.
ARTICLE I
The Limited Liability Company
1.1 Formation. The Company was organized as a Delaware limited liability company effective December 21, 2017, pursuant to the Certificate of Formation executed and filed with DSOS in accordance with Section 18-201 of the Delaware Limited Liability Company Act, as amended and in effect from time to time (the “Act”).
1.2 Name. The name of the Company is “SIRIUS COMPUTER SOLUTIONS FINANCIAL SERVICES, LLC” and its business shall be carried on in such name with such variations and changes as the Member shall determine or deem necessary to comply with requirements of the jurisdictions in which the Company’s operations are conducted. Any change in the Company’s name shall be made by the Member in accordance with and pursuant to the Act.
1.3 Business Purpose; Powers. The Company is formed for the purpose of engaging in any lawful purpose or business for which limited liability companies may be formed under the Act. The Company shall have and may exercise all the powers and privileges granted by the Act or by any other law or by this Agreement, together with any powers incidental thereto, so far as such powers are necessary or convenient to effect any or all of the purposes for which the Company is organized.
1.4 Principal Business Office. The principal place of business of the Company shall be located at 10100 Reunion Place, Suite 500, San Antonio, Texas 78216, or at such other or additional locations within or without the State of Delaware as the Member, in its discretion, may determine.
1.5 Registered Office and Agent. The location of the registered office of the Company in the State of Delaware is 251 Little Falls Drive, Wilmington, Delaware 19808. The Company’s Registered Agent at such address is Corporation Service Company. The registered office and/or registered agent of the Company may be changed from time to time at the discretion of the Member.
1.6 Qualification in Other Jurisdictions. The Member shall have authority to cause the Company to do business in jurisdictions other than the State of Delaware.
1.7 Term. Subject to the provisions of Article VII below, the Company shall have perpetual existence.
ARTICLE II
The Member
2.1 The Member. The name and address of the Member is as follows:
| Name | Address | |
| Sirius Computer Solutions, LLC | 10100 Reunion Place, Suite 500 | |
| San Antonio, Texas 78216 |
2.2 Actions by the Member; Meetings. The Member may approve a matter or take any action at a meeting or without a meeting by the written consent of the Member. Meetings of the Member may be called at any time by the Member.
2.3 Liability of the Member. All debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company and the Member shall not be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a member.
2.4 Power to Bind the Company. The Member (acting in its capacity as such) shall have the authority to bind the Company to any third party with respect to any matter.
2.5 Management. The management, operation and policy of the Company shall be vested exclusively in the Member. The Member, acting through its duly authorized agents, is authorized and empowered on behalf and in the name of the Company to perform all acts and engage in all activities and transactions which it may in its sole discretion deem necessary or advisable in order to cause the Company to carry out its purpose and exercise the powers granted to the Company hereunder and under the Act. The Member is an agent of the Company and the actions of the Member in such capacity shall be binding on the Company without liability to the Member.
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ARTICLE III
Officers
3.1 Designation of Officers. The Member may, from time to time, designate one or more individuals to be officers of and to act for the Company. No officer need be a resident of the State of Delaware. Any officers so designated shall have such authority and perform such duties as the Member may, from time to time, prescribe or as may be provided in this Agreement, including the power to execute documents on behalf of the Company subject to the limits set forth herein. The Member may assign titles to particular officers. Unless the Member otherwise specifies, if the title is one commonly used for officers of a business corporation, the assignment of such title shall constitute the delegation to such officer of the authority, duties and ability to bind the Company that are normally associated with that office under the laws of the State of Delaware, subject to any specific limitations on authority and duties made to such officer by the Member pursuant to this Section 3.1. Each officer shall hold office until his or her successor shall be duly designated and shall qualify or until his or her death or until he or she shall resign or shall have been removed. Any number of offices may be held by the same individual.
3.2 Resignation; Removal. Any officer may resign as such at any time. Such resignation shall be made in writing and shall take effect at the time specified therein, or if no time be specified, at the time of its receipt by the Member. Any officer may be removed as such, either with or without cause, by the Member; provided that such removal shall be without prejudice to the contract rights, if any, of the individual so removed. Designation of an officer shall not of itself create any contract rights, except as otherwise set forth herein. Any vacancy occurring in any office of the Company may be filled by the Member.
3.3 Duties of Officers Generally. Except as otherwise set forth in this Agreement, each officer shall owe to the Company and its Member the same fiduciary duties (including the duties of care and loyalty) that such individuals would owe to a Delaware corporation and its shareholders as an officer thereof.
3.4 Appointed Officers. In addition to officers designated by the Member in accordance with this Article III, the Chief Executive Officer may appoint other officers below the level of Member-appointed Vice President as the Chief Executive Officer may from time to time deem expedient and may designate for such officers titles that appropriately reflect their positions and responsibilities. Such appointed officers shall have such powers and shall perform such duties as may be assigned to them by the Chief Executive Officer or the senior officer to whom they report, consistent with corporate policies. An appointed officer shall serve until the earlier of such officer’s resignation or such officer’s removal by the Chief Executive Officer at any time, either with or without cause.
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ARTICLE IV
Capital Structure and Contributions
4.1 Capital Structure and Contributions.
(a) The capital structure of the Company shall consist of membership interests (the “Membership Interests”). All Membership Interests shall be identical with each other in every respect. The Member shall own one hundred percent (100%) of the Membership Interests issued and outstanding, as set forth on Schedule A attached hereto. The Company may in its discretion issue certificates to the Member representing the Membership Interests held by such Member. The Member hereby agrees that the Membership Interests shall be securities governed by the Uniform Commercial Code of the applicable jurisdiction.
(b) The Member shall have the right, at any time and from time to time, to make any optional contributions to the capital of the Company in the form of cash, property, promissory note or services, or any combination thereof.
(c) The Company shall be permitted to incur indebtedness for borrowed money, from the Member or otherwise, with the Member’s consent and approval.
ARTICLE V
Distributions
5.1 Distributions. The Member shall determine profits available for distribution and the amount, if any, to be distributed to the Member, and shall authorize and distribute to the Member, the determined amount when, as and if declared by the Member. The distributions of the Company shall be distributed entirely to the Member.
ARTICLE VI
Events of Dissolution
The Company shall be dissolved upon the first of the following events to occur:
(a) The consent of the Member at any time to dissolve and wind up the affairs of the Company; or
(b) The occurrence of any other event that causes the dissolution of a limited liability company under the Act.
In the event of any dissolution of the Company, the Member shall be in charge of such dissolution, and the Member shall immediately proceed with an orderly winding up of the Company’s business and affairs and the orderly liquidation of the Company and its assets and make final distributions as provided in the Act; provided, that until all final distributions are made, the Member shall continue to operate the Company. The duties of care and loyalty described in the Act still apply to the Member during the winding up and liquidation period. The costs of liquidation shall be borne as a Company expense. The Member shall not receive any additional compensation for services rendered during the winding up and liquidation of the Company.
Notwithstanding any provisions of the Act or other applicable law, an insolvency event, including a bankruptcy filing, by or against the Company or a Member shall not cause a dissolution of the Company nor shall such an insolvency event, including a bankruptcy filing, by or against a Member effect a deemed assignment, transfer, withdrawal or dissociation of such Member’s interest in the Company or otherwise have any effect whatsoever on such Member’s interest.
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ARTICLE VII
Transfer of the Member’s Membership Interests
The Member may sell, assign, transfer, convey, gift, exchange, pledge or otherwise dispose of any or all of its Membership Interests and, upon receipt by the Company of a written agreement executed by the person or entity to whom such Membership Interests are to be transferred agreeing to be bound by the terms of this Agreement as amended from time to time, such person shall be admitted as a member.
ARTICLE VIII
Exculpation and Indemnification
8.1 Exculpation. No officer of the Company or member of the Board of Directors or Managers (each a “Manager”) or officer of any of its direct or indirect subsidiaries (each a “Subsidiary,” and collectively, “Subsidiaries”) shall be liable to the Company or such Subsidiary, any other officer of the Company or any other officer or Manager of any Subsidiary or to any Member for any loss suffered by the Company or any Subsidiary unless such loss is caused by such officer of the Company’s or such Manager or officer of such Subsidiary’s gross negligence, willful misconduct, knowing violation of law or material breach of this Agreement or any other agreement between the Company or any Subsidiary and such officer of the Company or such Manager or officer of such Subsidiary. No officer of the Company and no Manager or officer of any direct or indirect Subsidiary shall be liable to the Company or such Subsidiary, any other Manager or officer or any Member for errors in judgment or for any acts or omissions that do not constitute gross negligence, intentional misconduct, knowing violation of law or material breach of this Agreement or other agreement with the Company or its Subsidiaries. Any officer of the Company and any Manager or officer of any of its Subsidiaries may consult with the Company’s and such Subsidiary’s counsel and accountants in respect of the Company’s and such Subsidiary’s affairs, and provided such officer of the Company or Manager or officer of such Subsidiary, as the case may be, acts in good faith reliance upon the advice or opinion of such counsel or accountants, such officer of the Company or such Manager or officer of such Subsidiary, as the case may be, shall not be liable for any loss suffered by the Company or such Subsidiary in reliance thereon.
8.2 Right to Indemnification. Subject to the limitations and conditions as provided in this Article VIII, each person or entity (“Person”) who was or is made a party or is threatened to be made a party to or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, arbitrative (hereinafter a “Proceeding”), or any appeal in such a Proceeding or any inquiry or investigation that could lead to such a Proceeding, by reason of the fact that he or she, or a Person of whom he or she is the legal representative, is or was an officer of the Company or, while an officer of the Company, is or was serving at the request of the Company as a manager, director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic limited liability company, corporation, partnership, joint venture, sole proprietorship, trust or other enterprise, shall be indemnified by the Company to the fullest extent permitted under applicable law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than said law permitted the Company to provide prior to such amendment) against judgments, penalties, fines, settlements and reasonable expenses (including, without limitation, reasonable attorneys’
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fees) actually incurred by such Person in connection with such Proceeding; provided that (a) such Person’s course of conduct was pursued in good faith and believed by him to be in the best interests of the Company and (b) such course of conduct did not constitute gross negligence, intentional misconduct, or knowing violation of law on the part of such Person and otherwise was materially in accordance with the terms of this Agreement. Indemnification under this Article VIII shall continue with respect to a Person who has ceased to serve in the capacity which initially entitled such Person to indemnity hereunder. The rights granted pursuant to this Article VIII shall be deemed contractual rights, and no amendment, modification or repeal of this Article VIII shall have the effect of limiting or denying any such rights with respect to actions taken or Proceedings arising prior to any amendment, modification or repeal. It is expressly acknowledged that the indemnification provided in this Article VIII could involve indemnification for negligence other than gross negligence.
8.3 Advance Payment. The right to indemnification conferred in this Article VIII shall, upon approval by the Member in each instance, include the right to be paid or reimbursed by the Company the reasonable expenses incurred by a Person of the type entitled to be indemnified under Section 8.2 who was, is or is threatened to be made a named defendant or respondent in a Proceeding in advance of the final disposition of the Proceeding and without any determination as to the Person’s ultimate entitlement to indemnification; provided that the payment of such expenses incurred by any such Person in advance of the final disposition of a Proceeding shall be made only upon delivery to the Company of a written affirmation by such Person of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification under Article VIII and a written undertaking, by or on behalf of such Person, to repay all amounts so advanced if it shall ultimately be determined that such indemnified Person is not entitled to be indemnified under this Article VIII or otherwise.
8.4 Indemnification of Employees and Agents. The Company may indemnify and advance expenses to any Person, as determined by the Member, by reason of the fact that such Person was an employee or agent of the Company or is or was serving at the request of the Company as a manager, director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic limited liability company, corporation, partnership, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise, against any liability asserted against him or her and incurred by him or her in such a capacity or arising out of his or her status as such a Person to the same extent that it shall indemnify and advance expenses to Managers and officers under this Article VIII.
8.5 Appearance as a Witness. Notwithstanding any other provision of this Article VIII, the Company may pay or reimburse reasonable out-of-pocket expenses incurred by a Manager, officer or employee in connection with his or her appearance as a witness or other participation in a Proceeding related to or arising out of the business of the Company at a time when he or she is not a named defendant or respondent in the Proceeding.
8.6 Non-exclusivity of Rights. The right to indemnification and the advancement and payment of expenses conferred in this Article VIII shall not be exclusive of any other right which a Manager, officer or other Person indemnified pursuant to this Article VIII may have or hereafter acquire under any law (common or statutory), any provision of the Certificate of Formation or this Agreement, any other separate contractual arrangement, any vote of the Member or disinterested Managers, or otherwise.
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8.7 Insurance. The Company may purchase and maintain insurance, at its expense, to protect itself and any Person who is or was serving as an officer, employee or agent of the Company or is or was serving at the request of the Company as a manager, director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic limited liability company, corporation, partnership, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise, against any expense, liability or loss, whether or not the Company would have the obligation to indemnify such Person against such expense, liability or loss under this Article VIII.
8.8 Savings Clause. If this Article VIII or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Manager, officer or any other Person indemnified pursuant to this Article VIII as to costs, charges and expenses (including reasonable attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any action, suit or proceeding, whether civil, criminal, administrative or investigative to the fullest extent permitted by any applicable portion of this Article VIII that shall not have been invalidated and to the fullest extent permitted by applicable law.
8.9 Limitation. The exculpation provisions and indemnification obligations set forth in this Article VIII shall not apply to any acts or omissions that occur at or prior to the consummation of the transactions contemplated by that certain Purchase and Sale Agreement, dated as of October 15, 2021, by and between CDW LLC, an Illinois limited liability company, and Sirius Computer Solutions Holdco, LP, a Delaware limited partnership.
ARTICLE IX
Miscellaneous
9.1 Tax Treatment. The Company shall be taxed as a disregarded entity for U.S. federal income tax purposes (as well as for any analogous state or local tax purposes), and the Member and the Company shall timely make any and all necessary elections and filings for the Company treated as a disregarded entity for U.S. federal income tax purposes (as well as for any analogous state or local tax purposes).
9.2 Amendments. Amendments to this Agreement and to the Certificate of Formation shall be approved in writing by the Member. An amendment shall become effective as of the date specified in the approval of the Member or if none is specified as of the date of such approval or as otherwise provided in the Act.
9.3 Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, such provision shall be ineffective to the extent of such invalidity or unenforceability; provided, however, that the remaining provisions will continue in full force without being impaired or invalidated in any way unless such invalid or unenforceable provision or clause shall be so significant as to materially affect the expectations of the Member regarding this Agreement. Otherwise, any invalid or unenforceable provision shall be replaced by the Member with a valid provision which most closely approximates the intent and economic effect of the invalid or unenforceable provision.
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9.4 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to the principles of conflicts of laws thereof.
9.5 Limited Liability Company. The Member intends to form a limited liability company and does not intend to form a partnership under the laws of the State of Delaware or any other laws.
9.6 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the instrument.
