EXHIBIT 99.7
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VOTING AGREEMENT
among
THE STOCKHOLDERS NAMED HEREIN
and
KONINKLIJKE AHOLD N.V.
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Dated as of
April 14, 2000
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VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement") is made as of April 14, 2000, by
and among ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ (each a "Stockholder" and collectively, the "Stockholders", each such
Stockholder acting in his capacity as a stockholder of PEAPOD, INC., a
Delaware corporation (the "Company") and not as an officer or director of the
Company) and KONINKLIJKE AHOLD N.V., a public company with limited
incorporated liability incorporated under the laws of the Netherlands (the
"Purchaser").
WITNESSETH:
WHEREAS, the Company proposes to enter into a Purchase Agreement, dated as
of April 14, 2000 (the "Purchase Agreement") with the Purchaser, providing for
the sale by the Company of shares of its Series B Convertible Preferred Stock,
par value $.01 per share ("Series B Preferred Stock"), and certain warrants
(the "Warrants") to purchase shares of Common Stock, par value $.01 per share
(the "Common Stock"), of the Company to the Purchaser; and
WHEREAS, the Purchase Agreement contemplates the purchase by the Purchaser
of the Series B Preferred Stock and the Warrants in one or more closings, but
not to exceed three (3) (each, a "Closing"), with each Closing subject to
certain conditions, including the approval by the holders of the outstanding
shares of Common Stock of the Purchase Agreement and other Documents (as
defined below) and the transactions contemplated thereby; and
WHEREAS, as a condition to the willingness of the Purchaser to enter into
the Purchase Agreement, and as an inducement to the Purchaser to do so, each
Stockholder has agreed for the benefit of the Company as set forth in this
Agreement.
NOW, THEREFORE, in consideration of the mutual representations, warranties,
covenants and agreements contained in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound hereby, agree
as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. As used in this Agreement, the following terms
have the following meanings:
"Affiliate" shall mean, with respect to any specified person, any other
person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified person and, in the case of a
person who is an individual, shall include (i) members of such specified
person's immediate family (as defined in Instruction 2 of Item 404(a) of
Regulation S-K under the Securities Act) and (ii) trusts, the trustee and
all beneficiaries of which are such specified person or members of such
person's immediate family as determined in accordance with the foregoing
clause (i). For the purposes of this definition, "control" when used with
respect to any person means the power to direct the management and policies
of such person (in particular the voting and disposition of shares of
Common Stock held directly or indirectly by such person), directly or
indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "affiliated," "controlling" and "controlled"
have meanings correlative to the foregoing. Notwithstanding the foregoing,
neither the Purchaser nor any of its Affiliates shall be deemed Affiliates
of the Company for purposes of this Agreement.
"Agreement" shall have the meaning set forth in the Preamble.
"Alternative Transaction" shall have the meaning set forth in Section
3.7(a).
"Amended and Restated Bylaws" shall mean the Amended and Restated By-
Laws of the Company.
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"Amended and Restated Certificate of Incorporation" shall mean the
Amended and Restated Certificate of Incorporation of the Company.
"beneficial owner" of a security shall mean any person who, directly or
indirectly, through any contract, arrangement, understanding, relationship,
or otherwise has (i) the power to vote, or to direct the voting of, such
security or (ii) the power to dispose, or to direct the disposition of,
such security, or the ability to acquire such voting or dispositive power.
"Certificate of Designations" shall mean the Certificate of Designations
relating to the Series B Preferred Stock.
"Closing" shall have the meaning set forth in the Recitals.
"Common Stock" shall have the meaning set forth in the Recitals.
"Company" shall have the meaning set forth in the Recitals.
"Credit and Security Agreements" shall have the meaning set forth in the
Purchase Agreement.
"Documents" shall mean (i) this Agreement, (ii) the Purchase Agreement,
(iii) the Warrants, (iv) the Certificate of Designations, (v) the
Registration Rights Agreement, (vi) the Services Agreement, (vii) the
Institutional Stockholders Voting Agreement, (viii) the Joint Development
and License Agreement and (ix) the Credit and Security Agreements.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Governmental Authority" shall mean any foreign, Federal, state or local
court or governmental or regulatory authority.
