EXHIBIT 10.22
AMENDED AND RESTATED SEVERANCE AGREEMENT
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THIS AMENDED AND RESTATED AGREEMENT (this "Agreement") was entered into as
of the 27th day of September, 1999 and amended and restated as of this 17th day
of February, 2000, by and between Peapod, Inc., a Delaware corporation (the
"Company"), and Xxxxxxx Xxxxxx (the "Executive");
W I T N E S S E T H
WHEREAS, the Executive is being employed as President and Chief Executive
Officer of the Company and his services and knowledge are valuable to the
Company; and
WHEREAS, concurrently with the execution hereof, Executive and the Company
are entering into an employment agreement ("Employment Agreement"), which
Employment Agreement provides for substantial benefits; and
WHEREAS, the Board (as defined in Section 1) has determined that it is in
the best interests of the Company and its stockholders to secure the Executive's
continued services and to ensure the Executive's continued dedication and
objectivity in the event of any threat or occurrence of, or negotiation or other
action that could lead to, or create the possibility of, a Change in Control (as
defined in Section 1) of the Company, without concern as to whether the
Executive might be hindered or distracted by personal uncertainties and risks
created by any such possible Change in Control, and to encourage the Executive's
full attention and dedication to the Company.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements herein contained, the Company and the Executive hereby
agree as follows:
1. Definitions. As used in this Agreement, the following terms shall
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have the respective meanings set forth below:
(a) "Board" means the Board of Directors of the Company.
(b) "Cause" means (1) a willful refusal by the Executive to perform or
substantial disregard of those duties and responsibilities properly assigned to
the Executive, and if a Change in Control has occurred, if those duties and
responsibilities do not differ in any material respect from the duties and
responsibilities of the Executive during the ninety (90) day period immediately
prior to a Change in Control (other than as a result of incapacity due to
physical or mental illness), in any case, which is not remedied in a reasonable
period of time after receipt of written notice from the Company specifying such
breach, (2) embezzlement or misappropriation of corporate funds by the
Executive, other act of dishonesty by the Executive, or significant activities
by the Executive harmful to the reputation of the Company, or (3) significant
violation by the Executive of any statutory or common law duty of loyalty to the
Company.
(c) "Change in Control" means:
(1) the acquisition by any individual, entity or group (a
"Person"), including any "person" within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), of beneficial ownership within the meaning of Rule 13d-3 promulgated
under the Exchange Act, of twenty percent (20%) or more of either (i) the then
outstanding shares of common stock of the Company (the "Outstanding Company
Common Stock") or (ii) the combined voting power of the then outstanding
securities of the Company entitled to vote generally in the election of
directors (the "Outstanding Company Voting Securities"); provided, however, that
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the following acquisitions shall not constitute a Change in Control: (A) any
acquisition directly from the Company (excluding any acquisition resulting from
the exercise of an exercise, conversion or exchange privilege in respect of
outstanding convertible or exchangeable securities unless the security being so
exercised, converted or exchanged was acquired directly from the Company), (B)
any acquisition by the Company, (C) any acquisition by an Exempt Person, (D) any
acquisition by an employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company, (E) any
acquisition by any corporation pursuant to a reorganization, merger or
consolidation involving the Company, if, immediately after such reorganization,
merger or consolidation, each of the conditions described in clauses (i), (ii)
and (iii) of subsection (3) of this Section (1)(c) shall be satisfied; and
provided further that, for purposes of clause (B), if any Person (other than the
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Company or any employee benefit plan (or related trust) sponsored or maintained
by the Company or any corporation controlled by the Company) shall become the
beneficial owner of twenty percent (20%) or more of the Outstanding Company
Common Stock or twenty percent (20%) or more of the Outstanding Company Voting
