EXHIBIT 1.1
Proof of June 5, 1997
3,600,000 Shares
PEAPOD, INC.
Common Stock
UNDERWRITING AGREEMENT
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June __, 1997
Xxxxx Xxxxxx Inc.
Xxxxxxx Xxxxx & Company, L.L.C.
J.P. Xxxxxx Securities Inc.
As Representatives of the Several Underwriters
c/o XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Peapod, Inc., a Delaware corporation (the "Company"), proposes to issue and
sell an aggregate of 3,600,000 shares of its common stock, $0.01 par value per
share, to the several Underwriters named in Schedule II hereto (the
"Underwriters") and the persons named in Schedule I hereto (the "Selling
Stockholders") propose to sell to the several Underwriters, in the aggregate, up
to an additional 540,000 shares of common stock of the Company upon the terms
and conditions set forth herein. The Company and the Selling Stockholders are
hereinafter sometimes referred to as the "Sellers." The Company's common stock,
$0.01 par value, is hereinafter referred to as the "Common Stock", the 3,600,000
shares of Common Stock to be issued and sold to the Underwriters by the Company
are hereinafter referred to as the "Firm Shares" and the 540,000 shares of
additional Common Stock to be sold to the Underwriters by Selling Stockholders
are hereinafter referred to as the "Additional Shares." The Firm Shares and the
Additional Shares are hereinafter collectively referred to as the "Shares".
The business of the Company began in 1989 and was originally operated
through one of its predecessors Peapod, Inc., a Delaware corporation ("Old
Peapod"). On June 1, 1992, Peapod LP, an Illinois limited partnership ("Peapod
LP") was formed and substantially all the assets and liabilities as well as the
operations of Old Peapod were transferred to Peapod LP and Old Peapod became the
sole general partner of Peapod LP. On May 31, 1997, pursuant to the terms of the
Conversion Agreement dated May 30, 1997 by and among New Peapod, Inc., Peapod
LP, Peapod Inc. and Xxx-Pod, Inc. and the agreement and documents referred to
therein (collectively, the "Conversion Documents"),(i) all of the equity
interests in Peapod LP were transferred to the Company and (ii) the assets and
liabilities of Peapod LP as well as the operations of Peapod LP were transferred
to the
Company. The events referred to in the immediately preceding sentence shall
herein after collectively be referred to as the "Conversion."
The Company and the Selling Stockholders wish to confirm as follows their
respective agreements with you (the "Representatives") and the other several
Underwriters on whose behalf you are acting, in connection with the several
purchases of the Shares by the Underwriters.
1. Registration Statement and Prospectus. The Company has prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-1 under the Act (the "initial
registration statement"), including a prospectus subject to completion relating
to the Shares. The term "Registration Statement" as used in this Agreement means
the initial registration statement (including all financial schedules and
exhibits) and any registration statement increasing the size of the offering
filed pursuant to Rule 462(b) of the Act (including all financial schedules and
exhibits) (a "Rule 462(b) Registration Statement"), as either may be amended at
the time they become effective, or, if the initial registration statement and
any Rule 462(b) Registration Statement became effective prior to the execution
of this Agreement, as either may be supplemented or amended prior to the
execution of this Agreement. If it is contemplated, at the time this Agreement
is executed, that a post-effective amendment or amendments to the initial
registration statement and any Rule 462(b) Registration Statement will be filed
and must be declared effective before the offering of the Shares may commence,
the term "Registration Statement" as used in this Agreement means the initial
registration statement and any Rule 462(b) Registration Statement as amended by
said post-effective amendment or amendments. The term "Prospectus" as used in
this Agreement means the prospectus in the form included in the Registration
Statement, or, if the prospectus included in the Registration Statement omits
information in reliance on Rule 430A under the Act and such information is
included in a prospectus filed with the Commission pursuant to Rule 424(b) under
the Act, the term "Prospectus" as used in this Agreement means the prospectus in
the form included in the Registration Statement as supplemented by the addition
of the Rule 430A information contained in the prospectus filed with the
Commission pursuant to Rule 424(b). The term "Prepricing Prospectus" as used in
this Agreement means the prospectus subject to completion in the form included
in the initial registration statement at the time of the initial filing of the
initial registration statement with the Commission, and as such prospectus shall
have been amended from time to time prior to the date of the Prospectus.
2. Agreements to Sell and Purchase. Subject to such adjustments as you
may determine in order to avoid fractional shares, the Company hereby agrees,
subject to all the terms and conditions set forth herein, to issue and sell to
each Underwriter and, upon the basis of the representations, warranties and
agreements of the Company and the Selling Stockholders herein contained and
subject to all the terms and conditions set forth herein, each Underwriter
agrees, severally and not jointly, to purchase from the Company, at a purchase
price of $______ per Share (the "purchase price per share"), the number of Firm
Shares set forth opposite the name of such Underwriter in Schedule II hereto.
The Selling Stockholders listed in Schedule I hereto also agree, subject to
all the terms and conditions set forth herein, to sell to the Underwriters, and,
upon the basis of the representations,
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warranties and agreements of the Company and the Selling Stockholders herein
contained and subject to all the terms and conditions set forth herein, the
Underwriters shall have the right to purchase from the Selling Stockholders
listed in Schedule I hereto, at the purchase price per share, pursuant to an
option (the "over-allotment option") which may be exercised at any time and from
time to time prior to 9:00 P.M., New York City time, on the 30th day after the
date of the Prospectus (or, if such 30th day shall be a Saturday or Sunday or a
holiday, on the next business day thereafter when the New York Stock Exchange is
open for trading), up to an aggregate of 540,000 Additional Shares from the
Selling Stockholders listed on Schedule I hereto (the maximum number of
Additional Shares which each of them agrees to sell upon the exercise by the
Underwriters of the over-allotment option is set forth opposite their respective
names in Schedule I). Additional Shares may be purchased only for the purpose
of covering over-allotments made in connection with the offering of the Firm
Shares. The number of Additional Shares which the Underwriters elect to
purchase upon any exercise of the over-allotment option shall be provided by
each Selling Stockholder who has agreed to sell Additional Shares in proportion
to the respective maximum numbers of Additional Shares which each such Selling
Stockholder has agreed to sell. Upon any exercise of the over-allotment option,
each Underwriter, severally and not jointly, agrees to purchase from each
Selling Stockholder who has agreed to sell Additional Shares the number of
Additional Shares (subject to such adjustments as you may determine in order to
avoid fractional shares) which bears the same proportion to the number of
Additional Shares to be sold by each Selling Stockholder who has agreed to sell
Additional Shares as the number of Firm Shares set forth opposite the name of
such Underwriter in Schedule II hereto (or such number of Firm Shares increased
as set forth in Section 12 hereof) bears to the aggregate number of Firm Shares
to be sold by the Company.
Certificates in transferable form for the Shares (including any Additional
Shares) which each of the Selling Stockholders agrees to sell pursuant to this
Agreement have been placed in custody with First Chicago Trust Co. of New York
(the "Custodian") for delivery under this Agreement pursuant to a Custody
Agreement and Power of Attorney (the "Custody Agreement") executed by each of
the Selling Stockholders appointing Xxxxxx X. Xxxxxxxx and Xxxxx X. Coin as
agents and attorneys-in-fact (the "Attorneys-in-Fact"). Each Selling
Stockholder agrees that (i) the Additional Shares represented by the
certificates held in custody pursuant to the Custody Agreement are subject to
the interests of the Underwriters, the Company and each other Selling
Stockholder, (ii) the arrangements made by the Selling Stockholders for such
custody are, except as specifically provided in the Custody Agreement,
irrevocable, and (iii) the obligations of the Selling Stockholders hereunder and
under the Custody Agreement shall not be terminated by any act of such Selling
Stockholder or by operation of law, whether by the death or incapacity of any
Selling Stockholder or the occurrence of any other event. If any Selling
Stockholder shall die or be incapacitated or if any other event shall occur
before the delivery of the Additional Shares hereunder, certificates for the
Additional Shares of such Selling Stockholder shall be delivered to the
Underwriters by the Attorneys-in-Fact in accordance with the terms and
conditions of this Agreement and the Custody Agreement as if such death or
incapacity or other event had not occurred, regardless of whether or not the
Attorneys-in-Fact or any Underwriter shall have received notice of such death,
incapacity or other event. Each Attorney-in-Fact is authorized, on behalf of
each of the Selling Stockholders, to execute this Agreement and any other
documents necessary or desirable in connection with the sale of the Additional
Shares to be sold hereunder by such Selling Stockholder, to make delivery of the
certificates for such Additional Shares, to receive the proceeds of the sale of
such Additional Shares,
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to give receipts for such proceeds, to pay therefrom any expenses to be borne by
such Selling Stockholder in connection with the sale and public offering of such
Additional Shares, to distribute the balance thereof to such Selling
Stockholder, and to take such other action as may be necessary or desirable in
connection with the transactions contemplated by this Agreement. Each Attorney-
in-Fact agrees to perform his duties under the Custody Agreement.
