CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
406 PROMULGATED UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED, AND
RULE 24B-2 PROMULGATED THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH
ASTERISKS.
FULL SERVICE AGREEMENT
This Agreement is made as of September 1, 1995, among Jewel Food Stores,
Inc. ("Jewel"), and Peapod LP ("Peapod"), an Illinois limited partnership and
successor in interest to Peapod, Inc.
WHEREAS, Jewel and Peapod, Inc. entered into an agreement dated February
19, 1992 ("Original Agreement") whereby Jewel agreed to act as the exclusive
grocery and drug retail source for Peapod's shopping and delivery service; and
WHEREAS, the Original Agreement was amended by a letter agreement between
Jewel and Peapod, Inc. dated as of October 5, 1993 and a Memorandum of Agreement
between Jewel and Peapod, Inc. dated as of December 7, 1993; and
WHEREAS, the parties now wish to enter into a new agreement that will
supersede the Original Agreement as amended.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
Jewel and Peapod agree as follows:
1. Grocery Shopping, Delivery and Customer Information Service: Peapod will
provide its on-line grocery information, shopping and delivery service
("Full Service Program") furnishing its customers with selected grocery
information ("Shoppers Helper") and fulfilling grocery orders placed
through Peapod's system by shopping and delivery or customer pickup
("Fulfillment Service"). In addition, Peapod will provide at its offices,
customer service personnel to handle customer inquiries and requests.
Employees of Peapod will maintain professional standards at all times.
Jewel will instruct store personnel to assist Peapod's staff to ensure the
timely and orderly shopping and temporary storage for delivery of grocery
orders. Jewel personnel will not provide shopping service assistance. The
Full Service Program does not include the shopping and delivery or customer
pickup of alcoholic beverages, which shall be governed by separate
agreement.
2. Exclusive Rights to Full Service Program: Subject to the terms and
conditions of this Agreement, Jewel will be the sole and exclusive grocery
and drug retailer for Peapod's Full Service Program in the Chicago
metropolitan area (delineated in Appendix I to this Agreement) for a five
year period from September 1, 1995 to August 31, 2000.
3. Order Fee: Jewel agrees to pay Peapod **** percent (****%) of sales from
each Fulfillment Service order. This fee will be billed on a bi-monthly
basis and payments shall be due within 10 days of receipt.
4. Exclusive Rights Fees:
(a) Fulfillment Service: Jewel agrees to pay Peapod $**** on or about
September 1, 1996 and an additional $**** on or about September 1 of
each of the three years
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
406 PROMULGATED UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED, AND
RULE 24B-2 PROMULGATED THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH
ASTERISKS.
thereafter (for a total of $****) for the exclusive right to the
Fulfillment Service granted in paragraph 2; provided, that payments
due subsequent to termination by either party pursuant to this
Agreement shall not be required.
(b) Shoppers Helper: Subject to adjustment as provided in this paragraph 4
(b), Jewel agrees to pay Peapod $**** per month for each validated
Shoppers Helper subscriber not using the Fulfillment Service during a
given month. Jewel will pay such fee monthly as part of the
reconciliation with Peapod for payment of customers' orders. The
parties agree to use reasonable commercial efforts to develop a method
to validate participation in Shoppers Helper and to identify changes
in buying behavior as a result of such participation.
(c) Shoppers Helper Fee Adjustment: If Jewel in its discretion determines
that the fee structure for Shoppers Helper is too high relative to the
benefit to Jewel, Jewel shall give Peapod notice of its desire to
renegotiate the fee. If the parties do not agree on an adjusted fee
within thirty days after such notice, Jewel may elect to pay a lower
fee or to cease paying the Shoppers Helper fee by notice to Peapod
anytime after September 11, 1996. In the event such fee is adjusted
without mutual agreement to less than $**** per month per subscriber,
Peapod shall have the right to cancel Jewel's exclusive right to the
Shoppers Helper program at any time upon thirty days notice to Jewel
without affecting the other rights and obligations of the parties
under this Agreement. As long as Jewel's exclusive right to the
Shoppers Helper program has not been terminated, both parties agree to
support the program operationally and with marketing support as
contemplated by this Agreement.