[Signature page follows]
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IN WITNESS WHEREOF, the undersigned have duly executed this Second Amended and Restated Limited Liability Company Agreement as of the day first above written.
| SIRIUS COMPUTER SOLUTIONS, LLC | ||
| By: | /s/ Hemant Kapadia | |
| Name: | Hemant Kapadia | |
| Its: | Chief Financial Officer - Secretary and Treasurer | |
| SIRIUS COMPUTER SOLUTIONS FINANCIAL SERVICES, LLC | ||
| By: | /s/ Frederick J. Kulevich | |
| Name: | Frederick J. Kulevich | |
| Its: | Secretary | |
[Signature Page to Sirius Computer Solutions Financial Services, LLC Second Amended and Restated Limited Liability Company Agreement]
SCHEDULE A
| Name of Member | Percentage of Membership Interests | |
| Sirius Computer Solutions, LLC | 100% |
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Exhibit 5.1
|
SIDLEY AUSTIN LLP 787 SEVENTH AVENUE NEW YORK, NY 10019 +1 212 839 5300 +1 212 839 5599 FAX
AMERICA | ASIA PACIFIC | EUROPE |
August 2, 2023
CDW Corporation
200 N Milwaukee Avenue
Vernon Hills, Illinois 60061
| Re: | Registration Statement on Form S-3 |
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-3 (the “Registration Statement”) being filed by CDW Corporation, a Delaware corporation (the “Company”), CDW LLC, an Illinois limited liability company (“CDW LLC”), CDW Finance Corporation, a Delaware corporation (together with CDW LLC, the “Debt Issuers”), CDW Direct LLC, an Illinois limited liability company (“CDW Direct”), CDW Government LLC, an Illinois limited liability company (“CDW Government”), CDW Logistics LLC, an Illinois limited liability company (“CDW Logistics”), SCS Holdings I LLC, a Delaware limited liability company (“SCS Holdings”), Sirius Computer Solutions, LLC, a Texas limited liability company (“Sirius Computer”), Sirius Computer Solutions Financial Services, LLC, a Delaware limited liability company (together with the Company, CDW Direct, CDW Government, CDW Logistics, SCS Holdings and Sirius Computer, the “Covered Guarantors”), CDW Technologies LLC, a Wisconsin limited liability company (“CDW Technologies”), Amplified IT LLC, a Virginia limited liability company (“Amplified IT”), and Sirius Federal, LLC, a Maryland limited liability company (together with the Covered Guarantors, CDW Technologies and Amplified IT, the “Guarantors” and the Debt Issuers and the Guarantors, collectively, the “Registrants”) with the Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to the registration of an unlimited amount of:
(i) shares of the Company’s common stock, $0.01 par value per share (the “Common Stock”);
(ii) shares of the Company’s preferred stock, $0.01 par value per share (the “Preferred Stock”), which may be represented by depositary shares (the “Depositary Shares”);
(iii) debt securities of the Debt Issuers (the “Debt Securities”), which may be unsecured senior debt securities (the “Senior Debt Securities”) and/or unsecured subordinated debt securities (the “Subordinated Debt Securities”);
(iv) guarantees of Debt Securities by the Guarantors (the “Guarantees”);
(v) warrants to purchase Common Stock, Preferred Stock or Debt Securities (the “Warrants”);
Sidley Austin (NY) LLP is a Delaware limited liability partnership doing business as Sidley Austin LLP and practicing in affiliation with other Sidley Austin partnerships.
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(vi) subscription rights to purchase Common Stock or other securities of the Company (the “Subscription Rights”);
(vii) share purchase contracts (the “Share Purchase Contracts”), entitling or obligating the holders thereof to purchase from or sell to the Company and the Company to sell to or purchase from the holders thereof, Common Stock or Preferred Stock at a future date or dates; and
(viii) share purchase units (the “Share Purchase Units”), each representing ownership of a Share Purchase Contract and a Warrant.
The Common Stock, the Preferred Stock, the Depositary Shares, the Debt Securities, the Guarantees, the Warrants, the Subscription Rights, the Share Purchase Contracts and the Share Purchase Units are collectively referred to herein as the “Securities.”
Unless otherwise specified in the applicable prospectus supplement:
(1) the Depositary Shares will be issued under a deposit agreement (a “Deposit Agreement”) between the Company and a depositary agent (the “Depositary Agent”);
(2) the Senior Debt Securities and any related Guarantees will be issued under one or more indentures (each, a “Senior Indenture”) to be entered into among the Company, one or more Guarantors (as applicable) and a trustee (the “Senior Trustee”);
(3) the Subordinated Debt Securities and any related Guarantees will be issued under one or more indentures (each, a “Subordinated Indenture”) to be entered into among the Company, one or more Guarantors (as applicable) and a trustee (the “Subordinated Trustee”);
(4) the Warrants will be issued under a warrant agreement (the “Warrant Agreement”) to be entered into between the Company and a warrant agent (the “Warrant Agent”);
(5) the Subscription Rights will be issued under a subscription rights agreement (the “Subscription Rights Agreement”) to be entered into between the Company and a subscription rights agent (the “Rights Agent”);
(6) the Share Purchase Contracts will be issued under a share purchase contract agreement (the “Share Purchase Contract Agreement”) to be entered into between the Company and a purchase contract agent (the “Share Purchase Contract Agent”); and
(7) the Share Purchase Units will be issued under a share purchase unit agreement (the “Share Purchase Unit Agreement”) to be entered into between the Company and a share purchase unit agent (the “Unit Agent”).
in each case substantially in the form that has been or will be filed as an exhibit to the Registration Statement.
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This opinion letter is being delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
We have examined the Registration Statement, the exhibits thereto, certificates of incorporation, certificates of formation, by-laws, limited liability company agreements or similar organizational and governing documents, each as amended to the date hereof, of the Company and the Covered Guarantors (the “Organizational Documents”) and resolutions adopted by the board of directors of the Company (the “Board” and such resolutions, the “Resolutions”) and the resolutions adopted by the board of directors, managers or sole member, as applicable, of each Covered Guarantor relating to the Registration Statement. We have also examined originals, or copies of originals certified to our satisfaction, of such agreements, documents, certificates and statements of each Registrant and others, and have examined such questions of law, as we have considered relevant and necessary as a basis for this opinion letter. We have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures, the legal capacity of all persons and the conformity with the original documents of any copies thereof submitted to us for examination. As to facts relevant to the opinions expressed herein, we have relied without independent investigation or verification upon, and assumed the accuracy and completeness of, certificates, letters and oral and written statements and representations of public officials and officers and other representatives of each Registrant.
Based on and subject to the foregoing and the other limitations, qualifications and assumptions set forth herein, we are of the opinion that:
1. With respect to an offering of shares of Common Stock covered by the Registration Statement, such shares of Common Stock will be validly issued, fully paid and nonassessable when: (i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have become effective under the Securities Act; (ii) a prospectus supplement with respect to the sale of such shares of Common Stock shall have been filed with the SEC in compliance with the Securities Act and the rules and regulations thereunder; (iii) the Board or a duly authorized committee thereof shall have duly adopted final resolutions in conformity with the applicable Organizational Documents of the Company and the Resolutions authorizing the issuance and sale of such shares of Common Stock; and (iv) certificates representing such shares of Common Stock shall have been duly executed, countersigned and registered and duly delivered in accordance with the applicable definitive purchase, underwriting or similar agreement upon payment of the agreed consideration therefor in an amount not less than the par value thereof or, if any such shares of Common Stock are to be issued in uncertificated form, the Company’s books shall reflect the issuance of such shares of Common Stock in accordance with the applicable definitive purchase, underwriting or similar agreement upon payment of the agreed consideration therefor in an amount not less than the par value thereof.
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2. The issuance and sale of each series of Preferred Stock covered by the Registration Statement will be duly authorized, and each share of such series of Preferred Stock will be validly issued, fully paid and nonassessable, when: (i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have become effective under the Securities Act; (ii) a prospectus supplement with respect to the sale of such series of Preferred Stock shall have been filed with the SEC in compliance with the Securities Act and the rules and regulations thereunder; (iii) the Board or a duly authorized committee thereof shall have duly adopted final resolutions in conformity with the applicable Organizational Documents of the Company and the Resolutions establishing the designations, preferences, rights, qualifications, limitations or restrictions of such series of Preferred Stock and authorizing the issuance and sale of such series of Preferred Stock; (iv) the Company shall have filed with the Secretary of State of the State of Delaware a Certificate of Designations with respect to such series of Preferred Stock in accordance with the General Corporation Law of the State of Delaware (the “DGCL”) and in conformity with the certificate of incorporation of the Company, as amended to the date hereof (the “Charter”) and such final resolutions contemplated by clause (iii) above; and (v) certificates representing such series of Preferred Stock shall have been duly executed, countersigned and registered and duly delivered in accordance with the applicable definitive purchase, underwriting or similar agreement to the purchasers thereof against payment of the agreed consideration therefor in an amount not less than the par value thereof or, if any shares of such series of Preferred Stock are to be issued in uncertificated form, the Company’s books shall reflect the issuance of such shares in accordance with the applicable definitive purchase, underwriting or similar agreement upon payment of the agreed consideration therefor in an amount not less than the par value thereof.
3. The Depositary Shares covered by the Registration Statement will entitle the holders thereof to the rights specified in the Depositary Shares and the Deposit Agreement relating to the Depositary Shares when: (i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have become effective under the Securities Act; (ii) a prospectus supplement with respect to the Depositary Shares and the series of Preferred Stock underlying such Depositary Shares shall have been filed with the SEC in compliance with the Securities Act and the rules and regulations thereunder; (iii) a Deposit Agreement shall have been duly authorized, executed and delivered by the Company and duly executed and delivered by the Depositary Agent named in the Deposit Agreement; (iv) the Board or a duly authorized committee thereof shall have duly adopted final resolutions in conformity with the applicable Organizational Documents of the Company and the Resolutions establishing the designations, preferences, rights, qualifications, limitations or restrictions of such series of Preferred Stock underlying such Depositary Shares and authorizing the issuance and sale of such series of Preferred Stock; (v) the Company shall have filed with the Secretary of State of the State of Delaware a Certificate of Designations with respect to such series of Preferred Stock underlying such Depositary Shares in accordance with the DGCL and in conformity with the Charter and such final resolutions contemplated by clause (iv) above; (vi) certificates representing the series of Preferred Stock underlying such Depositary Shares shall have been duly executed, countersigned and registered and duly delivered against payment of the agreed consideration therefor in an amount not less than the par value thereof or, if any shares of such series of Preferred Stock are to be issued in uncertificated form, the Company’s books shall reflect the issuance of such shares in accordance with the applicable definitive purchase, underwriting or similar agreement upon payment of the agreed consideration therefor in an amount not less than the par value thereof; and (vii) the depositary receipts evidencing Depositary Shares shall have been duly executed and delivered by the Depositary Agent in the manner set forth in the Deposit Agreement and in accordance with the applicable definitive purchase, underwriting or similar agreement to the purchasers thereof against payment of the agreed consideration therefor.
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4. Each issue of Warrants covered by the Registration Statement will constitute valid and binding obligations of the Company when: (i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have become effective under the Securities Act; (ii) a prospectus supplement with respect to such issue of Warrants and the Common Stock, Debt Securities or Preferred Stock issuable upon exercise of such Warrants shall have been filed with the SEC in compliance with the Securities Act and the rules and regulations thereunder; (iii) a Warrant Agreement relating to such issue of Warrants shall have been duly authorized, executed and delivered by the Company and duly executed and delivered by the Warrant Agent named in the Warrant Agreement; (iv) the Board or a duly authorized committee thereof shall have duly adopted final resolutions in conformity with the applicable Organizational Documents of the Company and the Resolutions authorizing the execution and delivery of the Warrant Agreement and the issuance and sale of such issue of Warrants; (v) if such Warrants are exercisable for Common Stock, the actions described in paragraph 1 above shall have been taken; (vi) if such Warrants are exercisable for Debt Securities, the actions described in paragraphs 5 or 6 below, as applicable, shall have been taken; (vii) if such Warrants are exercisable for Preferred Stock, the actions described in paragraph 2 above shall have been taken; and (viii) certificates representing such issue of Warrants shall have been duly executed, countersigned and issued in accordance with such Warrant Agreement and shall have been duly delivered in accordance with the applicable definitive purchase, underwriting or similar agreement to the purchasers thereof against payment of the agreed consideration therefor.
5. The Senior Debt Securities of each series covered by the Registration Statement will constitute valid and binding obligations of the applicable Debt Issuers when: (i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have become effective under the Securities Act and the Senior Indenture (including any necessary supplemental indenture) shall have been qualified under the Trust Indenture Act of 1939, as amended (the “TIA”); (ii) a prospectus supplement with respect to such series of Senior Debt Securities shall have been filed with the SEC in compliance with the Securities Act and the rules and regulations thereunder; (iii) the Senior Indenture shall have been duly authorized, executed and delivered by the applicable Debt Issuers and the Senior Trustee; (iv) all necessary corporate or limited liability company action, as applicable, shall have been taken by the applicable Debt Issuers to authorize the form, terms, execution, delivery, performance, issuance and sale of such series of Senior Debt Securities as contemplated by the Registration Statement, the prospectus supplement relating to such Senior Debt Securities and the Senior Indenture and to authorize the execution, delivery and performance of a supplemental indenture or officers’ certificate establishing the form and terms of such series of Senior Debt Securities as contemplated by the Senior Indenture; (v) a supplemental indenture or officers’ certificate establishing the form and terms of such series of Senior Debt Securities shall have been duly executed and delivered by the applicable Debt Issuers and the Senior Trustee (in the case of such a supplemental indenture) or by duly authorized officers of the applicable Debt Issuers (in the case of such an officers’ certificate), in each case in accordance with the
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provisions of the applicable Organizational Documents of the applicable Debt Issuers, final resolutions of the board of directors of the applicable Debt Issuer or a duly authorized committee thereof and the Senior Indenture; and (vi) the certificates evidencing the Senior Debt Securities of such series shall have been duly executed and delivered by the applicable Debt Issuers, authenticated by the Senior Trustee and issued, all in accordance with the applicable Organizational Documents of the applicable Debt Issuers, final resolutions of the board of directors of the applicable Debt Issuer or a duly authorized committee thereof, the Senior Indenture and the supplemental indenture or officers’ certificate, as the case may be, establishing the form and terms of the Senior Debt Securities of such series, and shall have been duly delivered in accordance with the applicable definitive purchase, underwriting or similar agreement to the purchasers thereof against payment of the agreed consideration therefor.
6. The Subordinated Debt Securities of each series covered by the Registration Statement will constitute valid and binding obligations of the applicable Debt Issuers when: (i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have become effective under the Securities Act and the Subordinated Indenture (including any necessary supplemental indenture) shall have been qualified under the TIA; (ii) a prospectus supplement with respect to such series of Subordinated Debt Securities shall have been filed with the SEC in compliance with the Securities Act and the rules and regulations thereunder; (iii) the Subordinated Indenture shall have been duly authorized, executed and delivered by the applicable Debt Issuers and the Subordinated Trustee; (iv) all necessary corporate or limited liability company action, as applicable, shall have been taken by the applicable Debt Issuers to authorize the form, terms, execution, delivery, performance, issuance and sale of such series of Subordinated Debt Securities as contemplated by the Registration Statement, the prospectus supplement relating to such Subordinated Debt Securities and the Subordinated Indenture and to authorize the execution, delivery and performance of a supplemental indenture or officers’ certificate establishing the form and terms of such series of Subordinated Debt Securities as contemplated by the Subordinated Indenture; (v) a supplemental indenture or officers’ certificate establishing the form and terms of such series of Subordinated Debt Securities shall have been duly executed and delivered by the applicable Debt Issuers and the Subordinated Trustee (in the case of such a supplemental indenture) or by duly authorized officers of the applicable Debt Issuers (in the case of such an officers’ certificate), in each case in accordance with the provisions of the applicable Organizational Documents of the applicable Debt Issuers, final resolutions of the board of directors of the applicable Debt Issuer or a duly authorized committee thereof and the Subordinated Indenture; and (vi) the certificates evidencing the Subordinated Debt Securities of such series shall have been duly executed and delivered by the applicable Debt Issuers, authenticated by the Subordinated Trustee and issued, all in accordance with the applicable Organizational Documents of the applicable Debt Issuers, final resolutions of the board of directors of the applicable Debt Issuer or a duly authorized committee thereof, the Subordinated Indenture and the supplemental indenture or officers’ certificate, as the case may be, establishing the form and terms of the Subordinated Debt Securities of such series, and shall have been duly delivered in accordance with the applicable definitive purchase, underwriting or similar agreement to the purchasers thereof against payment of the agreed consideration therefor.