securities by reason of an acquisition by the Company and such Person shall,
after such acquisition by the Company, become the beneficial owner of any
additional shares of the Outstanding Company Common Stock or any additional
Outstanding Company Voting Securities and such beneficial ownership is publicly
announced, such additional beneficial ownership shall constitute a Change in
Control;
(2) individuals who, as of the date of the consummation of the
Company's initial public offering of Common Stock, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a majority of
such Board; provided, however, that any individual who becomes a director of the
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Company subsequent to the date hereof whose appointment, or whose nomination for
election by the Company's stockholders, was approved by the vote of at least
sixty six and two-thirds percent (66-2/3%) of the directors then comprising the
Incumbent Board shall be deemed to have been a member of the Incumbent Board;
and provided further, that no individual who was initially elected as a director
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of the Company as a result of an actual or threatened election contest, as such
terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange
Act, or any other actual or threatened solicitation of proxies or consents by or
on behalf of any Person other than the Board shall be deemed to have been a
member of the Incumbent Board;
(3) approval by the stockholders of the Company of a
reorganization, merger or consolidation or sale or other disposition of all or
substantially all of the assets of the Company (a "Corporate Transaction");
excluding, however, a Corporate Transaction pursuant
to which (i) all or substantially all of the individuals or entities who are the
beneficial owners, respectively, of the Outstanding Company Common Stock and the
Outstanding Company Voting Securities immediately prior to such Corporate
Transaction will beneficially own, directly or indirectly, more than sixty
percent (60%) of, respectively, the outstanding shares of common stock, and the
combined voting power of the outstanding securities of such corporation entitled
to vote generally in the election of directors, as the case may be, of the
corporation resulting from such Corporate Transaction (including, without
limitation, a corporation which as a result of such transaction owns the Company
or all or substantially all of the Company's assets either directly or
indirectly) in substantially the same proportions relative to each other as
their beneficial ownership, immediately prior to such Corporate Transaction, of
the Outstanding Company Common Stock and the Outstanding Company Voting
Securities, as the case may be, (ii) no Person (other than an Exempt Person; the
Company; any employee benefit plan (or related trust) sponsored or maintained by
the Company or any corporation controlled by the Company; the corporation
resulting from such Corporate Transaction; and any Person which beneficially
owned, immediately prior to such Corporate Transaction, directly or indirectly,
twenty percent (20%) or more of the Outstanding Company Common Stock or the
Outstanding Company Voting Securities, as the case may be) will beneficially
own, directly or indirectly, twenty percent (20%) or more of, respectively, the
outstanding shares of common stock of the corporation resulting from such
Corporate Transaction or the combined voting power of the outstanding securities
of such corporation entitled to vote generally in the election of directors and
(iii) individuals who were members of the Incumbent Board will constitute at
least a majority of the members of the board of directors of the corporation
resulting from such Corporation Transaction; or
(4) approval by the stockholders of the Company of a plan of
complete liquidation or dissolution of the Company.
(d) "Company" shall have the meaning set forth in the second recital
of this Agreement.
(e) "Date of Termination" means (1) the effective date on which the
Executive's employment by the Company terminates as specified in a prior written
notice by the Company or the Executive, as the case may be, to the other,
delivered pursuant to Section 10 or (2) if the Executive's employment by the
Company terminates by reason of death, the date of death of the Executive.
(f) "Employment Agreement" means the Employment Agreement of even
date hereof between Executive and Peapod, as it may be amended from time to
time.
(g) "Exempt Person" means each of Xxxxxx X. Xxxxxxxxx and Xxxxxx X.
Xxxxxxxxx and any Affiliate (as such term is defined in Rule 12b-1 under the
Securities Exchange Act of 1934, as in effect on the date hereof, "Affiliate")
thereof.