5. Zones and Expansion: Jewel and Peapod agree that the Peapod Full Service
Program will be extended to the geographic areas currently served as set
forth on page 2 of Appendix I and such additional geographic areas as shall
be mutually agreed upon by the parties. Such geographic areas shall
hereinafter be referred to as "Zones". Each Zone shall be mutually defined
and indicated by zip code (See Appendix I) and shall consist of
approximately 90,000 potential households. Jewel reserves the right to
substitute one base store for another within a given Zone, but agrees to
provide Peapod at least 30 days written notice. Jewel reserves the right to
cease using Peapod's operation in one or more Zones, but continue
operations in the remaining Zones.
6. New Zone Fee: Jewel agrees to pay Peapod a fee of $**** for each additional
Zone agreed to by Jewel opened by the parties, payable $**** within ten
days after agreement to open such Zone and $**** within ten days after
Peapod begins operations in such Zone. Jewel shall not be required to pay a
monthly or annual Zone fee for current or future Zones.
7. Payment to Jewel, Coupons and Refunds: The following procedures will be
used to facilitate the purchase and subsequent payment of all grocery
orders:
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CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
406 PROMULGATED UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED, AND
RULE 24B-2 PROMULGATED THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH
ASTERISKS.
(a) Peapod will issue to Jewel on a daily basis, and Jewel will accept for
payment, a voucher for each individual order. Original vouchers and
reports shall be submitted, and all vouchers will be due and payable
to Jewel, on the fifteenth and thirtieth of each month. Peapod
acknowledges and agrees that it will have no security interest, nor
will it grant a security interest to any other party, in funds owed to
Jewel. Peapod will cooperate with Jewel to clarify accounting terms
and procedures.
(b) Peapod will accept checks or credit cards from its customers for
grocery purchases (plus shopping fees) or debit the amount of the
purchase from the customer' s checking account via Electronic Fund
Transfer (EFT). Peapod also accepts the total credit risk on each
payment as it has the right and ability to terminate a membership
immediately should a customer default on a payment. Jewel will pay
Peapod's credit card costs on the customer's actual purchase amount,
and Peapod will pay credit card costs on fees and other amounts
charged to the customer by Peapod.
(c) Peapod will accept coupons from its customers upon delivery of
groceries. The value of these coupons will be deducted from each
customer's subsequent order so that Peapod can clear the coupons
accurately at its central office. Peapod will be responsible for
clearing coupons according to Jewel's predescribed procedure,
verifying that the coupons relate to items actually purchased and that
all coupons are within the limits of the expiration date. Peapod will
submit the coupons to Jewel monthly and deduct the cumulative amount
from the total dollar amount owed to Jewel. Peapod will be responsible
for totaling the coupons and submitting an orderly report for Jewel's
verification once a month.
(d) Peapod will accept product returns from its customers and will return
these products to Jewel for credit. Product returned to Jewel will be
credited as a deduction from the total dollar amount owed Jewel at the
time of the monthly billing. Peapod will provide any documentation of
returns reasonably requested by Jewel. Peapod will accept
responsibility for any product which is returned by a customer due to
damage or spoilage during delivery.
(e) From time-to-time Jewel offers customers special promotional
considerations such as trading stamps. Such considerations are issued
at the point of purchase based upon total purchases made. Peapod
agrees to deliver all such promotional offers along with the grocery
deliveries. Jewel agrees to accept such considerations as payment
where appropriate.
8. Store Site Needs: Jewel agrees to provide Peapod with the following at each
base store that it enters:
(a) sufficient space (minimum 600 sq. ft.) to stage orders which are
waiting to be delivered to customers or picked up by customers (in
order to avoid disruption to
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406 PROMULGATED UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED, AND
RULE 24B-2 PROMULGATED THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH
ASTERISKS.