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7. Each Guarantee will constitute a validly issued and binding obligation of the Guarantors when: (i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have become effective under the Securities Act the applicable indenture (including any necessary supplemental indenture) shall have been qualified under the TIA; (ii) a prospectus supplement with respect to each Guarantee and the Debt Securities to which such Guarantee relates shall have been filed with the SEC in compliance with the Securities Act and the rules and regulations thereunder; (iii) the board of directors, board of managers or sole manager, as applicable, or a duly authorized committee thereof shall have duly adopted final resolutions in conformity with the Organizational Documents of the applicable Guarantor authorizing the issuance of such Guarantee; and (iv) the Debt Securities to which the Guarantees relate have been duly issued as set forth in paragraph 5 or 6 above.
8. The Subscription Rights will constitute valid and binding obligations of the Company when: (i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have become effective under the Securities Act; (ii) a prospectus supplement with respect to such Subscription Rights shall have been filed with the SEC in compliance with the Securities Act and the rules and regulations thereunder; (iii) a Subscription Rights Agreement relating to such Subscription Rights shall have been duly authorized, executed and delivered by the Company and duly executed and delivered by the Rights Agent named in the Subscription Rights Agreement; (iv) the Board or a duly authorized committee thereof shall have duly adopted final resolutions in conformity with the applicable Organizational Documents of the Company and the Resolutions authorizing the execution, delivery, issuance and sale of such Share Purchase Contracts; (v) if such Subscription Rights relate to the issuance and sale of Common Stock, the actions described in paragraph 1 above shall have been taken; (vi) if such Subscription Rights relate to the issuance and sale of Preferred Stock, the actions described in paragraph 2 above shall have been taken; (vii) if such Subscription Rights relate to the issuance and sale of Debt Securities, the actions described in paragraphs 5 or 6 above, as applicable, shall have been taken; (viii) if such Subscription Rights relate to the issuance and sale of Warrants, the actions described in paragraph 4 above shall have been taken; and (ix) certificates representing such Subscription Rights shall have been duly executed, countersigned and registered in accordance with the Subscription Rights Agreement and shall have been duly delivered to the purchasers thereof in accordance with the Subscription Rights Agreement against payment of the agreed consideration therefor.
9. The Share Purchase Contracts will constitute valid and binding obligations of the Company when: (i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have become effective under the Securities Act; (ii) a prospectus supplement with respect to such Share Purchase Contracts shall have been filed with the SEC in compliance with the Securities Act and the rules and regulations thereunder; (iii) a Share Purchase Contract Agreement relating to such Share Purchase Contracts shall have been duly authorized, executed and delivered by the Company and duly executed and delivered by the Share Purchase Contract Agent named in the Share Purchase Contract Agreement; (iv) the Board or a duly authorized committee thereof shall have duly adopted final resolutions in conformity with the applicable Organizational Documents of the Company and the Resolutions authorizing the execution, delivery, issuance and sale of such Share Purchase Contracts; (v) if such Share
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Purchase Contracts relate to the issuance and sale of Common Stock, the actions described in paragraph 1 above shall have been taken; (vi) if such Share Purchase Contracts relate to the issuance and sale of Preferred Stock, the actions described in paragraph 2 above shall have been taken; and (vii) certificates representing such Share Purchase Contracts shall have been duly executed, countersigned and registered in accordance with the Share Purchase Contract Agreement and shall have been duly delivered to the purchasers thereof in accordance with the Share Purchase Contract Agreement against payment of the agreed consideration therefor.
10. The Share Purchase Units will constitute valid and binding obligations of the Company when: (i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have become effective under the Securities Act; (ii) a prospectus supplement with respect to such Share Purchase Units shall have been filed with the SEC in compliance with the Securities Act and the rules and regulations thereunder; (iii) a Share Purchase Unit Agreement relating to such Share Purchase Units shall have been duly authorized, executed and delivered by the Company and duly executed and delivered by the Unit Agent named in the Share Purchase Unit Agreement; (iv) the Board or a duly authorized committee thereof shall have duly adopted final resolutions in conformity with the applicable Organizational Documents of the Company and the Resolutions authorizing the execution, delivery, issuance and sale of such Share Purchase Units; (v) the actions described in paragraphs 4 and 9 above shall have been taken; and (vi) certificates representing such Share Purchase Units shall have been duly executed, countersigned and registered and shall have been duly delivered to the purchasers thereof in accordance with the applicable definitive purchase, underwriting or similar agreement against payment of the agreed consideration therefor.
Our opinions are subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer and other similar laws relating to or affecting creditors’ rights generally and to general equitable principles (regardless of whether considered in a proceeding in equity or at law), including concepts of commercial reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief. Our opinion is also subject to (i) provisions of law which may require that a judgment for money damages rendered by a court in the United States of America be expressed only in United States dollars, (ii) requirements that a claim with respect to any Debt Securities or other obligations that are denominated or payable other than in United States dollars (or a judgment denominated or payable other than in United States dollars in respect of such claim) be converted into United States dollars at a rate of exchange prevailing on a date determined pursuant to applicable law and (iii) governmental authority to limit, delay or prohibit the making of payments outside of the United States of America or in a foreign currency.
For the purposes of this letter, we have assumed that, at the time of the issuance, sale and delivery of any of the Securities:
(i) the Securities being offered will be issued and sold as contemplated in the Registration Statement and the prospectus supplement relating thereto;
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(ii) the execution, delivery and performance by any Registrant of any Deposit Agreement, any Senior Indenture, any Subordinated Indenture, any Warrant Agreement, any Subscription Rights Agreement, any Share Purchase Contract Agreement and any Share Purchase Unit Agreement, as applicable, and the issuance sale and delivery of the Securities will not (A) contravene or violate the Organizational Documents of any applicable Registrant, (B) violate any law, rule or regulation applicable to any applicable Registrant, (C) result in a default under or breach of any agreement or instrument binding upon any applicable Registrant or any order, judgment or decree of any court or governmental authority applicable to any applicable Registrant, or (D) require any authorization, approval or other action by, or notice to or filing with, any court or governmental authority (other than such authorizations, approvals, actions, notices or filings which shall have been obtained or made, as the case may be, and which shall be in full force and effect);
(iii) the authorization thereof by each applicable Registrant, as the case may be, will not have been modified or rescinded, and there will not have occurred any change in law affecting the validity, legally binding character or enforceability thereof; and
(iv) the Organizational Documents, each as currently in effect, will not have been modified or amended and will be in full force and effect.
We have further assumed that each Warrant Agreement, each Deposit Agreement, each Share Purchase Contract and/or Share Purchase Unit, each Subscription Right, the Senior Indenture, each indenture supplement to the Senior Indenture, the Subordinated Indenture and each indenture supplement to the Subordinated Indenture will be governed by the laws of the State of New York.
With respect to each instrument or agreement referred to in or otherwise relevant to the opinions set forth herein (each, an “Instrument”), we have assumed, to the extent relevant to the opinions set forth herein, that (i) each party to such Instrument (if not a natural person) was duly organized or formed, as the case may be, and was at all relevant times and is validly existing and in good standing under the laws of its jurisdiction of organization or formation, as the case may be, and had at all relevant times and has full right, power and authority to execute, deliver and perform its obligations under such Instrument; (ii) such Instrument has been duly authorized, executed and delivered by each party thereto; and (iii) such Instrument was at all relevant times and is a valid, binding and enforceable agreement or obligation, as the case may be, of, each party thereto.
We have also assumed that no event has occurred or will occur that would cause the release of the Guarantees by the Guarantors under the terms of the Senior Indenture or Subordinated Indenture, as applicable.
This opinion letter is limited to the DGCL, the Delaware Limited Liability Company Act, the Texas Business Organizations Code, the Limited Liability Company Act of the State of Illinois and the laws of the State of New York (excluding the securities laws of the State of New York). We express no opinion as to the laws, rules or regulations of any other jurisdiction, including, without limitation, the federal laws of the United States of America or any state securities or blue sky laws.
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We hereby consent to the filing of this opinion letter as an Exhibit to the Registration Statement and to all references to our Firm included in or made a part of the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
| Very truly yours, | ||
| /s/ Sidley Austin LLP | ||
Exhibit 5.2
August 2, 2023
CDW Technologies LLC
200 N. Milwaukee Avenue
Vernon Hills, IL 60061
Ladies and Gentlemen:
We are issuing this opinion letter in our capacity as special Wisconsin counsel to CDW Technologies LLC, a Wisconsin limited liability company (the “Wisconsin Registrant”). This opinion letter is being delivered in connection with the preparation of the Registration Statement on Form S-3 (such registration statement, as it may be subsequently amended or supplemented, is hereinafter referred to as the “Registration Statement”) filed with the Securities and Exchange Commission (the “Commission”) on August [2], 2023, under the Securities Act of 1933, as amended (the “Securities Act”), by CDW Corporation, a Delaware corporation (the “Company”), CDW LLC, an Illinois limited liability company (“CDW”), CDW Finance Corporation, a Delaware corporation (“CDW Finance” and, together with CDW, the “Debt Issuers”), CDW Direct, LLC, an Illinois limited liability company (“CDW Direct”), CDW Government LLC, an Illinois limited liability company (“CDW Government”), CDW Logistics LLC, an Illinois limited liability company (“CDW Logistics”), Amplified IT LLC, a Virginia limited liability company (“Amplified”), SCS Holdings I LLC, a Delaware limited liability company (“SCS Holdings”), Sirius Computer Solutions, LLC, a Texas limited liability company (“SCS”), Sirius Federal, LLC, a Maryland limited liability company (“Sirius Federal”), Sirius Computer Solutions Financial Services, LLC, a Delaware limited liability company (“Sirius Financial”), and the Wisconsin Registrant. The Company, CDW Direct, CDW Government, CDW Logistics, Amplified, SCS Holdings, SCS, Sirius Federal, Sirius Financial and the Wisconsin Registrant are hereinafter collectively referred to as the “Guarantors”. The Debt Issuers and the Guarantors are hereinafter collectively referred to as the “Registrants”). The Registration Statement relates to the issuance and sale from time to time, pursuant to Rule 415 of the General Rules and Regulations promulgated under the Securities Act (the “Rules”), of an unspecified amount of (a) shares of common stock, par value $0.01 per share, of the Company (the “Common Stock”), (b) shares of preferred stock, par value $0.01 per share, of the Company (the “Preferred Stock”), (c) depositary shares representing fractional interests in shares of Preferred Stock evidenced by depositary receipts of the Company (the “Depositary Shares”), (d) warrants to purchase debt or equity securities of the Company (the “Warrants”), (e) subscription rights to purchase Common Stock or other securities of the Company (the “Subscription Rights”), (f) senior and/or subordinated debt securities of the Debt Issuers (the “Debt Securities”), (g) guarantees of the Debt Securities by the Guarantors (the “Guarantees”), (h) share purchase contracts of the Company (the “Share Purchase Contracts”), and (i) share purchase units of the Company (the “Share Purchase Units”). The Registration Statement also relates to the sale of Common Stock from time to time by certain stockholders of the Company to be named in a prospectus supplement, pursuant to Rule 415 of the Rules (the “Secondary Shares” and, collectively with the Common
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August 2, 2023
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Stock, the Preferred Stock, the Depositary Shares, the Warrants, the Subscription Rights, the Debt Securities, the Guarantees, the Share Purchase Contracts and the Share Purchase Units, the “Securities”) in one or more offerings from time to time on a delayed or continuous basis (the “Offerings”) for an aggregate amount to be registered pursuant to Rule 462(e) of the Rules. The Debt Securities will be issued under one or more indentures (the “Indentures”) by and among the Debt Issuers, the Guarantors and U.S. Bank National Association, as trustee (the “Trustee”).
In connection with the registration of the Securities, we have examined originals, or copies certified or otherwise identified to our satisfaction, of such documents, limited liability company records and other instruments as we have deemed necessary for the purposes of this opinion, including: (i) the organizational documents of the Wisconsin Registrant; (ii) certain resolutions adopted by unanimous written consent of the sole member of the Wisconsin Registrant with respect to the registration of the Guarantees; and (iii) the Registration Statement and the exhibits thereto.
We note that various issues are addressed in the opinion of Sidley Austin LLP, separately delivered to you, and we express no opinion with respect to those matters.
In rendering this opinion, we have, with your permission, relied on certificates of governmental officials and assumed, without investigation, verification or inquiry: (i) the authenticity and completeness of all documents submitted to us as originals; (ii) the conformity to the originals and completeness of all documents submitted to us as copies; (iii) the authenticity and completeness of the originals of all documents submitted to us as copies; (iv) the legal capacity of all natural persons who are signatories to the documents reviewed by us; (v) the genuineness of the signatures on the documents reviewed by us; (vi) the authority of such persons signing on behalf of the parties thereto (other than the Wisconsin Registrant); and (vii) the due authorization, execution and delivery of all documents by the parties thereto (other than the Wisconsin Registrant).
We have also assumed that:
| (a) | The Registration Statement will be effective and will comply with all applicable laws at the time the Debt Securities and Guarantees are offered or issued as contemplated by the Registration Statement; |
| (b) | A prospectus supplement or term sheet (a “Prospectus Supplement”) will have been prepared and filed with the Commission describing the Securities offered thereby and will comply with all applicable laws; |
| (c) | All Debt Securities and Guarantees will be issued and sold in compliance with applicable federal and state securities laws and in the manner stated in the Registration Statement and the applicable Prospectus Supplement; |
| (d) | The Debt Securities and Guarantees will be issued and sold in the form and containing the terms set forth in the Registration Statement, the applicable Prospectus Supplement and the applicable Indenture; |
| (e) | The Debt Securities and Guarantees offered, as they will be executed and delivered, as well as the terms of the Indentures, as they will be executed and delivered, do not and will not result in a default under or breach of any agreement or instrument binding upon the Wisconsin Registrant; |
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| (f) | The Registrants will have obtained any legally required consents, approvals, authorizations and other orders of the Commission and any other regulatory authorities necessary to issue and sell the Debt Securities and Guarantees being offered; |
| (g) | The Debt Securities and Guarantees offered, as they will be executed and delivered, as well as the terms of the Indentures, as they will be executed and delivered, comply with all requirements and restrictions, if any, applicable to the Wisconsin Registrant, whether imposed by any court or governmental or regulatory body having jurisdiction over the Wisconsin Registrant; |
| (h) | At the time of approval, execution, authentication, issuance and delivery of any Debt Securities and Guarantees, the applicable Indenture will be the valid and legally binding obligation of the Trustee and the Registrants; |
| (i) | The Wisconsin Registrant will receive a company benefit from its execution, delivery and issuance of the Guarantees; |
| (j) | The Indentures and the Trustee will have been qualified under the Trust Indenture Act of 1939, as amended; and |
| (k) | A definitive purchase, underwriting or similar agreement (each, a “Purchase Agreement”) with respect to any Debt Securities or Guarantees offered or issued will have been duly authorized and validly executed and delivered by the Company and the other parties thereto. |
Based upon the foregoing, but subject to the assumptions, qualifications, and limitations set forth herein, it is our opinion that:
1. Based solely on a certificate of the Wisconsin Department of Financial Institutions, the Wisconsin Registrant is a limited liability company validly existing under the laws of the State of Wisconsin, and the Wisconsin Registrant has filed its most recent required annual report, and has not filed articles of dissolution, with the Wisconsin Department of Financial Institutions.