(h) "Good Reason" means, without the Executive's express written
consent,
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the occurrence of any of the following events:
(1) any of (i) the assignment to the Executive of any duties
inconsistent in any material respect with the Executive's position(s), duties,
responsibilities or status with the Company as provided under the Employment
Agreement or, if the Employment Agreement is no longer in effect, immediately
prior to the termination thereof or, if a Change in Control has occurred,
immediately prior to such Change in Control, (ii) a change in the Executive's
reporting responsibilities, titles or offices with the Company inconsistent with
the Employment Agreement or, if the Employment Agreement is no longer in effect,
as in effect immediately prior to the termination thereof, or, if a Change in
Control has occurred, as in effect immediately prior to such Change in Control,
or (iii) any removal or involuntary termination of the Executive from the
Company otherwise than as expressly permitted by this Agreement or any failure
to re-elect the Executive to any position with the Company held by the Executive
as provided under the Employment Agreement or, if the Employment Agreement is no
longer in effect, as in effect immediately prior to the termination thereof, or,
if a Change in Control has occurred, immediately prior to such Change in
Control;
(2) a reduction by the Company in the Executive's rate of annual base
salary as provided under the Employment Agreement or a change to Executive's
bonus compensation that is adverse to the Executive and is inconsistent with the
Employment Agreement, or, if the Employment Agreement is no longer in effect,
such annual base salary or bonus compensation plan as in effect immediately
prior to the termination thereof, or, if a Change in Control has occurred, such
annual base salary or bonus compensation plan as in effect immediately prior to
such Change in Control or as the same may be increased from time to time
thereafter;
(3) any requirement of the Company that the Executive (i) be based
anywhere other than at the facility where the Executive is to be located at the
date of this Agreement (or a new headquarters within a thirty (30) mile radius
of the Company's current headquarters) or, if a Change in Control has occurred,
at the time of the Change in Control, or (ii) travel on Company business to an
extent substantially more burdensome than the travel obligations of the
Executive immediately prior to the date hereof, or, if a Change in Control has
occurred, at the time of such Change in Control;
(4) if a Change in Control has occurred, the failure of the Company to
(i) continue in effect any employee benefit plan or compensation plan in which
the Executive is participating immediately prior to such Change in Control,
unless the Executive is permitted to participate in other plans providing the
Executive with substantially comparable benefits, or the taking of any action by
the Company which would adversely affect the Executive's participation in or
materially reduce the Executive's benefits under any such plan, (ii) provide the
Executive and the Executive's dependents welfare benefits (including, without
limitation, medical, prescription, dental, disability, salary continuance,
employee life, group life, accidental death and travel accident insurance plans
and programs) in accordance with the most favorable plans, practices, programs
and policies of the Company and its affiliated companies in effect for the
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Executive immediately prior to such Change in Control, (iii) provide fringe
benefits in accordance with the most favorable plans, practices, programs and
policies of the Company and its affiliated companies in effect for the Executive
immediately prior to such Change in Control, (iv) provide an office or offices
of a size and with furnishings and other appointments, together with secretarial
and other assistance, at least equal to the most favorable of the foregoing
provided to the Executive by the Company and its affiliated companies
immediately prior to such Change in Control, (v) provide the Executive with paid
vacation in accordance with the most favorable plans, policies, programs and
practices of the Company and its affiliated companies as in effect for the
Executive immediately prior such Change in Control, or (vi) reimburse the
Executive promptly for all reasonable employment expenses incurred by the
Executive in accordance with the most favorable policies, practices and
procedures of the Company and its affiliated companies in effect for the
Executive immediately prior to such Change in Control;
(5) the failure of the Company to obtain the assumption agreement
from any successor as contemplated in Section 10(b); or
(6) the Company delivers a Non-Extension Notice (as defined in
the Employment Agreement) to the Executive under Section 1.04 of the Employment
Agreement.
For purposes of this Agreement, any good faith determination of
Good Reason made by the Executive shall be conclusive; provided, however, that
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in an isolated, insubstantial and inadvertent action taken in good faith and
which is remedied by the Company promptly after receipt of notice thereof given
by the Executive shall not constitute Good Reason.
(i) "Nonqualifying Termination" means a termination of the
Executive's employment (1) by the Company for Cause, (2) by the Executive for
any reason other than a Good Reason, (3) as a result of the Executive's death or
(4) by the Company due to the Executive's absence from his duties with the
Company on a full-time basis for at least one hundred eighty (180) consecutive
days as a result of the Executive's incapacity due to physical or mental
illness; provided, however, that a termination of the Executive's employment for
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any reason whatsoever during the "Window Period" (hereinafter defined) shall not
constitute a Nonqualifying Termination.
(j) "Termination Period" means the period of time beginning with the
date hereof and ending on the earliest to occur of (1) ten (10) years after the
date hereof, (2) Executive's death, and (3) two (2) years following such Change
in Control (the "Termination Date").
(k) "Window Period" means the thirty (30) day period commencing one
(1) year after the date of a Change in Control.
2. Obligations of the Executive. The Executive agrees that in the event
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any person or group attempts a Change in Control, he shall not voluntarily leave
the employ of the Company
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without Good Reason (a) until such attempted Change in Control terminates or (b)
if a Change in Control shall occur, until ninety (90) days following such Change
in Control. For purposes of the foregoing subsection (a), Good Reason shall be
determined as if a Change in Control had occurred when such attempted Change in
control became known to the Board.