Jewel's in-store operations, this space will ideally be located
outside of the retail selling area of the store with close proximity
and access to outside door);
(b) access to electric power to run a small freezer in order to keep
frozen items frozen until they are ready for delivery and to run
Peapod's computer and related electrical equipment;
(c) a secure office space (preferably 10 ft. by 12 ft.) for Peapod
employees which will allow Peapod to securely store its computer and
shopping equipment;
(d) where pickup service is involved, access to a door adjacent to the
pickup parking area; Peapod and Jewel agree to develop reasonable
joint security procedures with regard to use of such door.
9. Product Pricing: Jewel has complete discretion to establish and change its
prices under the current pricing system. After September 1, 1996, Jewel has
the right to institute zone pricing to Peapod. Each party will assume those
costs necessary to enable that party to modify its systems to implement
such zone pricing. After September 1, 1996, Jewel has the right to
institute Peapod-wide pricing if the necessary technology is available. The
parties agree to use commercially reasonable efforts to develop the
necessary technology to establish Peapod-wide pricing. Nothing in this
Agreement shall prohibit Jewel or Peapod from informing customers that the
Peapod price is different from in-store prices.
10. Pricing and Technical Requirements: In order to offer their members up-to-
date pricing and sale item information, Peapod will publish on their
network a list of Jewel items and the corresponding price, while noting any
sale prices. In order to accomplish this, the following procedures have
been established:
(a) Peapod will maintain a data base of items based on its ability to add
as many items as possible with priority given to items requested by
its members.
(b) Peapod will provide the technical expertise to download pricing from
Jewel's computer to Peapod's computer via a modem. All item and price
file maintenance will be downloaded up to five times weekly.
(c) Peapod will provide the computer equipment necessary and a dedicated
telephone line at each base store it enters to allow Peapod employees
to receive orders. Peapod will maintain and service the equipment it
provides. Peapod will be responsible for all repairs or replacement of
the equipment due to malfunction or damage of any kind.
(d) Jewel will provide a technical manager to work directly with Peapod's
technical manager on any improvements which need to be made to
Peapod's system at Jewel's end.
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CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
406 PROMULGATED UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED, AND
RULE 24B-2 PROMULGATED THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH
ASTERISKS.
(e) Jewel will periodically provide to Peapod a master load file in order
to update the item file or fix inaccuracies.
11. Advertising and Marketing: The parties will cooperate in a joint
advertising and marketing effort as described in Appendix II to this
Agreement. Jewel agrees to absorb the cost of development, production,
stock and distribution of all advertising efforts described in Appendix II.
Jewel does not agree to absorb the costs of advertising and marketing
efforts in excess of those described in Appendix II.
For purposes of promoting the Full Service Program in each Zone, Jewel
shall allow Peapod to use the Jewel name and logo. In return Peapod agrees
that Jewel has the sole right to review and approve all marketing materials
which promote the Full Service Program in conjunction with the Jewel name.
Nothing contained in this Agreement, or any of the covenants and provisions
hereof, shall constitute an assignment of any Jewel or affiliate trademark,
trade name, name or logo, it being expressly understood and agreed that the
use of the Jewel name or logo or any of the trademarks or trade names shall
only be for the purpose of promoting the Full Service Program or any part
thereof. Nothing contained herein shall give Peapod any right, title or
interest in the Jewel name, logo, trademark or trade name; Peapod agrees
that these are the sole property of Jewel Food Stores, Inc. and that any
and all uses by Peapod during the term of this Agreement shall enure to the
benefit of Jewel Food Stores, Inc.
It is also understood that Peapod continues to own all rights, title and
interest to the Peapod name, logo, trademarks or trade name and all the
rights to all of its grocery screens and software, and may sell advertising
within such grocery screens.