"HSR Act" shall mean the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
1976, as amended, and applicable rules and regulations and any similar
state acts.
"Institutional Stockholders Voting Agreement" shall mean the Voting
Agreement, dated as of the date hereof, by and among the Purchaser, Tribune
National Marketing Company and Nevis Capital Management, Inc.
"Joint Development and License Agreement" shall have the meaning set
forth in the Purchase Agreement.
"Lien" shall mean any pledge, lien, claim, restriction, charge or
encumbrance of any kind.
"Notices" shall have the meaning set forth in Section 4.6.
"person" shall mean any individual, partnership, corporation, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or agency or political subdivision
thereof, or other entity.
"Purchase Agreement" shall have the meaning set forth in the Recitals.
"Purchaser" shall have the meaning set forth in the Recitals.
"Registration Rights Agreement" shall mean the registration rights
agreement to be entered into by the Company and the Purchaser pursuant to
the Purchase Agreement.
"Rights Agreement" shall have the meaning set forth in the Purchase
Agreement.
"Securities" shall mean all shares of Common Stock (and all other shares
or securities issued or issuable in respect thereof) together with the
associated Rights (as defined in the Rights Agreement) as of the date
hereof and hereafter acquired.
"Securities Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations thereunder.
"Services Agreement" shall mean the services agreement to be entered
into by the Company and the Purchaser or one of its Affiliates pursuant to
the Purchase Agreement.
"Stockholder" or "Stockholders" shall have the meaning set forth in the
Preamble.
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"subsidiary" shall mean, with respect to any person, (a) a corporation a
majority of whose capital stock with voting power, under ordinary
circumstances, to elect directors is at the time, directly or indirectly,
owned by such person, by a subsidiary of such person, or by such person and
one or more subsidiaries of such person, (b) a partnership in which such
person or a subsidiary of such person is, at the date of determination, a
general partner of such partnership, or (c) any other person (other than a
corporation) in which such person, a subsidiary of such person or such
person and one or more subsidiaries of such person, directly or indirectly,
at the date of determination thereof, has (i) at least a majority ownership
interest, (ii) the power to elect or direct the election of the directors
or other governing body of such person, or (iii) the power to direct or
cause the direction of the affairs or management of such person. For
purposes of this definition, a person is deemed to own any capital stock or
other ownership interest if such person has the right to acquire such
capital stock or other ownership interest, whether through the exercise of
any purchase option, conversion privilege or similar right.
"Subsidiary" shall mean a subsidiary of the Company.
"Termination Date" shall have the meaning set forth in Section 4.3.
"Warrants" shall have the meaning set forth in the Recitals.
ARTICLE II
COVENANTS OF THE STOCKHOLDERS
Section 2.1 Agreement to Vote. At any meeting of the stockholders of the
Company held on or prior to the Termination Date (as defined in Section 4.3),
however called, and at every adjournment or postponement thereof, or in
connection with any written consent of the holders of any class or classes of
the capital stock of the Company prior to the Termination Date, each
Stockholder shall vote and cause each of its controlled Affiliates to vote all
of the Securities with respect to which it has the right to vote or direct the
vote (as of the record date for such meeting of stockholders), (a) in favor of
the Purchase Agreement, the other Documents and all of the transactions
contemplated by the Purchase Agreement and the other Documents, all matters
requiring approval of stockholders under the listing requirements of the
Nasdaq Stock Market in connection with such transactions, and any actions
required in furtherance hereof, including, without limitation, (i) the
issuance of the Series B Preferred Stock and Warrants at the Closings, (ii)
the amendment and restatement of the Amended and Restated Certificate of
Incorporation to read in its entirety as set forth in the Purchase Agreement,
and (iii) the election of the directors nominated by the Purchaser to the
Board of Directors of the Company who are in the class of directors to be
voted upon at the Company's Stockholder's Meeting (as defined in the Purchase
Agreement), (b) against any Alternative Transaction, (c) except as otherwise
agreed to in writing in advance by the Purchaser, against the following