3. Payments Upon Termination of Employment.
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(a) If during the Termination Period the employment of the Executive
shall terminate, other than by reason of a Nonqualifying Termination, then the
Company shall pay to the Executive (or the Executive's beneficiary or estate) in
a lump sum as compensation for services rendered to the Company:
(1) a cash amount equal to the sum of (i) the Executive's full
annual base salary from the Company and its affiliated companies through the
Date of Termination, to the extent not theretofore paid, (ii) the Executive's
annual bonus in an amount equal to the higher of (x) one-half of the maximum
bonus the Executive could earn during the fiscal year during which such
termination occurs and (y) the average of the Executive's annual bonus paid or
payable, including by reason of any deferral, to the Executive by the Company
and its affiliated companies in respect of the three (3) fiscal years of the
Company (or such portion thereof during which the Executive performed services
for the Company if the Executive shall have been employed by the Company for
less than such three (3) fiscal year period) immediately preceding the fiscal
year in which such termination occurs, multiplied by a fraction, the numerator
of which is the number of days in the fiscal year through the Date of
Termination and the denominator of which is 365 or 366, as applicable, and (iii)
any compensation previously deferred by the Executive (together with any
interest and earnings thereon) and any accrued vacation pay, in each case to the
extent not theretofore paid; plus
(2) a cash amount (subject to any applicable payroll or other
taxes required to be withheld pursuant to Section 4) in an amount equal to (i)
the Executive's highest annual base salary from the Company and its affiliated
companies in effect during the twelve (12) month period prior to the Date of
Termination multiplied by the number of years (including fractions thereof)
remaining in the Executive's Employment Term as defined in the Employment
Agreement but no less than two (2) years ("Severance Multiple"), plus (ii) the
Severance Multiple times an amount equal to the higher of (x) one-half of the
maximum bonus the Executive could earn during the fiscal year during which such
termination occurs and (y) the average of the Executive's annual bonus paid or
payable, including by reason of any deferral, to the Executive by the Company
and its affiliated companies in respect of the three (3) fiscal years of the
Company (or such portion thereof during which the Executive performed services
for the Company if the Executive shall have been employed by the Company for
less than such three (3) fiscal year period) immediately preceding the fiscal
year in which such termination occurs; provided, however, that any amount paid
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pursuant to this Section 3(a)(2) shall be paid in lieu of any other amount of
severance relating to salary or bonus continuation to be received by the
Executive upon termination of employment of the Executive under any severance
plan, policy or arrangement of
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the Company.
(b) If during the Termination Period the employment of the Executive
shall terminate other than by reason of a Nonqualifying Termination, in addition
to the payments to be made pursuant to paragraph (a) of this Section 3, for a
period equal to the Severance Multiple commencing on the Date of Termination,
the Company shall continue to keep in full force and effect all policies of
medical, accident, disability and life insurance with respect to the Executive
and his dependents with the same level of coverage, upon the same terms and
otherwise to the same extent as such policies shall have been in effect
immediately prior to the Date of Termination, and the Company and the Executive
shall share the costs of the continuation of such insurance coverage in the same
proportion as such costs were shared immediately prior to the Date of
Termination; provided that, if Executive becomes eligible during such period to
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participate in another group plan with respect to any such policies by reason of
subsequent employment or otherwise, the Executive's coverage under the Company
policies will terminate in accordance with the transition of coverage provisions
in the Company's policies.
(c) If during the Termination Period the employment of the Executive
shall terminate by reason of a Nonqualifying Termination, then the Company shall
pay to the Executive within thirty (30) days following the Date of Termination,
a cash amount equal to the sum of (1) the Executive's full annual base salary
from the Company through the Date of Termination, to the extent not theretofore
paid and (2) any compensation previously deferred by the Executive (together
with any interest and earnings thereon) and any accrued vacation pay, in each
case to the extent not theretofore paid.
4. Withholding Taxes. The Company may withhold from all payments due to
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the Executive (or his beneficiary or estate) hereunder all taxes which, by
applicable federal, state, local or other law, the Company is required to
withhold therefrom.