2. The Wisconsin Registrant has the limited liability company power to enter into, and perform its obligations under, each form of the Guarantees.
3. No authorization, consent, approval, or other action by, and no notice to or filing with, any State of Wisconsin governmental authority or regulatory body is required to be obtained or made by the Wisconsin Registrant in connection with the Wisconsin Registrant’s approval of each form of Debt Security or Guarantee, except (a) such as have been duly obtained or made and are in full force and effect, and (b) such as may be required by orders, decrees and the like that are specifically applicable to the Wisconsin Registrant and of which we have no knowledge; provided, however, that we express no opinion as to securities or blue sky laws or regulations.
4. The Wisconsin Registrant’s approval of each form of Debt Security or Guarantee, and the Wisconsin Registrant’s execution and delivery of the Guarantees, do not: (a) constitute a breach or violation of the organizational documents of the Wisconsin Registrant; or (b) result in a violation of any applicable law, statute, or regulation of the State of Wisconsin (other than those laws, rules, and regulations specifically excluded below or otherwise specifically addressed in this opinion) which, in our experience, is normally applicable to transactions of the type contemplated by the Guarantees, without our having made any special investigation as to the applicability of any specific law, rule or regulation; provided, however, that we express no opinion as to securities or blue sky laws or regulations.
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The foregoing opinions are subject to the following additional assumptions and qualifications:
A. Wherever we indicate that our opinion with respect to the existence or absence of facts is “to our knowledge” or with reference to matters of which we are aware or which are known to us, or with similar qualification, our opinion is, with your permission, based solely on the current conscious awareness of the individual attorneys in this firm who have devoted substantive attention to the representation of the Wisconsin Registrant and without any special or additional investigation undertaken for purposes of this opinion.
B. Our opinion is limited by applicable bankruptcy, receivership, reorganization, insolvency, moratorium, fraudulent conveyance or transfer, and other laws and judicially developed doctrines relating to or affecting creditors’ or secured creditors’ rights and remedies generally and general principles of equity.
C. Except for records of the Wisconsin Registrant attached to the Officer’s Certificate and a certificate of status of the Wisconsin Registrant issued by the Wisconsin Department of Financial Institutions, we have not examined the records of the Wisconsin Registrant, any other Registrant, U.S. Bank National Association, the Trustee, any party to a Purchase Agreement, any holder of the Securities, or any court or any public, quasi-public, private, or other office in any jurisdiction or the files of our firm, and our opinions are subject to matters that an examination of such records would reveal.
D. We have made no examination of, and express no opinion as to, whether or not the Wisconsin Registrant is or will be in compliance with any representations or warranties, affirmative or negative covenants, or other obligations contained in any Debt Securities, any Guarantees, any Indenture, or any agreement, instrument or document executed in connection with the foregoing.
E. We express no opinion as to compliance by the Wisconsin Registrant with federal or state laws, statutes, and regulations generally applicable to the conduct of its business or as to consents, approvals, or other actions by federal or state regulatory authorities generally required for the conduct of its business.
F. We express no opinion as to the effect on the opinions expressed herein of (i) the compliance or non-compliance of any party to the Securities, any Indenture or Purchase Agreement with any state, federal or other laws or regulations applicable to it or (ii) the legal or regulatory status or the nature of the business of any party (other than the Wisconsin Registrant to the extent expressly set forth herein).
G. We express no opinion herein as to: (i) securities or blue sky laws or regulations; (ii) antitrust or unfair competition laws or regulations; (iii) zoning, land use, or subdivision laws or regulations; (iv) labor, ERISA, or other employee benefit laws or regulations; (v) tax, environmental, racketeering, or health and safety laws or regulations; or (vi) local laws, regulations, or ordinances.
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We hereby consent to the filing of this opinion with the Commission as Exhibit 5.2 to the Registration Statement. We also consent to the reference to our firm under the heading “Legal Matters” in the Registration Statement. In giving this consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission. This opinion and consent may be incorporated by reference in a subsequent registration statement filed pursuant to Rule 462(b) of the General Rules and Regulations promulgated under the Securities Act with respect to the registration of additional Debt Securities and Guarantees for sale in any offering contemplated by the Registration Statement and shall cover such additional Debt Securities and Guarantees.
The opinions expressed herein are limited to the laws of the State of Wisconsin in effect on the date hereof as they presently apply, and we express no opinion herein as to the laws of any other jurisdiction. These opinions are given as of the date that the Registration Statement becomes effective under the Act, they are intended to apply only to those facts and circumstances that exist as of such date, and we assume no obligation or responsibility to update or supplement these opinions to reflect any facts or circumstances that may hereafter come to our attention or any changes in laws that may hereafter occur, or to inform the addressees of any change in circumstances occurring after the date hereof that would alter the opinions rendered herein.
This opinion is limited to the matters set forth herein, and no opinion may be inferred or implied beyond the matters expressly contained herein. This opinion is furnished to you in connection with the filing of the Registration Statement and is not to be used, circulated, quoted or otherwise relied upon for any other purpose; provided, however, that Sidley Austin LLP may rely upon this opinion for purposes of issuing its opinion letter of even date herewith relating to the Debt Securities and Guarantees.
| Very truly yours, |
| /s/ FisherBroyles LLP |
| FisherBroyles, LLP |
Exhibit 5.3
| DLA Piper LLP (US) | ||||
| One Fountain Square 11911 Freedom Drive, Suite 300 | ||||
| Reston, Virginia 20190 | ||||
| T 703 773 4000 | ||||
| W www.dlapiper.com |
August 2, 2023
Amplified IT LLC
812 Granby Street
Norfolk, VA 23510
| Re: | Registration Statement on Form S-3 |
Ladies and Gentlemen:
We have acted as special Virginia counsel to Amplified IT LLC, a Virginia limited liability company (the “Virginia Guarantor”). This opinion letter is being delivered in connection with the preparation of the Registration Statement on Form S-3 (such registration statement, as it may be subsequently amended or supplemented, is hereinafter referred to as the “Registration Statement”) filed with the Securities and Exchange Commission (the “Commission”) on August 2, 2023, under the Securities Act of 1933, as amended (the “Securities Act”), by, inter alia, CDW Corporation, a Delaware corporation (the “Company”), CDW LLC, an Illinois limited liability company (“CDW”), CDW Finance Corporation, a Delaware corporation (“CDW Finance” and, together with CDW, the “Debt Issuers,”) and the Virginia Guarantor. The Registration Statement is with respect to, inter alia, the issuance and sale by the Debt Issuers of an unlimited amount of debt securities (the “Debt Securities”), which may be unsecured senior debt securities and/or unsecured subordinated debt securities. The Debt Securities will be issued under one or more indentures (the “Indentures”) by and among the Debt Issuers, the Guarantors and U.S. Bank National Association, as trustee (the “Trustee”).
The obligations of the Debt Issuers under the Debt Securities may be guaranteed (each a “Guarantee” and collectively, the “Guarantees”) by the Company, the Virginia Guarantor, and the other guarantors as set forth in the Registration Statement (collectively, the “Guarantors”). The Debt Issuers and the Guarantors are hereinafter collectively referred to as the “Registrants.” This opinion letter is being delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
For the purpose of rendering this opinion letter, we have examined originals, or copies certified or otherwise identified to our satisfaction as being true copies, of the following records, documents, instruments and certificates:
(i) the Registration Statement, including a base prospectus;
(ii) the form of Indenture as attached to the Registration Statement (together with the Registration Statement, the “Opinion Documents”);
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(iii) the Articles of Organization of the Virginia Guarantor, as certified by the Virginia State Corporation Commission on August 2, 2023, and assumed by us as remaining in full force and effect, without amendment, modification, revocation or recission, as of the date hereof (the “VA Articles”);
(iv) the operating agreement of the Virginia Guarantor dated March 15, 2021, and assumed by us as remaining in full force and effect, without amendment, modification, revocation or recission, as of the date hereof (the “VA Operating Agreement” and collectively with the VA Articles, the “Governing Documents”);
(v) the resolutions dated August 1, 2023 of the sole member of Virginia Guarantor, adopted by unanimous written consent dated as of August 1, 2023, authorizing the execution and delivery by the Virginia Guarantor of the Registration Statement and the performance by the Virginia Guarantor of its obligations thereunder (the “Transactions”), and assumed by us as remaining in full force and effect, without amendment, modification, revocation or recission, as of the date hereof; and
(vi) the Certificate of Fact issued by the Virginia State Corporation Commission on August 2. 2023, that the Virginia Guarantor is duly organized and in existence in Virginia on that date (the “Certificate of Good Standing”).
We note that the VA Operating Agreement states that it is governed by Delaware law. Our opinions herein below are premised upon the result that would be obtained if a Commonwealth of Virginia court were to apply the internal laws of the Commonwealth of Virginia to the interpretation and enforcement of the VA Operating Agreement (notwithstanding the designation therein of the laws of the State of Delaware). We express no opinion regarding the laws of the State of Delaware.
In connection with the opinions expressed herein we have made such examination of matters of law and of fact as we considered appropriate or advisable for purposes hereof. As to factual matters material to the opinions expressed herein, we have relied solely upon, and assumed the accuracy, completeness, and genuineness of all certificates of officers of the Virginia Guarantor which we have received, the representations and warranties as to factual matters contained in and made by the Issuers and the Virginia Guarantor pursuant to the Registration Statement, and upon certificates and statements of government officials with respect to the Virginia Guarantor. We have also examined originals or copies of such documents or records of the Virginia Guarantor as we have considered appropriate for the opinions expressed herein. We have assumed for the purposes of this opinion that the signatures on documents and instruments examined by us are authentic, that each document is what it purports to be, and that all documents submitted to us as copies conform with the originals, which facts we have not independently verified.
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In rendering this opinion we have also assumed: (A) that the Registration Statement has been duly and validly executed and delivered by each party thereto (other than the Virginia Guarantor) and constitutes the valid, binding and enforceable obligations of all parties thereto; (B) that the representations and warranties made in the Registration Statement are true and correct; and (C) that there are no extrinsic agreements or understandings among the parties to the Registration Statement that would modify or interpret the terms of the Registration Statement or the respective rights or obligations of the parties thereunder.
We have also assumed that:
| (i) | The Registration Statement will be effective and will comply with all applicable laws at the time the Debt Securities and Guarantees are offered or issued as contemplated by the Registration Statement; |
| (ii) | A prospectus supplement or term sheet (a “Prospectus Supplement”) will have been prepared and filed with the Commission describing the Securities offered thereby and will comply with all applicable laws; |
| (iii) | All Debt Securities and Guarantees will be issued and sold in compliance with applicable federal and state securities laws and in the manner stated in the Registration Statement and the applicable Prospectus Supplement; |
| (iv) | The Debt Securities and Guarantees will be issued and sold in the form and containing the terms set forth in the Registration Statement, the applicable Prospectus Supplement and the applicable Indenture; |
| (v) | The Debt Securities and Guarantees offered, as they will be executed and delivered, as well as the terms of the Indentures, as they will be executed and delivered, do not and will not result in a default under or breach of any agreement or instrument binding upon the Virginia Guarantor; |
| (vi) | The Registrants will have obtained any legally required consents, approvals, authorizations and other orders of the Commission and any other regulatory authorities necessary to issue and sell the Debt Securities and Guarantees being offered; |
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| (vii) | The Debt Securities and Guarantees offered, as they will be executed and delivered, as well as the terms of the Indentures, as they will be executed and delivered, comply with all requirements and restrictions, if any, applicable to the Virginia Guarantor, whether imposed by any court or governmental or regulatory body having jurisdiction over the Virginia Guarantor; |
| (viii) | At the time of approval, execution, authentication, issuance and delivery of any Debt Securities and Guarantees, the applicable Indenture will be the valid and legally binding obligation of the Trustee and the Registrants; |
| (ix) | The Virginia Guarantor will receive a company benefit from its execution, delivery and issuance of the Guarantees; |
| (x) | The Indentures and the Trustee will have been qualified under the Trust Indenture Act of 1939, as amended; and |
| (xi) | A definitive purchase, underwriting or similar agreement (each, a “Purchase Agreement”) with respect to any Debt Securities or Guarantees offered or issued will have been duly authorized and validly executed and delivered by the Company and the other parties thereto. |
We are admitted to practice law in the Commonwealth of Virginia. We have not made an independent review of the laws of any state or jurisdiction other than the laws of the Commonwealth of Virginia. Accordingly, we express no opinion as to the laws of any state or jurisdiction other than the laws of the Commonwealth of Virginia. We express no opinion as to whether the laws of any particular jurisdiction apply, and no opinion to the extent that the laws of any jurisdiction other than those identified above in this paragraph are applicable to the Opinion Documents or the transactions contemplated thereby.
We note that various issues are addressed in the opinion of Sidley Austin LLP, separately delivered to you, and we express no opinion with respect to those matters.
In rendering the opinions contained herein, we assume that the Virginia Guarantor and its sole member have satisfied all applicable fiduciary duties in connection with the authorization and filing of the Opinion Documents and that the transactions contemplated thereby do not violate any applicable business judgment rule. We further assume that the Opinion Documents and the transactions contemplated thereby were fair, just and reasonable to the Virginia Guarantor, its creditors and its equity holders as of the time that the sole member approved them.
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For purposes of this opinion letter, the term “Applicable Laws” means those laws of the Commonwealth of Virginia that a Virginia licensed attorney exercising customary diligence would reasonably expect to be applicable to transactions of the type contemplated in the Opinion Documents. The term “Applicable Laws” expressly excludes (A) any federal or state securities laws or regulations, including, without limitation, any “blue sky” laws, (B) the U.S. Commodity Exchange Act, as amended, or any rules or regulations promulgated thereunder, (C) the Dodd-Frank Wall Street Reform and Consumer Protection Act, as amended, or any rules or regulations promulgated thereunder, (D) any federal or state anti-trust or unfair competition laws or regulations, (E) any federal, state or other tax laws or regulations, (F) any federal, state or other environmental or hazardous materials laws or regulations, (G) any federal criminal or civil forfeiture laws (including, without limitation, the Racketeer Influenced and Corrupt Organizations Chapter of the Organized Crime Control Act of 1970, as amended) or regulations, (H) any federal, state or other privacy laws or regulations, (I) any federal, state or other land use, zoning or subdivision laws or regulations, (J) the Employee Retirement Income Security Act, as amended, or related laws or regulations and any other federal, state or other pension laws or regulations, (K) the Patient Protection and Affordable Care Act, as amended, or any rules or regulations promulgated thereunder, (L) any federal or state laws or regulations related to copyrights, patents, trademarks, service marks or other intellectual property (except to the extent covered by the UCC), (M) any federal, state or other health, safety and welfare laws or regulations, (N) any federal or state banking laws or regulations, (O) (1) the Foreign Corrupt Practices Act of 1977, as amended, the U.S. Travel Act, the U.S. domestic bribery statute contained in 18 U.S.C. § 201, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act of 2001), the Money Laundering Control Act of 1986, the Uniting and Strengthening America by Fulfilling Rights and Ensuring Discipline Over Monitoring Act of 2015 (USA Freedom Act of 2015), the Trading with the Enemy Act, the International Emergency Economic Powers Act of 1977, the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2019 (CISADA), the Countering America’s Adversaries Through Sanctions Act (CAATSA), the International Boycott Provisions of Section 999 of the Internal Revenue Code, the Omnibus Trade and Competitiveness Act of 1988, the National Emergencies Act and the Trade Facilitation and Trade Enforcement Act of 2015, the Export Administration Act, the Arms Export Control Act, the International Traffic in Arms Regulations of the U.S. Department of State, Directorate of Defense Trade Controls, and the United Nations Participation Act, in each case including all amendments or other modifications thereto, and any rules or regulations promulgated thereunder, (2) any other federal, state or other anti-terrorism, anti-terrorist financing, anti-money-laundering, anti-bribery, anti-kickback, or anti-corruption laws or regulations, (3) any other economic or financial sanctions or trade embargoes or restrictive statutes or other measures enacted, imposed, administered or enforced from time to time by the U.S. government, including, without limitation, those administered by the Office of Foreign Assets Control of the U.S.