actions (other than the transactions contemplated by the Purchase Agreement or
any of the other Documents): (i) any extraordinary corporate transaction, such
as a merger, consolidation or other business combination involving the Company
or any of its Subsidiaries; (ii) a sale, lease or transfer of substantially
all of the assets of the Company or any of its Subsidiaries, or a
reorganization, recapitalization, dissolution or liquidation of the Company or
any of its Subsidiaries; (iii) (A) any change in the persons who constitute
the board of directors of the Company inconsistent with the composition of the
board of directors as contemplated by the Documents; (B) any change in the
present capitalization of the Company or any amendment of the Amended and
Restated Certificate of Incorporation or the Amended and Restated Bylaws; (C)
any other material change in the Company's corporate structure or business; or
(D) any other action or agreement that, directly or indirectly, is
inconsistent with or that could reasonably be expected, directly or
indirectly, to impede, interfere with, delay, postpone or materially adversely
affect the transactions contemplated by the Purchase Agreement and the other
Documents and (d) in favor of the Purchaser's nominees to the Board of
Directors as contemplated by the Purchase Agreement. None of the Stockholders
shall enter into, or permit any of its controlled Affiliates to enter into,
any agreement or understanding with any person prior to the Termination Date,
directly or indirectly, to vote, grant any proxy or power of attorney, give
instructions or enter into a voting agreement with respect to the voting of
his or its Securities in any manner inconsistent with the preceding sentence.
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Section 2.2 Proxies and Voting Agreements. (a) Each Stockholder has
revoked, and caused its controlled Affiliates to revoke, any and all previous
proxies granted with respect to his or its Securities with respect to the
matters set forth in Section 2.1.
(b) Prior to the Termination Date, each of the Stockholders shall not, and
shall cause each of its controlled Affiliates not to, directly or indirectly,
except as contemplated hereby, grant any proxies or powers of attorney with
respect to their Securities, deposit any of their Securities into a voting
trust or enter into a voting agreement with respect to any of their
Securities, in each case with respect to the matters set forth in Section 2.1.
Section 2.3 Irrevocable Proxy. Concurrently with the execution of this
Agreement, each Stockholder shall deliver, and shall cause each of its
Affiliates to deliver, to Ton van Tielraden a proxy in the form attached
hereto as Exhibit A, which, prior to the Termination Date, shall be
irrevocable to the extent provided by the Delaware General Corporation Law,
covering such Stockholder's or Affiliate's Securities. Each Stockholder shall
take further action or execute such other instruments as may be reasonably
necessary to effectuate the intent of this proxy.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND
ADDITIONAL COVENANTS OF THE STOCKHOLDERS
Each Stockholder represents, warrants and covenants to the Company, as to
himself that:
Section 3.1 Ownership. Each Stockholder is the record and beneficial owner
of the equity securities of the Company listed beside such Stockholder's name
on Schedule I attached hereto as of the date hereof. The equity securities set
forth beside the name of each Stockholder on Schedule I constitute all of the
shares of capital stock of the Company owned of record or beneficially by such
Stockholder as of the date hereof. All of such securities are issued and
outstanding, and except as set forth on Schedule II attached hereto, such
Stockholder does not own, of record or beneficially, any warrants, options or
other rights to acquire any shares of capital stock of the Company. The
securities listed beside each such Stockholder's name on Schedule I attached
hereto and the certificates representing such securities are now, and at all
times during the term hereof will be, held by such Stockholder, or by a
nominee or custodian for the benefit of such Stockholder, free and clear of
all Liens, proxies, voting trusts or other agreement, arrangement or
restriction with respect to the voting of such securities that would prohibit
such Stockholder from complying with Section 2.1 hereof with respect to such
securities (other than as contemplated by this Agreement).
Section 3.2 Authority; No Conflicts. Each Stockholder has the authority and
has been duly authorized by all necessary action (including consultation,
approval or other action by or with any other person), to execute, deliver and
perform this Agreement and consummate the transactions contemplated hereby.
