<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 11, 1997
REGISTRATION NO. 333-
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
PEAPOD, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 36-4118175
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
9933 WOODS DRIVE 60077
SKOKIE, ILLINOIS (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE
OFFICES)
PEAPOD, INC.
EMPLOYEE STOCK PURCHASE PLAN
(FULL TITLE OF THE PLAN)
JOHN C. WALDEN
EXECUTIVE VICE PRESIDENT,
PEAPOD, INC.
9933 WOODS DRIVE
SKOKIE, ILLINOIS 60077
(847) 583-9400
(NAME, ADDRESS, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
----------------
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED(1) REGISTERED PER SHARE OFFERING PRICE FEE
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par
value.................. 150,000 shares(2) $8.50(3) $1,275,000(3) $387.00
- ----------------------------------------------------------------------------------------
Preferred Stock Purchase
Rights................. 150,000 rights (4) (4) (4)
- ----------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended (the "Securities Act"), this registration statement also covers an
indeterminate amount of interests to be offered pursuant to the Peapod,
Inc. Employee Stock Purchase Plan (the "Plan") described herein.
(2) This registration statement also covers an additional and indeterminate
number of shares as may become issuable because of the provisions of the
Plan relating to adjustments for changes resulting from stock dividends,
stock splits and similar changes.
(3) Estimated solely for the purpose of calculating the registration fee and,
pursuant to Rule 457(h) under the Securities Act of 1933, based upon the
last sale price of the Common Stock reported on the Nasdaq National Market
on September 4, 1997.
(4) The Preferred Stock Purchase Rights initially are attached to and trade
with the shares of Common Stock being registered hereby. Value
attributable to such Rights, if any, is reflected in the market price of
the Common Stock.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed with the Securities and Exchange
Commission (the "Commission") by Peapod, Inc. (the "Company") are incorporated
herein by reference:
(a) The Company's Prospectus, dated June 10, 1997, included in the
Company's Registration Statement on Form S-1 (No. 333-24341);
(b) The Company's Quarterly Report on Form 10-Q for the three months
ended June 30, 1997; and
(c) The description of the Common Stock, par value $.01 per share, of the
Company and the description of the related Preferred Stock Purchase Rights,
which are contained in the Company's Registration Statement on Form 8-A,
filed May 12, 1997.
All documents filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and all documents filed by the Plan pursuant to Section
15(d) of the Exchange Act, after the date of this Registration Statement and
prior to the filing of a post-effective amendment to this Registration
Statement which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the respective dates of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Reference is made to Section 145 ("Section 145") of the Delaware General
Corporation Law (the "Delaware GCL") which provides for indemnification of
directors and officers in certain circumstances.
The Delaware GCL, the Company's Restated Certificate of Incorporation, as
amended (the "Charter"), and Restated By-Laws (the "By-Laws") provide for
indemnification of the Company's directors and officers for liabilities and
expenses that they may incur in such capacities. In general, directors and
offices are indemnified with respect to actions taken in good faith in a
manner reasonably believed to be in, or not opposed to, the best interests of
the Company, and with respect to any criminal action or proceeding, actions
that the indemnitee had no reasonable cause to believe were unlawful.
Reference is made to the Company's Charter and By-Laws filed as Exhibits 4.1
and 4.3 hereto, respectively.
In accordance with Section 102(b)(7) of the Delaware GCL, the Company's
Charter provides that directors shall not be personally liable for monetary
damages for breaches of their fiduciary duty as directors except for (i)
breaches of their duty of loyalty to the Company or its stockholders, (ii)
acts or omissions not in good faith or which involve intentional misconduct or
knowing violations of law, (iii) certain transactions under Section 174 of the
Delaware GCL (unlawful payment of dividends) or (iv) transactions from which a
director derives an improper personal benefit.
The Company has indemnity agreements with each of its directors and certain
officers, including its executive officers, that require the Company to
advance expenses to each such director and officer in the event
II-1
<PAGE>
that a claim is brought against such director or officer with respect to an
action for which the Company is obligated to provide indemnification under the
Company's Charter and By-Laws.
The Underwriting Agreement relating to the Company's initial public offering
of Common Stock pursuant to its Registration Statement on Form S-1 (No. 333-
24341) provides that the Underwriters are obligated, under certain
circumstances, to indemnify directors, officers and controlling persons of the
Company against certain liabilities, including liabilities under the
Securities Act.
