EXHIBIT 10.13
TASSO H. COIN REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT is made as of May ___, 1997 by and among New Peapod, Inc., a
Delaware corporation (the "Company"), Peapod LP, an Illinois limited partnership
("Peapod LP"), Peapod, inc., the general partner of Peapod LP ("General
Partner"), and Tasso H. Coin (the "Stockholder"). The Company, Peapod LP and
the General Partner are collectively referred to as "Peapod".
WHEREAS, Peapod is planning to make an initial public offering of Company
securities for an aggregate offering price of at least $40 million prior to the
end of 1997 including an option allowing the underwriters to purchase Company
securities from certain Company shareholders for the purpose of covering
overallotments (such option being referred to herein as the "Overallotment
Option" and such initial public offering being referred to herein as the "IPO");
and
WHEREAS, to facilitate the IPO, Peapod is in the process of converting
Peapod LP to a corporation by causing its partners to exchange their partnership
units for shares of common stock in the Company ("Common Stock" or "Shares");
and
WHEREAS, the Stockholder presently owns, directly or beneficially, limited
partnership units of Peapod LP, shares of common stock of the General Partner
and options to purchase such units and shares, all as set forth on Schedule A
hereto (such securities, including securities issued in exchange for such
securities, being sometimes referred to herein as "Stockholder's Equity
Interest").
In consideration of the mutual covenants contained herein, the parties
agree as follows:
1. Effective Date. This Agreement is conditioned upon the closing of the
IPO prior to January 1, 1998, and shall take effect as of the closing date of
the IPO ("Closing Date").
2. Termination of Existing Agreement. The Agreement for Holding and
Transferring Securities between the parties dated January 2, 1996 shall
terminate and be of no further force and effect as of the Closing Date.
3. Registration Rights.
(a) Overallotment Option Right. Subject to the following terms and
conditions, the Stockholder shall have the right to be included as a selling
stockholder in the Overallotment Option and to have Stockholder's Shares
registered and sold thereunder pro rata in the proportion that Stockholder's
Equity Interest bears to the number of Shares owned by, or subject to options
held by, other stockholders included in the Overallotment Option.
(i) Termination of Overallotment Option Right. The Stockholder's
registration right under Section 3(a) shall terminate upon the inclusion of
Stockholder's Shares in an Overallotment Option in accordance with this
Agreement, whether or not such Overallotment Option is exercised.
(ii) Registration Procedures. Whenever the Stockholder has
requested that any Shares be registered pursuant to Section 3(a) of this
Agreement, the Company will use its best efforts to effect the registration
and the sale of such Shares in accordance with the intended method of
disposition thereof, and pursuant thereto the Company will as expeditiously
as possible:
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(A) prepare and file with the Securities and Exchange
Commission a registration statement with respect to such Shares and
use its best efforts to cause such registration statement to become
effective, provided that before filing a registration statement or
prospectus or any amendments or supplements thereto, the Company will
furnish to the counsel selected by the holders of a majority of the
Shares covered by such registration statement copies of all such
documents proposed to be filed, which documents will be subject to the
review of such counsel;
(B) prepare and file with the Securities and Exchange
Commission such amendments and supplements to such registration
statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective for a period
of not less than three months and comply with the provisions of the
Securities Act with respect to the disposition of all Shares covered
by such registration statement during such period in accordance with
the intended methods of disposition by the sellers thereof set forth
in such registration statement;
(C) furnish the Stockholder such number of copies of such
registration statement, each amendment and supplement thereto, the
prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as the Stockholder
may reasonably request in order to facilitate the disposition of the
Shares owned by the Stockholder;
(D) use its best efforts to register or qualify such Shares
under such other securities or blue sky laws of such jurisdictions as
the Stockholder reasonably requests and do any and all other acts and
things which may be reasonably necessary or advisable to enable the
Stockholder to consummate the disposition in such jurisdictions of the
Shares owned by the Stockholder, provided that the Company will not be
required to (x) qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for this
paragraph, (y) subject itself to taxation in any such jurisdiction, or
(z) consent to general service of process in any such jurisdiction;
(E) notify the Stockholder, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act,
of the happening of any event as a result of which the prospectus
included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements
therein not misleading, and, at the request of the Stockholder, the
Company will prepare a supplement or amendment to such prospectus so
that, as thereafter delivered to the purchasers of such Shares, such
prospectus will not contain an untrue statement of a material fact or
omit to state any fact necessary to make the statements therein not
misleading;
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(F) cause all such Shares to be listed on each securities
exchange on which similar securities issued by the Company are then
listed or, if not so listed, to be listed on The Nasdaq Stock Market;
(G) provide a transfer agent and registrar for all such Shares
not later than the effective date of such registration statement;
(H) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the
holders of a majority of the Shares being sold or the underwriters, if
any, reasonably request in order to expedite or facilitate the
disposition of such Shares;
(I) make available for inspection by the Stockholder, any
underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant, or other agent
retained by the Stockholder or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company,
and cause the Company's officers, directors, employees, and
independent accountants to supply all information reasonably requested
by the Stockholder, underwriter, attorney, accountant, or agent in
connection with such registration statement;
(J) otherwise use its best efforts to comply with all applicable
rules and regulations of the Securities and Exchange Commission, and
make available to its security holders, as soon as reasonably
practicable, an earnings statement covering the period of at least
twelve months beginning with the first day of the Company's first full
calendar quarter after the effective date of the registration
statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder; and
(K) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending
or preventing the use of any related prospectus or suspending the
qualification of any Shares included in such registration statement
for sale in any jurisdiction, the Company will use its reasonable best
efforts promptly to obtain the withdrawal of such order.