Such actions by such Stockholder require no action by, or in respect of, or
filing with, any Governmental Authority with respect to such Stockholder other
than any required filings under Section 13 of the Exchange Act. None of the
execution and delivery of this Agreement by such Stockholder, the consummation
by such Stockholder of the transactions contemplated hereby or compliance by
such Stockholder with any of the provisions hereof shall (A) conflict with or
result in any breach of or constitute (with or without notice or lapse of time
or both) a default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
contract, commitment, arrangement, understanding, agreement or other
instrument or obligation of any kind to which such Stockholder is a party or
by which such Stockholder or any of such Stockholder's properties or assets
may be bound, or (B) violate any order, writ, injunction, decree, judgment,
order, statute, rule or regulation applicable to such Stockholder or any of
such Stockholder's properties or assets.
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Section 3.3 Binding Effect. This Agreement has been duly executed and
delivered by such Stockholder and is the valid and binding agreement of such
Stockholder, enforceable against such Stockholder in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights generally and
by equitable principles to which the remedies of specific performance and
injunctive and similar forms of relief are subject.
Section 3.4 No Finder's Fees. Except as disclosed pursuant to the Purchase
Agreement, no broker, investment banker, financial advisor or other person is
entitled to any broker's, finder's, financial advisor's or other similar fee
or commission in connection with the transactions contemplated hereby based
upon arrangements made by or on behalf of such Stockholder.
Section 3.5 Reliance by the Purchaser. Each Stockholder understands and
acknowledges that the Purchaser is entering into the Purchase Agreement in
reliance upon such Stockholder's execution and delivery of this Agreement.
Section 3.6 Commercially Reasonable Efforts. Prior to the Termination Date,
each Stockholder, in his or her capacity as a stockholder of the Company,
shall use commercially reasonable efforts to assist and cooperate with the
Company in doing, all things necessary, proper or advisable to consummate and
make effective, in the most expeditious manner practicable, the transactions
contemplated by the Documents, including (i) the obtaining of all necessary
actions or nonactions, waivers, consents and approvals from Governmental
Authorities and the making of all necessary registrations and filings
(including any necessary filings under the HSR Act, if any) and the taking of
all reasonable steps as may be necessary to obtain an approval or waiver from,
or to avoid an action or proceeding by, any Governmental Authority, (ii) the
obtaining of all necessary consents, approvals or waivers from third parties,
(iii) the defending of any lawsuits or other legal proceedings, whether
judicial or administrative, challenging any of the Documents or the
consummation of any of the transactions contemplated by any of the Documents,
including seeking to have any stay or temporary restraining order entered by
any court or other Governmental Authority vacated or reversed, and (iv) the
execution and delivery of any additional instruments necessary to consummate
the transactions contemplated by, and to fully carry out the purposes of, the
Documents.
Section 3.7 No Solicitation; Restrictions on Transfers. (a) Prior to the
Termination Date, such Stockholder, in his capacity as a stockholder of the
Company, shall not, and shall not permit any of its controlled Affiliates or
representatives to, directly or indirectly, (i) initiate, solicit or entertain
offers from, negotiate with or in any manner knowingly encourage, discuss,
accept, or consider any proposal of any other person relating to (w) the
acquisition of the capital stock of the Company, or any Subsidiary, securities
convertible into or exchangeable for shares of capital stock of the Company or
any Subsidiary, (x) the acquisition of the Company's assets or business, in
whole or in part, whether directly or indirectly, through purchase, merger,
consolidation, business combination, recapitalization, liquidation,
dissolution or otherwise, (y) the incurrence of indebtedness by the Company or
any Subsidiary, or (z) any other transaction the consummation of which could
reasonably be expected to impede, interfere with, prevent, delay or dilute the
benefits to the Purchaser of the transactions contemplated by the Documents
(other than the transactions contemplated by the Purchase Agreement, sales of
inventory in the ordinary course, and shares issued upon the exercise of
existing stock options or warrants, and the shares permitted to be sold by
each Stockholder pursuant to the proviso in Section 3.7(c)) (any of the
foregoing being an "Alternative Transaction"), (ii) initiate, participate,
engage in, or agree to initiate, participate or engage in negotiations or
discussions concerning, or provide to any person or entity any information or
data relating to the Company or any Subsidiary, or otherwise cooperate with or
assist or participate in, knowingly facilitating or encouraging, any inquiries
or the making of any proposal that constitutes an Alternative Transaction,
(iii) in connection with any Alternative Transaction, require the Company to
abandon, terminate or fail to consummate the transactions contemplated by the
Documents, (iv) grant any waiver or release under or amend any standstill,
confidentiality or similar agreement entered into by the Company or any of his
Affiliates or representatives; (v) agree to, approve or recommend any
Alternative Transaction, or (vi) take any other action inconsistent with the
obligations and commitments assumed by such Stockholder and its controlled
Affiliates
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pursuant to this Agreement. Such Stockholder shall, and shall cause his
controlled Affiliates to, immediately cease and cause to be terminated any
existing activities, discussions or negotiations with any parties conducted
heretofore with respect to any of the foregoing.