12. Confidentiality: Neither party to this Agreement shall publicly disclose
the terms of this Agreement without prior written consent of the other
party. Peapod agrees not to use confidential information or pricing
information, nor to disclose any such information to any third party except
as may be necessary for Peapod to perform its obligations pursuant to this
Agreement and except as may be agreed upon by the parties. If Peapod should
disclose confidential information to a third party pursuant to this
Agreement, Peapod shall cause the third party to agree to the
confidentiality provisions set forth in this Agreement. Peapod further
agrees that it will only view or down load pricing information from Jewel's
computer as contemplated by this Agreement and that all information
retrieved will be used solely for the purposes contemplated by this
Agreement.
Confidential information includes, but is not limited to: Jewel's
philosophy and objectives, competitive advantages and disadvantages,
customer information of any nature, employment information, technological
development, Jewel financial information or other information of Jewel or
Jewel's parent company, its affiliated and subsidiary companies, or the
affairs of the same, which Jewel reasonably considers confidential.
Confidential information does not
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SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
406 PROMULGATED UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED, AND
RULE 24B-2 PROMULGATED THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH
ASTERISKS.
include information known to Peapod prior to the date of the Original
Agreement, that is in the public domain or was attained lawfully from a
third party by Peapod.
Each party shall protect the confidentiality of all information of a
confidential or proprietary nature disclosed to it by the other party, and
each party shall use such information only as contemplated by this
Agreement. Each party will restrict disclosure of such confidential or
proprietary information including, but not limited to, that which pertains
to advance information on Jewel pricing and item sales, solely to those of
its employees and agents with a need to know such information.
All provisions in paragraph 12 shall survive the expiration or termination
of this Agreement for any reason.
13. Indemnity: Peapod warrants that the Peapod grocery delivery system and
corresponding software do not infringe upon or violate any patent,
copyright, trade secret, or any other proprietary right of any third party;
and agrees to indemnify and hold Jewel harmless along with Jewel's
subsidiaries and affiliates who are utilizing the grocery delivery system,
and each company's respective officers, directors and employees for all
costs, damages, claims or causes of action arising from such claim, whether
or not such claim is successful including expenses and reasonable
attorney's fees. Jewel shall promptly notify Peapod and Peapod shall defend
any such claim in Jewel's name, but at Peapod's expense, in the event of
any claim.
Peapod agrees to indemnify and hold Jewel harmless from all losses, claims,
damages, expenses and liabilities (including reasonable attorney's fees),
which may be incurred by Jewel as the result of the acts or omissions of
Peapod, its servants or agents while engaged in the services contemplated
under this Agreement, other than those amounts paid in settlement of any
claim or litigation effected without the consent or approval of Peapod or
its representatives. Such indemnification shall encompass claims for
personal injury and property damage and bodily injury resulting from but
not limited to automobile accidents and property and personal injury claims
which may be brought by servants or agents of either party hereto or any
third party.
Peapod shall indemnify and hold harmless Jewel for any and all claims,
losses, actions, demands or damages arising, out of its negligence or
willful or wanton actions of for failure to act pursuant to the terms of
this Agreement. Nothing herein shall relieve Peapod of its liability for
breach of its obligations under this Agreement or for loss or damage caused
by the negligence or purposeful conduct of Peapod, its employees or agents.
Peapod shall be responsible for the satisfaction of all claims made against
Jewel, its parent or affiliated companies by Peapod's employees or agents
relating to any injuries suffered while on Jewel premises or while engaging
in any activity contemplated under the terms of this Agreement.
Jewel agrees to indemnify and hold Peapod harmless from all losses, claims,
damages, expenses and liabilities (including reasonable attorney's fees),
which may be incurred by
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SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
406 PROMULGATED UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED, AND
RULE 24B-2 PROMULGATED THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH
ASTERISKS.
Peapod as the direct result of the negligent acts or omissions of Jewel
while engaged in the services contemplated under this Agreement, other than
those amounts paid in settlement of any claim or litigation effected
without the consent or approval of Jewel or its representatives.
