Exhibit 10.11
UNITHOLDERS AGREEMENT
dated as of
April 19, 1996
by and among
PEAPOD LP,
PEAPOD, INC.,
and
EACH OF THE UNITHOLDERS NAMED HEREIN
UNITHOLDERS AGREEMENT
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THIS AGREEMENT is made as of April 19, 1996, by and among peapod LP,
an Illinois limited partnership (the "Company"), Peapod, Inc., a Delaware
corporation ("Peapod"), and each of the persons set forth on the Schedule of
Investors attached hereto (collectively with their permitted successors and
assigns, the "Investors"). Certain capitalized terms used herein are defined in
Section 7 hereof.
The Investors will purchase 2,875,002 limited partnership units of the
Company pursuant to a purchase agreement by and among certain of the Investors
and the Company dated as of the date hereof (the "Purchase Agreement").
In consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties to this Agreement hereby agree as follows:
1. Board of Directors.
(a) From and after the Closing (as defined in the Purchase Agreement)
and until the provisions of this Section 1 cease to be effective, Peapod and the
other parties hereto, as applicable, shall take all necessary and desirable
actions within its and their control (including, without limitation, calling
special board and stockholder meetings), so that:
(i) Xxxxxx X. Xxxxxxxx or such other subsequent representative
designated by holders of a majority of the New Units (other than holders or
their Affiliates that held Units prior to the Closing Date) in each case
subject to Peapod's reasonable approval, shall be elected to the board of
directors of Peapod (the "Board"). In the event that any such
representative for any reason ceases to serve as a member of the Board
during his term of office, the resulting vacancy on the Board shall be
filled by a representative designated by holders of a majority of the New
Units (other than holders or their Affiliates that held Units prior to the
Closing Date), subject to the Company's reasonable approval;
(ii) one representative designated by CIBC Wood Gundy Ventures, Inc.
(the "CIBCWG Representative") and one representative designated by XXX-Pod,
Inc. or Xxxxx Capital Management (the "Xxxxx Representative"), in each case
subject to Peapod's reasonable approval, shall have such rights as set
forth in this Section 1(a) (ii). Peapod shall give the CIBCWG
Representative and the Xxxxx Representative written notice of each meeting
of the Board at the time such notice is given to the other members of the
Board. Each of the CIBCWG Representative and the Xxxxx Representative shall
be entitled to receive all written materials and other information
(including copies of meeting minutes) given to directors at the same time
such materials and information are given to the directors. Each of the
CIBCWG Representative and the Xxxxx Representative shall be entitled to
attend and participate in each such Board meeting (including telephonic
meetings); and
(iii) the Board shall hold a meeting at least once each quarter.
(b) The provisions of Section 1(a) (i) shall terminate and be of no
further force and effect if the Investors (other than holders or their
Affiliates that held Units prior to the Closing Date) and their Affiliates hold
in the aggregate less than 10% of the outstanding Units on a fully-diluted
basis, and (x) before the third anniversary of the Closing Date, Eos Partners
SBIC, L.P., Montreux International Equity Partners, L.P., and CIBC Wood Gundy
Ventures, Inc. in the aggregate at any time own less than 80% of their combined
percentage ownership of the Units on a fully-diluted basis on the Closing Date,
or (y) after the third anniversary of the Closing Date, Eos Partners SBIC, L.P.
Montreux International Equity Partners, L.P., and CIBC Wood Gundy Ventures, Inc.
in the aggregate at any time own less than 50% of their combined percentage
ownership of the Units on a fully-diluted basis on the Closing Date, and
(c) The provisions of Section 1(a) (ii) shall terminate and be of no
further force and effect if the Investors (other than holders or their
Affiliates that held Units prior to the Closing Date) and their Affiliates hold
in the aggregate less than 10% of the outstanding Units on a fully-diluted
basis, and (x) before the third anniversary of the Closing Date, CIBC Wood Gundy
Ventures, Inc. (with respect to the CIBCWG Representative only) or Xxx-Pod, Inc.
or Xxxxx Capital Management (with respect to the Xxxxx Representative only) at
any time owns less than 80% of its percentage ownership of the Units on a fully-
diluted basis on the Closing Date, or (y) after the third anniversary of the
Closing Date, CIBC Wood Gundy Ventures, Inc. (with respect to the CIBCWG
Representative only) or Xxx-pod, Inc. or Xxxxx Capital Management (with respect
to the Xxxxx Representative only) at any time owns less than 50% of its
percentage ownership of the Units on a fully-diluted basis on the Closing Date.
(d) The provisions of this Section 1 shall terminate automatically and
be of no further force and effect upon a Qualified Public Offering.
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(e) If the holders of a majority of the New Units (other than holders
or their Affiliates that held Units prior to the Closing Date) fail to designate
a representative to fill a directorship pursuant to the terms of Section
1(a)(i), the election of a person to such directorship shall be accomplished in
accordance with Peapod's Amended and Restated By-Laws and applicable law.
(f) The Company shall pay the reasonable out-of-pocket expenses
incurred by each director in connection with attending the meetings of the Board
and any committee thereof.
2. Transfer and Issuance of New Units.
(a) Transfer of New Units. The terms of this Section 2(a) are
subject to Article XIV of the Agreement of Limited Partnership (the "Partnership
Agreement"). In addition, each Investor hereby agrees that it will not sell,
transfer, assign, pledge, hypothecate, or otherwise dispose of (a "Transfer")
its New Units for a period of two years beginning on the date hereof to any
person other than (i) to an Affiliate of such Investor (provided that the
restrictions contained in this Section 2 shall continue to be applicable to the
New Units after any such Transfer and provided further that the transferees of
such New Units shall have agreed in writing to be bound by the provisions of
this Agreement affecting the New Units so transferred), or (ii) pursuant to a
Public Sale. Each Investor hereby further agrees that Peapod's right and option
under Section 14.4 of the Partnership Agreement to purchase the Offered Units
(as defined in Section 14.4(a) of the Partnership Agreement) shall be for a
period of 120 days and not 30 days.