(b) Prior to the Termination Date, such Stockholder shall, and shall cause
his Affiliates to promptly (but in any event within twenty-four (24) hours of
receipt or occurrence thereof) advise the Company and the Purchaser orally and
in writing of any request for information directed to him with respect to, or
of any inquiry or proposal regarding any Alternative Transaction directed to
him, the material terms and conditions of such proposal and the identity of
the person making such proposal and provide to the Purchaser copies of any
written documentation provided to such Stockholder by such person making such
proposal or by any representative of such person that is material to
understanding or evaluating such request, Alternative Transaction or inquiry
which is received by it from the person (or from any representatives of such
person) making such Alternative Transaction, inquiry or proposal. Each
Stockholder and its Affiliates will keep the Company and the Purchaser fully
informed of any such proposal.
(c) Prior to the Termination Date, such Stockholder shall not (i) directly
or indirectly, offer for sale, sell, transfer, tender, pledge, encumber,
assign or otherwise dispose of, or enter into any contract, option or other
arrangement or understanding with respect to or consent to the offer for sale,
transfer, tender, pledge, encumbrance, assignment or other disposition of, any
or all of the securities listed beside its name on Schedules I and II attached
hereto or any interest therein or any shares of Common Stock issuable upon the
exercise of stock options or warrants; (ii) except as contemplated by this
Agreement, grant any proxies or powers of attorney, deposit any such
securities into a voting trust or enter into a voting agreement with respect
to any such securities; or (iii) take any action that would make any
representation or warranty of such Stockholder contained herein untrue or
incorrect or have the effect of preventing such Stockholder from performing
such Stockholder's obligations under this Agreement; provided however, that
each of ▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ shall each be permitted to sell,
transfer or otherwise dispose of up to 100,000 shares in one or more
transactions, during any period of ninety (90) consecutive days from the date
hereof through the Termination Date.
(d) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ shall not, for a period of two
(2) years from the date hereof (i) directly or indirectly, offer for sale,
sell, transfer, tender, pledge, encumber, assign or otherwise dispose of, or
enter into any contract, option or other arrangement or understanding with
respect to or consent to the offer for sale, transfer, tender, pledge,
encumbrance assignment or other disposition of, more than 10,000 shares of the
Company in any fiscal quarter and (ii) except as contemplated by this
Agreement, grant any proxies or powers of attorney, deposit such shares into a
voting trust or enter into a voting agreement with respect to any such shares;
provided, however, that each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ may
transfer or assign such shares held by each in the Company to their respective
children or to a trust for the sole benefit of their respective children so
long as ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or, as the case may be, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ continue to
be employed by the Company.
Section 3.8 Releases. Each Stockholder hereby fully, unconditionally and
irrevocably releases, effective as of the first Closing, any and all claims
and causes of action that such Stockholder has or may have against the Company
or any Subsidiary or any present or former director, officer, employee or
agent of the Company or any Subsidiary arising or resulting from or relating
to any act, omission, event or occurrence prior to the date hereof.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Expenses. All costs and expenses incurred in connection with
this Agreement shall be paid by the party incurring such cost or expense.