3. Terms of Public Offering. The Sellers have been advised by you that
the Underwriters propose to make a public offering of their respective portions
of the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable and initially to offer the
Shares upon the terms set forth in the Prospectus.
4. Delivery of the Shares and Payment Therefor. Delivery to the
Underwriters of and payment for the Firm Shares shall be made at the office of
Sidley & Austin, Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, at 10:00
A.M., Chicago time, on June __, 1997 (the "Closing Date"). The place of closing
for the Firm Shares and the Closing Date may be varied by agreement among you,
the Company and the Attorneys-in-Fact.
Delivery to the Underwriters of and payment for any Additional Shares to be
purchased by the Underwriters shall be made at the aforementioned office of
Sidley & Austin at such time on such date (the "Option Closing Date"), which may
be the same as the Closing Date but shall in no event be earlier than the
Closing Date nor earlier than two nor later than ten business days after the
giving of the notice hereinafter referred to, as shall be specified in a written
notice from you on behalf of the Underwriters to the Company and the Attorneys-
in-Fact of the Underwriters' determination to purchase a number, specified in
such notice, of Additional Shares. The place of closing for any Additional
Shares and the Option Closing Date for such Additional Shares may be varied by
agreement among you, the Company and the Attorneys-in-Fact.
Certificates for the Firm Shares and for any Additional Shares to be
purchased hereunder shall be registered in such names and in such denominations
as you shall request prior to 9:30 A.M., New York City time, on the second
business day preceding the Closing Date or any Option Closing Date, as the case
may be. Such certificates shall be made available to you in New York City for
inspection and packaging not later than 9:30 A.M., New York City time, on the
business day next preceding the Closing Date or the Option Closing Date, as the
case may be. The certificates evidencing the Firm Shares and any Additional
Shares to be purchased hereunder shall be delivered to you on the Closing Date
or the Option Closing Date, as the case may be, against payment of the purchase
price therefor in immediately available funds.
5. Agreements of the Company. The Company agrees with the several
Underwriters as follows:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment thereto
to be declared effective before the offering of the Shares may commence, the
Company will endeavor to cause the Registration Statement or such post-effective
amendment to become effective as soon as possible and will advise you promptly
and, if requested by you, will confirm such advice in writing, when the
Registration Statement or such post-effective amendment has become effective.
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(b) The Company will advise you promptly and, if requested by you,
will confirm such advice in writing: (i) of any request by the Commission for
amendment of or a supplement to the Registration Statement, any Prepricing
Prospectus or the Prospectus or for additional information; (ii) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the Shares for
offering or sale in any jurisdiction or the initiation of any proceeding for
such purpose; and (iii) within the period of time referred to in paragraph (f)
below, of any change in the Company's condition (financial or other), business,
prospects, properties, net worth or results of operations, or of the happening
of any event, which makes any statement of a material fact made in the
Registration Statement or the Prospectus (as then amended or supplemented)
untrue or which requires the making of any additions to or changes in the
Registration Statement or the Prospectus (as then amended or supplemented) in
order to state a material fact required by the Act or the regulations thereunder
to be stated therein or necessary in order to make the statements therein not
misleading, or of the necessity to amend or supplement the Prospectus (as then
amended or supplemented) to comply with the Act or any other law. If at any time
the Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, the Company will make every reasonable effort to obtain
the withdrawal of such order at the earliest possible time.
(c) The Company will furnish to you, without charge, four signed
copies of the initial registration statement and any Rule 462(b) Registration
Statement as originally filed with the Commission and of each amendment thereto,
including financial statements and all exhibits thereto, and will also furnish
to you, without charge, such number of conformed copies of the initial
registration statement and any Rule 462(b) Registration Statement as originally
filed and of each amendment thereto, but without exhibits, as you may request.
(d) The Company will not (i) file any amendment to the Registration
Statement or make any amendment or supplement to the Prospectus of which you
shall not previously have been advised or to which you shall object after being
so advised or (ii) so long as, in the opinion of counsel for the Underwriters, a
Prospectus is required to be delivered in connection with sales by any
Underwriter or dealer, file any information, documents or reports pursuant to
the Securities Exchange Act of 1934, as amended (the "Exchange Act") without
delivering a copy of such information, documents or reports to you, as
Representatives of the Underwriters, prior to or concurrently with such filing.
(e) Prior to the execution and delivery of this Agreement, the
Company has delivered to you, without charge, in such quantities as you have
requested, copies of each form of the Prepricing Prospectus. The Company
consents to the use, in accordance with the provisions of the Act and with the
securities or Blue Sky laws of the jurisdictions in which the Shares are offered
by the several Underwriters and by dealers, prior to the date of the Prospectus,
of each Prepricing Prospectus so furnished by the Company.
(f) As soon after the execution and delivery of this Agreement as
possible and thereafter from time to time for such period as in the opinion of
counsel for the Underwriters a prospectus is required by the Act to be delivered
in connection with sales by any Underwriter or dealer, the Company will
expeditiously deliver to each Underwriter and each dealer, without charge, as
many copies of the Prospectus (and of any amendment or supplement thereto) as
you may
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request. The Company consents to the use of the Prospectus (and of any
amendment or supplement thereto) in accordance with the provisions of the Act
and with the securities or Blue Sky laws of the jurisdictions in which the
Shares are offered by the several Underwriters and by all dealers to whom Shares
may be sold, both in connection with the offering and sale of the Shares and for
such period of time thereafter as the Prospectus is required by the Act to be
delivered in connection with sales by any Underwriter or dealer. If during such
period of time any event shall occur that in the judgment of the Company or in
the opinion of counsel for the Underwriters is required to be set forth in the
Prospectus (as then amended or supplemented) or should be set forth therein in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary to supplement or
amend the Prospectus to comply with the Act or any other law, the Company will
forthwith prepare and, subject to the provisions of paragraph (d) above, file
with the Commission an appropriate supplement or amendment thereto, and will
expeditiously furnish to the Underwriters and dealers a reasonable number of
copies thereof. In the event that the Company and you, as Representatives of
the several Underwriters, agree that the Prospectus should be amended or
supplemented, the Company, if requested by you, will promptly issue a press
release announcing or disclosing the matters to be covered by the proposed
amendment or supplement.
(g) The Company will cooperate with you and with counsel for the
Underwriters in connection with the registration or qualification of the Shares
for offering and sale by the several Underwriters and by dealers under the
securities or Blue Sky laws of such jurisdictions as you may designate and will
file such consents to service of process or other documents necessary or
appropriate in order to effect such registration or qualification; provided that
in no event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which would
subject it to service of process in suits, other than those arising out of the
offering or sale of the Shares, in any jurisdiction where it is not now so
subject.
(h) The Company will make generally available to its security holders
a consolidated earnings statement, which need not be audited, covering a twelve-
month period commencing after the effective date of the Registration Statement
and ending not later than 15 months thereafter, as soon as practicable after the
end of such period, which consolidated earnings statement shall satisfy the
provisions of Section ll(a) of the Act.
(i) During the period of five years hereafter, the Company will
furnish to you (i) as soon as available, a copy of each report of the Company
mailed to stockholders or filed with the Commission, and (ii) from time to time
such other information concerning the Company as you may request.
(j) If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (otherwise than pursuant to the
second paragraph of Section 12 hereof or by notice given by you terminating this
Agreement pursuant to Section 12 or Section 13 hereof) or if this Agreement
shall be terminated by the Underwriters because of any failure or refusal on the
part of the Company or the Selling Stockholders to comply with the terms or
fulfill any of the conditions of this Agreement, the Company agrees to reimburse
the Representatives for all reasonable out-of-pocket expenses (including
reasonable fees and expenses of counsel for the Underwriters) incurred by you in
connection herewith.
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(k) The Company will apply the net proceeds from the sale of the
Shares to be sold by it hereunder substantially in accordance with the
description set forth in the Prospectus.
(l) If Rule 430A of the Act is employed, the Company will timely file
the Prospectus pursuant to Rule 424(b) under the Act and will advise you of the
time and manner of such filing.
(m) Except as provided in this Agreement or as contemplated by the
Prospectus, the Company will not sell, contract to sell or otherwise dispose of
any Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock, or grant any options or warrants to purchase
Common Stock, for a period of 180 days after the date of the Prospectus, without
the prior written consent of Xxxxx Xxxxxx Inc.; provided, that the Company may
(i) issue or sell securities pursuant to options or warrants outstanding as of
the date hereof, (ii) issue additional options under the Company's 1997 Long-
Term Incentive Plan and (iii) sell Common Stock to employees under its Employee
Stock Purchase Plan.
(n) The Company has furnished or will furnish to you "lock-up"
letters, in form and substance satisfactory to you, signed by each of its
current officers and directors and each of its stockholders listed in Schedule
III.