(b) First Offer Right.
(i) Except for (1) the New Units; (2) options to purchase Units
issued prior to the date hereof in connection with executive and employee
compensation plans and agreements adopted by the Board; (3) Units or
options to purchase Units which may hereafter be issued upon approval of
the Board in connection with executive and employee compensation plans and
agreements not exceeding 5% of the then outstanding Units on a fully-
diluted basis; (4) Units issued in connection with a merger, consolidation,
reorganization, or acquisition by the Company of the securities or assets
of another entity; (5) any security if the holders of a majority of the New
Units (other than holders of their Affiliates that held Units prior to the
Closing Date) consent in writing that the terms of this Section 2(b) shall
not apply to such security; (6) Units or other securities issued in
connection with any Unit or other securities split, dividend, or
recapitalization by the Company; and (7) securities not falling within the
foregoing
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exceptions and issued on an aggregate basis for less than $1.5 million and
more than the Liquidation Value individually, if the Company issues or
sells any Units, the Company shall offer to sell to each holder of New
Units (other than holders or their Affiliates that held Units prior to the
Closing Date) a number of Units equal to the quotient determined by
dividing (x) the number of Units then held by such holder by (y) the sum of
the total number of outstanding Units plus Units issuable pursuant to
options, warrants, rights to purchase Units, or convertible securities
outstanding prior to such issuance or sale.
(ii) In order to exercise its purchase rights hereunder, each holder
of New Units (other than holders or their Affiliates that held Units prior
to the Closing Date) must, within 20 days after receipt of written notice
from the Company describing in reasonable detail the Units being offered,
the purchase price thereof, the payment terms, and such holder's percentage
allotment deliver a written notice to the Company describing its election
to purchase all or portion of the Units offered therein hereunder.
(iii) Upon the expiration of the offering period described above, the
Company will be entitled to sell such Units which the holders of New Units
(other than holders or their Affiliates that held Units prior to the
Closing Date) have not elected to purchase during the 90 days following
such expiration on terms and conditions no more favorable to the purchasers
thereof than those offered to such holders. Any securities offered or sold
by the Company after such 90-day period must be reoffered to the holders of
New Units (other than holders or their Affiliates that held Units prior to
the Closing Date) pursuant to the terms of this Section 2(b).
(iv) The rights under this Section 2(b) will terminate upon the
earlier to occur of (1) the effectiveness of a registration statement filed
by the Company with the Securities and Exchange Commission under the
Securities Act, (2) the holders of New Units (other than holders or their
Affiliates that held Units prior to the Closing Date) in the aggregate own
less than 10% of the outstanding Units on a fully-diluted basis, or (3) on
the third anniversary of the date hereof.
(v) The rights under this Section 2(b) may be assigned to a
transferee of the Investor (or a subsequent transferee) pursuant to the
terms hereof provided that notice of such assignment is given to the
Company.
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(c) Participation Rights. The terms of this Section 2(c) are subject
to Article XIV of the Partnership Agreement, including the Company's prior right
and option to purchase Units contained in Section 14.4 thereof. At least 120
days prior to any Transfer of any New Units (other than a Transfer to an
Affiliate or pursuant to a Public Sale) or any Transfer of more than 30% of the
Units held by each of Xxxxxx X. Xxxxxxxxx or Xxxxxx X. Xxxxxxxxx (other than a
Transfer to family members effected by will, laws of descent, or for estate
planning purposes or a Transfer pursuant to a Public Sale), the Investor, Xxxxxx
X. Xxxxxxxxx, or Xxxxxx X. Xxxxxxxxx, as applicable, making such Transfer
(collectively, the "Transferring Holder") shall deliver a written notice (the
"Sale Notice") to the Company and to the Investors, Xxxxxx X. Xxxxxxxxx, and
Xxxxxx X. Xxxxxxxxx (the "Other Holders"), specifying in reasonable detail the
identity of the prospective transferee(s) and the terms and conditions of the
Transfer. The Other Holders may elect to participate in the contemplated
Transfer by delivering written notice to the Transferring Holder within 60 days
after delivery of the Sale Notice. If any Other Holders have elected to
participate in such Transfer, the Transferring Holder and such Other Holders
shall be entitled to sell in the contemplated Transfer, at the same price and on
the same terms, a number of New Units (or Units, in the case of Xxxxxx X.
Xxxxxxxxx and Xxxxxx X. Xxxxxxxxx) equal to the product of (i) the quotient
determined by dividing the percentage of New Units plus Units owned by Xxxxxx X.
Xxxxxxxxx and Xxxxxx X. Xxxxxxxxx (collectively, the "Total Units") owned by
such person by the aggregate percentage of Total Units owned by the Transferring
Holder and the Other Holders participating in such sale and (ii) the number of
New Units and Units, in the case of Xxxxxx X. Xxxxxxxxx and Xxxxxx X. Xxxxxxxxx,
to be sold in the contemplated Transfer.
For example, if the Sale Notice contemplated a sale of 100 New Units
by the Transferring Holder, and if the Transferring Holder at such time owns
30% of the Total Units and if one Other Holder elects to participate and owns
20% of the Total Units, the Transferring Holder would be entitled to sell 60 New
Units (30%/50% X 100 New Units) and the Other Holder would be entitled to sell
40 New Units (20%/50% X 100 New Units).
Each of the Investors, Xxxxxx X. Xxxxxxxxx, and Xxxxxx X. Xxxxxxxxx,
as applicable, shall use best efforts to obtain the agreement of the prospective
transferee(s) to the Participation of the Other Holders in any contemplated
Transfer, and none of the Investors, Xxxxxx X. Xxxxxxxxx, and Xxxxxx X.
Xxxxxxxxx, as applicable, shall transfer any of its New Units or his Units, as
applicable, to the prospective transferee(s) if the prospective transferee(s)
declines to allow the participation of the Other Holders.