Section 4.2 Specific Performance. Each Stockholder agrees that the
Purchaser would be irreparably damaged if for any reason such Stockholder
fails to perform any of such Stockholder's obligations under this
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Agreement, and that the Purchaser would not have an adequate remedy at law for
money damages in such event. Accordingly, the Purchaser shall be entitled to
seek specific performance and injunctive and other equitable relief to enforce
the performance of this Agreement by each Stockholder. This provision is
without prejudice to any other rights that the Purchaser may have against such
Stockholder for any failure to perform its obligations under this Agreement.
Section 4.3 Amendments; Termination. Neither this Agreement, nor any of the
terms or provisions contained herein, may be waived, modified or amended
without the prior written consent of the Purchaser, which consent may be
withheld in the sole and absolute discretion of any Purchaser. No amendment,
modification or termination of this Agreement shall be binding upon any other
party unless executed in writing by the parties hereto intending to be bound
thereby. This Agreement shall terminate, except with respect to liability for
prior breaches thereof, upon the earlier to occur of (i) May 1, 2000 if the
Purchase Agreement has not yet been entered into, (ii) immediately following
the Stockholder Meeting (as defined in the Purchase Agreement), and (iii) the
expiration of the seven-month period commencing on the date hereof (the date
of the earliest of such events being the "Termination Date"); provided that,
the provisions of Section 2.1(c)(iii)(A); Section 2.1(d) and Section 3.7(d)
shall survive any termination of this Agreement pursuant to Section 4.3(ii) if
Stockholder Approval (as defined in the Purchase Agreement) is obtained at the
Stockholder Meeting.
Section 4.4 Successors and Assigns. This Agreement and the rights, duties
and obligations hereunder may not be assigned or delegated by any Stockholder
without the prior written consent of the Purchaser. Except as provided in the
preceding sentence, any assignment or delegation of rights, duties or
obligations hereunder made without the prior written consent of the Purchaser
shall be void and of no effect. This Agreement and the provisions hereof shall
be binding upon and shall inure to the benefit of each of the parties and
their respective successors and permitted assigns.
Section 4.5 Certain Events. Each Stockholder agrees that this Agreement and
the obligations hereunder shall attach to the Securities of such Stockholder
and, except with respect to the Securities transferred in accordance with
Section 3.7(c), shall be binding upon any person to which legal or beneficial
ownership of such shares shall pass, whether by operation of law or otherwise.
Section 4.6 Notices. All notices, demands, requests, consents, approvals or
other communications (collectively, "Notices") required or permitted to be
given hereunder or which are given with respect to this Agreement shall be in
writing and shall be personally served, delivered by a reputable air courier
service with tracking capability, with charges prepaid, or transmitted by hand
delivery or facsimile, addressed as set forth below, or to such other address
as such party shall have specified most recently by written notice. Notice
shall be deemed given on the date of service or transmission if personally
served or transmitted by facsimile. Notice otherwise sent as provided herein
shall be deemed given on the next business day following delivery of such
notice to a reputable air courier service (a) if to any Stockholder, to it at
the address(es) or facsimile number(s) set forth on Schedule III hereto, with
a copy to the Company at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and (b) if to the Purchaser, to it at the following contact
information:
Koninklijke Ahold NV
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇-▇▇) ▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to:
White & Case LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq. / ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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Section 4.7 Governing Law. This Agreement and the rights and obligations of
the parties hereunder shall be governed by, and construed in accordance with,
the laws of the State of New York, and each party hereto submits to the non-
exclusive jurisdiction of the state and federal courts within the County of
New York in the State of New York. Any legal action or proceeding with respect
to this Agreement may be brought in the courts of the State of New York or of
the United States of America for the Southern District of New York and, by
execution and delivery of this Agreement, each party hereto hereby accepts for
itself and in respect of its property, generally and unconditionally, the
jurisdiction of the aforesaid courts. Each party hereto further irrevocably
consents to the service of process out of any of the aforementioned courts in
any action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to such party at its address set forth in
Section 4.6, such service to become effective seven days after such mailing.