August 2, 2023
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Department of the Treasury, the U.S. Department of State, or the U.S. Department of Commerce (e.g., the Export Administration Regulations of the U.S. Department of State, Directorate of Defense Trade Controls), (4) any other federal, state or other regulations governing the export and re-export of commercial and other items or (5) other laws or measures (a) prohibiting or restricting, or imposing sanctions on persons engaging in certain types of activities involving specified countries (e.g., Executive Order 13224: Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit or Support Terrorism, 66 Fed. Reg 49079 (Sept 24, 2001)), or (b) that address customs, anti-boycott, or national security matters, (P) any laws that may apply to a party to any Loan Document due to the nature of any person’s business or activities or the industry in which such person does business, (Q) any federal, state or other insurance laws or regulations, (R) any federal, state or other usury laws or regulations, (S) any federal, state or other gaming laws or regulations, (T) any federal, state or other criminal laws or regulations, (U) any federal, state or other tribal laws or regulations, (V) any Federal Reserve Board regulations, (W) federal and state laws and regulations concerning filing and notice requirements (e.g., Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, the Exon-Florio Act, as amended, and Section 721 of the Defense Production Act of 1950, as amended, including all regulations and procedures governing mandatory declaration, voluntary notices, submissions and/or reviews before or by the Committee on Foreign Investment in the United States thereunder), (X) any federal, state or other laws, regulations or policies concerning (1) national and local emergencies, and (2) sovereign immunity and possible judicial deference to acts of sovereign states, (Y) compliance with fiduciary duty requirements, (Z) any conventions or treaties or (AA) other statutes, rules or regulations customarily understood to be excluded even though they are not expressly stated to be excluded. For purposes of this opinion letter, the phrase “transactions of the type contemplated in the Opinion Documents” and similar phrases mean the performance by the Virginia Guarantor of its obligations under the Opinion Documents and the Debt Securities.
This opinion letter and the matters addressed herein are as of the date hereof and we undertake no, and hereby disclaim any, obligation to advise you of any change in any matter set forth herein, whether based on a change in the law, a change in any fact relating to the Virginia Guarantor or any other circumstance. This opinion letter is limited to the matters expressly stated herein and no opinions are to be inferred or may be implied beyond the opinions expressly set forth herein.
Based upon our examination of and reliance upon the foregoing and subject to the limitations, exceptions, qualifications and assumptions set forth elsewhere herein, we are of the opinion that as of the date hereof:
1. The Virginia Guarantor is in existence and in good standing as a limited liability under the laws of the Commonwealth of Virginia.
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2. The Virginia Guarantor has the limited liability company power and authority to execute and deliver the Registration Statement and to perform its obligations as set forth in the Opinion Documents.
3. The execution and delivery by the Virginia Guarantor of the Registration Statement and the performance by the Virginia Guarantor of its obligations as set forth in the Opinion Documents have been duly authorized by all necessary limited liability company action of the Virginia Guarantor.
4. The Virginia Guarantor has duly executed and delivered the Registration Statement.
5. The execution and delivery by the Virginia Guarantor of the Registration Statement and performance by the Virginia Guarantor of its obligations as set forth in the Opinion Documents do not violate (a) the Virginia Guarantor’s Governing Documents, or (b) any Applicable Law.
6. No consent, approval, authorization or order of, or filing with any Virginia governmental authority or body is required in order for the Virginia Guarantor to obtain the right to execute and deliver, or perform its obligations under, the Opinion Documents and the Debt Securities, except for (i) those obtained or made prior to the date hereof, (ii) consents, approvals, authorizations, orders or filings required in connection with the ordinary course of conduct by the Virginia Guarantor of its business and ownership or operation by the Virginia Guarantor of its assets in the ordinary course of business (as to which we express no opinion), (iii) those that may be required under federal securities laws and regulations or state “blue sky” laws and regulations (as to which we express no opinion) or any other laws, regulations or governmental requirements which are excluded from the coverage of this opinion letter, and (v) consents, approvals, authorizations, orders or filings that may be required by any holder of the Debt Securities (as to which we express no opinion).
In rendering the opinions herein contained, we have assumed:
A. That the Registration Statement has been duly authorized, executed and delivered by each party thereto (other than the Virginia Guarantor) and that each such other party has all requisite power and authority to effect the transactions contemplated by the Opinion Documents.
B. That the Registration Statement constitutes the valid and binding obligation of each party to the Registration Statement, enforceable against such party in accordance with their terms, and we express no opinion with respect thereto.
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C. That each natural person executing the Registration Statement on behalf of the Virginia Guarantor has the requisite legal capacity (including, without limitation, the absence of any mental impairment or other impairment or impediment of or to the legal capacity of each natural person);
D. That there have been no undisclosed written modifications of any provision of the Opinion Documents reviewed by us in connection with the rendering of this opinion and no undisclosed prior waiver of any right or any remedy contained in the Opinion Documents;
E. That the Opinion Documents are fair and that no fraud, mutual mistake of fact, dishonesty, forgery, coercion, duress or breach of fiduciary duty exists or will exist with respect to any of the matters relevant to the opinions expressed in this opinion letter.
F. The execution, delivery and performance by the Virginia Guarantor of any of its obligations under the Opinion Documents does not and will not conflict with, contravene, violate or constitute a default under (i) any lease, indenture, instrument or other agreement to which such Virginia Guarantor or its property is subject, or (ii) any judicial or administrative order or decree of any governmental authority binding on such Virginia Guarantor;
G. The genuineness of each signature on behalf of the Virginia Guarantor;
H. The completeness and authenticity of each document reviewed by us, the conformity to the original of such documents received and reviewed by us as a copy and the authenticity of the original of each document received by us as a copy;
I. That each individual executing a certificate is authorized to do so and has knowledge about all matters stated therein, and that the contents of each such certificate are accurate and complete and remain so as of the date of this letter;
J. The power, authority, and due execution and delivery by all parties to the Registration Statement other than the Virginia Guarantor; and
K. That all other parties to the Registration Statement have complied with all laws applicable to them in their state of organization and the Commonwealth of Virginia that affect the Registration Statement and the transactions contemplated thereby.
Notwithstanding any other provision of this opinion letter to the contrary, in addition to any other qualifications set forth herein, the opinions set forth in this letter are subject to the following further assumptions, qualifications, and limitations:
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A. We express no opinion as to the creation, existence, attachment, or enforceability of any security interests or liens. We express no opinion as to the priority of any security interest or lien.
B. We express no opinion as to any agreement, document, certificate, or instrument, other than the Opinion Documents, that may be an exhibit to, or referred to in or contemplated by any of the Opinion Documents.
C. To the extent that the Opinion Documents refer to, or incorporate, any term or terms from any other agreement or document, we assume that (i) such agreement or document exists and contains the intended term or terms, and (ii) an original or copy of such agreement or document has been provided to the parties to the Registration Statement.
D. This opinion letter is subject to the effect of, and we express no opinion regarding, any bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium, receivership, assignment for the benefit of creditors or other laws relating to or affecting the rights of creditors generally.
E. We express no opinion as to the effect on the opinions expressed herein of (i) the compliance or non-compliance of any party (other than the Virginia Guarantor to the extent expressly set forth herein) to the Opinion Documents with any state, federal or other laws or regulations applicable to them, or (ii) the legal or regulatory status or the nature of the business of any party (other than the Virginia Guarantor to the extent expressly set forth herein).
F. The opinion set forth in paragraph 1 above is based solely upon the Certificate of Good Standing.
G. With respect to our opinion in paragraph 5(a) (regarding non-contravention of the Governing Documents of the Virginia Guarantor, the scope of such opinion is limited to our review of the Governing Documents, and we assume there are no other agreements, certificates or instruments that are binding on, or would expand or otherwise modify the respective rights or obligations of, the Virginia Guarantor.
H. We call your attention to the fact that our representation of the Virginia Guarantor has been limited to the transaction contemplated by the Opinion Documents and certain other specific matters as to which we have been consulted.
I. No opinion is expressed with regard to: (i) the financial ability of the Virginia Guarantor to meet their respective obligations under the Opinion Documents; (ii) the truthfulness or accuracy of any applications, reports, plans, documents, financial statements or other matters furnished by (or on behalf of) the Virginia Guarantor; or (iii) the truthfulness or accuracy of any representations or warranties made by the Virginia Guarantor in the Opinion Documents, which are not the subject of any of the opinions stated herein.
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This opinion is provided to you as a legal opinion only and not as a guaranty or warranty of the matters discussed herein or in the documents referred to herein. This opinion is issued solely for the benefit of the Addressees and may not be circulated, quoted, otherwise referred to, delivered to or relied upon by any other party or in any other transaction. Notwithstanding the foregoing, we hereby consent to the filing of this opinion with the Commission as Exhibit 5.3 to the Company’s Current Report on Form 8-K and to its incorporation by reference into the Registration Statement. We also consent to the reference to our firm under the heading “Legal Matters” in the prospectus constituting part of the Registration Statement. In giving this consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission. This opinion and consent may be incorporated by reference in a subsequent registration statement filed pursuant to Rule 462(b) of the General Rules and Regulations promulgated under the Act with respect to the registration of additional Notes and Guarantees for sale in any offering contemplated by the Registration Statement and shall cover such additional Notes and Guarantees.
| Very truly yours, |
| DLA Piper LLP (US) |
Exhibit 5.4
|
DLA Piper LLP (US) | |
| 650 South Exeter Street | ||
| Suite 1100 | ||
| Baltimore, Maryland 21202 www.dlapiper.com | ||
| T 410.580.3000 | ||
| F 410.580.3001 | ||
August 2, 2023
Sirius Federal, LLC
75 Tri-State International
Lincolnshire, Illinois 60069
| Re: | Registration Statement on Form S-3 |
Ladies and Gentlemen: :
We have acted as special Maryland counsel to Sirius Federal, LLC, a Maryland limited liability company (formerly known as Force 3, LLC, the “Maryland Guarantor”). This opinion letter is being delivered in connection with the preparation of the Registration Statement on Form S-3 (such registration statement, as it may be subsequently amended or supplemented, is hereinafter referred to as the “Registration Statement”) filed with the Securities and Exchange Commission (the “Commission”) on August 2, 2023, under the Securities Act of 1933, as amended (the “Securities Act”), by, inter alia, CDW Corporation, a Delaware corporation (the “Company”), CDW LLC, an Illinois limited liability company (“CDW”), CDW Finance Corporation, a Delaware corporation (“CDW Finance” and, together with CDW, the “Debt Issuers,”) and the Maryland Guarantor. The Registration Statement is with respect to, inter alia, the issuance and sale by the Debt Issuers of an unlimited amount of debt securities (the “Debt Securities”), which may be unsecured senior debt securities and/or unsecured subordinated debt securities. The Debt Securities will be issued under one or more indentures (the “Indentures”) by and among the Debt Issuers, the Guarantors and U.S. Bank National Association, as trustee (the “Trustee”).
The obligations of the Debt Issuers under the Debt Securities may be guaranteed (each a “Guarantee” and collectively, the “Guarantees”) by the Company, the Maryland Guarantor, and the other guarantors as set forth in the Registration Statement (collectively, the “Guarantors”). The Debt Issuers and the Guarantors are hereinafter collectively referred to as the “Registrants.” This opinion letter is being delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
For the purpose of rendering this opinion letter, we have examined originals, or copies certified or otherwise identified to our satisfaction as being true copies, of the following records, documents, instruments and certificates:
(i) the Registration Statement, including a base prospectus;
(ii) the form of Indenture as attached to the Registration Statement (together with the Registration Statement, the “Opinion Documents”);
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(iii) the Articles of Organization of Force 3, LLC, the Articles of Conversion of Force 3, Inc. into Force 3, LLC, and the Articles of Amendment changing the name of Force 3, LLC to Sirius Federal, LLC, each as certified by the Maryland State Department of Assessments and Taxation on August 2, 2023, and assumed by us as remaining in full force and effect, without amendment, modification, revocation or recission, as of the date hereof (the “MD Articles”);
(iv) the Amended and Restated Limited Liability Company Agreement of the Maryland Guarantor dated July 1, 2022, and assumed by us as remaining in full force and effect, without amendment, modification, revocation or recission, as of the date hereof (the “MD LLC Agreement” and collectively with the MD Articles, the “Governing Documents”);
(v) the resolutions dated August 1, 2023 of the sole member of Maryland Guarantor, adopted by unanimous written consent dated as of August 1, 2023, authorizing the execution and delivery by the Maryland Guarantor of the Registration Statement and the performance by the Maryland Guarantor of its obligations thereunder (the “Transactions”), and assumed by us as remaining in full force and effect, without amendment, modification, revocation or recission, as of the date hereof; and
(vi) the Good Standing Certificate issued by the Maryland State Department of Assessments and Taxation on August 2. 2023, that the Maryland Guarantor is duly organized and in existence in Maryland on that date (the “Certificate of Good Standing”).
In connection with the opinions expressed herein we have made such examination of matters of law and of fact as we considered appropriate or advisable for purposes hereof. As to factual matters material to the opinions expressed herein, we have relied solely upon, and assumed the accuracy, completeness, and genuineness of all certificates of officers of the Maryland Guarantor which we have received, the representations and warranties as to factual matters contained in and made by the Issuers and the Maryland Guarantor pursuant to the Registration Statement, and upon certificates and statements of government officials with respect to the Maryland Guarantor. We have also examined originals or copies of such documents or records of the Maryland Guarantor as we have considered appropriate for the opinions expressed herein. We have assumed for the purposes of this opinion that the signatures on documents and instruments examined by us are authentic, that each document is what it purports to be, and that all documents submitted to us as copies conform with the originals, which facts we have not independently verified.
In rendering this opinion we have also assumed: (A) that the Registration Statement has been duly and validly executed and delivered by each party thereto (other than the Maryland Guarantor) and constitutes the valid, binding and enforceable obligations of all parties thereto; (B) that the representations and warranties made in the Registration Statement are true and correct; and (C) that there are no extrinsic agreements or understandings among the parties to the Registration Statement that would modify or interpret the terms of the Registration Statement or the respective rights or obligations of the parties thereunder.