(iii) Registration Expenses. The Company shall pay all expenses
incurred by itself and the Stockholders incident to the registration
provisions of this Agreement, including without limitation, the Company's
internal expenses (including, without limitation, all salaries and expenses
of its officers and employees performing legal or accounting duties), the
expense of any annual audit or quarterly review, the expense of any of its
liability insurance, the expenses and fees for listing the securities to be
registered on the applicable securities exchange or on The Nasdaq Stock
Market, all registration and filing fees, fees and expenses of compliance
with securities or blue sky laws, printing
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expenses, messenger and delivery expenses, and fees and disbursements of
counsel for the Company and all independent certified public accountants,
underwriters (excluding underwriting discounts and selling commissions),
and other persons retained by the Company and the reasonable cost (not to
exceed $20,000) of one special legal counsel to represent all holders
proposing to distribute their securities through such registration (the
"Registration Expenses").
(iv) Indemnification Pursuant to a Registration.
(A) The Company agrees to indemnify, to the extent permitted by
law, the Stockholder against all losses, claims, damages, liabilities,
and expenses (including investigation and legal fees and expenses
incurred in connection with any claim asserted) to which he may be
subject caused by any untrue or alleged untrue statement of material
fact contained in any registration statement, prospectus, or
preliminary prospectus or any amendment thereof or supplement thereto
or any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not
misleading, except insofar as the same are caused by or contained in
any information furnished in writing to the Company by the Stockholder
expressly for use therein or by the Stockholder's failure to deliver a
copy of the registration statement or prospectus or any amendments or
supplements thereto after the Company has furnished the Stockholder
with copies of the same. In connection with an underwritten offering,
the Company will indemnify such underwriters, their officers, and
directors and each person who controls such underwriters (within the
meaning of the Securities Act) to the same extent as provided above
with respect to the indemnification of the Stockholder.
(B) In connection with any registration statement in which the
Stockholder is participating, the Stockholder will furnish to the
Company in writing such information and affidavits as the Company
reasonably requests for use in connection with any such registration
statement or prospectus and, to the extent permitted by law, will
indemnify the Company, its directors and officers, and each person who
controls the Company (within the meaning of the Securities Act)
against any losses, claims, damages, liabilities, and expenses
resulting from any untrue or alleged untrue statement of material fact
contained in the registration statement, prospectus, or preliminary
prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading
based solely upon information so furnished to the Company in writing
expressly for use therein; provided, however, that the maximum
liability of the Stockholder hereunder shall be limited to the
proceeds actually received by the Stockholder from the sale of such
Shares.
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(C) Any person entitled to indemnification hereunder will (x)
give prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification and (y) unless in such
indemnified party's reasonable judgment a conflict of interest between
such indemnified and indemnifying parties may exist with respect to
such claim, permit such indemnifying party to assume the defense of
such claim with counsel reasonably satisfactory to the indemnified
party. If such defense is assumed, the indemnifying party will not be
subject to any liability for any settlement made by the indemnified
party without its consent (but such consent will not be unreasonably
withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim will not be obligated to pay the
fees and expenses of more than one counsel for all parties indemnified
by such indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party a conflict of interest
may exist between such indemnified party and any other of such
indemnified parties with respect to such claim.
(D) The indemnification provided for under this Agreement will
remain in full force and effect regardless of any investigation made
by or on behalf of the indemnified party or any officer, director or
controlling person of such indemnified party and will survive the
transfer of Shares. The Company also agrees to make such provisions,
as are reasonably requested by any indemnified party, for contribution
to such party in the event the Company's indemnification is
unavailable for any reason.
