EXHIBIT 10.10
AMENDED AND RESTATED
INVESTORS AGREEMENT
dated as of
April 1, 1997
by and among
NEW PEAPOD, INC.
PEAPOD LP
PEAPOD, INC.
and
EACH OF THE STOCKHOLDERS NAMED HEREIN
AMENDED AND RESTATED INVESTORS AGREEMENT
THIS AGREEMENT is made as of April 1, 1997, by and among New Peapod, Inc.,
a Delaware corporation (the "Company"), Peapod LP, an Illinois limited
partnership ("Peapod LP"), Peapod, Inc., a Delaware corporation ("Peapod,
Inc."), Xxxxxx X. Xxxxxxxxx, Xxxxxx X. Xxxxxxxxx, and each of the persons set
forth on the Schedule of Stockholders attached hereto (collectively with their
permitted successors and assigns, the "Stockholders").
Pursuant to that certain Conversion Agreement and Plan of Reorganization of
May 30, 1997 (the "Plan"), the persons set forth on the Schedule of Stockholders
attached hereto, together with certain other persons, shall exchange their
limited partnership interests of Peapod LP for shares of voting common stock
("Common Stock" or "Shares"), par value $.01 per share, of the Company,
immediately prior to the closing of the initial public offering of Common Stock
of the Company (such date being the "Closing Date").
The parties hereto acknowledge that following the transactions occurring on
the Closing Date (i) Peapod, Inc. shall dissolve and its corporate existence
shall cease to exist and (ii) New Peapod, Inc. shall change its name to "Peapod,
Inc."
In consideration of the mutual covenants contained herein and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties to this Agreement hereby agree as follows:
Effective Date.
This Agreement is conditioned upon the closing of the initial public
offering of Common Stock of the Company prior to December 31, 1997, and shall
take effect as of the Closing Date.
1. Existing Agreements.
The parties hereto agree that the terms of the agreements set forth below
in this Section 2 shall terminate and be of no further force and effect.
(a) Agreement dated as of August 13, 1993 by and between Tribune
Company and Peapod LP, as amended by the Amendment and Waiver dated as of
September 15, 1994 by and among Tribune Company, Tribune National Marketing
Company ("Tribune"), Peapod LP, and Peapod, Inc., and as further amended by the
Amendment dated as of January 15, 1996 by and among Tribune, Peapod LP, and
Peapod, Inc. other than Articles III and IV and Section 9.2 thereof which shall
continue to be in effect in accordance with their terms;
(b) Unitholders Agreement dated as of September 15, 1994 by and among
Ameritech Corporation ("Ameritech"), Peapod LP, Tribune Company, and Tribune;
(c) Unit Purchase Agreement dated as of September 15, 1994 by and
among Ameritech, Peapod LP, and Peapod, Inc., as amended by the Amendment dated
as of January 15, 1996, and as further amended by the Amendment dated as of July
25, 1996 other than Articles III and IV and Section 9.2 thereof which shall
continue to be in effect in accordance with their terms;
(d) Stockholders Agreement dated as of September 15, 1994 by and among
Ameritech, Peapod, Inc., Xxxxxx X. Xxxxxxxxx, and Xxxxxx X. Xxxxxxxxx;
(e) Agreement dated as of July 27, 1995 by and between Providence
Journal Company ("Providence") and Peapod LP, as amended by the Amendment dated
as of January 15, 1996 other than Articles III and IV and Section 9.2 thereof
which shall continue to be in effect in accordance with their terms;
(f) Unitholders Agreement dated as of July 23, 1996 by and among
Peapod LP, Peapod, Inc., ServiceMaster Venture Fund, L.L.C. ("ServiceMaster"),
and The ServiceMaster Company Limited Partnership other than Sections 1, 2 and
10(a) thereof which shall continue to be in effect in accordance with their
terms; and
(g) Unitholders Agreement dated as of January 2, 1997 by and among
Peapod LP, Peapod, Inc., and WPP Group USA, Inc. ("WPP") other than Sections 1,
2 and 10(a) thereof which shall continue to be in effect in accordance with
their terms.