The Company maintains directors' and officers' liability insurance coverage.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<C> <S>
4.1 Restated Certificate of Incorporation (incorporated by reference to
Exhibit 3.1 of the Company's Registration Statement on Form S-1 (No.
333-24341) (the "IPO Registration Statement")).
4.2 Certificate of Amendment of the Restated Certificate of Incorporation
of the Company, dated as of May 30, 1997.
4.3 Restated By-laws of the Company (incorporated by reference to Exhibit
3.2 of the IPO Registration Statement).
4.4 Rights Agreement, dated as of June 9, 1997, between the Company and
First Chicago Trust Company of New York, as Rights Agent (incorporated
by reference to Exhibit 4.1 of the IPO Registration Statement).
5 Opinion of Sidley & Austin.
10 Peapod, Inc. Employee Stock Purchase Plan.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of KPMG Peat Marwick LLP.
23.3 Consent of Sidley & Austin (contained in Exhibit 5 hereto).
</TABLE>
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to the registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration statement;
II-2
<PAGE>
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to the Commission
by the registrant pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof;
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remained unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-3
<PAGE>
SIGNATURES
THE REGISTRANT. PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933,
THE REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT
MEETS ALL OF THE REQUIREMENTS FOR FILING ON FORM S-8 AND HAS DULY CAUSED THIS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED, IN THE CITY OF CHICAGO, STATE OF ILLINOIS ON THIS
11TH DAY OF SEPTEMBER, 1997.
Peapod, Inc.
/s/ John C. Walden
By: _________________________________
John C. Walden
Executive Vice President, Finance
and Business Development
(Authorized Officer and Principal
Financial Officer)
KNOW ALL MEN BY THESE PRESENTS, THAT EACH PERSON WHOSE SIGNATURE APPEARS
IMMEDIATELY BELOW CONSTITUTES AND APPOINTS ANDREW B. PARKINSON AND JOHN C.
WALDEN, AND EACH OR ANY OF THEM, HIS TRUE AND LAWFUL ATTORNEY-IN-FACT AND
AGENT, WITH FULL POWER OF SUBSTITUTION AND RESUBSTITUTION, FOR HIM AND IN HIS
NAME, PLACE AND STEAD, IN ANY AND ALL CAPACITIES, TO SIGN ANY AND ALL
AMENDMENTS (INCLUDING POST-EFFECTIVE AMENDMENTS) TO THIS REGISTRATION
STATEMENT, AND TO FILE THE SAME WITH ALL EXHIBITS THERETO AND OTHER DOCUMENTS
IN CONNECTION THEREWITH WITH THE SECURITIES AND EXCHANGE COMMISSION, GRANTING
UNTO SAID ATTORNEY-IN-FACT AND AGENTS, AND EACH OF THEM, FULL POWER AND
AUTHORITY TO DO AND PERFORM EACH AND EVERY ACT AND THING REQUISITE AND
NECESSARY TO BE DONE, AS FULLY TO ALL INTENTS AND PURPOSES AS HE MIGHT OR
COULD DO IN PERSON, HEREBY RATIFYING AND CONFIRMING ALL THAT SAID ATTORNEYS-
IN-FACT AND AGENTS OR ANY OF THEM, OR THEIR OR HIS SUBSTITUTE OR SUBSTITUTES,
MAY LAWFULLY DO OR CAUSE TO BE DONE BY VIRTUE HEREOF.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED, ON THIS 11TH DAY OF SEPTEMBER, 1997.