(o) Except as stated in this Agreement and in the Prepricing
Prospectus and Prospectus, the Company has not taken, nor will it take, directly
or indirectly, any action designed to or that might reasonably be expected to
cause or result in stabilization or manipulation of the price of the Common
Stock to facilitate the sale or resale of the Shares.
(p) The Company will use its best efforts to have the Common Stock
listed, subject to notice of issuance, on the Nasdaq National Market
concurrently with the effectiveness of the initial registration statement.
(q) If the Company elects to rely upon Rule 462(b) of the Act, the
Company shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) of the Act by 10:00 P.M. Washington D.C. time on the
date of this Agreement, and the Company shall at the time of filing either pay
to the Commission the filing fee for the Rule 462(b) Registration Statement or
give irrevocable instructions for the payment of such fee pursuant to Rule
111(b) of the Act.
6. Agreements of the Selling Stockholders. Each of the Selling
Stockholders agrees with the several Underwriters as follows:
(a) Such Selling Stockholder will cooperate to the extent necessary
to cause the initial registration statement and any Rule 462(b) Registration
Statement or any post-effective amendment thereto to become effective at the
earliest possible time.
(b) Such Selling Stockholder will pay all Federal and other taxes, if
any on the transfer or sale of the Shares being sold by the Selling Stockholder
to the Underwriters.
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(c) Such Selling Stockholder will do or perform all things required
to be done or performed by the Selling Stockholder prior to any Option Closing
Date to satisfy all conditions precedent to the delivery of the Shares pursuant
to this Agreement.
(d) Such Selling Stockholder has executed or will execute a "lock-up"
letter as provided in Section 5(n) above and will not sell, contract to sell or
otherwise dispose of any Common Stock, except for the sale of Shares to the
Underwriters pursuant to this Agreement, prior to the expiration of 180 days
after the date of the Prospectus, without the prior written consent of Xxxxx
Xxxxxx Inc.
(e) Except as stated in this Agreement and in the Prepricing
Prospectus and the Prospectus, such Selling Stockholder will not take, directly
or indirectly, any action designed to or that might reasonably be expected to
cause or result in stabilization or manipulation of the price of the Common
Stock to facilitate the sale or resale of the Shares.
(f) Such Selling Stockholder will advise you promptly, and if
requested by you, will confirm such advice in writing, within the period of time
referred to in Section 5(f) hereof, of any change in the information relating to
such Selling Stockholder which comes to the attention of such Selling
Stockholder that suggests that any statement with respect to such Selling
Stockholder made in the Registration Statement or the Prospectus (as then
amended or supplemented, if amended or supplemented) is or may be untrue in any
material respect or that the Registration Statement or Prospectus (as then
amended or supplemented, if amended or supplemented) omits or may omit to state
a material fact or a fact necessary to be stated therein in order to make the
statements therein not misleading in any material respect, or of the necessity
to amend or supplement the Prospectus (as then amended or supplemented, if
amended or supplemented) in order to comply with the Act or any other law.
7. Representations and Warranties of the Company. The Company represents
and warrants to each Underwriter that:
(a) Each Prepricing Prospectus included as part of the initial
registration statement and any Rule 462(b) Registration Statement as originally
filed or as part of any amendment or supplement thereto, or filed pursuant to
Rule 424 under the Act, complied when so filed in all material respects with the
provisions of the Act. The Commission has not issued any order preventing or
suspending the use of any Prepricing Prospectus.
(b) The initial registration statement and any Rule 462(b)
Registration Statement in the form in which they became or become effective and
also in such form as they may be when any post-effective amendment thereto shall
become effective and the prospectus and any supplement or amendment thereto when
filed with the Commission under Rule 424(b) under the Act, complied or will
comply in all material respects with the provisions of the Act and did not or
will not at any such times contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading, except that this representation and
warranty does not apply to statements in or omissions from the initial
registration statement and any Rule 462(b) Registration Statement or the
prospectus made in reliance upon and
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in conformity with information relating to any Underwriter furnished to the
Company in writing by or on behalf of any Underwriter through you expressly for
use therein.
(c) All the outstanding shares of Common Stock of the Company have
been duly authorized and validly issued, are fully paid and nonassessable and
are free of any preemptive or similar rights; the Shares to be issued and sold
by the Company have been duly authorized and, when issued and delivered to the
Underwriters against payment therefor in accordance with the terms hereof, will
be validly issued, fully paid and nonassessable and free of any preemptive or
similar rights; and the capital stock of the Company conforms to the description
thereof in the initial registration statement and any Rule 462(b) Registration
Statement and the prospectus.
(d) The Company is a corporation duly organized and validly existing
in good standing under the laws of the State of Delaware with full corporate
power and authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the Prospectus, and is
duly registered and qualified to conduct its business and is in good standing in
each jurisdiction or place where the nature of its properties or the conduct of
its business requires such registration or qualification, except where the
failure so to register or qualify does not have a material adverse effect on the
condition (financial or other), business, properties, net worth or results of
operations of the Company taken as a whole. The Company has no subsidiaries.
(e) There are no legal or governmental proceedings pending or, to the
knowledge of the Company threatened, against the Company, or to which the
Company or any of its properties is subject, that are required to be described
in the Registration Statement or the Prospectus but are not described as
required, and there are no agreements, contracts, indentures, leases or other
instruments that are required to be described in the Registration Statement or
the Prospectus or to be filed as an exhibit to the Registration Statement that
are not described or filed as required by the Act.
(f) The Company, Peapod LP and Old Peapod have not been in violation
of their respective certificates of incorporation, by-laws or other
organizational documents, as the case may be, or of any law, ordinance,
administrative or governmental rule or regulation applicable to them or of any
decree of any court or governmental agency or body having jurisdiction over
them, or in default in any material respect in the performance of any
obligation, agreement or condition contained in any bond, debenture, note or any
other evidence of indebtedness or in any material agreement, indenture, lease or
other instrument to which the Company is a party or by which the Company or its
properties may be bound except for such violations or defaults which
individually or in the aggregate would not have material adverse effect on the
Company's condition (financial or other), business, prospects, property, net
worth or results of operations.
(g) Neither the issuance and sale of the Shares, the execution,
delivery or performance of this Agreement by the Company nor the consummation by
the Company of the transactions contemplated hereby (A) requires any consent,
approval, authorization or other order of or registration or filing with, any
court, regulatory body, administrative agency or other governmental body, agency
or official (except such as may be required for the registration of the Shares
under the Act and the Exchange Act and compliance with the securities or Blue
Sky laws of various jurisdictions, all of which have been or will be effected in
accordance with this Agreement) or conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under, the
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certificate of incorporation, bylaws, or other organizational documents, of the
Company, or (B) conflicts or will conflict with or constitutes or will
constitute a breach of, or a default under, any agreement, indenture, lease or
other instrument to which the Company is a party or by which any of them or any
of its properties may be bound, or violates or will violate any statute, law,
regulation or filing or judgment, injunction, order or decree applicable to the
Company or any of its properties, or will result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the Company
pursuant to the terms of any agreement or instrument to which any of them is a
party or by which any of them may be bound or to which any of the property or
assets of any of them is subject except, in each case, for such conflicts,
breaches, defaults or violations which individually and in the aggregate would
not have a material adverse effect on the Company's condition (financial or
other), business, prospects, properties, net worth or results of operations.
(h) The accountants, KPMG Peat Marwick LLP, who have certified or
shall certify the financial statements included in the Registration Statement
and the Prospectus (or any amendment or supplement thereto) are independent
public accountants as required by the Act.
(i) The financial statements, together with related schedules and
notes, included in the Registration Statement and the Prospectus (and any
amendment or supplement thereto), present fairly the consolidated financial
position, results of operations and changes in financial position of Peapod LP
and Old Peapod, as the case may be, on the basis stated in the Registration
Statement at the respective dates or for the respective periods to which they
apply; such statements and related schedules and notes have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved, except as disclosed therein; the other
financial and statistical information and data included in the Registration
Statement and the Prospectus (and any amendment or supplement thereto) are
fairly presented and prepared on a basis consistent with such financial
statements and the books and records of Peapod LP or Old Peapod, as the case may
be; and the pro forma financial statements and other pro forma financial
information included in the Prospectus present fairly the information shown
therein, have been prepared in accordance with the Commission's rules and
guidelines with respect to pro forma financial statements, have been properly
compiled on the pro forma bases described therein, and, in the opinion of the
Company, the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the transactions or
circumstances referred to therein.
(j) The execution and delivery of, and the performance by the Company
of its obligations under this Agreement have been duly and validly authorized by
the Company, and this Agreement has been duly executed and delivered by the
Company and constitutes the valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as rights
to indemnity and contribution hereunder may be limited by federal or state
securities laws.