5. Reimbursement of Expenses. If any contest or dispute shall arise under
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this Agreement involving termination of the Executive's employment with the
Company before a Change in Control or involving the failure or refusal of the
Company to perform fully in accordance with the terms hereof before a Change in
Control, and Executive is the prevailing party in such a contest or dispute,
the Company shall reimburse the Executive for all reasonable legal fees and
expenses. If the Executive is not the prevailing party under such
circumstances, each party shall bear its own legal fees and expenses; provided
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that the Executive shall reimburse the Company for all legal fees and expenses
relating solely, or allocable, to any such claim of Executive determined by the
arbitrator or court to be frivolous. If any contest or dispute shall arise
under this Agreement involving termination of the Executive's employment with
the Company after a Change in Control or involving the failure or refusal of the
Company to perform fully in accordance with the terms hereof after a Change in
Control, the Company shall reimburse the Executive, on a current basis, for all
legal fees and expenses, if any, incurred by the Executive in connection with
such contest or dispute, together with interest in an amount equal to the prime
rate of The Northern Trust Company from time to time in effect, but in no event
higher than the maximum legal rate permissible under applicable law, such
interest to accrue from the date the Company receives the Executive's statement
for such fees and expenses through the date of
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payment thereof; provided, however, that in the event the resolution of any such
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contest or dispute includes a finding denying, in total, the Executive's claims
in such contest or dispute, the Executive shall be required to reimburse the
Company, over a period of twelve (12) months from the date of such resolution,
for all sums advanced to the Executive pursuant to this Section 5.
6. Termination of Agreement. This Agreement shall be effective as of the
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date hereof and shall terminate upon the first to occur of (i) the Termination
Date and (ii) Executive's death.
7. Scope of Agreement. Nothing in this Agreement shall be deemed to
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entitle the Executive to continued employment with the Company or its
subsidiaries.
8. Directors and Officers Liability Insurance; Indemnification. The
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Company agrees that, notwithstanding a termination of Executive's employment
with the Company, the Company shall, for at least three (3) years after the Date
of Termination, use all reasonable efforts to have Executive included as a named
insured or otherwise covered for actions or failures to act by Executive in his
capacity as a director or officer of the Company to at least the same extent as
other executive officers or directors, as the case may be, of the Company under
any directors and officers liability insurance policies maintained by the
Company; provided that the additional cost of providing coverage with a
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retroactive date including Executive's period of service or with an extended
reporting period or a combination of both does not materially increase the cost
of the Company's directors and officers insurance. The Company agrees that it
will not alter the indemnification provisions in its charter or by-laws so as to
give Executive less protection thereunder with respect to periods during which
Executive served the Company as an executive officer or other employee than is
afforded to other executive officers or peer employees, as the case may be, with
respect to periods during which they serve the Company.
9. Successors; Binding Agreement.
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(a) This Agreement shall not be terminated by any merger or
consolidation of the Company whereby the Company is or is not the surviving or
resulting corporation or as a result of any transfer of all or substantially all
of the assets of the Company. In the event of any such merger, consolidation or
transfer of assets, the provisions of this Agreement shall be binding upon the
surviving or resulting corporation or the person or entity to which such assets
are transferred.
(b) The Company agrees that concurrently with any merger,
consolidation or transfer of assets referred to in paragraph (a) of this Section
9, it will cause any successor or transferee unconditionally to assume, by
written instrument delivered to the Executive (or his beneficiary or estate),
all of the obligations of the Company hereunder. Failure of the Company to
obtain such assumption prior to the effectiveness of any such merger,
consolidation or transfer of assets shall be a breach of this Agreement and
shall entitle the Executive to compensation and other benefits from the Company
in the same amount and on the same terms as the Executive
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would be entitled hereunder if the Executive's employment were terminated
following a Change in Control other than by reason of a Nonqualifying
Termination. For purposes of implementing the foregoing, the date on which any
such merger, consolidation or transfer becomes effective shall be deemed the
Date of Termination.
(c) This Agreement shall inure to the benefit of and be enforceable by
the Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If the Executive shall
die while any amounts would be payable to the Executive hereunder had the
Executive continued to live, all such amounts, unless otherwise provided herein,
shall be paid in accordance with the terms of this Agreement to such person or
persons appointed in writing by the Executive to receive such amounts or, if no
person is so appointed, to the Executive's estate.
10. Notice.
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(a) For purposes of this Agreement, all notices and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given when delivered or three (3) days after deposit in
the United States mail, certified and return receipt requested, postage prepaid,
addressed (1) if to the Executive, to Xxxxxxx Xxxxxx at his address shown on the
Company records, and if to the Company, to Peapod, Inc., 0000 Xxxxx Xxxxx,
Xxxxxx, Xxxxxxxx 00000-0000, attention Chairman of the Board with a copy to the
Secretary, or (2) to such other address as either party may have furnished to
the other in writing in accordance herewith, except that notice of change of
address shall be effective only upon receipt.