2. Registration Rights.
(a) Demand Registrations.
(i) Demand Registrations by Stockholders. Any of the
Stockholders may request an aggregate of two registrations under the
Securities Act of 1933, as amended from time to time ("Securities Act") of
all or a part of their Shares ("Demand Registration"); provided, that the
aggregate offering price of such Shares requested to be registered in any
such Demand Registration must equal at least $10 million; and provided
further, that each demand registration effected by the parties to that
certain Unitholders Agreement dated as of April 19, 1996 (the "Venture
Unitholders Agreement") by and among Peapod LP, Peapod, Inc. and each of
the unitholders named therein ("Ventureholders") shall preclude one of the
permitted Demand Registrations hereunder. Any such request for a Demand
Registration under this Section 3(a)(i) shall specify the approximate
number of Shares requested to be registered and the anticipated per Share
price range for such offering.
(ii) Upon Effectiveness. A registration will not count as one of
the permitted Demand Registrations until it has become effective (unless
such registration has not become effective due solely to the fault of the
Stockholders requesting such registration).
(iii) Notice of and Priority on Demand Registrations. Any
Stockholder that requests a Demand Registration shall notify each other
Stockholder of such request within ten days thereafter to permit
participation of such other Stockholders in such registration,
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which notice shall set forth the terms of such request. In the event a
Ventureholder requests a demand registration pursuant to its rights
thereunder, the Company will notify the Stockholders of such request within
ten days thereafter to permit participation of the Stockholders in such
registration, which notice shall set forth the terms of such request. If a
Demand Registration is an underwritten offering and the managing
underwriters advise the Company in writing that in their opinion the number
of Shares requested to be included in such offering exceeds the number of
Shares which can be sold therein without adversely affecting the
marketability of the offering, the Company will include in such
registration the Shares requested to be included in such registration, pro
rata among the Stockholders and Ventureholders so requesting on the basis
of the number of Shares owned by each such holder.
(iv) Restrictions on Demand Registrations. The Company will not
be obligated to effect any Demand Registration within 180 days after the
effective date of a previous Demand Registration or a registration in which
the Stockholders were given piggyback rights pursuant to Section 3(b). The
Company may postpone for up to 120 days the filing or the effectiveness of
a registration statement for a Demand Registration if (1) the Company has
engaged or will engage in a firm commitment underwritten public offering
within 90 days of the request for registration, or (2) the Company
reasonably determines that the requested registration would interfere with
a "material transaction", defined as a transaction that would require a
filing on a Current Report on Form 8-K with the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as amended from time
to time (the "Exchange Act"); provided that in such event, the Stockholders
initially requesting such Demand Registration will be entitled to withdraw
such request and, if such request is withdrawn, such Demand Registration
will not count as one of the permitted Demand Registrations hereunder.
(v) Selection of Underwriters. The Company will have the right
to select the investment banker(s) and manager(s) of national standing to
administer the offering, subject to the approval of the holders of a
majority of the Stockholders and Ventureholders included in any Demand
Registration, which approval will not be unreasonably withheld.
(b) Piggyback Registrations.
(i) Right to Piggyback. Whenever the Company proposes to
register its securities for an aggregate offering price of at least $5
million under the Securities Act (other than pursuant to a Demand
Registration) and the registration form to be used may be used for the
registration of Shares (other than forms for registrations relating solely
to employee benefit plans or transactions effected pursuant to Rule 145
under the Securities Act) (a "Piggyback Registration"), the Company will
give prompt written notice to all the Stockholders of its intention to
effect such a registration and will include in such registration all Shares
with respect to which the Company has received written requests from
Stockholders for inclusion therein within 30 days after the receipt of the
Company's notice.