<TABLE>
<CAPTION>
SIGNATURE TITLE(S)
--------- --------
<S> <C>
/s/ Andrew B. Parkinson Chairman, President and Chief Executive Officer
___________________________________________ (principal executive officer)
Andrew B. Parkinson
/s/ Thomas L. Parkinson Executive Vice President, Chief Technology Officer
___________________________________________ and Director
Thomas L. Parkinson
/s/ John C. Walden Executive Vice President, Finance and Business
___________________________________________ Development (principal financial officer)
John C. Walden
/s/ Earl W. Rachowicz Vice President and Controller
___________________________________________ (principal accounting officer)
Earl W. Rachowicz
/s/ Tasso H. Coin Director
___________________________________________
Tasso H. Coin
/s/ Steven M. Friedman Director
___________________________________________
Steven M. Friedman
Director
___________________________________________
Trygve E. Myhren
/s/ Seth L. Pierrepont Director
___________________________________________
Seth L. Pierrepont
</TABLE>
II-4
<PAGE>
THE PLAN. PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS
AMENDED, THE ADMINISTRATOR OF THE PLAN HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF CHICAGO, STATE OF ILLINOIS, ON THIS 11TH DAY OF
SEPTEMBER, 1997.
Peapod, Inc.
Employee Stock Purchase Plan
/s/ Tasso H. Coin *
By: _________________________________
Tasso H. Coin
Compensation Committee of the
Board of Directors of Peapod, Inc.
/s/ Steven M. Friedman*
By: _________________________________
Steven M. Friedman
Compensation Committee of the
Board of Directors of Peapod, Inc.
- --------
*Messrs. Coin and Friedman together comprisea majority of the Compensation
Committee of the Board of Directors of Peapod, Inc.
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
4.1 Restated Certificate of Incorporation of the Company (incorporated by
reference to Exhibit 3.1 of the Company's Registration Statement on
Form S-1 (No. 333-24341) (the "IPO Registration Statement")).
4.2* Certificate of Amendment of the Restated Certificate of Incorporation
of the Company, dated as of May 30, 1997.
4.3 Restated By-laws of the Company (incorporated by reference to Exhibit
3.2 of the IPO Registration Statement).
4.4 Rights Agreement, dated as of June 9, 1997, between the Company and
First Chicago Trust Company of New York, as Rights Agent (incorporated
by reference to Exhibit 4.1 the IPO Registration Statement).
5* Opinion of Sidley & Austin.
10* Peapod, Inc. Employee Stock Purchase Plan.
23.1* Consent of KPMG Peat Marwick LLP.
23.2* Consent of KPMG Peat Marwick LLP.
23.3* Consent of Sidley & Austin (contained in Exhibit 5 hereto).
</TABLE>
- --------
* Filed herewith
II-6
<PAGE>
Exhibit 4.2
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
NEW PEAPOD, INC.
New Peapod, Inc. (the "Corporation"), a corporation organized and existing
under any by virtue of the General Corporation Law of the State of Delaware,
does hereby certify that:
FIRST: The Board of Directors of the Corporation, by unanimous written
consent, duly adopted a resolution proposing and approving the following
amendment to the Restated Certificate of Incorporation of the Corporation and
directing that it be submitted to the stockholders of the Corporation to
consider and adopt the same.
RESOLVED, that the Restated Certificate of Incorporation of the
Corporation be amended by changing the FIRST ARTICLE thereof so that, as
amended, the FIRST ARTICLE shall be as follows:
FIRST: "The name of the Corporation is Peapod, Inc."
SECOND: That the sole stockholder of the Corporation has given written
consent to the foregoing amendment to the Restated Certificate of Incorporation
in accordance with the provisions of Section 228 of the General Corporation Law
of the State of Delaware.
THIRD: The amendment of the Restated Certificate of Incorporation was duly
adopted in accordance with the provisions of the General Corporation Law of the
State of Delaware, including Section 242.
FOURTH: Pursuant to Section 103(d) of the General Corporation Law of the
State of Delaware, this Certificate of Amendment shall become effective as of
May 31, 1997.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed this 30th day of May, 1997 by Andrew B. Parkinson, its President and
attested by John C. Walden, its Secretary, who hereby acknowledge their
signatures as the act and deed of the Corporation.
By: /s/ Andrew B. Parkinson
--------------------------------
Its: President
Attest:
By: /s/ John C. Walden
------------------------
Its: Secretary
<PAGE>
Exhibit 5
Sidley & Austin
One First National Plaza
Chicago, Illinois 60603
Telephone 312 853 7000
Facsimile 312 853 7036
September 11, 1997
Peapod, Inc.
9933 Woods Drive
Skokie, Illinois 60077
Re: Peapod, Inc.
Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We have acted as counsel for Peapod, Inc., a Delaware corporation (the
"Company"), in connection with the filing of a Registration Statement on Form S-
8 (the "Registration Statement") relating to 150,000 shares of common stock,
par value $.01 per share, including associated preferred stock purchase rights
of the Company ("Common Stock"), to be offered to participants in the Company's
Employee Stock Purchase Plan (the "Plan").
We are familiar with the Restated Certificate of Incorporation and the By-
laws of the Company and all amendments thereto and resolutions of the Board of
Directors of the Company relating to the Plan and the Registration Statement.
In this connection, we have examined originals, or copies of originals
certified or otherwise identified to our satisfaction, of such records of the
Company and others, have examined such questions of law and have satisfied
ourselves as to such matters of fact as we have considered relevant and
necessary as a basis for the opinions set forth herein. We have assumed the
authenticity of all documents submitted to us as originals, the genuineness of
all signatures, the legal capacity of all natural persons and the conformity
with the original documents of any copies thereof submitted to us for our
examination.
<PAGE>
Peapod, Inc.
September 11, 1997
Page 2
Based upon the foregoing, we are of the opinion that:
1. The Company is duly incorporated and validly existing under the
laws of the State of Delaware.
2. Each share of Common Stock will be legally issued, fully paid and
nonassessable when: (i) the Registration Statement shall have become effective
under the Securities Act; (ii) such share of Common Stock shall have been duly
issued and sold in the manner contemplated by the Plan; and (iii) a certificate
representing such share shall have been duly executed, countersigned and
registered and duly delivered to the purchaser thereof against payment of the
agreed consideration therefor (not less than the par value thereof) in
accordance with the Plan.
We do not find it necessary for the purposes of this opinion to cover,
and accordingly we express no opinion as to the application of the securities or
blue sky laws of the various states to the sale of shares of common stock.
This opinion is limited to the General Corporation Law of the State of
Delaware.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Sidley & Austin
<PAGE>
EXHIBIT 10
Peapod, Inc.
Employee Stock Purchase Plan
1. Purpose. The purpose of the Peapod, Inc. Employee Stock Purchase
Plan (the "Plan") is to provide employees of Peapod, Inc., a Delaware
corporation (the "Company"), and its Subsidiary Companies (as defined below)
added incentive to remain employed by such companies and to encourage increased
efforts to promote the best interests of such companies by permitting eligible
employees to purchase shares of common stock, par value $.01 per share, of the
Company ("Common Stock") at below-market prices. The Plan is intended to qualify
as an "employee stock purchase plan" under section 423 of the Internal Revenue
Code of 1986, as amended (the "Code"). For purposes of the Plan, the term
"Subsidiary Companies" shall mean all corporations which are subsidiary
corporations (within the meaning of Section 424(f) of the Code) and of which the
Company is the common parent. The Company and its Subsidiary Companies that,
from time to time, adopt the Plan are sometimes hereinafter called collectively
the "Participating Companies."
2. Eligibility. Participation in the Plan shall be open to each
employee of the Participating Companies who satisfies all of the following
conditions (an "Eligible Employee"):
(a) such employee's customary employment is for more than 20 hours
per week;
(b) such employee's customary employment is for more than 5 months
per calendar year; and
(c) such employee has been continuously employed by the Participating
Companies for at least twelve months.
No right to purchase Common Stock hereunder shall accrue under the Plan in favor
of any person who is not an Eligible Employee as of the first day of a Purchase
Period (as defined in Section 3). Notwithstanding anything contained in the Plan
to the contrary, no Eligible Employee shall acquire a right to purchase Common
Stock hereunder if (i) immediately after receiving such right, such employee
would own 5% or more of the total combined voting power or value of all classes
of stock of the Company or any Subsidiary Company (including any stock
attributable to such employee under section 424(d) of the Code), or (ii) for any
calendar year such right would permit such employee's aggregate rights to
purchase stock under all employee stock purchase plans of the Company and its
Subsidiary Companies exercisable during such calendar year to accrue at a rate
which exceeds $25,000 of
<PAGE>
fair market value of such stock for such calendar year. In addition, the number
of shares of Common Stock which may be purchased by any Eligible Employee during
any Purchase Period shall not exceed the whole number of shares of Common Stock
determined by dividing $6,250, or, except as provided in the preceding sentence,
such greater number as may be determined by the Committee, by 85% of the fair
market value (determined as described in Section 5) of a share of Common Stock
on the first day of the Purchase Period.