14. Insurance: Prior to the first date listed above, Peapod shall provide to
Jewel proof of general liability insurance and automobile liability
coverage in a sum of no less than 5 Million Dollars coverage per incident.
Such insurance must remain in force for the entire length of this Agreement
and name Jewel as an additional insured. Said insurance shall include
bodily injury and property damage, including products, completed operations
and advertising liability and contractual liability covering Peapod's
liabilities under this Agreement. Peapod shall carry worker's compensation
and employer's liability as required by the laws of the State of Illinois
covering all persons employed by Peapod in the performance of the work
herein.
15. Peapod Exclusivity: Jewel agrees that Peapod will be the sole consumer
computer service which Jewel will utilize for the shopping of Jewel
products during the term of this Agreement.
16. Subscription Lists: Peapod will supply Jewel at the end of each calendar
quarter with the following information regarding each Peapod grocery
service subscriber ("Subscriber Lists") to the extent permitted by
applicable law and Peapod's contract with subscribers: the name, address,
telephone number, date the individual became a subscriber, types of
services used, frequency of use, amount of the three most recent purchases
through Peapod, and date of most recent use of Peapod services. The
Subscriber Lists shall be kept confidential by Jewel and shall not be used
by Jewel or disclosed by Jewel to third parties except as follows:
(a) Jewel may mail advertising and promotion materials to subscribers
regarding Jewel Stores products available for purchase in Jewel Stores
and product recalls;
(b) After this Agreement expires or is terminated by either party, Jewel
may use the Subscriber Lists to solicit persons identified by
Subscriber Lists to purchase products from Jewel stores through
another shopping and/or delivery service, including Jewel's own
shopping and delivery service; and
(c) After this Agreement expires or is terminated by either party,
Subscriber Lists will be used only by Jewel, affiliated companies or
companies with which Jewel has a contractual relationship in
connection with Jewel's business, including another home shopping
service, and Jewel will not otherwise disclose Subscriber Lists to
third parties.
Peapod covenants, while this Agreement remains in effect and for three
years thereafter, it will not sell, lease, or otherwise transfer its
Subscriber Lists that existed during the term of this Agreement to any
company that competes with Jewel. Peapod will have the right to use its
Subscriber Lists in any way not prohibited, including soliciting persons to
use the Peapod service after the contract is terminated or has expired.
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SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
406 PROMULGATED UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED, AND
RULE 24B-2 PROMULGATED THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH
ASTERISKS.
17. Term: This Agreement shall remain in force until August 31, 2000.
18. Termination: Jewel may terminate this Agreement at any time upon one
hundred twenty days notice to Peapod. Peapod may terminate this Agreement
if Chicago metropolitan area sales are less than $**** in 1996 or less than
$**** plus 10% compounded annually for any year thereafter. Either party
may terminate this Agreement upon thirty days prior written notice if the
other party fails to comply with any material provision of this Agreement
or if a bankruptcy, insolvency, receivership, liquidation, dissolution or
similar proceeding ("Insolvency Proceeding") is instituted by or against
the other party and is not discharged within thirty days of its occurrence.
If Peapod terminates because annual sales are less than the mutually agreed
minimum, or if Jewel terminates due to breach of this Agreement or
institution of an Insolvency Proceeding by or against Peapod as stated
above, Peapod must refund to Jewel a pro rata portion of the exclusive
rights fees paid by Jewel for the contract year (September 1 -August 31) in
which termination occurred pursuant to paragraph 4(a) based on the number
of days remaining in the contract year as of the date of termination.