(ii) Priority on Primary Registrations. If a Piggyback
Registration is an underwritten registration on behalf of the Company, and
the managing underwriters advise
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the Company in writing that in their opinion the number of Shares requested
to be included in such registration exceeds the number which can be sold in
such offering without adversely affecting the marketability of the
offering, the Company will include in such registration: first, the Shares
the Company proposes to sell; and second, after all Shares the Company
proposes to sell are included, the Shares requested to be included in such
registration, pro rata among the requesting holders of Shares or of rights
to acquire Shares on the basis of the number of Shares owned or subject to
such rights.
(iii) Priority on Secondary Registrations. If a Piggyback
Registration is an underwritten registration other than on behalf of the
Company, and the managing underwriters advise the Company in writing that
in their opinion the number of Shares requested to be included in such
registration exceeds the number which can be sold in such offering without
adversely affecting the marketability of the offering, the Company will
include in such registration the Shares requested to be included in such
registration, pro rata among the requesting holders of Shares or of rights
to acquire Shares on the basis of the number of Shares owned or subject to
such rights.
(c) Holdback Agreements. Each Stockholder agrees not to effect any
public sale or distribution (including sales pursuant to Rule 144) of Shares of
the Company, or any securities convertible into or exchangeable or exercisable
for such Shares, during the seven days prior to and the 120-day period beginning
on the effective date of any underwritten public offering of Shares (except as
part of such underwritten registration), unless the underwriters managing the
registered public offering otherwise agree.
(d) Registration Procedures. Whenever the Stockholders have requested
that any Shares be registered pursuant to this Agreement, the Company will use
its best efforts to effect the registration and the sale of such Shares in
accordance with the intended method of disposition thereof, and pursuant thereto
the Company will as expeditiously as possible:
(i) prepare and file with the Securities and Exchange Commission
a registration statement with respect to such Shares and use its best
efforts to cause such registration statement to become effective, provided
that before filing a registration statement or prospectus or any amendments
or supplements thereto, the Company will furnish to the counsel selected by
the holders of a majority of the Shares covered by such registration
statement copies of all such documents proposed to be filed, which
documents will be subject to the review of such counsel;
(ii) prepare and file with the Securities and Exchange Commission
such amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep such
registration statement effective for a period of not less than three months
and comply with the provisions of the Securities Act with respect to the
disposition of all Shares covered by such registration statement during
such period in accordance with the intended methods of disposition by the
sellers thereof set forth in such registration statement;
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(iii) furnish to each selling Stockholder such number of copies
of such registration statement, each amendment and supplement thereto, the
prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such Stockholder may
reasonably request in order to facilitate the disposition of the Shares
owned by such Stockholder;
(iv) use its best efforts to register or qualify such Shares
under such other securities or blue sky laws of such jurisdictions as any
selling Stockholder reasonably requests and do any and all other acts and
things which may be reasonably necessary or advisable to enable such
Stockholder to consummate the disposition in such jurisdictions of the
Shares owned by such Stockholder, provided that the Company will not be
required to (x) qualify generally to do business in any jurisdiction where
it would not otherwise be required to qualify but for this paragraph, (y)
subject itself to taxation in any such jurisdiction, or (z) consent to
general service of process in any such jurisdiction;
(v) notify each selling Stockholder, at any time when a
prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue
statement of a material fact or omits any fact necessary to make the
statements therein not misleading, and, at the request of any such
Stockholder, the Company will prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such
Shares, such prospectus will not contain an untrue statement of a material
fact or omit to state any fact necessary to make the statements therein not
misleading;
(vi) cause all such Shares to be listed on each securities
exchange on which similar securities issued by the Company are then listed
or, if not so listed, to be listed on The Nasdaq Stock Market;
(vii) provide a transfer agent and registrar for all such Shares
not later than the effective date of such registration statement;
(viii) enter into such customary agreements (including
underwriting agreements in customary form) and take all such other actions
as the holders of a majority of the Shares being sold or the underwriters,
if any, reasonably request in order to expedite or facilitate the
disposition of such Shares;
(ix) make available for inspection by any selling Stockholder,
any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant, or other agent
retained by any such Stockholder or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company, and
cause the Company's officers, directors, employees, and independent
accountants to supply all information reasonably requested by any such
Stockholder, underwriter, attorney, accountant, or agent in connection with
such registration statement;
(x) otherwise use its best efforts to comply with all applicable
rules and regulations of the Securities and Exchange Commission, and make
available to its security
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holders, as soon as reasonably practicable, an earnings statement covering
the period of at least twelve months beginning with the first day of the
Company's first full calendar quarter after the effective date of the
registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
and
(xi) in the event of the issuance of any stop order suspending
the effectiveness of a registration statement, or of any order suspending
or preventing the use of any related prospectus or suspending the
qualification of any Shares included in such registration statement for
sale in any jurisdiction, the Company will use its reasonable best efforts
promptly to obtain the withdrawal of such order.
