Exhibit 10.9
EXECUTIVE FORM
SEVERANCE AGREEMENT
THIS AGREEMENT (this "Agreement") is entered into as of the ___ day of
__________, 1997 by and between Peapod, Inc., a Delaware corporation (the
"Company"), and _______________ (the "Executive").
W I T N E S S E T H
WHEREAS, the Executive currently serves as a key employee of the Company
and his services and knowledge are valuable to the Company in connection with
the management of one or more of the Company's principal operating facilities,
divisions, departments or subsidiaries; and
WHEREAS, concurrently with the execution hereof, Executive and the Company
are entering into an 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, the Board has authorized the
Company to enter into this Agreement.
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 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 of 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 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 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 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), (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 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 20% or more of
the Outstanding Company Common Stock or 20% or more of the Outstanding Company
Voting Securities by reason of an
-2-
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 Company
subsequent to the date hereof whose election, or nomination for election by the
Company's stockholders, was approved by the vote of at least 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 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 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,
20% or more of the
-3-
Outstanding Company Common Stock or the Outstanding Company Voting Securities,
as the case may be) will beneficially own, directly or indirectly, 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 Corporate 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 11 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,
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 of 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 of
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
-4-
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 of
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 of 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 located at the date
of this Agreement (or a new headquarters within a 30 mile radius of the
Company's current headquarters) or, if a Change of 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 of Control has occurred,
at the time of such Change in Control;
(4) if a Change of 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
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
-5-
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 to 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 1.03 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 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 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 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 years after the date
hereof, (2) Executive's death and (3) two years following such Change in
Control, (the "Termination Date").
(k) "Window Period" means the 30-day period commencing one year after the
date of a Change in Control.
2. Obligations of the Executive. The Executive agrees that in the event
any person or group attempts a Change in Control, he shall not voluntarily leave
the employ of the Company
-6-
without Good Reason (a) until such attempted Change in Control terminates or (b)
if a Change in Control shall occur, until 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.
---------------------------------------
(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) as
compensation for services rendered to the Company (i) in the event such
employment terminates more than 60 days prior to a Change of Control, at such
intervals as Executive's base salary and at such time as Executive's annual
bonus would otherwise be paid, and (ii) in the event such employment terminates
less than 60 days prior to a Change of Control or terminates after a Change of
Control, within 30 days following the Date of Termination in a lump sum:
(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 at least 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 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 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) two (2)
times (1.5 times if a Change of Control has not occurred) the Executive's
highest annual base salary from the Company and its affiliated companies in
effect during the 12-month period prior to the Date of Termination, plus (ii)
two (2) times (1.5 times if a Change of Control has not occurred) an amount at
least equal to the higher of (x) one-half
-7-
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 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 fiscal year period) immediately preceding the
fiscal year in which such termination in which the termination occurs, provided,
however, that in the event there are fewer than 24 (18 if a Change of Control
has not occurred) whole months remaining from the Date of Termination to the
Termination Date, the amount calculated in accordance with this Section 3(a)(2)
shall be reduced as determined by multiplying such amount by a fraction the
numerator of which is the number of months, including any partial month (with
any partial month being expressed as a fraction the numerator of which is the
number of days remaining in such month and the denominator of which is the
number of days in such month), so remaining and the denominator of which is 24
(18 if a Change of Control has not occurred); provided further, that any amount
paid 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 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 of two years (18 months if a Change in Control has not occurred)
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 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.
-8-
(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 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
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
this Agreement involving termination of the Executive's employment with the
Company after a Change of Control or involving the failure or refusal of the
Company to perform fully in accordance with the terms hereof after a Change of
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 payment thereof; provided,
however, that in the event the resolution of any such 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 12 months from the date of such resolution, for all sums advanced to the
Executive pursuant to this Section 5.
6. Termination of Agreement. (a) This Agreement shall be effective as of
the date hereof and shall terminate upon
-9-
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
entitle the Executive to continued employment with the Company or its
subsidiaries.
8. Directors and Officers Liability Insurance; Indemnification. The
Company agrees that, notwithstanding a Termination of Executive's employment
with the Company, the Company shall, for at least three 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
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.
(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 would be entitled hereunder if the
-10-
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. (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 five days after deposit in the
United States mail, certified and return receipt requested, postage prepaid,
addressed (1) if to the Executive, to _________________________, and if to the
Company, to Peapod, Inc., 0000 Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000,
attention _______________________ 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 notices 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 date (which
date shall be not less than 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. (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
-11-
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
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
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
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
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
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
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
waived unless such modification or waiver is
-12-
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 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 any other employee benefit plan or compensation program
of the Company.
16. Dispute Resolution. Any controversy or claim arising out of or
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).
-13-
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.
By ____________________________
Name:
Title:
[EXECUTIVE]
________________________________
[Name]
-14-