(k) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), subsequent to the
respective dates as of which such information is given in the Registration
Statement and the Prospectus (or any amendment or supplement thereto), neither
the Company nor Peapod LP has incurred any liability or obligation, direct or
contingent, or entered into any transaction, not in the ordinary course of
business, that is material to the Company
-10-
or Peapod LP, as the case may be, and there has not been any change in the
capital stock, or material increase in the short-term debt or long-term debt, of
the Company or Peapod LP, or any material adverse change, or any development
involving or which may reasonably be expected to involve, a prospective material
adverse change, in the condition (financial or other), business, net worth or
results of operations of the Company or Peapod LP.
(l) The Company has good and marketable title to all property (real
and personal) described in the Prospectus as being owned by it including,
without limitation, all property which was to be transferred to the Company
pursuant to the Conversion, free and clear of all liens, claims, security
interests or other encumbrances except such (i) as are described in the
Registration Statement and the Prospectus or in a document filed as an exhibit
to the Registration Statement and all the property described in the Prospectus
as being held under lease by the Company or Peapod LP by the Company in each
case under valid, subsisting and enforceable leases and (ii) that individually
and in the aggregate would not have a material adverse effect on the Company's
condition (financial or other), business, prospects, properties, net worth or
results of operations.
(m) None of the Company, Peapod LP or Old Peapod have distributed
and, prior to the later to occur of (i) the Closing Date and (ii) completion of
the distribution of the Shares, will not distribute any offering material in
connection with the offering and sale of the Shares other than the Registration
Statement, the Prepricing Prospectus, the Prospectus or other materials, if any,
permitted by the Act.
(n) The Company has, and Peapod LP and Old Peapod had, such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("permits") as are necessary to own their respective properties and
to conduct their business, in all material respects, in the manner described in
the Prospectus, subject to such qualifications as may be set forth in the
Prospectus; the Company has fulfilled and performed all its material obligations
with respect to such permits and no event has occurred which allows, or after
notice or lapse of time would allow, revocation or termination thereof or
results in any other material impairment of the rights of the holder of any such
permit, subject in each case to such qualification as may be set forth in the
Prospectus; and, except as described in the Prospectus, none of such permits
contains any restriction that is materially burdensome to the Company.
(o) The Company maintains, and Old Peapod and Peapod LP maintained, a
system of internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with management's
general or specific authorization; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets; (iii)
access to assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(p) To the Company's knowledge, neither the Company, Peapod LP, Old
Peapod nor any employee or agent of any of the foregoing has made any payment of
funds or received or retained any funds in violation of any law, rule or
regulation, which payment, receipt or retention of funds is of a character
required to be disclosed in the Prospectus.
-11-
(q) The Company, Peapod LP and Old Peapod have each filed all tax
returns required to be filed, which returns are complete and correct in all
material respects, and none of the foregoing are in default in the payment of
any taxes which were payable pursuant to said returns or any assessments with
respect thereto.
(r) No holder of any security of the Company has any right to require
registration of shares of Common Stock or any other security of the Company
because of the filing of the initial registration statement or any Rule 462(b)
Registration Statement or consummation of the transactions contemplated by this
Agreement, except for persons who are Selling Stockholders or other stockholders
described in the Prospectus as having registration rights.
(s) The Company owns, possesses or has the right to use all patents,
trademarks, trademark registrations, service marks, service xxxx registrations,
trade names, copyrights, licenses, inventions, trade secrets and rights
described in the Prospectus as being owned by the Company or Peapod LP or any of
them or in all material respects necessary for the conduct of the Company's
business, and the Company is not aware of any claim to the contrary or any
challenge by any other person to the rights of the Company or Peapod LP with
respect to the foregoing.
(t) The Company is not now, and after sale of the Shares to be sold
by it hereunder and application of the net proceeds from such sale as described
in the Prospectus under the caption "Use of Proceeds" will not be, an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
(u) The Company, Peapod LP and Old Peapod have complied with all
provisions of Florida Statutes, Section 517.075, relating to issuers doing
business with Cuba.
(v) The Conversion has been completed and is effective.
8. Representations and Warranties of the Selling Stockholders. Each
Selling Stockholder represents and warrants to each Underwriter that:
(a) Such Selling Stockholder now has, and on any Option Closing Date
will have, valid and marketable title to the Additional Shares to be sold by
such Selling Stockholder, free and clear of any lien, claim, security interest
or other encumbrance, including, without limitation, any restriction on
transfer.
(b) Such Selling Stockholder now has, and on any Option Closing Date
will have, full legal right, power and authorization, and any approval required
by law, to sell, assign transfer and deliver such Additional Shares in the
manner provided in this Agreement, and upon delivery of and payment for such
Additional Shares hereunder, the several Underwriters will acquire valid and
marketable title to such Additional Shares free and clear of any lien, claim,
security interest, or other encumbrance.
(c) This Agreement and the Custody Agreement have been duly
authorized, executed and delivered by or on behalf of such Selling Stockholder
and are the valid and binding agreements
-12-
of such Selling Stockholder enforceable against such Selling Stockholder in
accordance with their terms.
(d) Neither the execution and delivery of this Agreement or the
Custody Agreement by or on behalf of such Selling Stockholder nor the
consummation of the transactions herein or therein contemplated by or on behalf
of such Selling Stockholder requires any consent, approval, authorization or
order of, or filing or registration with, any court, regulatory body,
administrative agency or other governmental body, agency or official (except
such as may be required under the Act or such as may be required under state
securities or Blue Sky laws governing the purchase and distribution of the
Shares) or conflicts or will conflict with or constitutes or will constitute a
breach of, or default under, or violates or will violate, any agreement,
indenture or other instrument to which such Selling Stockholder is a party or by
which such Selling Stockholder is or may be bound or to which any of such
Selling Stockholder's property or assets is subject, or any statute, law, rule,
regulation, ruling, judgment, injunction, order or decree applicable to such
Selling Stockholder or to any property or assets of such Selling Stockholder
except, in each case, for such conflicts, breaches, defaults or violations which
individually or in the aggregate would not have a material adverse effect on the
Company's condition (financial or other), business, prospects, properties, net
worth or results of operations.
(e) The Registration Statement and the Prospectus, insofar as they
relate to such Selling Stockholder, do not and will not contain an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading.
(f) Such Selling Stockholder does not have any knowledge or any
reason to believe that the Registration Statement or the Prospectus (or any
amendment or supplement thereto) contains any untrue statement of a material
fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading.
(g) The representations and warranties of such Selling Stockholder in
the Custody Agreement are, and on any Option Closing Date will be, true and
correct.
(h) Such Selling Stockholder has not taken, directly or indirectly,
any action designed to or that might reasonably be expected to cause or result
in stabilization or manipulation of the price of the Common Stock to facilitate
the sale or resale of the Additional Shares, except for the lock-up arrangements
described in the Prospectus.
9. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each of you and each
other Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Act or Section 20(a) the Exchange Act from and
against any and all losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation) arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Prepricing Prospectus or in the Registration Statement or the Prospectus or in
any amendment or supplement thereto, or arising out of or based upon any
omission or alleged omission to state therein
-13-
a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or expenses arise out of or are based upon any untrue
statement or omission or alleged untrue statement or omission which has been
made therein or omitted therefrom in reliance upon and in conformity with the
information relating to such Underwriter furnished in writing to the Company by
or on behalf of any Underwriter through you expressly for use in connection
therewith; provided, however, that the indemnification contained in this
paragraph (a) with respect to any Prepricing Prospectus shall not inure to the
benefit of any Underwriter (or to the benefit of any person controlling such
Underwriter) on account of any such loss, claim, damage, liability or expense
arising from the sale of the Shares by such Underwriter to any person if a copy
of the Prospectus shall not have been delivered or sent to such person within
the time required by the Act and the regulations thereunder, and the untrue
statement or alleged untrue statement or omission or alleged omission of a
material fact contained in such Prepricing Prospectus was corrected in the
Prospectus, provided that the Company has delivered the Prospectus to the
several Underwriters in requisite quantity on a timely basis to permit such
delivery or sending. The foregoing indemnity agreement shall be in addition to
any liability which the Company may otherwise have.
(b) If any action, suit or proceeding shall be brought against any
Underwriter or any person controlling any Underwriter in respect of which
indemnity may be sought against the Company, such Underwriter or such
controlling person shall promptly notify the Company, and the Company shall
assume the defense thereof, including the employment of counsel and payment of
all fees and expenses. Such Underwriter or any such controlling person shall
have the right to employ separate counsel in any such action, suit or proceeding
and to participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Underwriter or such controlling person
unless (i) the Company has agreed in writing to pay such fees and expenses, (ii)
the Company has failed to assume the defense and employ counsel, or (iii) the
named parties to any such action, suit or proceeding (including any impleaded
parties) include both such Underwriter or such controlling person and the
Company and such Underwriter or such controlling person shall have been advised
by its counsel that representation of such indemnified party and the Company by
the same counsel would be inappropriate under applicable standards of
professional conduct (whether or not such representation by the same counsel has
been proposed) due to actual or potential differing interests between them (in
which case the Company shall not have the right to assume the defense of such
action, suit or proceeding on behalf of such Underwriter or such controlling
person). It is understood, however, that the Company shall, in connection with
any one such action, suit or proceeding or separate but substantially similar or
related actions, suits or proceedings in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for all such Underwriters and controlling persons not
having actual or potential differing interests with you or among themselves,
which firm shall be designated in writing by Xxxxx Xxxxxx Inc., and that all
such fees and expenses shall be reimbursed as they are incurred. The Company
shall not be liable for any settlement of any such action, suit or proceeding
effected without its written consent, but if settled with such written consent,
or if there be a final judgment for the plaintiff in any such action, suit or
proceeding, the Company agrees to indemnify and hold harmless any Underwriter,
to the extent provided in the preceding paragraph, and any such controlling
person from and against any loss, claim, damage, liability or expense by reason
of such settlement or judgment.