(e) Registration Expenses. The Company shall pay all expenses
incurred by itself and the Stockholders incident to the registration provisions
of this Agreement, including without limitation, the Company's internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit or quarterly review, the expense of any of its liability insurance, the
expenses and fees for listing the securities to be registered on the applicable
securities exchange or on The Nasdaq Stock Market, all registration and filing
fees, fees and expenses of compliance with securities or blue sky laws, printing
expenses, messenger and delivery expenses, and fees and disbursements of counsel
for the Company and all independent certified public accountants, underwriters
(excluding underwriting discounts and selling commissions), and other persons
retained by the Company and the reasonable cost (not to exceed $20,000) of one
special legal counsel to represent such holders proposing to distribute their
securities through such registration (the "Registration Expenses"); provided,
that in the event a Demand Registration is withdrawn by the Stockholders, then
(as determined by the Stockholders holding a majority of the Shares requesting
such registration) either (x) the Stockholders requesting such registration
shall pay the Registration Expenses relating to such Demand Registration, or (y)
such Demand Registration shall count as one of the permitted Demand
Registrations hereunder; provided further, that each Stockholder shall pay its
allocable share of all underwriting discounts and selling commissions in
connection with all such registrations.
(f) Indemnification Pursuant to a Registration.
(i) The Company agrees to indemnify, to the extent permitted by
law, each Stockholder, its officers and directors and each person who
controls such Stockholder (within the meaning of the Securities Act)
against all losses, claims, damages, liabilities, and expenses (including
investigation and legal fees and expenses incurred in connection with any
claim asserted) to which they or any of them may be subject caused by any
untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus, or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission
of a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as the same are caused by
or contained in any information furnished in writing to the Company by such
Stockholder expressly for use therein or by such Stockholder's failure to
deliver a copy of the registration statement or prospectus or any
amendments or supplements thereto after the Company has furnished such
Stockholder with copies of the same. In connection with an underwritten
offering, the Company will indemnify such underwriters, their officers, and
directors and each person who
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controls such underwriters (within the meaning of the Securities Act) to
the same extent as provided above with respect to the indemnification of
the Stockholders.
(ii) In connection with any registration statement in which a
Stockholder is participating, each such Stockholder will furnish to the
Company in writing such information and affidavits as the Company
reasonably requests for use in connection with any such registration
statement or prospectus and, to the extent permitted by law, will indemnify
the Company, its directors and officers, and each person who controls the
Company (within the meaning of the Securities Act) against any losses,
claims, damages, liabilities, and expenses resulting from any untrue or
alleged untrue statement of material fact contained in the registration
statement, prospectus, or preliminary prospectus or any amendment thereof
or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements
therein not misleading based solely upon information so furnished to the
Company in writing expressly for use therein; provided, however, that the
maximum liability of such indemnifying Stockholder hereunder shall be
limited to the proceeds actually received by such Stockholder from the sale
of such Shares.