Nothing herein shall affect the right of the Purchaser to serve process in any
of the matters permitted by law or to commence legal proceedings or otherwise
proceed against any of the Stockholders in any other jurisdiction. Each party
hereto hereby irrevocably waives any objection which it may now or hereafter
have to the laying of venue of any of the aforesaid actions or proceedings
arising out of or in connection with this Agreement
Section 4.8 Entire Agreement. This Agreement (including all agreements
entered into pursuant hereto and all certificates and instruments delivered
pursuant hereto and thereto) constitutes the entire agreement of the parties
with respect to the subject matter hereof and supersedes all prior and
contemporaneous agreements, representations, understandings, negotiations and
discussions between the parties, whether oral or written, with respect to the
subject matter hereof.
Section 4.9 Waivers and Extensions. Subject to Section 4.3, any party to
this Agreement may waive any right, breach or default which such party has the
right to waive, provided that such waiver will not be effective against the
waiving party unless it is in writing, is signed by such party and the
Purchaser, and specifically refers to this Agreement. Waivers may be made in
advance or after the right waived has arisen or the breach or default waived
has occurred. Any waiver may be conditional. No waiver of any breach of any
agreement or provision herein contained shall be deemed a waiver of any
preceding or succeeding breach thereof nor of any other agreement or provision
herein contained. No waiver or extension of time for performance of any
obligations or acts shall be deemed a waiver or extension of the time for
performance of any other obligations or acts.
Section 4.10 Titles and Headings. Titles and headings of sections of this
Agreement are for convenience only and shall not affect the construction of
any provision of this Agreement.
Section 4.11 Exhibits and Schedules. Each of the annexes, exhibits and
schedules referred to herein and attached hereto is an integral part of this
Agreement and is incorporated herein by reference.
Section 4.12 Attorneys' Fees. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees, costs and necessary
disbursements, in addition to any other relief to which such party may be
entitled.
Section 4.13 Severability. This Agreement shall be deemed severable, and
the invalidity or unenforceability of any term or provision hereof shall not
affect the validity or enforceability of this Agreement or of any other term
or provision hereof. Furthermore, in lieu of any such invalid or unenforceable
term or provision, the parties hereto intend that there shall be added as a
part of this Agreement a provision as similar in terms to such invalid or
unenforceable provision as may be possible and be valid and enforceable.
Section 4.14 Counterparts; Facsimile. This Agreement may be executed in
multiple counterparts, each of which shall be deemed an original, and all of
which taken together shall constitute one and the same instrument. This
Agreement may be delivered by a party via facsimile; provided, that, the
originally executed signature pages and original documents are delivered to
the appropriate parties within two (2) business days.
Section 4.15 Further Assurances. Each party hereto, upon the request of any
other party hereto, shall do all such further acts and execute, acknowledge
and deliver all such further instruments and documents as may be necessary or
desirable to carry out the transactions contemplated by this Agreement.
H-8
Section 4.16 Remedies Cumulative. The remedies provided herein shall be
cumulative and shall not preclude the assertion by any party hereto, including
any Purchaser, of any other rights or the seeking of any remedies against any
other party hereto.
IN WITNESS WHEREOF, the Company and the Stockholders have caused this
Agreement to be duly executed as of the day and year first above written.
Koninklijke Ahold N.V.