(b) Insider Piggyback. Whenever the Company proposes to register
Shares for an aggregate offering price of at least $5 million under the
Securities Act of 1933 (other than a registration relating solely to employee
benefit plans or transactions effected pursuant to Rule 145 under the Securities
Act of 1933) and such registration includes a proposal to register a percentage
of Insider Securities as defined below (the highest percentage of Insider
Securities to be registered on behalf of any individual Insider in any offer
being referred to herein as the "Registration Percentage"), then the Company
shall, upon the Stockholder's timely written request, use all commercially
reasonable efforts to include, on the same terms and conditions as such
registration, not less than the Registration Percentage of the Shares then owned
by the Stockholder or remaining subject to option, including reasonable
cooperation to facilitate exercise of options. The Stockholder shall give the
Company written notice of such request no later than fourteen (14) days after
receipt of notice of such registration from the Company. In addition, if the
Registration Percentage or any lesser percentage of Insider Securities included
in such registration are to be distributed in an underwritten offering, the
Registration Percentage or such lesser percentage of Company Shares then held by
Stockholder or remaining subject to option shall be included in such offering.
Notwithstanding the foregoing, the Stockholder shall not have the right to
participate in such registration or underwritten offering (i) solely by reason
of the participation of another security holder pursuant to a contractual
obligation to register the securities of such security holder or (ii) to the
extent forbidden by or inconsistent with other agreements to which the Company
is a party.
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"Insider Securities" as used herein shall mean securities of the
Company issued to and held by, or subject to options held by, any current or
former executive employee, advisor or consultant of the Company or member of its
Board of Directors (Insiders").
(c) Participation in Underwritten Registrations. The Stockholder may
not participate in any registration hereunder which is underwritten unless he
(i) agrees to sell his Shares on the basis provided in any underwriting
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements, and other documents required
under the terms of such underwriting arrangements.
(d) Restrictions on Assignability. The rights to cause the Company to
register Shares granted to the Stockholder under this Section 3 may be assigned
to a transferee (or a subsequent transferee) of fifty percent (50%) or more of
the Stockholder's Equity Interest pursuant to the terms hereof, provided that
notice of such assignment is given to the Company.
4. Miscellaneous.
(a) No Third-Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any person other than the parties hereto and their
respective successors and permitted assigns.
(b) Entire Agreement. This Agreement (including the documents
referred to herein) constitutes the entire agreement between the parties hereto
and supersedes any prior understandings, agreements, or representations by or
between the parties hereto, written or oral, to the extent they relate to the
subject matter hereof.
(c) Succession and Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties named herein and their respective
successors and permitted assigns. Except as otherwise provided herein, no party
hereto may assign either this Agreement or any of its rights, interests, or
obligations hereunder without the prior written approval of the other parties
hereto.
(d) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(e) Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(f) Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand,
claim, or other communication
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hereunder shall be deemed duly given upon receipt if it is sent by facsimile, or
reputable express courier, and addressed or otherwise sent to the intended
recipient as set forth below:
If to the Company:
Peapod, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: President
Facsimile: (000) 000-0000
Copies to:
Cowen, Crowley, Nord & Staub
00 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
If to the Stockholder, to the addresses and facsimile number on file with
the Company.
Any party hereto may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address or facsimile
number set forth above or on file with the Company using any other means
(including personal delivery, messenger service, ordinary mail, or electronic
mail), but no such notice, request, demand, claim, or other communication shall
be deemed to have been duly given unless and until it actually is received by
the intended recipient. Any party hereto may change the address or facsimile
number to which notices, requests, demands, claims, and other communications
hereunder are to be delivered by giving the other parties hereto notice in the
manner herein set forth.
(g) Governing Law. This Agreement shall be governed by and construed
in accordance with the domestic laws of the State of Illinois without giving
effect to any choice or conflict of law provision or rule (either of the State
of Illinois or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Illinois.
(h) Amendments and Waivers. No amendment of any provision of this
Agreement shall be valid against the Company or the Stockholder unless the same
shall be in writing and signed by the Company and the Stockholder. No waiver by
any parties hereto of any default, misrepresentation, or breach of warranty or
covenant hereunder, whether intentional or not, shall be deemed to extend to any
prior or subsequent default, misrepresentation, or breach of warranty or
covenant hereunder or affect in any way any rights arising by virtue of any
prior or subsequent such occurrence.
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(i) Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be duly executed as of the date first above written.
New Peapod, Inc.
By:________________________________________
________________________________ Printed Name:________________________
Tasso H. Coin
Title:_______________________________
Peapod, Inc.
By:________________________________________
Printed Name:________________________
Title:_______________________________
Peapod LP
By: Peapod, Inc.
its General Partner
By:__________________________________
Printed Name:________________________
Title:_______________________________
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