19. Right of First Refusal: Any time during the fifth year of this Agreement,
Jewel shall have an exclusive right to negotiate continuation of the Peapod
service in the Chicago metropolitan area. Either party may provide written
notice to the other party of its desire to negotiate continuation of the
Peapod service. If Jewel and Peapod have not entered into a written
agreement to continue the Peapod service within thirty days of such notice
or one hundred eighty days prior to the end of the term of this Agreement,
whichever is earlier, Peapod may negotiate with other supermarket or
combination store retailers to provide the Peapod service in the Chicago
metropolitan area; provided, however, that Jewel shall have a right of
first refusal to accept the terms that Peapod has definitively negotiated
(based on a fully executed letter of intent expressing economic terms) with
such other supermarket or combination store retailer, with such reasonable
adjustments as are necessitated solely by differences between Jewel's
operation and such other retailer's operation ("Adjustments"). Peapod shall
give Jewel written notice of the terms contained in such letter of intent,
including any proposed Adjustments. The parties shall have thirty days
after Peapod's notice to resolve any differences in Adjustments. Jewel
shall have sixty days after Peapod's notice (the "Offering Period") to
accept such terms, including any mutually agreed Adjustments, by written
notice to Peapod. If Jewel does not accept such terms by notice within the
Offering Period, Peapod shall be free to enter into an agreement with any
third party within ninety days after the expiration of the Offering Period
to provide the Peapod service in the Chicago metropolitan area on
substantially the same economic terms as those presented to Jewel. In such
event, this Agreement shall terminate on the earlier of one hundred twenty
days from the expiration of the Offering Period or the date of termination
otherwise provided in this Agreement.
20. Relationship of Parties: The relationship of Peapod and Jewel under this
Agreement is that of independent contractors, and nothing contained in this
Agreement shall create, constitute or be construed so as to create or
constitute an agency relationship, joint venture, partnership, franchise or
any other type of relationship other than two independent parties
contracting for
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406 PROMULGATED UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED, AND
RULE 24B-2 PROMULGATED THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH
ASTERISKS.
services. Neither Jewel nor Peapod will make any representation or hold
itself out to any third party to the contrary. Peapod's agents or employees
shall not be considered employees of Jewel nor shall Jewel employees be
considered employees of Peapod. Peapod will make all decisions concerning
hiring, termination, and terms of employment with respect to its employees
and agents. Peapod shall be responsible in all respects for the employment,
control and conduct of any and all persons hired or employed by it. Peapod
shall pay all unemployment insurance and similar taxes and unemployment
related expenses related to such employees. Peapod shall be solely
responsible for all withholding from its employees and shall properly pay
over to the appropriate authorities all income taxes withheld.
21. Significant Changes in Technology: In the event of a significant change in
the technology applicable to home shopping that has a material effect on
the cost to either Peapod or Jewel to provide the home shopping service,
the parties agree to renegotiate the terms of the Agreement affected by the
technology change.
22. General:
(a) All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed to have been duly
given if delivered personally or after the fifth day having been sent
certified or registered mail, postage prepaid, to a party at its
address set forth above in this Agreement or at any such other address
a party shall designate in writing.
(b) This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors, heirs and permitted
assigns. This Agreement is not assignable by Peapod without the prior
written consent of Jewel, and any attempt to assign any of the rights,
duties or obligations without such consent is void, except if such
assignment is to a successor of substantially all rights and
liabilities of the Company and does not involve a change of
controlling interest; should such a permitted assignment occur, Peapod
shall provide Jewel 30 days prior written notice of the assignment.
Nothing in this Agreement, express or implied, shall confer on any
person other than the parties hereto or their respective successors,
heirs or permitted assigns, any rights, remedies, obligations, or
liabilities under or by reason of this Agreement.
(c) If any provision of this Agreement shall be determined by a court of
competent jurisdiction to be invalid or unenforceable, such
determination shall not affect the remaining provisions of this
Agreement, all of which shall remain in full force and effect.
(d) This Agreement shall be governed and construed by the laws of the
State of Illinois.
(e) This Agreement may not be modified in any manner, including prior or
current course
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406 PROMULGATED UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED, AND
RULE 24B-2 PROMULGATED THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH
ASTERISKS.
of dealing or usage of trade, except by written instruments signed by
duly authorized representatives of Peapod and Jewel.
(f) The section headings of this Agreement are inserted in this Agreement
for convenience only and are not intended to effect the meaning or
interpretation hereof.