-14-
(c) Each Selling Stockholder agrees, severally and not jointly, to
indemnify and hold harmless each of you and each other Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the Act or Section 20(a) of the Exchange Act, the Company, its directors, its
officers to sign the Registration Statement, and any person who controls the
Company within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act to the same extent as the foregoing indemnity from the Company to
each Underwriter, but only with respect to the information furnished in writing
by or on behalf of such Selling Shareholder expressly for use in the
Registration Statement, the Prospectus or any Prepricing Prospectus, or any
amendment or supplement thereto. If any action, suit or proceeding shall be
brought against any Underwriter, any such controlling person of the Company, any
of its directors, any such officer, or any such controlling person of the
Company, based on the Registration Statement, the Prospectus or any Prepricing
Prospectus or any amendment or supplement thereto, and in respect of which
indemnity may be sought against any Selling Stockholder pursuant to this
paragraph (c), such Selling Stockholder shall have the rights and duties given
to the Company by paragraph (b) above (except that if the Company shall have
assumed the defense thereof such Selling Stockholder shall not be required to do
so, but may employ separate counsel therein and participate in the defense
thereof, but the fees and expenses of such counsel shall be at such Selling
Stockholder's expense), and each Underwriter, each such controlling person of
any Underwriter, the Company, its directors, any such officer, and any such
controlling person of the Company shall have the rights and duties given to the
Underwriters by paragraph (b) above. The foregoing indemnity agreement shall be
in addition to any liability which any Selling Stockholder may otherwise have;
provided, however, that in no event shall a Selling Shareholder's liability
pursuant to this paragraph (c) exceed the aggregate proceeds they receive from
the sale of the Additional Shares hereunder.
(d) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement, each Selling Stockholder, and any person who controls the Company
within the meaning of Section 15 of the Act or Section 20(a) of the Exchange
Act, to the same extent as the foregoing indemnity from the Company and the
Selling Stockholders to each Underwriter, but only with respect to information
relating to such Underwriter furnished in writing by or on behalf of such
Underwriter through you expressly for use in the Registration Statement, the
Prospectus or any Prepricing Prospectus, or any amendment or supplement thereto.
If any action, suit or proceeding shall be brought against the Company, any of
its directors, any such officer, any Selling Stockholder, or any such
controlling person based on the Registration Statement, the Prospectus or any
Prepricing Prospectus, or any amendment or supplement thereto, and in respect of
which indemnity may be sought against any Underwriter pursuant to this paragraph
(d), such Underwriter shall have the rights and duties given to the Company by
paragraph (b) above (except that if the Company shall have assumed the defense
thereof such Underwriter shall not be required to do so, but may employ separate
counsel therein and participate in the defense thereof, but the fees and
expenses of such counsel shall be at such Underwriter's expense), and the
Company, its directors, any such officer, the Selling Stockholder, and any such
controlling person shall have the rights and duties given to the Underwriters by
paragraph (b) above. The foregoing indemnity agreement shall be in addition to
any liability which any Underwriter may otherwise have.
(e) If the indemnification provided for in this Section 9 is unavailable
to an indemnified party under paragraphs (a), (c) or (d) hereof in respect of
any losses, claims, damages, liabilities or
-15-
expenses referred to therein, then an indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities or expenses (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company, the Selling Stockholders and the
Underwriters from the offering of the Shares, or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company, the Selling Stockholders and
the Underwriters in connection with the statements or omissions that resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and the Underwriters shall be deemed to be in the same proportion as the total
net proceeds from the offering (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus; provided that, in the event that the Underwriters shall have
purchased any Additional Shares hereunder, any determination of the relative
benefits received by the Company, the Selling Stockholders or the Underwriters
from the offering of the Shares shall include the net proceeds (before deducting
expenses) received by the Company and the Selling Stockholders, and the
underwriting discounts and commissions received by the Underwriters, from the
sale of such Additional Shares, in each case computed on the basis of the
respective amounts set forth in the notes to the table on the cover page of the
Prospectus. The relative fault of the Company, the Selling Stockholders and the
Underwriters shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company, the Selling Stockholders or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(f) The Company, the Selling Stockholders and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 9
were determined by a pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in paragraph (e)
above. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities and expenses referred to in paragraph (e)
above shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating any claim or defending any such action, suit or
proceeding. Notwithstanding the provisions of this Section 9, (i) no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price of the Shares underwritten by it and distributed to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission and (ii) no Selling Stockholder will be required to
contribute more than the net proceeds such Selling Stockholder receives from the
sale of Additional Shares hereunder. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 9 are several in proportion to the respective numbers of Firm Shares set
forth opposite their names in Schedule II hereto (or such numbers of Firm Shares
increased as set forth in Section 12 hereof) and not joint. The Selling
Stockholders' obligations to contribute pursuant to this Section 9 are several
in proportion to the respective number of Additional Shares sold by each of them
hereunder and not joint.
-16-
(g) No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened action,
suit or proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such action, suit or proceeding.
(h) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 9 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 9 and the
representations and warranties of the Company and the Selling Stockholders set
forth in this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any Underwriter or
any person controlling any Underwriter, the Company its directors or officers or
the Selling Stockholders or any person controlling the Company, (ii) acceptance
of any Shares and payment therefor hereunder, and (iii) any termination of this
Agreement. A successor to any Underwriter or any person controlling any
Underwriter, or to the Company its directors or officers, or any person
controlling the Company, shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section 9.
(i) In no event shall a Selling Shareholder's liability resulting from the
breach of the representation set forth in Section 8(f) exceed the aggregate
proceeds it receives from the sale of the Additional Shares hereunder.
10. Conditions of Underwriters' Obligations. The several obligations of
the Underwriters to purchase the Firm Shares hereunder are subject to the
following conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the initial registration statement or a post-effective amendment
thereto to be declared effective before the offering of the Shares may commence,
the initial registration statement or such post-effective amendment shall have
become effective not later than 5:30 P.M., New York City time, on the date
hereof, or at such later date and time as shall be consented to in writing by
you, and all filings, if any, required by Rules 424 and 430A under the Act shall
have been timely made; if the Company has elected to rely upon Rule 462(b), the
Rule 462(b) Registration Statement shall have become effective by 10:00 P.M.
Washington D.C. time on the date of this Agreement; no stop order suspending the
effectiveness of the initial registration statement and any Rule 462(b)
Registration Statement shall have been issued and no proceeding for that purpose
shall have been instituted or, to the knowledge of the Company or any
Underwriter, threatened by the Commission, and any request of the Commission for
additional information (to be included in the initial registration statement and
any Rule 462(b) Registration Statement or the prospectus or otherwise) shall
have been complied with to your satisfaction.
(b) Subsequent to the effective date of this Agreement, there shall
not have occurred (i) any change, or any development involving a prospective
change, in or affecting the condition (financial or other), business,
properties, net worth, or results of operations of the Company not
-17-
contemplated by the Prospectus, which in your opinion, as Representatives of the
several Underwriters, would materially, adversely affect the market for the
Shares, or (ii) any event or development relating to or involving the Company or
any officer or director of the Company or any Selling Stockholder which makes
any statement made in the Prospectus untrue in any material respect or which, in
the opinion of the Company and its counsel or the Underwriters and their
counsel, requires the making of any addition to or change in the Prospectus in
order to state a material fact required by the Act or any other law to be stated
therein or necessary in order to make the statements therein not misleading, if
amending or supplementing the Prospectus to reflect such event or development
would, in your opinion, as Representatives of the several Underwriters,
materially adversely affect the market for the Shares.