3. Effective Date of Plan; Purchase Periods. The Plan shall become
effective on October 1, 1997 or on such later date as may be specified by the
Board of Directors (the "Board") of the Company or the Committee (as defined in
Section 11). The Plan shall cease to be effective unless, within 12 months
before or after the date of its adoption by the Board, it has been approved by
the shareholders of the Company.
A "Purchase Period" shall consist of the three month period beginning
on each October 1, January 1, April 1, and July 1, commencing on or after the
effective date and prior to termination of the Plan.
4. Basis of Participation. (a) Payroll Deduction. Each Eligible
Employee shall be entitled to enroll in the Plan as of the first day of any
Purchase Period which begins on or after such employee has become an Eligible
Employee.
To enroll in the Plan, an Eligible Employee shall execute and deliver
a payroll deduction authorization (the "Authorization") to the Company or its
designated agent at the time and in the manner specified by the Company. The
executed Authorization shall become effective on the first day of the Purchase
Period following the day of delivery thereof to the Company or its designated
agent. Each Authorization shall direct that payroll deductions be made by the
employee's employer for each payroll period during which the employee is a
participant in the Plan. The amount of each payroll deduction specified in an
Authorization for each such payroll period shall be the amount determined by the
Committee computed by dividing the dollar amount specified by the participant,
not to exceed $6,250, or such greater amount as may be specified by the
Committee, by the number of payroll periods in the Purchase Period.
Payroll deductions (and any other amount paid under the Plan) shall be
made for each participant in accordance with such participant's Authorization
until such participant's participation in the Plan terminates, such
participant's Authorization is revised or the Plan terminates, all as
hereinafter provided.
A participant may change the amount of his or her payroll deduction
effective as of the first day of any Purchase Period by filing a new
Authorization with the Company or its
-2-
<PAGE>
designated agent at the time and in the manner specified by the Committee. A
participant may not change the amount of his or her payroll deduction effective
as of any date other than the first day of a Purchase Period, except that a
participant may elect to terminate his or her participation in the Plan as
provided in Section 7.
Payroll deductions for each participant shall be credited to a
purchase account established on behalf of the participant on the books of the
participant's employer or such employer's designated agent (a "Purchase
Account"). At the end of each Purchase Period, the amount in each participant's
Purchase Account will be applied to the purchase from the Company of the number
of shares of Common Stock determined by dividing such amount by the Purchase
Price (as defined in Section 5) for such Purchase Period. No interest shall
accrue at any time for any amount credited to a Purchase Account of a
participant.
(b) Other Methods of Participation. The Committee may, in its
discretion, establish additional procedures whereby Eligible Employees may
participate in the Plan by means other than payroll deduction, including, but
not limited to, delivery of funds by participants in a lump sum or automatic
charges to participants' bank accounts. Such other methods of participating
shall be subject to such rules and conditions as the Committee may establish.
The Committee may at any time amend, suspend or terminate any participation
procedures established pursuant to this paragraph without prior notice to any
participant or Eligible Employee.
5. Purchase Price. The purchase price (the "Purchase Price") per
share of Common Stock hereunder for any Purchase Period shall be the lesser of
85% of the fair market value of a share of Common Stock on the first day of such
Purchase Period and 85% of the fair market value of a share of Common Stock on
the last day of such Purchase Period. If such sum results in a fraction of one
cent, the Purchase Price shall be increased to the next higher full cent. For
purposes of the Plan, unless otherwise determined by the Committee, the fair
market value of a share of Common Stock on a given day shall be the last sale
price of a share of Common Stock as reported on the Nasdaq National Stock
Market on the date as of which such value is being determined, or, if the Common
Stock is listed on a national securities exchange, the last sale price of a
share of Common Stock on the principal national stock exchange on which the
Common Stock is traded on the date as of which such value is being determined,
or, if there shall be no reported transactions for such date, on the next
preceding date for which transactions were reported. In no event, however, shall
the Purchase Price be less than the par value of a share of Common Stock.