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We have also assumed that:
| (i) | The Registration Statement will be effective and will comply with all applicable laws at the time the Debt Securities and Guarantees are offered or issued as contemplated by the Registration Statement; |
| (ii) | A prospectus supplement or term sheet (a “Prospectus Supplement”) will have been prepared and filed with the Commission describing the Securities offered thereby and will comply with all applicable laws; |
| (iii) | All Debt Securities and Guarantees will be issued and sold in compliance with applicable federal and state securities laws and in the manner stated in the Registration Statement and the applicable Prospectus Supplement; |
| (iv) | The Debt Securities and Guarantees will be issued and sold in the form and containing the terms set forth in the Registration Statement, the applicable Prospectus Supplement and the applicable Indenture; |
| (v) | The Debt Securities and Guarantees offered, as they will be executed and delivered, as well as the terms of the Indentures, as they will be executed and delivered, do not and will not result in a default under or breach of any agreement or instrument binding upon the Maryland Guarantor; |
| (vi) | The Registrants will have obtained any legally required consents, approvals, authorizations and other orders of the Commission and any other regulatory authorities necessary to issue and sell the Debt Securities and Guarantees being offered; |
| (vii) | The Debt Securities and Guarantees offered, as they will be executed and delivered, as well as the terms of the Indentures, as they will be executed and delivered, comply with all requirements and restrictions, if any, applicable to the Maryland Guarantor, whether imposed by any court or governmental or regulatory body having jurisdiction over the Maryland Guarantor; |
| (viii) | At the time of approval, execution, authentication, issuance and delivery of any Debt Securities and Guarantees, the applicable Indenture will be the valid and legally binding obligation of the Trustee and the Registrants; |
| (ix) | The Maryland Guarantor will receive a company benefit from its execution, delivery and issuance of the Guarantees; |
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| (x) | The Indentures and the Trustee will have been qualified under the Trust Indenture Act of 1939, as amended; and |
| (xi) | A definitive purchase, underwriting or similar agreement (each, a “Purchase Agreement”) with respect to any Debt Securities or Guarantees offered or issued will have been duly authorized and validly executed and delivered by the Company and the other parties thereto. |
We are admitted to practice law in the State of Maryland. We have not made an independent review of the laws of any state or jurisdiction other than the laws of the State of Maryland. Accordingly, we express no opinion as to the laws of any state or jurisdiction other than the laws of the State of Maryland. We express no opinion as to whether the laws of any particular jurisdiction apply, and no opinion to the extent that the laws of any jurisdiction other than those identified above in this paragraph are applicable to the Opinion Documents or the transactions contemplated thereby.
We note that various issues are addressed in the opinion of Sidley Austin LLP, separately delivered to you, and we express no opinion with respect to those matters.
In rendering the opinions contained herein, we assume that the Maryland Guarantor and its sole member have satisfied all applicable fiduciary duties in connection with the authorization and filing of the Opinion Documents and that the transactions contemplated thereby do not violate any applicable business judgment rule. We further assume that the Opinion Documents and the transactions contemplated thereby were fair, just and reasonable to the Maryland Guarantor, its creditors and its equity holders as of the time that the sole member approved them.
For purposes of this opinion letter, the term “Applicable Laws” means those laws of the Maryland that a Maryland licensed attorney exercising customary diligence would reasonably expect to be applicable to transactions of the type contemplated in the Opinion Documents. The term “Applicable Laws” expressly excludes (A) any federal or state securities laws or regulations, including, without limitation, any “blue sky” laws, (B) the U.S. Commodity Exchange Act, as amended, or any rules or regulations promulgated thereunder, (C) the Dodd-Frank Wall Street Reform and Consumer Protection Act, as amended, or any rules or regulations promulgated thereunder, (D) any federal or state anti-trust or unfair competition laws or regulations, (E) any federal, state or other tax laws or regulations, (F) any federal, state or other environmental or hazardous materials laws or regulations, (G) any federal criminal or civil forfeiture laws (including, without limitation, the Racketeer Influenced and Corrupt Organizations Chapter of the Organized Crime Control Act of 1970, as amended) or regulations, (H) any federal, state or other privacy laws or regulations, (I) any federal, state or other land use, zoning or subdivision laws or regulations, (J) the Employee Retirement Income Security Act, as amended, or related laws or regulations and any other federal, state or other pension laws or regulations, (K) the Patient Protection and Affordable Care Act, as amended, or any rules or regulations promulgated thereunder, (L) any federal or state laws or regulations related to copyrights, patents, trademarks, service marks or other intellectual property (except to the extent covered by the UCC), (M) any federal, state or other health, safety and welfare laws or regulations, (N) any
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federal or state banking laws or regulations, (O) (1) the Foreign Corrupt Practices Act of 1977, as amended, the U.S. Travel Act, the U.S. domestic bribery statute contained in 18 U.S.C. § 201, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act of 2001), the Money Laundering Control Act of 1986, the Uniting and Strengthening America by Fulfilling Rights and Ensuring Discipline Over Monitoring Act of 2015 (USA Freedom Act of 2015), the Trading with the Enemy Act, the International Emergency Economic Powers Act of 1977, the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2019 (CISADA), the Countering America’s Adversaries Through Sanctions Act (CAATSA), the International Boycott Provisions of Section 999 of the Internal Revenue Code, the Omnibus Trade and Competitiveness Act of 1988, the National Emergencies Act and the Trade Facilitation and Trade Enforcement Act of 2015, the Export Administration Act, the Arms Export Control Act, the International Traffic in Arms Regulations of the U.S. Department of State, Directorate of Defense Trade Controls, and the United Nations Participation Act, in each case including all amendments or other modifications thereto, and any rules or regulations promulgated thereunder, (2) any other federal, state or other anti-terrorism, anti-terrorist financing, anti-money-laundering, anti-bribery, anti-kickback, or anti-corruption laws or regulations, (3) any other economic or financial sanctions or trade embargoes or restrictive statutes or other measures enacted, imposed, administered or enforced from time to time by the U.S. government, including, without limitation, those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, or the U.S. Department of Commerce (e.g., the Export Administration Regulations of the U.S. Department of State, Directorate of Defense Trade Controls), (4) any other federal, state or other regulations governing the export and re-export of commercial and other items or (5) other laws or measures (a) prohibiting or restricting, or imposing sanctions on persons engaging in certain types of activities involving specified countries (e.g., Executive Order 13224: Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit or Support Terrorism, 66 Fed. Reg 49079 (Sept 24, 2001)), or (b) that address customs, anti-boycott, or national security matters, (P) any laws that may apply to a party to any Loan Document due to the nature of any person’s business or activities or the industry in which such person does business, (Q) any federal, state or other insurance laws or regulations, (R) any federal, state or other usury laws or regulations, (S) any federal, state or other gaming laws or regulations, (T) any federal, state or other criminal laws or regulations, (U) any federal, state or other tribal laws or regulations, (V) any Federal Reserve Board regulations, (W) federal and state laws and regulations concerning filing and notice requirements (e.g., Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, the Exon-Florio Act, as amended, and Section 721 of the Defense Production Act of 1950, as amended, including all regulations and procedures governing mandatory declaration, voluntary notices, submissions and/or reviews before or by the Committee on Foreign Investment in the United States thereunder), (X) any federal, state or other laws, regulations or policies concerning (1) national and local emergencies, and (2) sovereign immunity and possible judicial deference to acts of sovereign states, (Y) compliance with fiduciary duty requirements, (Z) any conventions or treaties or (AA) other statutes, rules or regulations customarily understood to be excluded even though they are not expressly stated to be excluded. For purposes of this opinion letter, the phrase “transactions of the type contemplated in the Opinion Documents” and similar phrases mean the performance by the Maryland Guarantor of its obligations under the Opinion Documents and the Debt Securities.
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This opinion letter and the matters addressed herein are as of the date hereof and we undertake no, and hereby disclaim any, obligation to advise you of any change in any matter set forth herein, whether based on a change in the law, a change in any fact relating to the Maryland Guarantor or any other circumstance. This opinion letter is limited to the matters expressly stated herein and no opinions are to be inferred or may be implied beyond the opinions expressly set forth herein.
Based upon our examination of and reliance upon the foregoing and subject to the limitations, exceptions, qualifications and assumptions set forth elsewhere herein, we are of the opinion that as of the date hereof:
1. The Maryland Guarantor is in existence and in good standing as a limited liability under the laws of the State of Maryland.
2. The Maryland Guarantor has the limited liability company power and authority to execute and deliver the Registration Statement and to perform its obligations as set forth in the Opinion Documents.
3. The execution and delivery by the Maryland Guarantor of the Registration Statement and the performance by the Maryland Guarantor of its obligations as set forth in the Opinion Documents have been duly authorized by all necessary limited liability company action of the Maryland Guarantor.
4. The Maryland Guarantor has duly executed and delivered the Registration Statement.
5. The execution and delivery by the Maryland Guarantor of the Registration Statement and performance by the Maryland Guarantor of its obligations as set forth in the Opinion Documents do not violate (a) the Maryland Guarantor’s Governing Documents, or (b) any Applicable Law.
6. No consent, approval, authorization or order of, or filing with any Maryland governmental authority or body is required in order for the Maryland Guarantor to obtain the right to execute and deliver, or perform its obligations under, the Opinion Documents and the Debt Securities, except for (i) those obtained or made prior to the date hereof, (ii) consents, approvals, authorizations, orders or filings required in connection with the ordinary course of conduct by the Maryland Guarantor of its business and ownership or operation by the Maryland Guarantor of its assets in the ordinary course of business (as to which we express no opinion), (iii) those that may be required under federal securities laws and regulations or state “blue sky” laws and regulations (as to which we express no opinion) or any other laws, regulations or governmental requirements which are excluded from the coverage of this opinion letter, and (v) consents, approvals, authorizations, orders or filings that may be required by any holder of the Debt Securities (as to which we express no opinion).
In rendering the opinions herein contained, we have assumed:
A. That the Registration Statement has been duly authorized, executed and delivered by each party thereto (other than the Maryland Guarantor) and that each such other party has all requisite power and authority to effect the transactions contemplated by the Opinion Documents.
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B. That the Registration Statement constitutes the valid and binding obligation of each party to the Registration Statement, enforceable against such party in accordance with their terms, and we express no opinion with respect thereto.
C. That each natural person executing the Registration Statement on behalf of the Maryland Guarantor has the requisite legal capacity (including, without limitation, the absence of any mental impairment or other impairment or impediment of or to the legal capacity of each natural person);
D. That there have been no undisclosed written modifications of any provision of the Opinion Documents reviewed by us in connection with the rendering of this opinion and no undisclosed prior waiver of any right or any remedy contained in the Opinion Documents;
E. That the Opinion Documents are fair and that no fraud, mutual mistake of fact, dishonesty, forgery, coercion, duress or breach of fiduciary duty exists or will exist with respect to any of the matters relevant to the opinions expressed in this opinion letter.
F. The execution, delivery and performance by the Maryland Guarantor of any of its obligations under the Opinion Documents does not and will not conflict with, contravene, violate or constitute a default under (i) any lease, indenture, instrument or other agreement to which such Maryland Guarantor or its property is subject, or (ii) any judicial or administrative order or decree of any governmental authority binding on such Maryland Guarantor;
G. The genuineness of each signature on behalf of the Maryland Guarantor;
H. The completeness and authenticity of each document reviewed by us, the conformity to the original of such documents received and reviewed by us as a copy and the authenticity of the original of each document received by us as a copy;
I. That each individual executing a certificate is authorized to do so and has knowledge about all matters stated therein, and that the contents of each such certificate are accurate and complete and remain so as of the date of this letter;
J. The power, authority, and due execution and delivery by all parties to the Registration Statement other than the Maryland Guarantor; and
K. That all other parties to the Registration Statement have complied with all laws applicable to them in their state of organization and the State of Maryland that affect the Registration Statement and the transactions contemplated thereby.
Notwithstanding any other provision of this opinion letter to the contrary, in addition to any other qualifications set forth herein, the opinions set forth in this letter are subject to the following further assumptions, qualifications, and limitations:
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A. We express no opinion as to the creation, existence, attachment, or enforceability of any security interests or liens. We express no opinion as to the priority of any security interest or lien.
B. We express no opinion as to any agreement, document, certificate, or instrument, other than the Opinion Documents, that may be an exhibit to, or referred to in or contemplated by any of the Opinion Documents.
C. To the extent that the Opinion Documents refer to, or incorporate, any term or terms from any other agreement or document, we assume that (i) such agreement or document exists and contains the intended term or terms, and (ii) an original or copy of such agreement or document has been provided to the parties to the Registration Statement.
D. This opinion letter is subject to the effect of, and we express no opinion regarding, any bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium, receivership, assignment for the benefit of creditors or other laws relating to or affecting the rights of creditors generally.
E. We express no opinion as to the effect on the opinions expressed herein of (i) the compliance or non-compliance of any party (other than the Maryland Guarantor to the extent expressly set forth herein) to the Opinion Documents with any state, federal or other laws or regulations applicable to them, or (ii) the legal or regulatory status or the nature of the business of any party (other than the Maryland Guarantor to the extent expressly set forth herein).
F. The opinion set forth in paragraph 1 above is based solely upon the Certificate of Good Standing.
G. With respect to our opinion in paragraph 5(a) (regarding non-contravention of the Governing Documents of the Maryland Guarantor, the scope of such opinion is limited to our review of the Governing Documents, and we assume there are no other agreements, certificates or instruments that are binding on, or would expand or otherwise modify the respective rights or obligations of, the Maryland Guarantor.
H. We call your attention to the fact that our representation of the Maryland Guarantor has been limited to the transaction contemplated by the Opinion Documents and certain other specific matters as to which we have been consulted.
I. No opinion is expressed with regard to: (i) the financial ability of the Maryland Guarantor to meet its respective obligations under the Opinion Documents; (ii) the truthfulness or accuracy of any applications, reports, plans, documents, financial statements or other matters furnished by (or on behalf of) the Maryland Guarantor; or (iii) the truthfulness or accuracy of any representations or warranties made by the Maryland Guarantor in the Opinion Documents, which are not the subject of any of the opinions stated herein.
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This opinion is provided to you as a legal opinion only and not as a guaranty or warranty of the matters discussed herein or in the documents referred to herein. This opinion is issued solely for the benefit of the addressees and may not be circulated, quoted, otherwise referred to, delivered to or relied upon by any other party or in any other transaction. Notwithstanding the foregoing, we hereby consent to the filing of this opinion with the Commission as Exhibit 5.4 to the Registration Statement. We also consent to the reference to our firm under the heading “Legal Matters” in the prospectus constituting part of the Registration Statement. In giving this consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission. This opinion and consent may be incorporated by reference in a subsequent registration statement filed pursuant to Rule 462(b) of the General Rules and Regulations promulgated under the Act with respect to the registration of additional Notes and Guarantees for sale in any offering contemplated by the Registration Statement and shall cover such additional Notes and Guarantees.