(c) You shall have received on the Closing Date, an opinion of Sidley
& Austin, counsel for the Company and the Selling Stockholders, dated the
Closing Date and addressed to you, as Representatives of the several
Underwriters, to the effect that:
i) The Company is a corporation duly incorporated and
validly existing in good standing under the laws of the State of Delaware with
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and the
Prospectus (and any amendment or supplement thereto);
ii) The authorized and outstanding capital stock of the
Company is as set forth under the caption "Capitalization" in the Prospectus;
and the authorized capital stock of the Company conforms in all material
respects as to legal matters to the description thereof contained in the
Prospectus under the caption "Description of Capital Stock";
iii) All the shares of capital stock of the Company
outstanding prior to the issuance of the Shares to be issued and sold by the
Company hereunder, have been duly authorized and validly issued, and are fully
paid and nonassessable;
iv) The Shares to be issued and sold to the Underwriters by
the Company hereunder have been duly authorized and, when issued and delivered
to the Underwriters against payment therefor in accordance with the terms
hereof, will be validly issued, fully paid and nonassessable and free of any
preemptive, or to the knowledge of such counsel similar rights that entitle or
will entitle any person to acquire any Shares upon the issuance thereof by the
Company;
v) The form of certificates for the Shares conforms to the
requirements of the Delaware General Corporation Law;
vi) The Registration Statement and all post-effective
amendments, if any, have become effective under the Act and, to the knowledge of
such counsel, no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose are pending before
or contemplated by the Commission; and any required filing of the Prospectus
pursuant to Rule 424(b) has been made in accordance with Rule 424(b);
vii) The Company has corporate power and authority to enter
into this Agreement and to issue, sell and deliver the Shares to be sold by it
to the Underwriters as provided
-18-
herein, and this Agreement has been duly authorized, executed and delivered by
the Company and is a valid, legal and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except that no
opinion is expressed with respect to the provisions relating to indemnity and
contribution and subject to the qualification that the enforceability of the
Company's obligations hereunder may be limited by bankruptcy, fraudulent
conveyance, insolvency, reorganization, moratorium, and other laws relating to
or affecting creditors' rights generally and by general equitable principles;
viii) Neither the offer, sale or delivery of the Shares,
the execution, delivery or performance of this Agreement, compliance by the
Company with the provisions hereof, nor consummation by the Company of the
transactions contemplated hereby conflicts or will conflict with or constitutes
or will constitute a breach of, or a default under, the certificate of
incorporation or bylaws of the Company or any agreement, indenture, lease or
other instrument to which the Company is a party or by which the Company or any
of its properties is bound that is an exhibit to the Registration Statement
except for any such conflicts, breaches or defaults that individually or in the
aggregate do not have a material adverse effect on the Company's business
(financial or other), business prospects, net worth or results of operation;
ix) No consent, approval, authorization or other order
of, or registration or filing with, any court, regulatory body, administrative
agency or other governmental body, agency, or official is required on the part
of the Company (except as have been obtained under the Act and the Exchange Act
or such as may be required under state securities or Blue Sky laws governing the
purchase and distribution of the Shares) for the valid issuance and sale of the
Shares to the Underwriters as contemplated by this Agreement;
x) The Registration Statement and the Prospectus and any
supplements or amendments thereto (except for the financial statements and the
notes thereto and the schedules and other financial and statistical data
included therein, as to which such counsel need not express any opinion) comply
as to form in all material respects with the requirements of the Act;
xi) To the knowledge of such counsel, (A) other than as
described or contemplated in the Prospectus (or any supplement thereto), there
are no legal or governmental proceedings pending or threatened against the
Company or to which the Company or any of its property is subject, which are
required to be described in the Registration Statement or Prospectus (or any
amendment or supplement thereto) and (B) there are no agreements, contracts,
indentures, leases or other instruments, that are required to be described in
the Registration Statement or the Prospectus (or any amendment or supplement
thereto) or to be filed as an exhibit to the Registration Statement that are not
described or filed as required, as the case may be;
xii) The statements in the Registration Statement and
Prospectus of the Company's agreement with Jewel/Osco and under the captions
"Certain Transactions" and "Descriptions of Capital Stock", insofar as they are
descriptions of contracts, agreements or other legal documents, or refer to
statements of law or legal conclusions, are fair summaries of the information
required to be shown;
-19-
xiii) This Agreement and the Custody Agreement have each
been duly executed and delivered by or on behalf of each of the Selling
Stockholders and are valid and binding agreements of each Selling Stockholder
enforceable against each Selling Stockholder in accordance with their terms,
except that no opinion is expressed with respect to the provisions relating to
indemnity and contribution and subject to the qualification that the
enforceability of the Company's obligations hereunder may be limited by
bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and
other laws relating to or affecting creditors' rights generally and by general
equitable principles;
xiv) To the knowledge of such counsel, each Selling
Stockholder has full legal right, power and authorization, and any approval
required by law, to sell, assign, transfer and deliver good and marketable title
to the Additional Shares which such Selling Stockholder has agreed to sell
pursuant to this Agreement;
xv) Upon registration of the number of Additional Shares
being sold by all of the Selling Stockholders on the applicable Option Closing
Date to the Underwriters in the names of the Underwriters in the stock records
of the Company, the Underwriters will, assuming the Underwriters are purchasing
such shares in good faith and without notice of any adverse claim within the
meaning of the Uniform Commercial Code as currently in effect in the State of
Illinois, have acquired all rights of such Selling Stockholders in such
Additional Shares free and clear of any such adverse claims; and
xvi) Although counsel has not undertaken, except as
otherwise indicated in their opinion, to determine independently, and does not
assume any responsibility for, the accuracy or completeness of the statements in
the Registration Statement, such counsel has participated in the preparation of
the Registration Statement and the Prospectus, including review and discussion
of the contents thereof, and nothing has come to the attention of such counsel
that has caused it to believe that the Registration Statement at the time the
Registration Statement became effective, or the Prospectus, as of its date and
as of the Closing Date or the Option Closing Date, as the case may be, contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading or that any amendment or supplement to the Prospectus, as of its
respective date, and as of the Closing Date or the Option Closing Date, as the
case may be, contained any untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading (it being
understood that such counsel need express no opinion with respect to the
financial statements and the notes thereto and the schedules and other financial
and statistical data included in the Registration Statement or the Prospectus).
In rendering their opinion as aforesaid, counsel may rely upon an
opinion or opinions, each dated the Closing Date, of other counsel retained by
them or the Company (A) as to matters set forth in paragraphs (xiii), (xiv) and
(xv) on other opinions of counsel retained by the Selling Stockholders or (B) as
to laws of any jurisdiction other than the United States, the States of Illinois
and New York and the General Corporation Law of the State of Delaware, provided
in either case that (1) each such local counsel is acceptable to the
Representatives and (2) such reliance is
-20-
expressly authorized by each opinion so relied upon and a copy of each such
opinion is delivered to the Representatives and is, in form and substance
reasonably satisfactory to them and their counsel.
(d) You shall have received on the Closing Date, an opinion of
Cowen, Crowley, Nord & Staub, corporate counsel for the Company, dated the
Closing Date and addressed to you, as Representatives of the several
Underwriters, to the effect that:
i) The Company is duly registered and qualified to
conduct its business and is in good standing in each state where, to such
counsel's knowledge, the nature of the Company's properties or the conduct of
its business requires such registration or qualification, except where the
failure so to register or qualify does not have a material adverse effect on the
financial condition, business, properties, net worth or results of operations of
the Company;
ii) The Company has corporate power and to such counsel's
knowledge has authority, and all necessary governmental authorizations,
approvals, orders, licenses, certificates, franchises and permits of and from
all governmental regulatory officials and bodies to own its properties and to
conduct it business as now being conducted (except where the failure so to have
any such authorizations, approvals, orders, licenses, certificates, franchises
or permits, would not have a material adverse effect on the financial condition,
business, properties, net worth or results operations of the Company;
iii) Other than as described or contemplated in the
Prospectus (or any supplement thereto), there are no legal or governmental
proceedings pending or to the best knowledge of such counsel threatened against
the Company would have a material adverse effect on the financial condition,
business, properties, net worth or results of operation of the Company;
iv) The Company is not in violation of its certificate of
incorporation or bylaws, or to the knowledge of such counsel is not in default
in the performance of any material obligation, agreement or condition contained
in any bond, debenture, note or other evidence of indebtedness, except as may be
disclosed in the Prospectus and except for such defaults which would not have a
material adverse effect on the financial condition, business, properties, net
worth or results of operations of the Company;
v) To the knowledge of such counsel the Company is not,
and Peapod LP and Old Peapod are not in violation of any law, ordinance,
administrative or governmental rule or regulation applicable to them or of any
decree of any court or governmental agency or body having jurisdiction over them
which would have a material adverse effect on the financial condition, business,
properties, net worth or results of operations of the Company;
vi) To the knowledge of such counsel, there are no
outstanding options, warrants or other rights calling for the issuance of, and
such counsel does not know of any commitment, plan or arrangement to issue, any
shares of capital stock of the Company or any security convertible into or
exchangeable or exercisable for capital stock of the Company other than the
options issued to Company employees, directors and consultants, warrants issued
pursuant to Company equipment leases and subordinated debentures, and
commitments or plans to issue
-21-
securities under the Company's 1997 Long Term Incentive Plan and Employee Stock
Purchase Plan;
vii) To the knowledge of such counsel, except as described
in the Prospectus, there is no holder of any security of the Company or any
other person who has the right, contractual or otherwise, to cause the Company
to sell or otherwise issue to them, or to permit them to underwrite the sale of,
the Shares or the right to have any Common Stock or other securities of the
Company included in the Registration Statement or the right, as a result of the
filing of the Registration Statement, to require registration under the Act of
any shares of Common Stock or other securities of the Company; and
viii) The Conversion is effective and complete in all
material respects.