6. Issuance of Stock. The Common Stock purchased by each
participant shall be considered to be issued and outstanding to such
participant's credit as of the close of business on the
-3-
<PAGE>
last day of each Purchase Period. The total number of shares of Common Stock
purchased by all participants during each Purchase Period shall be issued, as of
the last day in such Purchase Period, to a nominee or agent for the benefit of
the participants. A participant will be issued a certificate for his or her
shares of Common Stock as soon as practicable after December 31 of the year in
which such shares were purchased by such participant, provided that, the
participant has requested that a certificate for his or her shares be issued,
the participant's participation in the Plan has been terminated or the Plan is
terminated.
After the close of each Purchase Period, a report will be sent to each
participant stating the entries made to such participant's Purchase Account, the
number of shares of Common Stock purchased and the applicable Purchase Price.
In the event that the maximum number of shares of Common Stock are purchased by
the participant for the Purchase Period and cash remains credited to the
participant's Purchase Account, such cash shall be delivered promptly to such
participant. For purposes of the preceding sentence, the maximum number of
shares of Common Stock that may be purchased by a participant for a Purchase
Period shall be determined under the last sentence of Section 2, as limited by
the third sentence of Section 2.
7. Termination of Participation. A participant may elect at any
time to terminate his or her participation in the Plan, provided such election
is received by the Company or its designated agent in writing prior to the date
specified by the Committee for termination of participation during the Purchase
Period for which such termination is to be effective. Upon any such termination,
the cash credited to such participant's Purchase Account on the date of such
termination shall be delivered promptly to such participant, and certificates
for the number of full shares of Common Stock held for his or her benefit, and
the cash equivalent for any fractional share so held shall be delivered to the
participant as soon as practicable after December 31 of the year in which such
shares were purchased by such participant. Such cash equivalent shall be
determined by multiplying the fractional share by the fair market value of a
share of Common Stock on the last day of the Purchase Period immediately
preceding such termination, determined as provided in Section 5.
If the participant dies, terminates employment with the Participating
Companies for any reason, or otherwise ceases to be an Eligible Employee, such
participant's participation in the Plan shall immediately terminate. Upon such
terminating event, the cash credited to such participant's Purchase Account on
the date of such termination shall be delivered promptly to such participant or
his or her legal representative, as the case may be, and one or more
certificates for the number of full shares of Common Stock held for such
participant's benefit, and the cash equivalent of any fractional share so held,
determined as
-4-
<PAGE>
provided above in this Section 7, shall be delivered to such participant or his
or her legal representative, as the case may be, as soon as practicable after
December 31 of the year in which such termination occurs.
8. Termination or Amendment of the Plan. The Company, by action of
the Board or the Committee, may terminate the Plan at any time, in which case
notice of such termination shall be given to all participants, but any failure
to give such notice shall not impair the effectiveness of the termination.
Without any action being required, the Plan shall terminate in any
event when the maximum number of shares of Common Stock to be sold under the
Plan (as provided in Section 12) has been purchased. Such termination shall not
impair any rights which under the Plan shall have vested on or prior to the date
of such termination. If at any time the number of shares of Common Stock
remaining available for purchase under the Plan are not sufficient to satisfy
all then-outstanding purchase rights, the Board or Committee may determine an
equitable basis of apportioning available shares of Common Stock among all
participants.
The Board or the Committee may amend the Plan from time to time in any
respect for any reason; provided, however, no such amendment shall (a)
materially adversely affect any purchase rights outstanding under the Plan
during the Purchase Period in which such amendment is to be effected, (b)
increase the maximum number of shares of Common Stock which may be purchased
under the Plan, (c) decrease the Purchase Price of a share of Common Stock for
any Purchase Period below the lesser of 85% of the fair market value thereof on
the first day of such Purchase Period and 85% of such fair market value on the
last day of such Purchase Period or (d) adversely affect the qualification of
the Plan under section 423 of the Code.
Upon termination of the Plan, one or more certificates for the number
of full shares of Common Stock held for each participant's benefit and the cash
equivalent of any fractional share so held, determined as provided in Section 7
shall be delivered to such participant as soon as practicable after December 31
of the year in which the Plan terminates, and, except as otherwise provided in
Section 14, the cash, if any, credited to the such participant's Purchase
Account, shall be distributed to such participant promptly after the Plan
terminates.
9. Non-Transferability. Rights acquired under the Plan are not
transferable and may be exercised only by a participant.