Very truly yours,
DLA Piper LLP (US)
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption “Experts” in this Registration Statement (Form S-3) and related Prospectus of CDW Corporation for the registration of common stock, preferred stock, depositary shares, warrants, subscription rights, debt securities, guarantees of debt securities, share purchase contracts, and share purchase units and to the incorporation by reference therein of our reports dated February 24, 2023, with respect to the consolidated financial statements of CDW Corporation and subsidiaries, and the effectiveness of internal control over financial reporting of CDW Corporation and subsidiaries, included in its Annual Report (Form 10-K) for the year ended December 31, 2022, filed with the Securities and Exchange Commission.
| /s/ Ernst & Young LLP |
| Chicago, Illinois |
| August 2, 2023 |
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ☐ | Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) |
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
91-1821036
I.R.S. Employer Identification No.
| 800 Nicollet Mall Minneapolis, Minnesota |
55402 | |
| (Address of principal executive offices) | (Zip Code) |
Joshua A. Hahn
U.S. Bank Trust Company, National Association
60 Livingston Avenue
St. Paul, MN 55107
(651) 466-6308
(Name, address and telephone number of agent for service)
CDW Corporation
CDW LLC
CDW Finance Corporation
(Issuer with respect to the Securities)
| Delaware Illinois Delaware |
26-0273989 36-3310735 90-0600013 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
| 75 Tri-State International Lincolnshire, IL |
60069 | |
| (Address of Principal Executive Offices) | (Zip Code) |
| Table of Additional Registrants
| ||||
| Exact Name of Additional Registrant as Specified in its Charter* |
State or Other Jurisdiction of Incorporation or Organization |
I.R.S. Employer Identification No. | ||
| CDW Technologies LLC | Wisconsin | 39-1768725 | ||
| CDW Direct, LLC | Illinois | 36-4530079 | ||
| CDW Government LLC | Illinois | 36-4230110 | ||
| CDW Logistics LLC | Illinois | 38-3679518 | ||
| Amplified IT LLC | Virginia | 27-3690926 | ||
| SCS Holdings I LLC | Delaware | 20-5731938 | ||
| Sirius Computer Solutions, LLC | Texas | 74-2836721 | ||
| Sirius Federal, LLC | Maryland | 52-1742191 | ||
| Sirius Computer Solutions Financial Services, LLC | Delaware | 36-2734737 | ||
Debt Securities
(Title of the Indenture Securities)
FORM T-1
| Item 1. | GENERAL INFORMATION. Furnish the following information as to the Trustee. |
| a) | Name and address of each examining or supervising authority to which it is subject. |
Comptroller of the Currency
Washington, D.C.
| b) | Whether it is authorized to exercise corporate trust powers. |
Yes
| Item 2. | AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation. |
None
| Items 3-15 | Items 3-15 are not applicable because to the best of the Trustee’s knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee. |
| Item 16. | LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of eligibility and qualification. |
| 1. | A copy of the Articles of Association of the Trustee, attached as Exhibit 1. |
| 2. | A copy of the certificate of authority of the Trustee to commence business, attached as Exhibit 2. |
| 3. | A copy of the authorization of the Trustee to exercise corporate trust powers, attached as Exhibit 2. |
| 4. | A copy of the existing bylaws of the Trustee, attached as Exhibit 3. |
| 5. | A copy of each Indenture referred to in Item 4. Not applicable. |
| 6. | The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 4. |
| 7. | Report of Condition of the Trustee as of March 31, 2023, published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 5. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of St. Paul, State of Minnesota on the 13th of July, 2023.
| By: |
/s/ Joshua A. Hahn | |
| Joshua A. Hahn | ||
| Vice President |
Exhibit 1
ARTICLES OF ASSOCIATION
OF
U. S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
For the purpose of organizing an association (the “Association”) to perform any lawful activities of national banks, the undersigned enter into the following Articles of Association:
FIRST. The title of this Association shall be U. S. Bank Trust Company, National Association.
SECOND. The main office of the Association shall be in the city of Portland, county of Multnomah, state of Oregon. The business of the Association will be limited to fiduciary powers and the support of activities incidental to the exercise of those powers. The Association may not expand or alter its business beyond that stated in this article without the prior approval of the Comptroller of the Currency.
THIRD. The board of directors of the Association shall consist of not less than five nor more than twenty-five persons, the exact number to be fixed and determined from time to time by resolution of a majority of the full board of directors or by resolution of a majority of the shareholders at any annual or special meeting thereof. Each director shall own common or preferred stock of the Association or of a holding company owning the Association, with an aggregate par, fair market, or equity value of not less than $1,000, as of either (i) the date of purchase, (ii) the date the person became a director, or (iii) the date of that person’s most recent election to the board of directors, whichever is more recent. Any combination of common or preferred stock of the Association or holding company may be used.
Any vacancy in the board of directors may be filled by action of a majority of the remaining directors between meetings of shareholders. The board of directors may increase the number of directors up to the maximum permitted by law. Terms of directors, including directors selected to fill vacancies, shall expire at the next regular meeting of shareholders at which directors are elected, unless the directors resign or are removed from office. Despite the expiration of a director’s term, the director shall continue to serve until his or her successor is elected and qualified or until there is a decrease in the number of directors and his or her position is eliminated.
Honorary or advisory members of the board of directors, without voting power or power of final decision in matters concerning the business of the Association, may be appointed by resolution of a majority of the full board of directors, or by resolution of shareholders at any annual or special meeting. Honorary or advisory directors shall not be counted to determined the number of directors of the Association or the presence of a quorum in connection with any board action, and shall not be required to own qualifying shares.
FOURTH. There shall be an annual meeting of the shareholders to elect directors and transact whatever other business may be brought before the meeting. It shall be held at the main office or any other convenient place the board of directors may designate, on the day of each year specified therefor in the Bylaws, or if that day falls on a legal holiday in the state in which the
Association is located, on the next following banking day. If no election is held on the day fixed or in the event of a legal holiday on the following banking day, an election may be held on any subsequent day within 60 days of the day fixed, to be designated by the board of directors, or, if the directors fail to fix the day, by shareholders representing two-thirds of the shares issued and outstanding. In all cases, at least 10 days’ advance notice of the meeting shall be given to the shareholders by first-class mail.
In all elections of directors, the number of votes each common shareholder may cast will be determined by multiplying the number of shares he or she owns by the number of directors to be elected. Those votes may be cumulated and cast for a single candidate or may be distributed among two or more candidates in the manner selected by the shareholder. On all other questions, each common shareholder shall be entitled to one vote for each share of stock held by him or her.
A director may resign at any time by delivering written notice to the board of directors, its chairperson, or to the Association, which resignation shall be effective when the notice is delivered unless the notice specifies a later effective date.
A director may be removed by the shareholders at a meeting called to remove him or her, when notice of the meeting stating that the purpose or one of the purposes is to remove him or her is provided, if there is a failure to fulfill one of the affirmative requirements for qualification, or for cause; provided, however, that a director may not be removed if the number of votes sufficient to elect him or her under cumulative voting is voted against his or her removal.
FIFTH. The authorized amount of capital stock of the Association shall be 1,000,000 shares of common stock of the par value of ten dollars ($10) each; but said capital stock may be increased or decreased from time to time, according to the provisions of the laws of the United States. The Association shall have only one class of capital stock.
No holder of shares of the capital stock of any class of the Association shall have any preemptive or preferential right of subscription to any shares of any class of stock of the Association, whether now or hereafter authorized, or to any obligations convertible into stock of the Association, issued, or sold, nor any right of subscription to any thereof other than such, if any, as the board of directors, in its discretion, may from time to time determine and at such price as the board of directors may from time to time fix.
Transfers of the Association’s stock are subject to the prior written approval of a federal depository institution regulatory agency. If no other agency approval is required, the approval of the Comptroller of the Currency must be obtained prior to any such transfers.
Unless otherwise specified in the Articles of Association or required by law, (1) all matters requiring shareholder action, including amendments to the Articles of Association must be approved by shareholders owning a majority voting interest in the outstanding voting stock, and (2) each shareholder shall be entitled to one vote per share.
-2-
Unless otherwise specified in the Articles of Association or required by law, all shares of voting stock shall be voted together as a class, on any matters requiring shareholder approval.
Unless otherwise provided in the Bylaws, the record date for determining shareholders entitled to notice of and to vote at any meeting is the close of business on the day before the first notice is mailed or otherwise sent to the shareholders, provided that in no event may a record date be more than 70 days before the meeting.
The Association, at any time and from time to time, may authorize and issue debt obligations, whether subordinated, without the approval of the shareholders. Obligations classified as debt, whether subordinated, which may be issued by the Association without the approval of shareholders, do not carry voting rights on any issue, including an increase or decrease in the aggregate number of the securities, or the exchange or reclassification of all or part of securities into securities of another class or series.
SIXTH. The board of directors shall appoint one of its members president of this Association and one of its members chairperson of the board and shall have the power to appoint one or more vice presidents, a secretary who shall keep minutes of the directors’ and shareholders’ meetings and be responsible for authenticating the records of the Association, and such other officers and employees as may be required to transact the business of this Association. A duly appointed officer may appoint one or more officers or assistant officers if authorized by the board of directors in accordance with the Bylaws.
The board of directors shall have the power to:
| (1) | Define the duties of the officers, employees, and agents of the Association. |
| (2) | Delegate the performance of its duties, but not the responsibility for its duties, to the officers, employees, and agents of the Association. |
| (3) | Fix the compensation and enter employment contracts with its officers and employees upon reasonable terms and conditions consistent with applicable law. |
| (4) | Dismiss officers and employees. |
| (5) | Require bonds from officers and employees and to fix the penalty thereof. |
| (6) | Ratify written policies authorized by the Association’s management or committees of the board. |
| (7) | Regulate the manner any increase or decrease of the capital of the Association shall be made; provided that nothing herein shall restrict the power of shareholders to increase or decrease the capital of the Association in accordance with law, and nothing shall raise or lower from two-thirds the percentage required for shareholder approval to increase or reduce the capital. |
-3-
| (8) | Manage and administer the business and affairs of the Association. |
| (9) | Adopt initial Bylaws, not inconsistent with law or the Articles of Association, for managing the business and regulating the affairs of the Association. |
| (10) | Amend or repeal Bylaws, except to the extent that the Articles of Association reserve this power in whole or in part to the shareholders. |
| (11) | Make contracts. |
| (12) | Generally perform all acts that are legal for a board of directors to perform. |
SEVENTH. The board of directors shall have the power to change the location of the main office to any authorized branch within the limits of the city of Portland, Oregon, without the approval of the shareholders, or with a vote of shareholders owning two-thirds of the stock of the Association for a location outside such limits and upon receipt of a certificate of approval from the Comptroller of the Currency, to any other location within or outside the limits of the city of Portland, Oregon, but not more than thirty miles beyond such limits. The board of directors shall have the power to establish or change the location of any office or offices of the Association to any other location permitted under applicable law, without approval of shareholders, subject to approval by the Comptroller of the Currency.
EIGHTH. The corporate existence of this Association shall continue until termination according to the laws of the United States.
NINTH. The board of directors of the Association, or any shareholder owning, in the aggregate, not less than 25 percent of the stock of the Association, may call a special meeting of shareholders at any time. Unless otherwise provided by the Bylaws or the laws of the United States, or waived by shareholders, a notice of the time, place, and purpose of every annual and special meeting of the shareholders shall be given by first-class mail, postage prepaid, mailed at least 10, and no more than 60, days prior to the date of the meeting to each shareholder of record at his/her address as shown upon the books of the Association. Unless otherwise provided by the Bylaws, any action requiring approval of shareholders must be effected at a duly called annual or special meeting.
TENTH. These Articles of Association may be amended at any regular or special meeting of the shareholders by the affirmative vote of the holders of a majority of the stock of the Association, unless the vote of the holders of a greater amount of stock is required by law, and in that case by the vote of the holders of such greater amount; provided, that the scope of the Association’s activities and services may not be expanded without the prior written approval of the Comptroller of the Currency. The Association’s board of directors may propose one or more amendments to the Articles of Association for submission to the shareholders.
-4-
In witness whereof, we have hereunto set our hands this 11th of June, 1997.
| /s/ Jeffrey T. Grubb |
| Jeffrey T. Grubb |
| /s/ Robert D. Sznewajs |
| Robert D. Sznewajs |
| /s/ Dwight V. Board |
| Dwight V. Board |
| /s/ P. K. Chatterjee |
| P. K. Chatterjee |
| /s/ Robert Lane |
| Robert Lane |
Exhibit 2
|
Office of the Comptroller of the Currency |
|||
| Washington, DC 20219 |
CERTIFICATE OF CORPORATE EXISTENCE AND FIDUCIARY POWERS
I, Michael J. Hsu, Acting Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq, as amended, and 12 USC 1, et seq, as amended, has possession, custody, and control of all records pertaining to the chartering, regulation, and supervision of all national banking associations.
2. “U.S. Bank Trust Company, National Association,” Portland, Oregon (Charter No. 23412), is a national banking association formed under the laws of the United States and is authorized thereunder to transact the business of banking and exercise fiduciary powers on the date of this certificate.
IN TESTIMONY WHEREOF, today, July 5, 2023, I have hereunto subscribed my name and caused my seal of office to be affixed to these presents at the U.S. Department of the Treasury, in the City of Washington, District of Columbia.
| /s/ Michael J. Hsu
|
||||
| Acting Comptroller of the Currency
|
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|
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2023-00931-C
Exhibit 3
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
AMENDED AND RESTATED BYLAWS
ARTICLE I
Meetings of Shareholders
Section 1.1. Annual Meeting. The annual meeting of the shareholders, for the election of directors and the transaction of any other proper business, shall be held at a time and place as the Chairman or President may designate. Notice of such meeting shall be given not less than ten (10) days or more than sixty (60) days prior to the date thereof, to each shareholder of the Association, unless the Office of the Comptroller of the Currency (the “OCC”) determines that an emergency circumstance exists. In accordance with applicable law, the sole shareholder of the Association is permitted to waive notice of the meeting. If, for any reason, an election of directors is not made on the designated day, the election shall be held on some subsequent day, as soon thereafter as practicable, with prior notice thereof. Failure to hold an annual meeting as required by these Bylaws shall not affect the validity of any corporate action or work a forfeiture or dissolution of the Association.
Section 1.2. Special Meetings. Except as otherwise specially provided by law, special meetings of the shareholders may be called for any purpose, at any time by a majority of the board of directors (the “Board”), or by any shareholder or group of shareholders owning at least ten percent of the outstanding stock.
Every such special meeting, unless otherwise provided by law, shall be called upon not less than ten (10) days nor more than sixty (60) days prior notice stating the purpose of the meeting.
Section 1.3. Nominations for Directors. Nominations for election to the Board may be made by the Board or by any shareholder.
Section 1.4. Proxies. Shareholders may vote at any meeting of the shareholders by proxies duly authorized in writing. Proxies shall be valid only for one meeting and any adjournments of such meeting and shall be filed with the records of the meeting.
Section 1.5. Record Date. The record date for determining shareholders entitled to notice and to vote at any meeting will be thirty days before the date of such meeting, unless otherwise determined by the Board.
Section 1.6. Quorum and Voting. A majority of the outstanding capital stock, represented in person or by proxy, shall constitute a quorum at any meeting of shareholders, unless otherwise provided by law, but less than a quorum may adjourn any meeting, from time to time, and the meeting may be held as adjourned without further notice. A majority of the votes cast shall decide every question or matter submitted to the shareholders at any meeting, unless otherwise provided by law or by the Articles of Association.
Section 1.7. Inspectors. The Board may, and in the event of its failure so to do, the Chairman of the Board may appoint Inspectors of Election who shall determine the presence of quorum, the validity of proxies, and the results of all elections and all other matters voted upon by shareholders at all annual and special meetings of shareholders.
Section 1.8. Waiver and Consent. The shareholders may act without notice or a meeting by a unanimous written consent by all shareholders.
Section 1.9. Remote Meetings. The Board shall have the right to determine that a shareholder meeting not be held at a place, but instead be held solely by means of remote communication in the manner and to the extent permitted by the General Corporation Law of the State of Delaware.
ARTICLE II
Directors
Section 2.1. Board of Directors. The Board shall have the power to manage and administer the business and affairs of the Association. Except as expressly limited by law, all corporate powers of the Association shall be vested in and may be exercised by the Board.