With respect to the opinion being rendered pursuant to
clause (iii) above, counsel may rely upon computer searches conducted with
respect to the jurisdiction such counsel is aware of the Company conducting its
business.
(e) You shall have received on the Closing Date, an
opinion of XxXxxxxxx, Will & Xxxxx corporate counsel for the Company, dated the
Closing Date and addressed to you as Representatives of the several
Underwriters, to the effect that:
We have acted as counsel to Peapod, Inc. (the "Company") and its
predecessor, Peapod L.P. from time to time in connection with certain
intellectual property matters. At the request of the Company, we have reviewed
the statements contained in the fourth and fifth sentences of the first
paragraph of "Business - Intellectual Property and Other Proprietary Rights" in
the Company's Prospectus dated June __, 1997, and advise you as follows with
respect thereto:
(i) According to the U.S. Patent and Trademark Office and
pursuant to an Assignment dated May 31, 1997 from Peapod LP
to the Company and a subsequent name change of New Peapod,
Inc. to Peapod, Inc., the Company owns the following:
trademark and service xxxx registrations for PEAPOD: Nos.
1,709,175 and 1,922,505; trademark and service xxxx
registrations for PEAPOD (and design): Nos. 1,719,180;
1,775,744; and 1,765,041; and service xxxx registration No.
2,035,762 for SMART SHOPPING FOR BUSY PEOPLE.
(ii) According to the records of the U.S. Copyright Office and
pursuant to an Assignment dated May 31, 1997 from Peapod LP
to the Company and a subsequent name change of New Peapod,
Inc. to Peapod, Inc., the Company owns the following
copyright registrations for certain of its computer
programs: TX-3-892-779; TX-3-892-780; TX-3-892-781; TX-3-
892-782; TX-3-892-783; TX-3-914-950; and TX-3-390-052.
(iii) The Company has pending applications to register the
copyrights in its Web site as of January 20, 1997, its
computer disk jacket that is distributed to users of its
service, and its "Online Grocery Shopping & Delivery"
pamphlet.
-22-
The foregoing is based solely upon our representation of the Company
as referred to above and a review of public record information from the U.S.
Patent and Trademark Office and the U.S. Copyright Office and the Assignment
dated May 31, 1997 from Peapod LP to the Company.
To date we have not received directly or on behalf of the Company any
written claim from a third party to the effect that the Company's trademarks or
copyrights infringe upon the rights of third parties (except for a trademark
dispute as to the scope of a Peapod trademark used by a Seattle enterprise which
markets slippers and possibly other clothing) and further have not been advised
in writing by any officer of Peapod LP or the Company that they have received
any written claim from a third party relating to the Company's use of its
trademarks and copyrights.
(f) You shall have received on the Closing Date an opinion of
Xxxxx, Xxxxx & Xxxxx, counsel for the Underwriters, dated the Closing Date and
addressed to you, as Representatives of the several Underwriters, with respect
to the matters referred to in clauses(iv), (vi), (vii), (x) and (xvi) of the
foregoing paragraph (c) and such other related matters as you may request.
(g) You shall have received letters addressed to you, as
Representatives of the several Underwriters, and dated the date hereof and the
Closing Date from KPMG Peat Marwick LLP, independent certified public
accountants, substantially in the forms heretofore approved by you.
(h)(i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been taken or, to the knowledge of the Company, shall be
contemplated by the Commission at or prior to the Closing Date; (ii) there shall
not have been any change in the capital stock of the Company nor any material
increase in the short-term or long-term debt of the Company (other than in the
ordinary course of business) from that set forth or contemplated in the
Registration Statement or the Prospectus (or any amendment or Supplement
thereto); (iii) there shall not have been, since the respective dates as of
which information is given in the Registration Statement and the Prospectus (or
any amendment or supplement thereto), except as may otherwise be stated in the
Registration Statement and Prospectus (or any amendment or supplement thereto),
any material adverse change in the condition (financial or other), business,
prospects, properties, net worth or results of operations of the Company; (iv)
the Company shall not have any liabilities or obligations, direct or contingent
(whether or not in the ordinary course of business), that are material to the
Company other than those reflected in the Registration Statement or the
Prospectus (or any amendment or supplement thereto); and (v) all the
representations and warranties of the Company contained in this Agreement shall
be true and correct on and as of the date hereof and on and as of the Closing
Date as if made on and as of the Closing Date, and you shall have received a
certificate, dated the Closing Date and signed by the chief executive officer
and the chief financial officer of the Company (or such other officers as are
acceptable to you), to the effect set forth in this Section 10(h) and in Section
10(i) hereof.
(i) The Company shall not have failed at or prior to the
Closing Date to have performed or complied with any of its agreements herein
contained and required to be performed or complied with by it hereunder at or
prior to the Closing Date.
-23-
(j) All the representations and warranties of the Selling
Stockholders contained in this Agreement shall be true and correct on and as of
the date hereof and on and as of the Closing Date as if made on and as of the
Closing Date, and you shall have received a certificate, dated the Closing Date
and signed by or on behalf of the Selling Stockholders to the effect set forth
in this Section 10(j) and in Section 10(k) hereof.
(k) The Selling Stockholders shall not have failed at or prior
to the Closing Date to have performed or complied with any of their agreements
herein contained and required to be performed or complied with by them hereunder
at or prior to the Closing Date.
(l) The Shares shall have been listed or approved for listing
upon notice of issuance on the Nasdaq National Market.
(m) The Sellers shall have furnished or caused to be furnished
to you such further certificates and documents as you shall have reasonably
requested.
All such opinions, certificates, letters and other documents will be
in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to you and your counsel.
Any certificate or document signed by any officer of the Company or
any Attorney-in-Fact or any Selling Stockholder and delivered to you, as
Representatives of the Underwriters, or to counsel for the Underwriters, shall
be deemed a representation and warranty by the Company, the Selling Stockholders
or the particular Selling Stockholder, as the case may be, to each Underwriter
as to the statements made therein.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the satisfaction on and as of any Option Closing
Date of the conditions set forth in this Section 10, except that, if any Option
Closing Date is other than the Closing Date, the certificates, opinions and
letters referred to in paragraphs (c) through (j) shall be dated the Option
Closing Date in question and the opinions called for by paragraphs (c), (d), (e)
and (f) shall be revised to reflect the sale of Additional Shares.
11. Expenses. The Sellers (in proportion to the number of Shares
being offered by each of them, including any Additional Shares which the
Underwriters shall have elected to purchase) agree to pay the following costs
and expenses and all other costs and expenses incident to the performance by
them of their obligations hereunder: (i) the preparation, printing or
reproduction, and filing with the Commission of the Registration Statement
(including financial statements and exhibits thereto), each Prepricing
Prospectus, the Prospectus, and each amendment or supplement to any of them;
(ii) the printing (or reproduction) and delivery (including postage, air freight
charges and charges for counting and packaging) of such copies of the
Registration Statement, each Prepricing Prospectus, the Prospectus, and all
amendments or supplements to any of them as may be reasonably requested for use
in connection with the offering and sale of the Shares; (iii) the preparation,
printing, authentication, issuance and delivery of certificates for the Shares,
including any stamp taxes in connection with the original issuance and sale of
the Shares; (iv) the printing (or reproduction) and delivery of this Agreement,
Blue Sky Memorandum and all other agreements or
-24-
documents printed (or reproduced) and delivered in connection with the offering
of the Shares; (v) the registration of the Shares under the Exchange Act and the
listing of the Shares on the Nasdaq National Market; (vi) the registration or
qualification of the Shares for offer and sale under the securities or Blue Sky
laws of the several states as provided in Section 5(g) hereof (including the
reasonable fees, expenses and disbursements of counsel for the Underwriters
relating to the preparation, printing or reproduction, and delivery of the Blue
Sky Memorandum and such registration and qualification not to exceed $5,000);
(vii) the filing fees and the fees and expenses of counsel for the Underwriters
in connection with any filings required to be made with the National Association
of Securities Dealers, Inc.; (viii) the transportation and other expenses
incurred by or on behalf of Company representatives in connection with
presentations to prospective purchasers of the Shares; and (ix) the fees and
expenses of the Company's accountants and the fees and expenses of counsel
(including local and special counsel) for the Company and the Selling
Stockholders; provided that the Company shall pay all the expenses enumerated in
clauses (i) through (ix) other than any stamp taxes payable with respect to
Shares sold by the Selling Stockholders and any fees and expenses not exceeding
$20,000 of one counsel for the Selling Stockholders.