(iii) Any person entitled to indemnification hereunder will (x)
give prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification and (y) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party. If such defense
is assumed, the indemnifying party will not be subject to any liability for
any settlement made by the indemnified party without its consent (but such
consent will not be unreasonably withheld). An indemnifying party who is
not entitled to, or elects not to, assume the defense of a claim will not
be obligated to pay the fees and expenses of more than one counsel for all
parties indemnified by such indemnifying party with respect to such claim,
unless in the reasonable judgment of any indemnified party a conflict of
interest may exist between such indemnified party and any other of such
indemnified parties with respect to such claim.
(iv) The indemnification provided for under this Agreement will
remain in full force and effect regardless of any investigation made by or
on behalf of the indemnified party or any officer, director or controlling
person of such indemnified party and will survive the transfer of Shares.
The Company also agrees to make such provisions, as are reasonably
requested by any indemnified party, for contribution to such party in the
event the Company's indemnification is unavailable for any reason.
(g) Participation in Underwritten Registrations. No person may
participate in any registration hereunder which is underwritten unless such
person (i) agrees to sell such person's Shares on the basis provided in any
underwriting arrangements approved by the person or persons entitled hereunder
to approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements, and other documents
required under the terms of such underwriting arrangements.
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(h) Transfer of Registration Rights. The rights to cause the Company
to register Shares granted to a Stockholder under this Section 3 may be assigned
to a transferee (or a subsequent transferee) of all the Stockholder's Shares
pursuant to the terms hereof provided that notice of such assignment is given to
the Company.
3. Additional Covenants and Agreements.
(a) Current Public Information. The Company hereby covenants and
agrees that the Company shall file all reports required to be filed by it under
the Securities Act and the Exchange Act and the rules and regulations adopted by
the Securities and Exchange Commission thereunder and shall take such further
action as any Stockholder may reasonably request, all to the extent required to
enable such Stockholder to sell Shares pursuant to Rule 144 adopted by the
Securities and Exchange Commission under the Securities Act (as such rule may be
amended from time to time) or any similar rule or regulation hereafter adopted
by the Securities and Exchange Commission.
(b) Confidentiality Covenant of the Stockholders. Each Stockholder
("Stockholder" under this Section 4(b) shall include, for purposes of
ServiceMaster, The ServiceMaster Company Limited Partnership and each of its
Affiliates) hereby covenants and agrees as to itself that all information
previously or concurrently furnished to such Stockholder by the Company, Peapod
LP, Peapod, Inc., and its and their officers, directors, employees, and agents
shall be kept strictly confidential by such Stockholder and shall not be used or
disclosed to anyone except to the extent (1) contemplated by this Agreement, (2)
at the time such information was so furnished to such Stockholder, such
information was in the public domain or thereafter became a part of the public
domain through no act or omission by such Stockholder, in each case as
determined by the Company, (3) such information was, at the time such
information was so furnished to such Stockholder, in such Stockholder's
possession, as shown by written records of such Stockholder, (4) such
information is required to be disclosed by a court or governmental authority,
provided such Stockholder gives the Company advance notice of the intended
disclosure and uses its reasonable efforts to obtain confidential treatment by
the authority to which disclosure is made, (5) the Company consents in writing
to disclosure of such information, (6) necessary to provide information to such
Stockholder's employees and agents on a "need-to-know" basis, or (7) disclosure
of such information is required by law or government regulation, including the
reporting requirements of the Exchange Act, or by the rules, regulations, or
policies of any national securities exchange or association.