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The provisions of this Section 2(c) shall terminate automatically and
be of no further force and effect upon a Qualified Public Offering.
(d) Transfers in Violation of Agreement. Any Transfer or attempted
Transfer of any New Units in violation of any provision of this Agreement shall
be void, and the Company shall not record such Transfer on its books or treat
any purported transferee of such New Units as the owner of New Units for any
purpose.
3. Legend. Each certificate for New Units and each certificate
issued in exchange for or upon the transfer of any New Units (if such New Units
remain New Units as defined herein after such Transfer) shall be imprinted with
a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE
SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED, PLEDGED, HYPOTHECATED, OR OTHERWISE DISPOSED OF EXCEPT
PURSUANT TO A REGISTRATION STATEMENT WITH RESPECT TO SUCH SECURITIES
WHICH IS EFFECTIVE UNDER SUCH ACT AND UNDER ANY APPLICABLE STATE
SECURITIES LAWS UNLESS, IN THE OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY, AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF SUCH ACT AND STATE SECURITIES LAWS IS AVAILABLE. THE
TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT
TO THE CONDITIONS SPECIFIED IN THE UNITHOLDERS AGREEMENT, DATED AS OF
APRIL 19, 1996, AS AMENDED FROM TIME TO TIME (THE "UNITHOLDERS
AGREEMENT"), BY AND AMONG THE COMPANY AND CERTAIN INVESTORS NAMED
THEREIN, AND IN THE AGREEMENT OF LIMITED PARTNERSHIP OF THE COMPANY,
AND THE COMPANY RESERVES THE RIGHT TO REFUSE THE TRANSFER OF SUCH
SECURITIES UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED WITH RESPECT TO
SUCH TRANSFER. A COPY OF SUCH CONDITIONS WILL BE FURNISHED BY THE
COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST AND WITHOUT CHARGE."
4. Registration Rights.
(a) Demand Registrations. All registrations requested pursuant to this
section 4(a) are referred to herein as "Demand Registrations".
(i) Following Third Anniversary. In the event the Company shall not
have completed a Qualified Public Offering prior to the third anniversary
of the Closing Date (used herein as defined in the Purchase Agreement),
the holders of
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a majority of the New Units may thereafter request a registration under the
Securities Act of all or part of their New Units on Form S-1 or any similar
long-form registration ("Long-Form Registration"); provided the holders of
at least 35% of the Units shall have consented to such request; and
provided further that the per Unit offering price of the New Units
requested to be so registered must equal at least twice the Liquidation
Value (the "IPO Demand Registration"). Prior to the Company's filing of a
registration statement relating to the IPO Demand Registration, the Company
shall be reorganized into a "C" corporation. The holders of New Units will
be entitled to request one additional Long-Form Registration following the
IPO Demand Registration; provided that the aggregate offering value of the
New Units requested to be registered in such additional Long-Form
Registration must equal at least $10 million; provided further that any
demand registration effected by Tribune National Marketing Company,
Ameritech Corporation, or The Providence Journal Company pursuant to
contractual rights shall preclude the additional permitted Long-Form
Registration hereunder. Such request for a Long-Form Registration under
this Section 4(a) (i) shall specify the approximate number of New Units
requested to be registered and the anticipated per Unit price range for
such offering.
(ii) Following Qualified Public Offering. In the event the Company
shall have completed a Qualified Public Offering prior to the third
anniversary of the Closing Date, the holders of New Units following such
Qualified Public Offering may request two Long-Form Registrations under the
Securities Act of all or a part of their New Units; provided, that the
aggregate offering price of the New Units requested to be registered in any
such Long-Form Registration must equal at least $10 million; and provided
further that each demand registration effected by Tribune National
Marketing Company, Ameritech Corporation, or The Providence Journal Company
shall preclude one of the permitted Long-Form Registrations hereunder. Any
such request for a Long-Form Registration under this Section 4(a) (ii)
shall specify the approximate number of New Units requested to be
registered and the anticipated per Unit price range for such offering.
(iii) Short-Form Registrations. In addition to the Long-Form
Registrations provided pursuant to Sections 4(a) (i) and (ii), following
the effectiveness of a registration statement filed by the Company in which
all of the holders' New Units shall not have been included as requested,
the holders of New Units may request one registration under the Securities
Act of all or a part of their New Units on Form S-3 or any similar short-
form registration ("Short-Form
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Registration"), if available, to register at least all of such New Units
not so included; provided, that the aggregate offering price of the Units
requested to be registered in any such Short-Form Registration must equal
at lease $7.5 million. In addition, the holders of New Units may request
one additional Short-Form Registration; provided, that the aggregate
offering price of the Units requested to be registered in any such Short-
Form Registration must equal at least $7.5 million. Any such request for a
Short-Form Registration under this Section 4(a)(iii) shall specify the
approximate number of New Units requested to be registered and the
anticipated per Unit price range for such offering.
(iv) Upon Effectiveness. A registration will not count as one of the
permitted Demand Registrations until it has become effective (unless such
registration has not become effective due solely to the fault of the
holders requesting such registration).
(v) Notice of and Priority on Demand Registrations. Any Investor
that requests a Demand Registration shall notify each other Investor of
such request within ten days thereafter to permit participation of such
other Investor in such registration, which notice shall set forth the terms
of such request. If a Demand Registration is an underwritten offering and
the managing underwriters advise the Company in writing that in their
opinion the number of New Units and other Units requested to be included in
such offering exceeds the number of New Units and other Units, if any,
which can be sold therein without adversely affecting the marketability of
the offering, the Company will include in such registration the Units
requested to be included in such registration, pro rata among the holders
of such Units on the basis of the number of Units owned by each such
holder; provided however, if such offering is pursuant to the IPO Demand
Registration, the Company shall include in such offering any Units the
Company shall propose to sell prior to including any outstanding New Units
or Units provided for above.