(g) The waiver by either party of a breach of any provision of this
Agreement shall not operate nor be construed as a waiver of any other
or a subsequent breach of the same or a different kind.
(h) Neither party is responsible for failure to fulfill its obligations
under this Agreement due to causes in whole or in part, beyond its
control.
(i) This constitutes the entire Agreement between Jewel and Peapod and
supersedes any prior written or oral agreements with respect to the
same subject matter.
(j) Jewel waives all rights relating to the refund of $300,000, or any
part thereof, paid to Peapod pursuant to the letter agreement between
Jewel and Peapod, Inc. dated as of October 5, 1993.
IN WITNESS WHEREOF, the parties hereto have caused their respective corporate
name to be here unto subscribed by their duly authorized representatives.
JEWEL FOOD STORES, INC. PEAPOD LP
By: Peapod, Inc.
Its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------- --------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior VP and General Manager Title: President
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406 PROMULGATED UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED, AND
RULE 24B-2 PROMULGATED THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH
ASTERISKS.
APPENDIX I
Page 1 of 2
Chicago Metropolitan Area
[Insert Map here.]
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CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
406 PROMULGATED UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED, AND
RULE 24B-2 PROMULGATED THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH
ASTERISKS.
APPENDIX I
Page 2 of 2
Zone List
(Current Zones as of
September 1, 1995)
Zone A (2485) Zone D (3000) Zone G (2317)
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
-------------- -------------- --------------
60043 Kenilworth A 60004 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ A 60005 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇
60077 Lincolnwood A 60007 Elk ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
60077 Skokie A 60008 Rolling ▇▇▇▇▇▇▇ D 60515 Downers Grove
60091 Wilmette A 60010 ▇▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
60201 Evanston A ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
60202 Evanston A 60067 Palatine D ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ A 60074 ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇.▇. A ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ D Willowbrook
60209 Evanston, N.U. A ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ D 60532 Lisle
60626 ▇▇▇▇▇▇ Park A ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ D 60540 Naperville
60645 Lincolnwood A ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
60645 ▇▇▇▇▇▇ Park A 60561 ▇▇▇▇▇▇
60563 Naperville
60564 ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇ (2775) Zone E (7342) Zone H (2128)
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ 7342 West ▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
-------------- -------------- --------------
60016 Des Plaines B ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
60022 Glencoe B ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
60025 Glenview B ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
60026 Glenview B ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
60029 Golf B ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Park
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇
60056 Mt. Prospect B ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
60062 Northbrook B ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
60070 Prospect ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇ 60648 Niles E 60162 Hillside
60090 Wheeling B 60656 ▇▇▇▇▇▇▇ 60163 Berkeley
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
60093 Winnetka B 60714 Niles E 60165 ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇
60305 River Forest
60402 Berwyn
60501 Summit
60513 Brookfield
60525 LaGrange/
Countryside
60534 ▇▇▇▇▇
60546 ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
-▇▇-
▇▇▇▇▇▇▇▇▇▇▇▇ MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
406 PROMULGATED UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED, AND
RULE 24B-2 PROMULGATED THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH
ASTERISKS.
Zone C (5343) Zone F (890)
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
-------------- --------------
60610 Fort Dearborn C ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ C 60035 Highland Park F
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ F
60614 Lincoln Park C 60040 Highwood F
60618 ▇▇▇▇▇▇ ▇▇▇▇▇ C ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ C 60045 Lake Forest F
60640 Uptown C 60048 Libertyville F
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ C ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ C 60069 Lincolnshire F
60657 Graceland C 60089 Buffalo Grove F
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ C
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇/▇▇▇▇ C
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ C
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇. C
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇. C
▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇. C
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇
-13-
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
406 PROMULGATED UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED, AND
RULE 24B-2 PROMULGATED THEREUNDER. OMITTED INFORMATION HAS BEEN REPLACED WITH
ASTERISKS.
Appendix II
Jewel/Peapod
Annual Marketing Support
Chicago
****
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