Exhibit 10.19
PEAPOD, INC.
BASIC STOCK OPTION AGREEMENT
FOR ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Pursuant to the provisions of the Executive Employment Agreement and
related agreements (collectively the"Employment Agreement"), entered
concurrently herewith by Peapod, Inc., a Delaware corporation (the "Company")
and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (the "Optionee") the Company hereby grants to the Optionee as
of September 27, 1999 (the "Option Date") a non-qualified option to purchase
from the Company (the "Option") 1,100,000 shares ("Option Shares") of its Common
Stock, $0.01 par value ("Stock"), at the price of $8.01562 per share upon and
subject to the terms and conditions set forth below. Capitalized terms not
defined herein shall have the meanings specified in the Employment Agreement.
1. Option Subject to Acceptance of Agreement. The Option shall be null
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and void unless the Optionee shall accept this Agreement by executing it in the
space provided below and returning such original execution copy to the Company.
2. Time and Manner of Exercise of Option.
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2.1 Maximum Term of Option. In no event may the Option be exercised, in
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whole or in part, after September 27, 2009 (the "Expiration Date").
2.2 Exercise of Option. The Option shall be exercisable only as follows.
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The Optionee may exercise the Option to purchase up to 350,000 of the Option
Shares on or after the Option Date and up to an additional 187,500 of the Option
Shares on or after each of the first four anniversary dates of the Option Date;
provided, however, that, upon a "Change in Control", upon termination of
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Optionee's employment without "Cause", or upon the Optionee's termination of his
employment for "Good Reason" as those terms are defined in the Severance
Agreement entered into by the Company and the Optionee concurrently with the
Employment Agreement, the Option shall become fully exercisable; and provided
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further that:
(a) if the Optionee's employment with the Company is terminated due
to his death or disability, the Option shall be exercisable only to the extent
it would have vested and become exercisable within one year following the
effective date of termination of employment, and may thereafter be exercised by
the Optionee or his Legal Representative until and including the earliest to
occur of (i) the first anniversary of the effective date of termination of
employment and (ii) the Expiration Date, immediately after which the Option
shall terminate; and
(2) if the Optionee's employment with the Company is terminated by
the Company for "Cause" or by the Executive for any reason other than "Good
Reason," the Option shall be exercisable only to the extent it is exercisable on
the effective date of the Optionee's termination of employment and may
thereafter be exercised by the Optionee or his Legal Representative until and
including the earliest to occur of (i) three months after the effective date of
termination of employment and (ii) the Expiration Date, immediately
after which the Option shall terminate.
(3) if the Optionee's employment with the Company is terminated for
any other (1) reason, the Option shall be exercisable only to the extent it is
exercisable on the effective date of the Optionee's termination of employment
(including any accelerated exercise rights under Section 2.2(a)) and may
thereafter be exercised by the Optionee or his Legal Representative until and
including the earliest to occur of (i) the third anniversary of the effective
date of termination of employment, (ii) a date one year after the Optionee's
death, and (iii) the Expiration Date, immediately after which the Option shall
terminate.
2.3 Method of Exercise.
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(a) Subject to the limitations set forth in this Agreement, the
Option may be exercised in whole or in part by the Optionee (1) by giving
written notice to the Company specifying the number of whole shares of Stock to
be purchased and accompanied by payment therefor in full (or arrangement made
for such payment to the Company's satisfaction) either (i) in cash, (ii) by
delivery of previously owned whole shares of Stock (which the Optionee has held
for at least six months prior to the delivery of such shares or which the
Optionee purchased on the open market and for which the Optionee has good title,
free and clear of all liens and encumbrances) having a Fair Market Value
(defined below), determined as of the date of exercise, equal to the aggregate
purchase price payable pursuant to the Option by reason of such exercise, (iii)
by authorizing the Company to withhold whole shares of Stock which would
otherwise be delivered upon exercise of the Option having a Fair Market Value,
determined as of the date of exercise, equal to the aggregate purchase price
payable pursuant to the Option by reason of such exercise, (iv) in cash by a
broker-dealer acceptable to the Company to whom the Optionee has submitted an
irrevocable notice of exercise or (v) a combination of (i), (ii) and (iii), and
(2) by executing such documents as the Company may reasonably request. The
Committee shall have sole discretion to disapprove of an election pursuant to
clause (iii) and, if the Optionee is subject to Section 16 of the Securities
Exchange Act of 1934, as amended ("Exchange Act"), the Company may require that
the method of making such payment be in compliance with Section 16 and the rules
and regulations thereunder. Any fraction of a share of Stock which would be
required to pay such purchase price shall be disregarded and the remaining
amount due shall be paid in cash by the Optionee. No certificate representing a
share of Stock shall be delivered until the full purchase price therefor has
been paid.