12. Effective Date of Agreement. This Agreement shall become
effective: (i) upon the execution and delivery hereof by the parties hereto; or
(ii) if, at the time this Agreement is executed and delivered, it is necessary
for the Registration Statement or a post-effective amendment thereto to be
declared effective before the offering of the Shares may commence, when
notification of the effectiveness of the Registration Statement or such post-
effective amendment has been released by the Commission. Until such time as this
Agreement shall have become effective, it may be terminated by the Company, by
notifying you, or by you, as Representatives of the several Underwriters, by
notifying the Company and the Selling Stockholders.
If any one or more of the Underwriters shall fail or refuse to
purchase Shares which it or they are obligated to purchase hereunder on the
Closing Date, and the aggregate number of Shares which such defaulting
Underwriter or Underwriters are obligated but fail or refuse to purchase is not
more than one-tenth of the aggregate number of Shares which the Underwriters are
obligated to purchase on the Closing Date, each non-defaulting Underwriter shall
be obligated, severally, in the proportion which the number of Firm Shares set
forth opposite its name in Schedule II hereto bears to the aggregate number of
Firm Shares set forth opposite the names of all non-defaulting Underwriters or
in such other proportion as you may specify in accordance with Section 20 of the
Master Agreement Among Underwriters of Xxxxx Xxxxxx Inc., to purchase the Shares
which such defaulting Underwriter or Underwriters are obligated, but fail or
refuse, to purchase. If any one or more of the Underwriters shall fail or refuse
to purchase Shares which it or they are obligated to purchase on the Closing
Date and the aggregate number of Shares with respect to which such default
occurs is more than one-tenth of the aggregate number of Shares which the
Underwriters are obligated to purchase on the Closing Date and arrangements
satisfactory to you and the Company for the purchase of such Shares by one or
more non-defaulting Underwriters or other party or parties approved by you and
the Company are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter or the
Company. In any such case which does not result in termination of this
Agreement, either you or the Company shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration
-25-
Statement and the Prospectus or any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any such default of any such
Underwriter under this Agreement. The term "Underwriter" as used in this
Agreement includes, for all purposes of this Agreement, any party not listed in
Schedule II hereto who, with your approval and the approval of the Company,
purchases Shares which a defaulting Underwriter is obligated, but fails or
refuses, to purchase.
Any notice under this Section 12 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
13. Termination of Agreement. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of any
Underwriter to the Company or any Selling Stockholder, by notice to the Company,
if prior to the Closing Date or any Option Closing Date (if different from the
Closing Date and then only as to the Additional Shares), as the case may be, (i)
trading in securities generally on the New York Stock Exchange, American Stock
Exchange or the Nasdaq National Market shall have been suspended or materially
limited, (ii) a general moratorium on commercial banking activities in New York
or Illinois shall have been declared by either federal or state authorities, or
(iii) there shall have occurred any outbreak or escalation of hostilities or
other international or domestic calamity, crisis or change in political,
financial or economic conditions, the effect of which on the financial markets
of the United States is such as to make it, in your judgment, impracticable or
inadvisable to commence or continue the offering of the Shares at the offering
price to the public set forth on the cover page of the Prospectus or to enforce
contracts for the resale of the Shares by the Underwriters. Notice of such
termination may be given to the Company by telegram, telecopy or telephone and
shall be subsequently confirmed by letter.
14. Information Furnished by the Underwriters. The statements set
forth in the last paragraph on the cover page, the stabilization legend on the
inside cover page, and the statements in the first, third and tenth paragraphs
under the caption "Underwriting" in any Prepricing Prospectus and in the
Prospectus, constitute the only information furnished by or on behalf of the
Underwriters through you as such information is referred to in Sections 7(b) and
9 hereof.
15. Miscellaneous. Except as otherwise provided in Sections 5, 12 and
13 hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to the Company, at the office of the
Company at Peapod, Inc., 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxx
00000, Attention: Xxxx X. Xxxxxx, Executive Vice President of Finance and
Business Development with a copy to Xxxx X. Xxxx, Esq., Sidley & Austin, Xxx
Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xx 00000; or (ii) if to the Selling Stockholders,
at Tasso H. Coin Investment Development 00 X. Xxxxxx Xxxxxx, Xxxxxxx, Xx 00000,
Attention: Tasso H. Coin with a copy to Xxxx X. Xxxx, Esq. Xxxxxx & Xxxxxx Xxx
Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xx 00000 or (iii) if to you, as Representatives
of the several Underwriters, care of Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Manager, Investment Banking Division with a
copy to Xxxxxx X. Xxxxxxx, Esq. Xxxxx, Xxxxx & Xxxxx 000 X. XxXxxxx Xxxxxx,
Xxxxxxx, Xx 00000.
This Agreement has been and is made solely for the benefit of the
several Underwriters, the Company, its directors and officers, and the other
controlling persons referred to in Section 9 hereof and their respective
successors and assigns, to the extent provided herein, and no
-26-
other person shall acquire or have any right under or by virtue of this
Agreement. Neither the term "successor" nor the term "successors and assigns"
as used in this Agreement shall include a purchaser from any Underwriter of any
of the Shares in his status as such purchaser.
16. Applicable Law; Counterparts. This Agreement shall be governed by
and construed in accordance with the laws of the State of Illinois applicable to
contracts made and to be performed within the State of Illinois.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
-27-
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Selling Stockholders and the several Underwriters.
Very truly yours,
PEAPOD, INC.
By
---------------------------------------
Xxxxxx X. Xxxxxxxxx
President and Chief Executive Officer
Each of the Selling Stockholders
named in Schedule I hereto
By
---------------------------------------
Attorney-in-Fact
By
---------------------------------------
Attorney-in-Fact
Confirmed as of the date first
above mentioned on behalf of
themselves and the other several
Underwriters named in Schedule II
hereto.
XXXXX XXXXXX INC.
XXXXXXX XXXXX & COMPANY, L.L.C.
J.P. XXXXXX SECURITIES INC.
As Representatives of the Several Underwriters
By XXXXX XXXXXX INC.
By
-----------------
Managing Director
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SCHEDULE I
PEAPOD, INC.
Additional Shares
-----------------
Number of
Selling Stockholders Additional Shares
-------------------- -----------------
Tribune National Marketing Company............... 181,248
Ameritech Corporation............................ 101,252
Service Master Venture Fund L.L.C................ 50,120
Tasso H. Coin.................................... 44,489
Equity-Linked Investors-II.................... 41,767
Eos Partners SBIC, L.P........................... 41,767
The Travelers Insurance Company.................. 41,767
Benaroya Capital Company......................... 16,707
Montreaux Equity Partners........................ 13,365
Glenbrook Partners, L.P.......................... 4,177
Berkman Associates, L.P.......................... 3,341
-------
Total 540,000
=======
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SCHEDULE II
PEAPOD, INC.
Firm Shares
-----------
Underwriter Firm Shares
----------- -----------
Xxxxx Xxxxxx Inc..........
Xxxxxxx Xxxxx &
Company, L.L.C..........
X.X. Xxxxxx
Securities Inc..........
Total..... ---------------------
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SCHEDULE III
LOCKUP LETTERS
A.H. Belo Corp. (Belo Holdings, Inc.)
Ameritech Corporation
Benaroya Capital Company
CIBC Wood Gundy Ventures, Inc.
Coin, X. Xxxxx
Coin, Xxxxxxx X.
Coin, Xxxxx X.
Coin, Xxxxx X., Jr.
Xxxxxxxx & Xxxx Xxxxxxxxxx Generation-Skipping Trust
Xxxxxxxx Xxxxxx Xxxxxxxxxx 1995 Trust
Xxxxxx, Xxxxxxx X.
XXX-Pod, Inc. Xxxxx
EOS Partners SBIC, X.X.
Xxxxxxxx, Xxxxxx X.
Xxxxxx, Xxxx X.
Glenbrook Partners
GM&P XxXxxxxx Trust
Xxxxxx Family Partners
Xxxxxx-Peapod Investment Partnership
Montreux Equity Partners
Xxxxxx, Xxxxxx X.
Xxxxxxx Partners (Xxxx Xxxxxxxxxx)
Xxxxxxx Xxxxxxxxxx Pierrepont 1995 Trust
Old Peapod
Xxxxxxxxx, Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxx
Xxxxxxxxx, Xxxxxx
Xxxxxxxxx, Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxx
Parthenis, Xxxx
Xxxxxxxxxx, Xxxx X.
Xxxxxxxxx, Xxxx
Xxxx Venture Management (Xxxx Xxxxxxxxxx)
ServiceMaster Venture Fund LLC
Xxxx Xxx Pierrepont 1995 Trust
TH Coin Xxxxx PST Trust (Tasso Coin)
TH Coin Investment Development PST
Travelers Insurance Company
Tribune National Marketing Company
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Xxxxxx, Xxxx X.
Xxxxx, Xxxx Xxxxx
WPP Group USA, Inc.
Berkman Associates, L.P.
Couderay Partners
Xxxxxxxxxx, Xxxxxx
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