4. Agreements with ServiceMaster. For purposes of this Section 5,
"ServiceMaster" means ServiceMaster Venture Fund L.L.C., The ServiceMaster
Company Limited Partnership, and each of their Affiliates. ServiceMaster hereby
covenants and agrees that, (1) so long as ServiceMaster Venture Fund L.L.C. owns
Shares, ServiceMaster shall not invest in or acquire Streamline, Inc.; and (2)
so long as ServiceMaster Venture Fund L.L.C. owns Shares or for a period from
the date hereof and ending on July 25, 2001, whichever is shorter, without the
written consent of the Company, ServiceMaster shall not invest in any in any
other entity in which a significant line of business is providing on-line
ordering of groceries and/or the delivery of groceries to the home; and (3) so
long as ServiceMaster Venture Fund L.L.C. owns Shares, ServiceMaster will not
solicit for the purpose of employment, any employee of the Company. For purpose
of clause (2) in the
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foregoing sentence, the term "significant" means a line of business which
generates revenues of at least $10,000,000 per year.
5. Agreements with Ameritech. The Company and Ameritech agree for the
benefit of each other and no third party as follows:
(a) Compliance with MFJ.
(i) Neither the execution or delivery of this Agreement nor the
consummation of the transactions contemplated hereby by Ameritech will, to
the best of Ameritech's knowledge, as a result of the Company's present
business operations as disclosed to Ameritech by the Company, result in
Ameritech or the Company being in violation of or in conflict with the
consent decree entered in the case of United States of America v. Western
Electric Company, Inc., et al., C.A. No. 82-0192 (D.D.C.), including orders
issued and entered by the courts relating to the same, interpretations
thereof issued from time to time by the Department of Justice and
legislation that may be enacted relating to the same (the "MFJ"). Subject
to the accuracy of the previous sentence and except as specified in this
Section 6(a), the Company shall not take or fail to take any action that
could endanger Ameritech's compliance with the MFJ, including, without
limitation, the following actions if they might have such result: (i) any
investment by the Company; or (ii) engaging directly or indirectly in any
line of business or in any business activity not previously conducted by
the Company prior to the date hereof. Any action or failure to act that
could have the effect set forth in the preceding sentence shall only be
approved by the Company at a meeting of the Board, at which Ameritech's
designee is present and has voted to approve such action or failure to act
upon five business days, prior written notice to Ameritech's designee
describing such action or failure to act proposed to be voted on.
(ii) Ameritech shall promptly give the Company written notice of
any additions to or modifications of the MFJ that could, to the best
knowledge of Ameritech, cause Ameritech to be in violation of the MFJ by
virtue of Ameritech's ownership of Shares. The Company shall promptly give
Ameritech written notice of any actions or failure to act, or any proposed
actions or failures to act, by the Company that could, to the best
knowledge of the Company, cause Ameritech to be in violation of the MFJ by
virtue of Ameritech's ownership of Shares. Ameritech and the Company shall
cooperate in good faith with each other to resolve any other issues that
may arise under the MFJ with respect to Ameritech's ownership of Shares in
a manner reasonably satisfactory to the Company; provided, however, that
neither Ameritech nor the Company shall be required, in their respective
reasonable judgment, to (1) relinquish any of their material benefits or
rights under this Agreement or (2) materially and adversely modify or
divest any of their material current business activities or assets in order
to perform their obligations under Section 6(a)(i) or this Section
6(a)(ii).
(iii) Ameritech shall indemnify and hold the Company harmless
from any and all claims, losses, damages and expenses (including reasonable
legal expenses) arising out of any inaccuracy in Ameritech's representation
in the first sentence of Section 6(a)(i).
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(b) Restrictions on Assignability. Ameritech's rights under this
Section 6 are not assignable.
6. Miscellaneous.
(a) No Third-Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any person other than the parties hereto and their
respective successors and permitted assigns.
(b) Entire Agreement. This Agreement (including the documents
referred to herein) constitutes the entire agreement between the parties hereto
and supersedes any prior understandings, agreements, or representations by or
between the parties hereto, written or oral, to the extent they related in any
way to the subject matter hereof.