/s/ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
By: _________________________________
Name: ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President and
General Counsel
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ _________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ _________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ____________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ___________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇ _______________
▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ _____________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ________
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ _______________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
H-9
EXHIBIT A
TO
VOTING AGREEMENT
IRREVOCABLE PROXY
The undersigned stockholder of Peapod, Inc., a Delaware corporation (the
"Company"), hereby irrevocably (to the fullest extent provided by law, but
subject to automatic termination and revocation as provided below) appoints
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, the attorney and proxy of the undersigned, with full power
of substitution and resubstitution, to the full extent of the undersigned's
rights with respect to the shares of capital stock of the Company that the
undersigned owns or has the right to vote or direct the voting of, as of the
record date for the 2000 Annual Meeting of Stockholders of the Company and any
adjournments thereof (the "Shares"), and any and all other shares or
securities having voting rights issued or issuable with respect thereof on or
after the date hereof, until the Termination Date specified in the Voting
Agreement referred to below. Upon the execution hereof, all prior proxies
given by the undersigned with respect to the Shares and any and all other
shares or securities issued or issuable in respect thereof on or after the
date hereof as to matters covered hereby are hereby revoked except as set
forth in the Voting Agreement and no subsequent proxies will be given as to
the matters covered hereby prior to the Termination Date. This proxy is
irrevocable (to the fullest extent provided by law, but subject to automatic
termination and revocation as provided below), coupled with an interest and is
granted in connection with the Voting Agreement, dated as of April 14, 2000
(the "Voting Agreement"), by and among Koninklijke Ahold N.V., a public
company with limited liability incorporated under the laws of the Netherlands
(the "Purchaser"), the undersigned stockholder and other stockholders named
therein, and is granted in consideration of the Purchaser entering into the
Purchase Agreement referred to therein. Capitalized terms used but not
otherwise defined herein shall have the respective meanings ascribed thereto
in the Voting Agreement.
The attorney and proxy named above is hereby empowered at any time prior to
the Termination Date to exercise all voting and other rights of the
undersigned at any meeting of the stockholders of the Company held on or prior
to the Termination Date, however called, and at every adjournment or
postponement thereof prior to the Termination Date, to vote all of the Shares,
(a) in favor of the Purchase Agreement, the other Documents and all of the
transactions contemplated by the Purchase Agreement and the other Documents,
all matters requiring approval of stockholders under the listing requirements
of the Nasdaq Stock Market in connection with such transactions, and any
actions required in furtherance hereof, including, without limitation, (i) the
issuance of the Series B Preferred Stock and Warrants at the Closings, (ii)
the amendment and restatement of the Amended and Restated Certificate of
Incorporation to read in its entirety as set forth in the Purchase Agreement,
and (iii) the election of the directors nominated by the Purchaser to the
Board of Directors of the Company who are in the class of directors to be
voted upon at the 2000 Annual Meeting of Stockholders of the Company, (b)
against any Alternative Transaction, (c) except as otherwise agreed to in
writing in advance by the Purchaser, against the following actions (other than
the transactions contemplated by the Purchase Agreement or any of the other
Documents): (i) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving the Company or any of
its Subsidiaries; (ii) a sale, lease or transfer of substantially all of the
assets of the Company or any of its Subsidiaries, or a reorganization,
recapitalization, dissolution or liquidation of the Company or any of its
Subsidiaries; (iii) (A) any change in the persons who constitute the board of
directors of the Company inconsistent with the composition of the board of
directors as contemplated by the Documents; (B) any change in the present
capitalization of the Company or any amendment of the Amended and Restated
Certificate of Incorporation or the Amended and Restated Bylaws; (C) any other
material change in the Company's corporate structure or business; or (D) any
other action or agreement that, directly or indirectly, is inconsistent with
or that could reasonably be expected, directly or indirectly, to impede,
interfere with, delay, postpone or materially adversely affect the
transactions contemplated by the Purchase Agreement and the other Documents
and (d) in favor of the Purchaser's nominees to the Board of Directors as
contemplated by the Purchase Agreement.
H-10
This proxy is expressly limited to the matters set forth above and the
undersigned stockholder may vote the Shares (or grant one or more proxies to
vote the Shares) on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned. Notwithstanding the foregoing, this
proxy shall automatically terminate with respect to any shares transferred by
the undersigned to a third party in accordance with the proviso of Section
3.7(c) of the Voting Agreement, upon such transfer.
This proxy is irrevocable, but shall automatically terminate and be revoked
and be of no further force and effect on and after the Termination Date.
By: _________________________________
Name:
Dated: April 14, 2000
H-11