(vi) Restrictions on Demand Registrations. The Company will not be
obligated to effect any Demand Registration within 180 days after the
effective date of a previous Demand Registration or a registration in which
the holders of New Units were given piggyback rights pursuant to Section
4(b). The Company may postpone for up to 120 days the filing or the
effectiveness of a registration statement for a Demand Registration if (1)
the Company has engaged or will engage in a firm commitment underwritten
public offering within 90 days of the request for resignation, or (2) the
Company reasonably determines that the requested registration would
interfere
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with a "material transaction", defined as a transaction that would require
a filing on a Current Report on Form 8-K with the Securities and Exchange
Commission under the Exchange Act; provided that in such event, the holders
of New Units initially requesting such Demand Registration will be entitled
to withdraw such request and, if such request is withdrawn, such Demand
Registration will not count as one of the permitted Demand Registrations
hereunder.
(vii) Selection of Underwriters. The Company will have the right to
select the investment banker(s) and manager(s) of national standing to
administer the offering, subject to the approval of the holders of a
majority of the New Units included in any Demand Registration, which
approval will not be unreasonably withheld.
(b) Piggyback Registrations
(i) Right to Piggyback. Whenever the Company proposes to register its
securities for an aggregate offering price of at least $5 million under the
Securities Act (other than pursuant to a Demand Registration) and the
registration form to be used may be used for the registration of New Units
(other than forms for registrations relating solely to employee benefit
plans or transactions effected pursuant to Rule 145 under the Securities
Act) (a "Piggyback Registration"), the Company will give prompt written
notice to all holders of New Units of its intention to effect such a
registration and will include in such registration all New Units with
respect to which the Company has received written requests for inclusion
therein within 30 days after the receipt of the Company's notice.
(ii) Priority on Primary Registrations. If a Piggyback Registration is
an underwritten registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number
of securities requested to be included in such registration exceeds the
number which can be sold in such offering without adversely affecting the
marketability of the offering, the Company will include in such
registration: first, the securities the Company proposes to sell; and
second, after all securities the Company proposes to sell are included, the
Units requested to be included in such registration, pro rata among the
holders of such Units on the basis of the number of Units owned by each
such holder.
(iii) Priority on Secondary Registrations. If a Piggyback Registration
is an underwritten registration other than on behalf of the Company, and
the managing underwriters
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advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering without adversely affecting the
marketability of the offering, the Company will include in such
registration the Units requested to be included in such registration, pro
rata among the holders of such Units on the basis of the number of Units
owned by each such holder.
(c) Holdback Agreements. Each holder of New Units agrees not to
effect any public sale or distribution (including sales pursuant to Rule 144) of
equity securities of the Company, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days prior to
and the 120-day period beginning on the effective date of any underwritten
public offering of Units (except as part of such underwritten registration),
unless the underwriters managing the registered public offering otherwise
agree.
(d) Registration Procedures. Whenever the holders of New Units have
requested that any New Units be registered pursuant to this Agreement, the
Company will use its best efforts to effect the registration and the sale of
such New Units in accordance with the intended method of disposition thereof,
and pursuant thereto the Company will as expeditiously as possible:
(i) prepare and file with the Securities and Exchange Commission a
registration statement with respect to such New Units 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 New Units covered by such registration
statement copies of all such documents proposed to be filed, which
documents will be subject to the review of such counsel);
(ii) prepare and file with the Securities and Exchange Commission
such amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep such
registration statement effective for a period of not less than three months
and comply with the provisions of the Securities Act with respect to the
disposition of all securities 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;
(iii) furnish to each seller of New Units such number of copies of
such registration statement, each amendment and
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supplement thereto, the prospectus included in such registration statement
(including each preliminary prospectus) and such other documents as such
seller may reasonably request in order to facilitate the disposition of the
New Units owned by such seller;
(iv) use its best efforts to register or qualify such New Units under
such other securities or blue sky laws of such jurisdictions as any seller
reasonably requests and do any and all other acts and things which may be
reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the New Units owned by such seller
(provided that the Company will not be required to (x) qualify generally to
do business in any jurisdiction where it would not otherwise be required to
qualify but for this paragraph, (y) subject itself to taxation in any such
jurisdiction, or (z) consent to general service of process in any such
jurisdiction);
(v) notify each seller of such New Units, at any time when a
prospectus-relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue
statement of a material fact or omits any fact necessary to make the
statements therein not misleading, and, at the request of any such seller,
the Company will prepare a supplement or amendment to such prospectus so
that, as thereafter delivered to the purchasers of such New Units, such
prospectus will not contain an untrue statement of a material fact or omit
to state any fact necessary to make the statements therein not misleading;
(vi) cause all such New Units to be listed on each securities exchange
on which similar securities issued by the Company are then listed or, if
not so listed, to be listed on The Nasdaq Stock Market;
(vii) provide a transfer agent and registrar for all such New Units
not later than the effective date of such registration statement;
(viii) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the
holders of a majority of the New Units being sold or the underwriters, if
any, reasonably request in order to expedite or facilitate the disposition
of such New Units;
(ix) make available for inspection by any seller of New Units, any
underwriter participating in any disposition
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pursuant to such registration statement and any attorney, accountant, or
other agent retained by any such seller or underwriter, all financial and
other records, pertinent corporate documents and properties of the Company,
and cause the Company's officers, directors, employees, and independent
accountants to supply all information reasonably requested by any such
seller, underwriter, attorney, accountant, or agent in connection with such
registration statement;
(x) otherwise use its best efforts to comply with all applicable rules
and regulations of the Securities and Exchange Commission, and make
available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve months beginning
with the first day of the Company's first full calendar quarter after the
effective date of the registration statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder; and
(xi) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the
qualification of any New Units included in such registration statement for
sale in any jurisdiction, the Company will use its reasonable best efforts
promptly to obtain the withdrawal of such order.