(b) "Fair Market Value" shall mean the last sale price of a share of
Stock as reported in the National Association of Securities Dealers Automated
Quotation National Market System on the date as of which such value is being
determined, or, if the Stock is listed on a national securities exchange, the
last sale
price of a share of Stock on the principal national stock exchange on which the
Stock is traded, or, if there shall be no reported transactions for such date,
on the next preceding date for which transactions were reported;
provided that, if Fair Market Value for any date cannot be so determined, Fair
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Market Value shall be determined by the Board by whatever means the Board, in
the good faith exercise of its discretion, shall deem appropriate.
2.4 Termination of Option.
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(a) In no event may the Option be exercised after it terminates as
set forth in this Section 2.4. The Option shall terminate, to the extent not
exercised pursuant to Section 2.3 or earlier terminated pursuant to Section 2.2,
on the Expiration Date.
(b) In the event that rights to purchase all or a portion of the
shares of Stock subject to the Option expire or are exercised, cancelled or
forfeited, the Optionee shall, upon the Company's request, promptly return this
Agreement to the Company for full or partial cancellation, as the case may be.
Such cancellation shall be effective regardless of whether the Optionee returns
this Agreement. If the Optionee continues to have rights to purchase shares of
Stock hereunder, the Company shall, within ten days of the Optionee's delivery
of this Agreement to the Company, either (i) ▇▇▇▇ this Agreement to indicate the
extent to which the Option has expired or been exercised, cancelled or forfeited
or (ii) issue to the Optionee a substitute option agreement applicable to such
rights, which agreement shall otherwise be at least as favorable to the Optionee
as this Agreement in form and substance.
3. Additional Terms and Conditions of Option.
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3.1 Nontransferrability of Option. The Option may not be transferred by
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the Optionee other than by will or the laws of descent and distribution or
pursuant to beneficiary designation procedures approved by the Company. Except
to the extent permitted by the foregoing sentence, during the Optionee's
lifetime the Option is exercisable only by the Optionee or the Optionee's Legal
Representative. Except to the extent permitted by the foregoing, the Option may
not be sold, transferred, assigned, pledged, hypothecated, encumbered or
otherwise disposed of (whether by operation of law or otherwise) or be subject
to execution, attachment or similar process. Any attempt to so sell, transfer,
assign, pledge, hypothecate, encumber or otherwise dispose of the Option shall
be null and void and of no force or effect.
3.2 Investment Representation. The Optionee hereby represents and
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covenants that (a) any share of Stock purchased upon exercise of the Option will
be purchased for investment and not with a view to the distribution thereof
within the meaning of the
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Securities Act of 1933, as amended (the "Securities Act"), unless such purchase
has been registered under the Securities Act and any applicable state securities
laws; (b) any subsequent sale of any such shares shall be made either pursuant
to an effective registration statement under the Securities Act and any
applicable state securities laws, or pursuant to an opinion of counsel
reasonably acceptable to the Company that such registration is not required; and
(c) if requested by the Company, the Optionee shall submit a written statement
in form satisfactory to the Company, to the effect that such representation (x)
is true and correct as of the date of purchase of any shares hereunder or (y) is
true and correct as of the date of any sale of any such shares, as applicable.