10. Shareholder's Rights. No Eligible Employee or participant shall
by reason of the Plan have any rights of a
-5-
<PAGE>
shareholder of the Company until he or she shall acquire a share of Common Stock
as herein provided.
11. Administration of the Plan. The Plan shall be administered by a
committee appointed by the Board consisting of three or more members of the
Board (the "Committee"). Unless otherwise determined by the Board, the
Compensation Committee of the Board shall serve as the Committee. In addition
to the power to amend or terminate the Plan pursuant to Section 8, the Committee
shall have full power and authority to: (i) interpret and administer the Plan
and any instrument or agreement entered into under the Plan; (ii) establish such
rules and regulations and appoint such agents as it shall deem appropriate for
the proper administration of the Plan; and (iii) make any other determination
and take any other action that the Committee deems necessary or desirable for
administration of the Plan. Decisions of the Committee shall be final,
conclusive and binding upon all persons, including the Company, any participant
and any other employee of the Company. A majority of the members of the
Committee may determine its actions and fix the time and place of its meetings.
The Plan shall be administered so as to ensure that all participants
have the same rights and privileges as are provided by section 423(b)(5) of the
Code.
12. Maximum Number of Shares. The maximum number of shares of Common
Stock which may be purchased under the Plan is 150,000, subject to adjustment as
hereinafter set forth. Shares of Common Stock sold hereunder may be treasury
shares, authorized and unissued shares, or any combination thereof. If the
Company shall, at any time after the effective date of the Plan, change its
issued Common Stock into an increased number of shares, with or without par
value, through a stock dividend or a stock split, or into a decreased number of
shares, with or without par value, through a combination of shares, then,
effective with the record date for such change, the maximum number of shares of
Common Stock which thereafter may be purchased under the Plan and the maximum
number of shares which thereafter may be purchased during any Purchase Period
shall be the maximum number of shares which, immediately prior to such record
date, remained available for purchase under the Plan and under any Purchase
Period proportionately increased, in case of such stock dividend or stock split,
or proportionately decreased in case of such combination of shares.
13. Miscellaneous. Except as otherwise expressly provided herein,
any Authorization, election or notice under the Plan from an Eligible Employee
or participant shall be delivered to the Company or its designated agent and,
subject to any limitations specified in the Plan, shall be effective when so
delivered. The Plan, and the Company's obligation to sell and deliver shares of
Common Stock hereunder, shall be subject to all applicable federal and state
laws, rules and regulations, and to
-6-
<PAGE>
such approval by any regulatory or governmental agency as may, in the opinion of
counsel for the Company, be required.
14. Change in Control. In order to maintain the participants' rights
in the event of any Change in Control of the Company, as hereinafter defined,
upon such Change in Control the then current Purchase Period shall thereupon
end, and the cash credited to all participants' Purchase Accounts shall be
applied to purchase shares pursuant to Sections 5 and 6, and the Plan shall
immediately thereafter terminate. For purposes of this Section 14, "Change in
Control" shall have the same meaning as set forth in the Company's 1997 Long-
Term Incentive Plan.
-7-
<PAGE>
EXHIBIT 23.1
Independent Auditors' Consent
The Board of Directors
Peapod, Inc.:
We consent to incorporation by reference in the registration statement on Form
S-8 of Peapod, Inc. of our report dated May 9, 1997, relating to the balance
sheet of Peapod, Inc. as of December 31, 1996, and the related statement of
operations for the period from December 5, 1996 (inception) through December 31,
1996, which report appears in the registration statement (No. 333-24341) on Form
S-1 of Peapod, Inc.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Chicago, Illinois
September 11, 1997
<PAGE>
EXHIBIT 23.2
Independent Auditors' Consent
We consent to incorporation by reference in the registration statement on Form
S-8 of Peapod, Inc. of our report dated February 7, 1997, relating to the
balance sheets of Peapod LP as of December 31, 1995 and 1996, and the related
statements of operations, partners' capital, and cash flows for each of the
years in the three-year period ended December 31, 1996, which report appears in
the registration statement (No. 333-24341) on Form S-1 of Peapod, Inc.
KPMG Peat Marwick LLP
/s/ KPMG Peat Marwick LLP
Chicago, Illinois
September 11, 1997