(e) Registration Expenses. The Company shall pay all expenses incident
to the registration provisions of this Agreement, including without limitation,
its 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 liability
insurance, the expenses and fees for listing the securities to be registered on
the applicable securities exchange or on the Nasdaq Stock Market, all
registration and filing fees, fees and expenses of compliance with securities or
blue sky laws, printing expenses, messenger and delivery expenses, and fees and
disbursements of counsel for the Company and all independent certified public
accountants, underwriters (excluding underwriting discounts and selling
commissions), and other persons retained by the Company (the "Registration
Expenses"); provided, that in the event a Demand Registration is withdrawn by
the Investors, then (as determined by the Investors holding a majority of the
New Units originally requesting such registration) either (x) the Investors
shall pay the Registration Expenses relating to such Demand Registration, or (y)
such Demand Registration shall count as one of the permitted Demand
Registrations hereunder; provided further that each Investor
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shall pay its allocable share of all underwriting discounts and selling
commissions in connection with all such registrations.
(f) Indemnification Pursuant to a Registration.
(i) The Company agrees to indemnify, to the extent permitted by law,
each holder of New Units, its officers and directors and each person who
controls such holder (within the meaning of the Securities Act) against all
losses, claims, damages, liabilities, and expenses (including investigation
and legal fees and expenses incurred in connection with any claim asserted)
to which they or any of them may be subject caused by any untrue or alleged
untrue statement of material fact contained in any registration statement,
prospectus, or preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein
not misleading, except insofar as the same are caused by or contained in
any information furnished in writing to the Company by such holder
expressly for use therein or by such holder's failure to deliver a copy of
the registration statement or prospectus or any amendments or supplements
thereto after the Company has furnished such holder 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 holders of New Units.
(ii) In connection with any registration statement in which a holder
of New Units is participating, each such holder will furnish to the Company
in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, will indemnify the Company,
its directors and officers, and each person who controls the Company
(within the meaning of the Securities Act) against any losses, claims,
damages, liabilities, and expenses resulting from any untrue or alleged
untrue statement of material fact contained in the registration statement,
prospectus, or preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein
not misleading based solely upon information so furnished to the Company in
writing expressly for use therein; provided, however, that the maximum
liability of such indemnifying holder hereunder shall be limited to the
proceeds actually received by such holder from the sale of such securities.
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(iii) Any person entitled to indemnification hereunder will (x) give
prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification and (y) unless in such indemnified
party's reasonable judgment a conflict of interest between such indemnified
and indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is
assumed, the indemnified party will not be subject to any liability for any
settlement made by the indemnified party without its consent (but such
consent will not be unreasonably withheld). An indemnifying party who is
not entitled to, or elects not to, assume the defense of a claim will not
be obligated to pay the fees and expenses of more than one counsel for all
parties indemnified by such indemnifying party with respect to such claim,
unless in the reasonable judgment of any indemnified party a conflict of
interest may exist between such indemnified party and any other of such
indemnified parties with respect to such claim.
(iv) The indemnification provided for under this Agreement will
remain in full force and effect regardless of any investigation made by or
on behalf of the indemnified party or any officer, director or controlling
person of such indemnified party and will survive the transfer of
securities. The Company also agrees to make such provisions, as are
reasonably requested by any indemnified party, for contribution to such
party in the event the Company's indemnification is unavailable for any
reason.
(g) Participation in Underwritten Registrations. No person may
participate in any registration hereunder which is underwritten unless such
person (a) agrees to sell such person's securities on the basis provided in any
underwriting arrangements approved by the person or persons entitled hereunder
to approve such arrangements and (b) completes and executes all questionnaires,
powers or attorney, indemnities, underwriting agreements, and other documents
required under the terms of such underwriting arrangements.
(h) Rights of this Section. Notwithstanding any other provision
contained herein, the rights under this Section 4 shall not inure to the benefit
of any Investor that held any Units prior to the Closing Date. With respect to
the New Units held by an Investor that held any Units prior to the Closing Date,
such New Units shall be deemed "Registrable Securities" for purposes of the
Agreement by and among Tribune National Marketing Company, the Company, and
Peapod dated as of August 13, 1993, as amended as of September 15, 1994, and as
further amended January 15, 1996, and the Agreement by and between The
Providence Journal Company and the
-14-
Company dated as of July 27, 1995 as amended as of January 15, 1996.
(i) Transfer of Registration Rights. The rights to cause the Company
to register securities granted to an Investor under this Section 4 may be
assigned to a transferee of the investor (or a subsequent transferee) pursuant
to the terms hereof provided that notice of such assignment is given to the
Company.
5. Antidilution Provisions. In order to prevent dilution of the
rights of the New Units, the number of New Units shall be subject to adjustment
from time to time as provided in this Section 5.
(a) Adjustment of Number of New Units. If and whenever on or after the
date hereof, the Company issues or sells any Units for a consideration per Unit
less than the Liquidation Value (used herein as defined in the Purchase
Agreement), then immediately upon such issue or sale, the Company shall issue to
each holder of New Units a number of New Units equal to the difference between
(x) the product of the Adjusted Liquidation Value in effect immediately prior to
such issuance multiplied by the number of New Units held by such holder
immediately prior to such issuance divided by the Adjusted Liquidation Value
resulting from such issuance minus (y) the number of New Units held by such
holder immediately prior to such issuance. "Adjusted Liquidation Value" means
the quotient of (x) the sum of (1) the total purchase price of all New Units by
the Investors (as set forth opposite "Total" under the column "Aggregate
Purchase Price for the New Units" on Schedule 2.2 of the Purchase Agreement)
plus (2) the consideration, if any, received by the Company upon the issuance
(or deemed issuance pursuant to Section 5 (b) hereof) of additional Units
divided by (y) the sum of (1) the number of New Units issued by the Company to
the Investors (including the issuance of additional New Units pursuant to
Section 6.5 of the Purchase Agreement) plus (2) the number of additional Units
issued (or deemed to be issued pursuant to Section 5(b) hereof) by the Company.