As a further condition precedent to any exercise of the Option, the Optionee
shall comply with all regulations and requirements of any regulatory authority
having control of or supervision over the issuance or delivery of the shares
and, in connection therewith, shall execute any documents which the Board shall
in its reasonable judgment deem necessary or advisable to comply with the
Securities Act, applicable state securities laws or the regulations or
requirements of any such regulatory authority.
3.3 Withholding Taxes.
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(a) As a condition precedent to the delivery of Stock upon exercise
of the Option, the Optionee shall, upon request by the Company, pay to the
Company in addition to the purchase price of the shares, such amount of cash as
the Company may be required, under all applicable federal, state, local or other
laws or regulations, to withhold and pay over as income or other withholding
taxes (the "Required Tax Payments") with respect to such exercise of the Option.
If the Optionee shall fail to advance the Required Tax Payments after request by
the Company, the Company may, in its discretion, deduct any Required Tax
Payments from any amount then or thereafter payable by the Company to the
Optionee.
(b) The Optionee may elect to satisfy his or her obligation to
advance the Required Tax Payments by any of the following means: (1) a cash
payment to the Company pursuant to Section 3.3(a), (2) delivery to the Company
of previously owned whole shares of Stock (which the Optionee has held for at
least six months prior to the delivery of such shares or which the Optionee
purchased on the open market and for which the Optionee has good title, free and
clear of all liens and encumbrances) having a Fair Market Value, determined as
of the date the obligation to withhold or pay taxes first arises in connection
with the Option (the "Tax Date"), equal to the Required Tax Payments, (3)
authorizing the Company to withhold whole shares of Stock which would otherwise
be delivered to the Optionee upon exercise of the Option having a Fair Market
Value, determined as of the Tax Date, equal to the Required Tax Payments, (4) a
cash payment by a broker-dealer acceptable to the Company to whom the Optionee
has submitted an irrevocable
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notice of exercise or (5) any combination of (1), (2) and (3). The Committee
shall have sole discretion to disapprove of an election pursuant to any of
clauses (2)-(5) and if the Optionee is subject to Section 16 of the Exchange
Act, the Company may require that the method of making such payment be in
compliance with Section 16 and the rules and regulations thereunder. Shares of
Stock to be delivered or withheld may have a Fair Market Value in excess of the
minimum amount of the Required Tax Payments, but not in excess of the amount
determined by applying the Optionee's maximum marginal tax rate. Any fraction of
a share of Stock which would be required to satisfy any such obligation shall be
disregarded and the remaining amount due shall be paid in cash by the Optionee.
No certificate representing a share of Stock shall be delivered until the
Required Tax Payments have been satisfied in full.
3.4 Adjustment. In the event of any stock split, stock dividend,
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recapitalization, reorganization, merger, consolidation, combination, exchange
of shares, liquidation, spin-off or other similar change in capitalization or
event, or any distribution to holders of Stock other than a regular cash
dividend, the number and class of securities subject to the Option and the
purchase price per security shall be appropriately adjusted by the Board (such
adjustment to be made reasonably and in good faith by the Board) without an
increase in the aggregate purchase price. If any adjustment would result in a
fractional security being subject to the Option, the Company shall pay the
Optionee, in connection with the first exercise of the Option, in whole or in
part, occurring after such adjustment, an amount in cash determined by
multiplying (i) the fraction of such security (rounded to the nearest hundredth)
by (ii) the excess, if any, of (A) the Fair Market Value on the exercise date
over (B) the exercise price of the Option. Such a decision of the Board
regarding any such adjustment shall be final, binding and conclusive.
3.5 Compliance with Applicable Law. The Option is subject to the condition
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that if the listing, registration or qualification of the shares subject to the
Option upon any securities exchange or under any law, or the consent or approval
of any governmental body, or the taking of any other action is necessary or
desirable as a condition of, or in connection with, the purchase or delivery of
shares hereunder, the Option may not be exercised, in whole or in part, unless
such listing, registration, qualification, consent or approval shall have been
effected or obtained, free of any conditions not approved by the Company (which
approval will not be unreasonably withheld). The Company agrees to file a
registration statement on Form S-8 with the Securities and Exchange Commission
to register the Option Share, and to use all reasonable efforts to effect or
obtain any other necessary listing, registration, qualification, consent or
approval.