Section 2.2. Term of Office. The directors of this Association shall hold office for one year and until their successors are duly elected and qualified, or until their earlier resignation or removal.
Section 2.3. Powers. In addition to the foregoing, the Board shall have and may exercise all of the powers granted to or conferred upon it by the Articles of Association, the Bylaws and by law.
Section 2.4. Number. As provided in the Articles of Association, the Board of this Association shall consist of no less than five nor more than twenty-five members, unless the OCC has exempted the Association from the twenty-five- member limit. The Board shall consist of a number of members to be fixed and determined from time to time by resolution of the Board or the shareholders at any meeting thereof, in accordance with the Articles of Association. Between meetings of the shareholders held for the purpose of electing directors, the Board
by a majority vote of the full Board may increase the size of the Board but not to more than a total of twenty-five directors, and fill any vacancy so created in the Board; provided that the Board may increase the number of directors only by up to two directors, when the number of directors last elected by shareholders was fifteen or fewer, and by up to four directors, when the number of directors last elected by shareholders was sixteen or more. Each director shall own a qualifying equity interest in the Association or a company that has control of the Association in each case as required by applicable law. Each director shall own such qualifying equity interest in his or her own right and meet any minimum threshold ownership required by applicable law.
Section 2.5. Organization Meeting. The newly elected Board shall meet for the purpose of organizing the new Board and electing and appointing such officers of the Association as may be appropriate. Such meeting shall be held on the day of the election or as soon thereafter as practicable, and, in any event, within thirty days thereafter, at such time and place as the Chairman or President may designate. If, at the time fixed for such meeting, there shall not be a quorum present, the directors present may adjourn the meeting until a quorum is obtained.
Section 2.6. Regular Meetings. The regular meetings of the Board shall be held, without notice, as the Chairman or President may designate and deem suitable.
Section 2.7. Special Meetings. Special meetings of the Board may be called at any time, at any place and for any purpose by the Chairman of the Board or the President of the Association, or upon the request of a majority of the entire Board. Notice of every special meeting of the Board shall be given to the directors at their usual places of business, or at such other addresses as shall have been furnished by them for the purpose. Such notice shall be given at least twelve hours (three hours if meeting is to be conducted by conference telephone) before the meeting by telephone or by being personally delivered, mailed, or electronically delivered. Such notice need not include a statement of the business to be transacted at, or the purpose of, any such meeting.
Section 2.8. Quorum and Necessary Vote. A majority of the directors shall constitute a quorum at any meeting of the Board, except when otherwise provided by law; but less than a quorum may adjourn any meeting, from time to time, and the meeting may be held as adjourned without further notice. Unless otherwise provided by law or the Articles or Bylaws of this Association, once a quorum is established, any act by a majority of those directors present and voting shall be the act of the Board.
Section 2.9. Written Consent. Except as otherwise required by applicable laws and regulations, the Board may act without a meeting by a unanimous written consent by all directors, to be filed with the Secretary of the Association as part of the corporate records.
Section 2.10. Remote Meetings. Members of the Board, or of any committee thereof, may participate in a meeting of such Board or committee by means of conference telephone, video or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 2.11. Vacancies. When any vacancy occurs among the directors, the remaining members of the Board may appoint a director to fill such vacancy at any regular meeting of the Board, or at a special meeting called for that purpose.
ARTICLE III
Committees
Section 3.1. Advisory Board of Directors. The Board may appoint persons, who need not be directors, to serve as advisory directors on an advisory board of directors established with respect to the business affairs of either this Association alone or the business affairs of a group of affiliated organizations of which this Association is one. Advisory directors shall have such powers and duties as may be determined by the Board, provided, that the Board’s responsibility for the business and affairs of this Association shall in no respect be delegated or diminished.
Section 3.2. Trust Audit Committee. At least once during each calendar year, the Association shall arrange for a suitable audit (by internal or external auditors) of all significant fiduciary activities under the direction of its trust audit committee, a function that will be fulfilled by the Audit Committee of the financial holding company that is the ultimate parent of this Association. The Association shall note the results of the audit (including significant actions taken as a result of the audit) in the minutes of the Board. In lieu of annual audits, the Association may adopt a continuous audit system in accordance with 12 C.F.R. § 9.9(b).
The Audit Committee of the financial holding company that is the ultimate parent of this Association, fulfilling the function of the trust audit committee:
(1) Must not include any officers of the Association or an affiliate who participate significantly in the administration of the Association’s fiduciary activities; and
(2) Must consist of a majority of members who are not also members of any committee to which the Board has delegated power to manage and control the fiduciary activities of the Association.
Section 3.3. Executive Committee. The Board may appoint an Executive Committee which shall consist of at least three directors and which shall have, and may exercise, to the extent permitted by applicable law, all the powers of the Board between meetings of the Board or otherwise when the Board is not meeting.
Section 3.4. Trust Management Committee. The Board of this Association shall appoint a Trust Management Committee to provide oversight of the fiduciary activities of the Association. The Trust Management Committee shall determine policies governing fiduciary activities. The Trust Management Committee or such sub-committees, officers or others as may be duly designated by the Trust Management Committee shall oversee the processes related to fiduciary activities to assure conformity with fiduciary policies it establishes, including ratifying the acceptance and the closing out or relinquishment of all trusts. The Trust Management Committee will provide regular reports of its activities to the Board.
Section 3.5. Other Committees. The Board may appoint, from time to time, committees of one or more persons who need not be directors, for such purposes and with such powers as the Board may determine; however, the Board will not delegate to any committee any powers or responsibilities that it is prohibited from delegating under any law or regulation. In addition, either the Chairman or the President may appoint, from time to time, committees of one or more officers, employees, agents or other persons, for such purposes and with such powers as either the Chairman or the President deems appropriate and proper. Whether appointed by the Board, the Chairman, or the President, any such committee shall at all times be subject to the direction and control of the Board.
Section 3.6. Meetings, Minutes and Rules. An advisory board of directors and/or committee shall meet as necessary in consideration of the purpose of the advisory board of directors or committee, and shall maintain minutes in sufficient detail to indicate actions taken or recommendations made; unless required by the members, discussions, votes or other specific details need not be reported. An advisory board of directors or a committee may, in consideration of its purpose, adopt its own rules for the exercise of any of its functions or authority.
ARTICLE IV
Officers
Section 4.1. Chairman of the Board. The Board may appoint one of its members to be Chairman of the Board to serve at the pleasure of the Board. The Chairman shall supervise the carrying out of the policies adopted or approved by the Board; shall have general executive powers, as well as the specific powers conferred by these Bylaws; and shall also have and may exercise such powers and duties as from time to time may be conferred upon or assigned by the Board.
Section 4.2. President. The Board may appoint one of its members to be President of the Association. In the absence of the Chairman, the President shall preside at any meeting of the Board. The President shall have general executive powers, and shall have and may exercise any and all other powers and duties pertaining by law, regulation or practice, to the office of President, or imposed by these Bylaws. The President shall also have and may exercise such powers and duties as from time to time may be conferred or assigned by the Board.
Section 4.3. Vice President. The Board may appoint one or more Vice Presidents who shall have such powers and duties as may be assigned by the Board and to perform the duties of the President on those occasions when the President is absent, including presiding at any meeting of the Board in the absence of both the Chairman and President.
Section 4.4. Secretary. The Board shall appoint a Secretary, or other designated officer who shall be Secretary of the Board and of the Association, and shall keep accurate minutes of all meetings. The Secretary shall attend to the giving of all notices required by these Bylaws to be given; shall be custodian of the corporate seal, records, documents and papers of the Association; shall provide for the keeping of proper records of all transactions of the Association; shall, upon request, authenticate any records of the Association; shall have and may exercise any and all other powers and duties pertaining by law, regulation or practice, to the Secretary, or imposed by these Bylaws; and shall also perform such other duties as may be assigned from time to time by the Board. The Board may appoint one or more Assistant Secretaries with such powers and duties as the Board, the President or the Secretary shall from time to time determine.
Section 4.5. Other Officers. The Board may appoint, and may authorize the Chairman, the President or any other officer to appoint, any officer as from time to time may appear to the Board, the Chairman, the President or such other officer to be required or desirable to transact the business of the Association. Such officers shall exercise such powers and perform such duties as pertain to their several offices, or as may be conferred upon or assigned to them by these Bylaws, the Board, the Chairman, the President or such other authorized officer. Any person may hold two offices.
Section 4.6. Tenure of Office. The Chairman or the President and all other officers shall hold office until their respective successors are elected and qualified or until their earlier death, resignation, retirement, disqualification or removal from office, subject to the right of the Board or authorized officer to discharge any officer at any time.
ARTICLE V
Stock
Section 5.1. The Board may authorize the issuance of stock either in certificated or in uncertificated form. Certificates for shares of stock shall be in such form as the Board may from time to time prescribe. If the Board issues certificated stock, the certificate shall be signed by the President, Secretary or any other such officer as the Board so determines. Shares of stock shall be transferable on the books of the Association, and a transfer book shall be kept in which all transfers of stock shall be recorded. Every person becoming a shareholder by such transfer shall, in proportion to such person’s shares, succeed to all rights of the prior holder of such shares. Each certificate of stock shall recite on its face that the stock represented thereby is transferable only upon the books of the Association properly endorsed. The Board may impose conditions upon the transfer of the stock reasonably calculated to simplify the work of the Association for stock transfers, voting at shareholder meetings, and related matters, and to protect it against fraudulent transfers.
ARTICLE VI
Corporate Seal
Section 6.1. The Association shall have no corporate seal; provided, however, that if the use of a seal is required by, or is otherwise convenient or advisable pursuant to, the laws or regulations of any jurisdiction, the following seal may be used, and the Chairman, the President, the Secretary and any Assistant Secretary shall have the authority to affix such seal:
ARTICLE VII
Miscellaneous Provisions
Section 7.1. Execution of Instruments. All agreements, checks, drafts, orders, indentures, notes, mortgages, deeds, conveyances, transfers, endorsements, assignments, certificates, declarations, receipts, discharges, releases, satisfactions, settlements, petitions, schedules, accounts, affidavits, bonds, undertakings, guarantees, proxies and other instruments or documents may be signed, countersigned, executed, acknowledged, endorsed, verified, delivered or accepted on behalf of the Association, whether in a fiduciary capacity or otherwise, by any officer of the Association, or such employee or agent as may be designated from time to time by the Board by resolution, or by the Chairman or the President by written instrument, which resolution or instrument shall be certified as in effect by the Secretary or an Assistant Secretary of the Association. The provisions of this section are supplementary to any other provision of the Articles of Association or Bylaws.
Section 7.2. Records. The Articles of Association, the Bylaws as revised or amended from time to time and the proceedings of all meetings of the shareholders, the Board, and standing committees of the Board, shall be recorded in appropriate minute books provided for the purpose. The minutes of each meeting shall be signed by the Secretary, or other officer appointed to act as Secretary of the meeting.
Section 7.3. Trust Files. There shall be maintained in the Association files all fiduciary records necessary to assure that its fiduciary responsibilities have been properly undertaken and discharged.
Section 7.4. Trust Investments. Funds held in a fiduciary capacity shall be invested according to the instrument establishing the fiduciary relationship and according to law. Where such instrument does not specify the character and class of investments to be made and does not vest in the Association a discretion in the matter, funds held pursuant to such instrument shall be invested in investments in which corporate fiduciaries may invest under law.
Section 7.5. Notice. Whenever notice is required by the Articles of Association, the Bylaws or law, such notice shall be by mail, postage prepaid, e- mail, in person, or by any other means by which such notice can reasonably be expected to be received, using the address of the person to receive such notice, or such other personal data, as may appear on the records of the Association.
Except where specified otherwise in these Bylaws, prior notice shall be proper if given not more than 30 days nor less than 10 days prior to the event for which notice is given.
ARTICLE VIII
Indemnification
Section 8.1. The Association shall indemnify such persons for such liabilities in such manner under such circumstances and to such extent as permitted by Section 145 of the Delaware General Corporation Law, as now enacted or hereafter amended. The Board may authorize the purchase and maintenance of insurance and/or the execution of individual agreements for the purpose of such indemnification, and the Association shall advance all reasonable costs and expenses (including attorneys’ fees) incurred in defending any action, suit or proceeding to all persons entitled to indemnification under this Section 8.1. Such insurance shall be consistent with the requirements of 12 C.F.R. § 7.2014 and shall exclude coverage of liability for a formal order assessing civil money penalties against an institution-affiliated party, as defined at 12 U.S.C. § 1813(u).
Section 8.2. Notwithstanding Section 8.1, however, (a) any indemnification payments to an institution-affiliated party, as defined at 12 U.S.C. § 1813(u), for an administrative proceeding or civil action initiated by a federal banking agency, shall be reasonable and consistent with the requirements of 12 U.S.C. § 1828(k) and the implementing regulations thereunder; and (b) any indemnification payments and advancement of costs and expenses to an institution-affiliated party, as defined at 12 U.S.C. § 1813(u), in cases involving an administrative proceeding or civil action not initiated by a federal banking agency, shall be in accordance with Delaware General Corporation Law and consistent with safe and sound banking practices.
ARTICLE IX
Bylaws: Interpretation and Amendment
Section 9.1. These Bylaws shall be interpreted in accordance with and subject to appropriate provisions of law, and may be added to, altered, amended, or repealed, at any regular or special meeting of the Board.
Section 9.2. A copy of the Bylaws and all amendments shall at all times be kept in a convenient place at the principal office of the Association, and shall be open for inspection to all shareholders during Association hours.
ARTICLE X
Miscellaneous Provisions
Section 10.1. Fiscal Year. The fiscal year of the Association shall begin on the first day of January in each year and shall end on the thirty-first day of December following.
Section 10.2. Governing Law. This Association designates the Delaware General Corporation Law, as amended from time to time, as the governing law for its corporate governance procedures, to the extent not inconsistent with Federal banking statutes and regulations or bank safety and soundness.
***
(February 8, 2021)
Exhibit 4
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.
Dated: July 13, 2023
| By: | /s/ Joshua A. Hahn | |
| Joshua A. Hahn | ||
| Vice President |
Exhibit 5
U.S. Bank Trust Company, National Association
Statement of Financial Condition
as of 03/31/2023
($000’s)
| 03/31/2023 | ||||
| Assets |
||||
| Cash and Balances Due From |
$ | 839,082 | ||
| Depository Institutions |
||||
| Securities |
4,425 | |||
| Federal Funds |
0 | |||
| Loans & Lease Financing Receivables |
0 | |||
| Fixed Assets |
1,939 | |||
| Intangible Assets |
580,455 | |||
| Other Assets |
126,317 | |||
|
|
|
|||
| Total Assets |
$ | 1,552,218 | ||
| Liabilities |
||||
| Deposits |
$ | 0 | ||
| Fed Funds |
0 | |||
| Treasury Demand Notes |
0 | |||
| Trading Liabilities |
0 | |||
| Other Borrowed Money |
0 | |||
| Acceptances |
0 | |||
| Subordinated Notes and Debentures |
0 | |||
| Other Liabilities |
95,562 | |||
|
|
|
|||
| Total Liabilities |
$ | 95,562 | ||
| Equity |
||||
| Common and Preferred Stock |
200 | |||
| Surplus |
1,171,635 | |||
| Undivided Profits |
284,821 | |||
| Minority Interest in Subsidiaries |
0 | |||
|
|
|
|||
| Total Equity Capital |
$ | 1,456,656 | ||
| Total Liabilities and Equity Capital |
$ | 1,552,218 | ||