(b) Effect on Adjusted Liquidation Value of Certain Events. Solely
for the purpose of determining the Adjusted Liquidation Value under Section
5(a), the following shall be applicable:
(i) Exceptions. Notwithstanding any other provision in this Section
5(b), Section 5(a) shall not apply to issuances or sales by the Company of:
(x) Units issued pursuant to options and warrants outstanding on the
Closing Date; (y) Units or options to purchase Units which may hereafter be
issued in connection with executive and employee compensation plans and
agreements not exceeding 10% of the number of
15
outstanding Units plus Units issuable pursuant to options, warrants, rights
to purchase Units, or convertible securities on the date hereof; and (z)
Units or other securities issued in connection with any Unit or other
securities split, Unit or other securities dividend or recapitalization by
the Company.
(ii) Issuance of Rights or Options. If the Company in any manner
grants any rights or options to subscribe for or to purchase Units or any
other securities convertible into or exchangeable for Units (such rights or
options being herein called "Options" and such convertible or exchangeable
securities being herein called "Convertible Securities") and the price per
Unit for which Units are issuable upon the exercise of such Options or upon
conversion or exchange of such Convertible Securities is less than the
Liquidation Value, then the total maximum number of Units issuable upon the
exercise of such Options or upon conversion or exchange of the total
maximum amount of such Convertible Securities issuable upon the exercise of
such Options shall be deemed to be outstanding and to have been issued and
sold by the Company for such price per Unit. For purposes of this Section,
the "price per Unit for which Units are issuable upon the exercise of such
Options or upon conversion or exchange of such Convertible Securities" is
determined by dividing (A) the total amount, if any, received or receivable
by the Company as consideration for the granting of such Options, plus the
minimum aggregate amount of additional consideration payable to the Company
upon the exercise of all such Options, plus in the case of such Options
which relate to Convertible Securities, the minimum aggregate amount of
additional consideration, if any, payable to the Company upon the issuance
or sale of such Convertible Securities and the conversion or exchange
thereof, by (B) the total maximum number of Units issuable upon exercise of
such Options or upon the conversion or exchange of all such Convertible
Securities issuable upon the exercise of such Options. No further
adjustment of the Adjusted Liquidation Value shall be made upon the actual
issuance of such Units or of such Convertible Securities upon the exercise
of such Options or upon the actual issuance of such Units upon conversion
or exchange of such Convertible Securities.
(iii) Issuance of Convertible Securities. If the Company in any
manner issues or sells any Convertible Securities and the price per Unit
for which Units are issuable upon such conversion or exchange is less than
the Liquidation Value, then the maximum number of Units issuable upon
conversion or exchange of such Convertible Securities shall be deemed to be
outstanding and to have been issued and sold by the Company for such price
per Unit. For the purposes of this Section,
-16-
the "price per Unit for which Units are issuable upon such conversion or
exchange" is determined by dividing (A) the total amount received or
receivable by the Company as consideration for the issue or sale of such
Convertible Securities, plus the minimum aggregate amount of additional
consideration, if any, payable to the Company upon the conversion or
exchange thereof, by (B) the total maximum number of Units issuable upon
the conversion or exchange of all such Convertible Securities. No further
adjustment of the Adjusted Liquidation Value shall be made upon the actual
issue of such Units upon conversion or exchange of such Convertible
Securities, and if any such issue or sale of such Convertible Securities is
made upon exercise of any Options for which adjustments of the Adjusted
Liquidation Value had been or are to be made pursuant to other provisions
of this Section, no further adjustment of the Adjusted Liquidation Value
shall be made by reason of such issue or sale.
(iv) Change in Option Price or Conversion Rate. If the purchase price
provided for in any Options, the additional consideration, if any, payable
upon the issue, conversion or exchange of any Convertible Securities, or
the rate at which any Convertible Securities are convertible into or
exchangeable for Units change at any time, the Adjusted Liquidation Value
in effect at the time of such change shall be readjusted to the Adjusted
Liquidation Value which would have been in effect at such time had such
Options or Convertible Securities still outstanding provided for such
changed purchase price, additional consideration, or changed conversion
rate, as the case may be, at the time initially granted, issued, or sold
and the number of New Units shall be correspondingly readjusted.
(v) Treatment of Expired Options and Unexercised Convertible
Securities. Upon the expiration of any Option or the termination of any
right to convert or exchange any Convertible Securities without the
exercise of such Option or right, the Adjusted Liquidation Value then in
effect and the number of New Units acquirable hereunder shall be adjusted
to the Adjusted Liquidation Value and the number of New Units which would
have been in effect at the time of such expiration or termination had such
Option or Convertible Securities, to the extent outstanding immediately
prior to such expiration or termination, never been issued.
(vi) Calculation of Consideration Received. If any Units, Options, or
Convertible Securities are issued or sold or deemed to have been issued or
sold for cash, the consideration received therefor shall be deemed to be
the amount paid by the holder thereof. In case any Units,
-17-
Options, or Convertible Securities are issued or sold for a consideration
other than cash, the amount of the consideration other than cash received
by the Company shall be the fair value of such consideration determined in
good faith by the Board.
(c) Subdivision or Combination of Units. If the Company at any time
subdivides (by any Unit split, dividend, recapitalization or otherwise) its
Units into a greater number of Units, the Adjusted Liquidation Value in effect
immediately prior to such subdivision shall be proportionately reduced and the
number of New Units shall be proportionately increased. If the Company at any
time combines (by reverse Unit split or otherwise) its Units into a smaller
number of Units, the Adjusted Liquidation Value in effect immediately prior to
such combination shall be proportionately increased and the number of New Units
shall be proportionately decreased.
(d) Reorganization, Reclassification, Consolidation, Merger, or Sale.