(b) A written notice of termination of the Executive's employment by
the Company or the Executive, as the case may be, shall (i) indicate the
specific termination provision in this Agreement relied upon, (ii) to the extent
applicable, set forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of the Executive's employment under the
provision so indicated and (iii) specify the Date of Termination (which date
shall be not less than fifteen (15) days after the giving of such notice). The
failure by the Executive or the Company to set forth in such notice any fact or
circumstance which contributes to a showing of Good Reason or Cause shall not
waive any right of the Executive or the Company hereunder or preclude the
Executive or the Company from asserting such fact or circumstance in enforcing
the Executive's or the Company's rights hereunder.
11. Full Settlement; Resolution of Disputes.
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(a) The Company's obligation to make any payments provided for in this
Agreement and otherwise to perform its obligations hereunder shall not be
affected by any set-off, counterclaim, recoupment, defense or other claim, right
or action which the Company may have against the Executive or others. In no
event shall the Executive be obligated to seek other employment or take any
other action by way of mitigation of the amounts payable to the Executive under
any of the provisions of this Agreement and such amounts shall not be reduced,
except as
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set forth in Section 3(b), whether or not the Executive obtains other
employment.
(b) If there shall be any dispute between the Company and the
Executive in the event of any termination of the Executive's employment, then,
unless and until there is a final determination rendered as provided in Section
16 declaring that such termination was for Cause, that the determination by the
Executive of the existence of Good Reason was not made in good faith, or that
the Company is not otherwise obligated to pay any amount or provide any benefit
to the Executive and his dependents or other beneficiaries, as the case may be,
under paragraphs (a) and (b) of Section 3, the Company shall pay all amounts,
and provide all benefits, to the Executive and his dependents or other
beneficiaries, as the case may be, that the Company would be required to pay or
provide pursuant to paragraphs (a) and (b) of Section 3 as though such
termination were by the Company without Cause or by the Executive with Good
Reason; provided, however, that the Company shall not be required to pay any
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disputed amounts pursuant to this paragraph except upon receipt of an
undertaking by or on behalf of the Executive to repay all such amounts to which
the Executive is ultimately adjudged by such court not to be entitled.
12. Employment with Subsidiaries. Employment with the Company for
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purposes of this Agreement shall include employment with any corporation or
other entity in which the Company has a direct or indirect ownership interest of
fifty percent (50%) or more of the total combined voting power of the then
outstanding securities of such corporation or other entity entitled to vote
generally in the election of directors.
13. Governing Law; Validity. The interpretation, construction and
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performance of this Agreement shall be governed by and construed and enforced in
accordance with the internal laws of the State of Illinois without regard to the
principle of conflicts of laws. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which other provisions shall remain in
full force and effect.
14. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
15. Miscellaneous. No provision of this Agreement may be modified or
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waived unless such modification or waiver is agreed to in writing and signed by
the Executive and by a duly authorized officer of the Company. No waiver by
either party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. Failure by the
Executive or the Company to insist upon strict compliance with any provision of
this Agreement or to assert any right the Executive or the Company may have
hereunder, including, without limitation, the right of the Executive to
terminate employment for Good Reason, shall not be deemed to be a waiver of such
provision or right or any other provision or right of this Agreement. The
rights of, and
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benefits payable to, the Executive, his estate or his beneficiaries pursuant to
this Agreement are in addition to any rights of, or benefits payable to, the
Executive, his estate or his beneficiaries under the Employment Agreement or
under any employee benefit plan or compensation program of the Company.
16. Dispute Resolution. Any controversy or claim arising out of or
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relating to this Agreement, or the breach thereof, shall be settled by
arbitration administered by the American Arbitration Association ("AAA") in
accordance with its National Rules for the Resolution of Employment Disputes, to
the extent not inconsistent with this provision. Judgment upon the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. Such arbitration shall be conducted in Chicago, Illinois before a
single arbitrator. The parties shall select an arbitrator by mutual agreement
from a panel of arbitrators experienced in arbitrating employment disputes
proposed by AAA. If the parties are unable to agree on an arbitrator, AAA shall
select an arbitrator in accordance with its procedures.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
PEAPOD, INC.
/s/ Xxxxxx X. Xxxxxxxxx
By:_____________________________________________
Xxxxxx X. Xxxxxxxxx,
Chairman of the Board
/s/ Xxxxxxx Xxxxxx
________________________________________________
Xxxxxxx Xxxxxx
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