3.6 Delivery of Certificates. Upon the exercise of the
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Option, in whole or in part, the Company shall deliver or cause to be delivered
one or more certificates representing the number of shares purchased against
full payment therefor. The Company shall pay all original issue or transfer
taxes and all fees and expenses incident to such delivery, except as otherwise
provided in Section 3.3. Each share certificate representing Shares not
registered under the Securities Act shall bear the following legend to the
extent applicable:
"The Shares represented by this certificate have not been registered
under the Securities Act of 1933 or under any state securities laws
and may not be sold, encumbered or otherwise transferred in the
absence of such registration or an opinion of counsel reasonably
acceptable to the Company that such registration is not required."
3.7 Option Confers No Rights as Stockholder. The Optionee shall not be
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be entitled to any privileges of ownership with respect to shares of Stock
subject to the Option unless and until purchased and delivered upon the exercise
of the Option, in whole or in part, and the Optionee becomes a stockholder of
record with respect to such delivered shares; and the Optionee shall not be
considered a stockholder of the Company with respect to any such shares not so
purchased and delivered.
3.8 Decisions of Board. The Board shall have the right to resolve all
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questions and make all determinations which may arise in connection with the
Option or its exercise (which rights the Board shall exercise reasonably and in
good faith), and any interpretation, determination or other action so made or
taken by the Board regarding this Agreement shall be final, binding and
conclusive.
3.9 Company to Reserve Shares. The Company shall at all times prior to
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the expiration or termination of the Option reserve and keep available, either
in its treasury or out of its authorized but unissued shares of Stock, the full
number of shares subject to the Option from time to time.
4. Miscellaneous Provisions.
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4.1 Designation as Nonqualified Stock Option. The Option is hereby
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designated as not constituting an "incentive stock option" within the meaning of
section 422 of the Internal Revenue Code of 1986, as amended (the "Code"); this
Agreement shall be interpreted and treated consistently with such designation.
4.2 Meaning of Certain Terms.
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(a) References in this Agreement to sections of the Code
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shall be deemed to refer to any successor section of the Code or any successor
internal revenue law.
(b) As used herein, the term "Legal Representative" shall include an
executor, administrator, legal representative, guardian or similar person.
4.3 Successors. This Agreement shall be binding upon and inure to the
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benefit of any successor or successors of the Company and any person or persons
who shall, upon the death of the Optionee, acquire any rights hereunder in
accordance with this Agreement.
4.4 Notices. All notices, requests or other communications provided for
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in this Agreement shall be made, if to the Company, to Peapod, Inc., Attention:
Chairman of the Board, and if to the Optionee, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ at his address on
the records of the Company. All notices, requests or other communications
provided for in this Agreement shall be made in writing either (a) by personal
delivery to the party entitled thereto, (b) by facsimile with confirmation of
receipt, (c) by mailing in the United States mails to the last known address of
the party entitled thereto or (d) by express courier service. The notice,
request or other communication shall be deemed to be received upon personal
delivery, upon confirmation of receipt of facsimile transmission or upon receipt
by the party entitled thereto if by United States mail or express courier
service; provided, however, that if a notice, request or other communication is
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not received during regular business hours, it shall be deemed to be received on
the next succeeding business day of the Company.
4.5 Governing Law. This Agreement, the Option and all determinations made
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and actions taken pursuant hereto and thereto, to the extent not governed by the
laws of the United States, shall be governed by the laws of the State of
Delaware and construed in accordance therewith without giving effect to
principles of conflicts of laws.
4.6 Counterparts. This Agreement may be executed in two counterparts each
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of which shall be deemed an original and both of which together shall constitute
one and the same instrument.
PEAPOD, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Chairman of the
Board
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Board
Accepted as of the 27th
day of September, 1999.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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