Any recapitalization, reorganization, reclassification, consolidation, merger,
sale of all or substantially all of the Company's assets to another person, or
other transaction which is effected in such a way that holders of Units are
entitled to receive (either directly or upon subsequent liquidation) securities
or assets with respect to or in exchange for Units is referred to herein as
"Organic Change." In any such case, the Company shall make appropriate provision
(in form and substance satisfactory to the holders representing a majority of
the New Units then outstanding) with respect to such holders' rights and
interests to insure that the provisions of this Section 5 shall thereafter be
applicable to the New Units (including, in the case of any such consolidation,
merger, or sale in which the successor entity or purchasing entity is other than
the Company, an immediate adjustment of the Adjusted Liquidation Value to the
value for the Units reflected by the terms of such consolidation, merger, or
sale, and a corresponding immediate adjustment in the number of New Units, if
the value so reflected is less than the Adjusted Liquidation Value in effect
immediately prior to such consolidation, merger, or sale). The Company shall not
effect any such consolidation, merger or sale, unless prior to the consummation
thereof, the successor entity (if other than the Company) resulting from
consolidation or merger or the corporation purchasing such assets assumes by
written instrument (in form and substance satisfactory to the holders
representing a majority of the New Units then outstanding), the obligation to
deliver to each such holder such shares of securities or assets as, in
accordance with the foregoing provisions, such holder may be entitled to
acquire.
-18-
(e) Certain Events. If any event occurs of the type contemplated by
the provisions of this Section 5 but not expressly provided for by such
provisions (including, without limitation, the granting of securities
appreciation rights, phantom securities rights or other rights with equity
features), then the Board shall make an appropriate adjustment in the Adjusted
Liquidation Value and the number of New Units so as to protect the rights of the
holders of the New Units; provided that no such adjustment shall increase the
Adjusted Liquidation Value or decrease the number of New Units as otherwise
determined pursuant to this Section 5.
(f) Notices. Immediately upon any adjustment of the Adjusted
Liquidation Value, the Company shall give written notice thereof to the holder
of New Units, setting forth in reasonable detail and certifying the calculation
of such adjustment. The Company shall also give written notice to the holders of
New Units at least 20 days prior to the date on which any Organic Change,
dissolution, or liquidation shall take place.
(g) Termination. The rights under this Section 5 will terminate upon
the earlier to occur of (i) the effectiveness of a registration statement filed
by the Company with the Securities and Exchange Commission under the Securities
Act with respect to an offering of Units, (ii) the holders of New Units (other
than holders or their Affiliates that held Units prior to the Closing Date) in
the aggregate own less than 10% of the outstanding Units on a fully-diluted
basis, or (iii) on the third anniversary of the date hereof.
6. Rollup. In the event Peapod, pursuant to Section 13.11 of the
Partnership Agreement, causes the Company to incorporate its business, or any
portion thereof, Peapod shall cause such incorporation to take the form of a
transfer by each Limited and General Partner (as defined in the Partnership
Agreement) of Units held by such Limited and General Partner to one or more
corporations in exchange for shares of capital stock of such corporation(s),
which exchange shall be done in manner that would avoid or minimize to the
maximum extent possible (a) any limitations for purposes of Rule 144 under the
Securities Act, on the tacking by the Investors of the holding periods of their
respective Units surrendered in such exchange to the holding periods of the new
securities respectively issued to them, and (b) the creation of taxable events
for the Company, Peapod, or the Investors as a result of such exchange, and that
would permit to the maximum extent possible any corporate Investor to effect a
tax-free reorganization with the resulting corporation. From and after the
consummation of such exchange, the resulting corporation shall be deemed to be
the Company under this Agreement. The holders of New Units shall receive in such
exchange shares of capital stock of the resulting corporation that contains
substantially the same
-19-
rights, preferences, and other terms as the New Units, and shall also contain
voting rights.
7. Definitions.
"Adjusted Liquidation Value" has the meaning set forth in Section 5(a)
hereto.
"Affiliate" of an Investor means any other person, entity or
investment fund that directly or indirectly, through one or more intermediaries,
controls or is controlled by, or is under common control with the Investor.
"Board" has the meaning set forth in Section 1 hereto.
"CIBCWG Representative" has the meaning set forth in Section 1 hereto.
"Company" has the meaning set forth in the preface hereto.
"Convertible Securities" has the meaning set forth in Section 5(b)(ii)
hereto.
"Demand Registration" has the meaning set forth in Section 4(a)(i)
hereto.
"IPO Demand Registration" has the meaning set forth in
Section 4(a)(i) hereto.
"Investors" has the meaning set forth in the preface hereto.
"Long-Form Registration" has the meaning set forth in Section 4(a)(i)
hereto.
"New Units" means (i) any Units (as defined in the Partnership
Agreement) purchased or otherwise acquired by any Investor pursuant to the
Purchase Agreement or this Agreement, and (ii) any equity securities issued or
issuable directly or indirectly with respect to the Units referred to in clause
(i) above by way of a securities dividend or split or in connection with a
combination of securities, recapitalization, merger, consolidation, share
exchange, or other reorganization. As to any particular Units constituting New
Units such Units will cease to be New Units when they have been (x) effectively
registered under the Securities Act and disposed of in accordance with the
registration statement covering them or (y) sold in a Public Sale.
-20-
"Options" has the meaning set forth in Section 5(b)(ii) hereto.
"Organic Change" has the meaning set forth in Section 5(d) hereto.
"Other Holders" has the meaning set forth in Section 2(c) hereto.
"Partnership Agreement" has the meaning set forth in Section 2(a)
hereto.
"Peapod" has the meaning set forth in the preface hereto.
"Piggyback Registration" has the meaning set forth in Section 4(b)(i)
hereto.
"Public Sale" means any sale of New Units to the public pursuant to an
offering registered under the Securities Act or to the public through a broker,
dealer, or market maker pursuant to the provisions of Rule 144 adopted under the
Securities Act.