(c) Succession and Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties named herein and their respective
successors and permitted assigns. Except as otherwise provided herein, no party
hereto may assign either this Agreement or any of its rights, interests, or
obligations hereunder without the prior written approval of the other parties
hereto.
(d) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(e) Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(f) Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given upon receipt
if it is sent by facsimile, or reputable express courier, and addressed or
otherwise sent to the intended recipient as set forth below:
If to the Company:
Peapod, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: President
Facsimile: (000) 000-0000
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Copies to:
Cowen, Crowley, Nord & Staub
00 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
If to the Stockholders, to the addresses and facsimile numbers on file with
the Company.
Any party hereto may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address or facsimile
number set forth above or on file with the Company using any other means
(including personal delivery, messenger service, ordinary mail, or electronic
mail), but no such notice, request, demand, claim, or other communication shall
be deemed to have been duly given unless and until it actually is received by
the intended recipient. Any party hereto may change the address or facsimile
number to which notices, requests, demands, claims, and other communications
hereunder are to be delivered by giving the other parties hereto notice in the
manner herein set forth.
(g) Governing Law. This Agreement shall be governed by and construed
in accordance with the domestic laws of the State of Illinois without giving
effect to any choice or conflict of law provision or rule (either of the State
of Illinois or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Illinois.
(h) Amendments and Waivers. No amendment of any provision of this
Agreement shall be valid against the Company or the Stockholders unless the same
shall be in writing and signed by the Company and the holders of at least two-
thirds of the Shares, respectively. No waiver by any parties hereto of any
default, misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.
(i) Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
* * *
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SIGNATURE PAGE TO
AMENDED AND RESTATED INVESTORS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be duly executed as of the date first above written.
New Peapod, Inc.
By:_________________________________________
Printed Name:_________________________
Title:________________________________
Peapod, Inc.
By:_________________________________________
Printed Name:_________________________
Title:________________________________
Peapod LP
By: Peapod, Inc.
its General Partner
By:___________________________________
Printed Name:_________________________
Title:________________________________
____________________________________________
Xxxxxx X. Xxxxxxxxx
____________________________________________
Xxxxxx X. Xxxxxxxxx
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SIGNATURE PAGE TO
AMENDED AND RESTATED INVESTORS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be duly executed as of the date first above written.
The Providence Journal Company
By:____________________________________________
Printed Name:____________________________
Title:___________________________________
-13-
SIGNATURE PAGE TO
AMENDED AND RESTATED INVESTORS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be duly executed as of the date first above written.
Tribune National Marketing Company
By:____________________________________________
Printed Name:____________________________
Title:___________________________________
Tribune Company
By:____________________________________________
Printed Name:____________________________
Title:___________________________________
-14-
SIGNATURE PAGE TO
AMENDED AND RESTATED INVESTORS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be duly executed as of the date first above written.
ServiceMaster Venture Fund L.L.C.
By: The ServiceMaster Company
its Managing Member
By:_________________________________________________
Printed Name:__________________________________
Title:_________________________________________
The ServiceMaster Company Limited Partnership
By: ServiceMaster Management Corporation
its General Partner
By:____________________________________________
Printed Name:____________________________
Title:___________________________________
-15-
SIGNATURE PAGE TO
AMENDED AND RESTATED INVESTORS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be duly executed as of the date first above written.
WPP Group USA, Inc.
By:____________________________________________
Printed Name:____________________________
Title:___________________________________
-16-
SIGNATURE PAGE TO
AMENDED AND RESTATED INVESTORS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be duly executed as of the date first above written.
Ameritech Corporation
By:____________________________________________
Printed Name:____________________________
Title:___________________________________
-17-
SCHEDULE OF STOCKHOLDERS
------------------------
Number of Shares
----------------
The Providence Journal Company
Tribune National Marketing Company
ServiceMaster Venture Fund L.L.C.
WPP Group USA, Inc.
Ameritech Corporation
-18-