"Purchase Agreement" has the meaning set forth in the preface hereto.
"Qualified Public Offering" means the sale in an underwritten public
offering registered under the Securities Act of Units having an aggregate
value of at least $10 million.
"Registration Expenses" has the meaning set forth in Section 4(e)
hereto.
"Sale Notice" has the meaning set forth in Section 2(c) hereto.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
"Short-Form Registration" has the meaning set forth in Section
4(a)(iii) hereto.
"Total Units" has the meaning set forth in Section 2(c) hereto.
"Transfer" has the meaning set forth in Section 2(a) hereto.
"Transferring Holder" has the meaning set forth in Section 2(c)
hereto.
-21-
8. Miscellaneous.
(a) No Third-Party Beneficiaries. This Agreement shall not confer
any rights or remedies upon any person other than the parties hereto and their
respective successors and permitted assigns.
(b) Entire Agreement. This Agreement (including the documents
referred to herein) constitutes the entire agreement between the parties hereto
and supersedes any prior understandings, agreements, or representations by or
between the parties hereto, written or oral, to the extent they related in any
way to the subject matter hereof.
(c) Succession and Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties named herein and their respective
successors and permitted assigns. Transfers made pursuant to and in accordance
with Section 2 hereof shall be permitted, and all permitted transfers (other
than pursuant to a Public Sale) shall be bound by the terms hereof. Except as
otherwise provided herein, no party hereto may assign either this Agreement or
any of its rights, interests, or obligations hereunder without the prior written
approval of the other parties hereto.
(d) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(e) Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(f) Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given upon receipt if it
is sent by facsimile, or reputable express courier, and addressed or otherwise
sent to the intended recipient as set forth below:
If to the Company or Peapod:
Peapod, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
-22-
Copy to:
Xxxxx X. Xxxxxx, P.C.
XxXxxxxxx, Will & Xxxxx
000 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
If to the Investors, to the addresses and facsimile numbers set forth
on Schedule 2.2 to the Purchase Agreement.
Copy to:
Xxxx X. Xxxxxx, Esq.
X'Xxxxxxxx Graev & Karabell, LLP
00 Xxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
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 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 Investors unless the same
shall be in writing and signed by the Company and the holders of at least two-
thirds of the New Units, respectively. No waiver by any parties hereto of any
default, misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent
such occurrence.
-23-
(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.
* * *
-24-
SIGNATURE PAGE TO
UNITHOLDERS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be duly executed as of the date first above written.
Peapod LP
By: Peapod, Inc.
its General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------------
Printed Name: Xxxxxx X. Xxxxxxxxx
--------------------------
Title: President
---------------------------------
Peapod, Inc.
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------------
Printed Name: Xxxxxx X. Xxxxxxxxx
--------------------------
Title: President
---------------------------------
/s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxxxxx, for purposes of
Section 2(c) only
/s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxxxxx, for purposes of
Section 2(c) only
SIGNATURE PAGE TO
UNITHOLDERS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be duly executed as of the date first above written.
Benaroya Capital Company
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------------
Printed Name: Xxxx X. Xxxxxxxx
--------------------------
Title: Senior Vice President
---------------------------------
SIGNATURE PAGE TO
UNITHOLDERS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be duly executed as of the date first above written.
The Providence Journal Company
By: /s/ Xxxx X. XxXxxx Xx.
--------------------------------------------
Printed Name: Xxxx X. XxXxxx Xx.
-----------------------------
Title: VP Finance & Business Development
------------------------------------
SIGNATURE PAGE TO
UNITHOLDERS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be duly executed as of the date first above written.
Montreux International Equity Partners, L.P.
By: Montreux Equity Management, L.P.
its General Partner
By: /s/ Xxxxxx X. Xxxxxx III
-----------------------------------------
Printed Name: Xxxxxx X. Xxxxxx III
--------------------------
Its: General Partner
SIGNATURE PAGE TO
UNITHOLDERS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be duly executed as of the date first above written.
Eos Partners SBIC, L.P.
By: Eos SBIC General, L.P.
its General Partner
By: Eos SBIC, Inc.
its General Partner
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Printed Name: Xxxx X. Xxxxxx
--------------------------
Title:
---------------------------------
SIGNATURE PAGE TO
UNITHOLDERS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be duly executed as of the date first above written.
Tribune National Marketing Company
By: /s/ M. Xxxxxxxxx Xxxxx
-----------------------------------------
Printed Name: M. Xxxxxxxxx Xxxxx
--------------------------
Title: VP Marketing
---------------------------------
SIGNATURE PAGE TO
UNITHOLDERS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be duly executed as of the date first above written.
XXX-Pod, Inc.
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Printed Name: Xxxxx X. Xxxxx
--------------------------
Title: President
---------------------------------
SIGNATURE PAGE TO
UNITHOLDERS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be duly executed as of the date first above written.
The Travelers Insurance Company
By: /s/ Xxxxx X. Farnswoe
-----------------------------------------
Printed Name: Xxxxx X. Farnswoe
--------------------------
Title: 2nd Vice President
---------------------------------
SIGNATURE PAGE TO
UNITHOLDERS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be duly executed as of the date first above written.
Glenbrook Partners, L.P.
By: Prim Ventures, Inc.
its General Partner
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Printed Name: Xxxxx X. Xxxxx
--------------------------
Title: Executive Vice President
---------------------------------
SIGNATURE PAGE TO
UNITHOLDERS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be duly executed as of the date first above written.
CIBC Wood Gundy Ventures, Inc.
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------
Printed Name: Xxxx X. Xxxxxxx
--------------------------
Title: Vice President
---------------------------------
SIGNATURE PAGE TO
UNITHOLDERS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be duly executed as of the date first above written.
Berkman Associates, L.P.
By: Berkman Investors, Inc.
its General Partner
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Xxxxx X. Xxxxxxx
Vice President
