Exhibit 10.8
FORM OF COMMISSION AGREEMENT
This Commission Agreement (this "Agreement") is being entered into as of
the ___ day of June, 1999 and is entered into by and between Florists'
Transworld Delivery, Inc., a Michigan corporation ("FTDI"), and xxx.xxx inc., a
Delaware corporation ("xxx.xxx").
RECITALS
A. Historically, FTDI was engaged directly in, among other things, the
business of offering consumers the opportunity to place FTD floral and
specialty gift orders directly with FTDI through its toll free
telephone number (0-000-XXXX-XXX) and its Web site (xxx.xxx.xxx) (the
"Direct Access Business"), and used the FTD Clearinghouse to process
all floral orders and some specialty gift orders received by the
Direct Access Business;
B. Recently, FTDI formed xxx.xxx as a wholly owned subsidiary of FTDI
and, pursuant to the Formation Agreement, dated as of May 19, 1999,
between FTDI and xxx.xxx (the "Formation Agreement"), transferred
substantially all of FTDI's assets, rights and interests relating to
the Direct Access Business to xxx.xxx.
C. In connection with the Direct Access Business and as of the Effective
Date (as defined below), xxx.xxx desires to use the FTD Clearinghouse
to process floral orders and specialty gift orders (the "Services")
received by the Direct Access Business and FTDI desires to provide
such Services to xxx.xxx.
THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
Section 1. Clearinghouse Commission.
(a) Subject to Section 1(b), as consideration for xxx.xxx using FTDI's
clearinghouse (the "FTD Clearinghouse") to process xxx.xxx orders, FTDI agrees
to pay xxx.xxx each month a $5.00 commission fee (the "xxx.xxx Per Order
Commission") plus an amount equal to 20% of the order value (excluding amounts
attributable to service or similar fees) (the "xxx.xxx Sending Order
Commission") for every order that xxx.xxx clears through the FTD Clearinghouse
during the applicable monthly period; provided, that, in the event FTDI agrees
to pay an unaffiliated third party that (i) does not own a flower shop and who
clears its orders through the FTD Clearinghouse or (ii) clears in excess of
500,000 orders annually through the FTD Clearinghouse a fee or commission with
economic terms that are more beneficial to the recipient of such fee or
commission (a "More Favorable Third Party Commission") than the economic terms
of the xxx.xxx Per Order Commission or the xxx.xxx Sending Order Commission,
FTDI agrees to adjust the economic terms of the xxx.xxx Per Order Commission or
the xxx.xxx Sending Order Commission, as applicable, so that it is no less
favorable than the More Favorable Third Party Per Order Commission. Such
adjustment shall become effective as of the date such More Favorable Third Party
Commission becomes effective.
(b) If, after the Effective Date, all third party order originators (i.e.,
a party that originates more orders than such party fulfills) that clear in
excess of 200,000 orders annually through FTDI retain less than 20% of the order
value for such orders (excluding amounts attributable to service or similar fees
or rebates or commissions), then the xxx.xxx Sending Order Commission will be
adjusted so that it is equal to the economic terms most favorable to any such
third party order originator that clears orders through FTDI (the "Less
Favorable Commission"). Such adjustment shall become effective as of the date
the Less Favorable Commission becomes effective with respect to the applicable
third party order originator.
Section 2. Term.
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The term of this Agreement will begin on July 1, 1999 (the "Effective
Date") and will continue in full force and effect until June 30, 2002 and shall
be automatically renewed for like periods of three years, unless notice of
election not to renew is given by either party at least one hundred and eighty
(180) days prior to the commencement of any renewal period.
Section 3. Dispute Resolution.
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(a) In the event that any party to this Agreement has any claim, right or
cause of action against any other party to this Agreement, which the parties
shall be unable to settle by agreement between themselves, such claim, right or
cause of action, to the extent that the relief sought by such party is for
monetary damages or awards, shall be determined by arbitration in accordance
with the provisions of this Section 3.
(b) The party or parties requesting arbitration shall serve upon the other
or others a demand therefor, in writing, specifying the matter to be submitted
to arbitration, and nominating a competent disinterested person to act as an
arbitrator. Within 30 days after receipt of such written demand and nomination,
the other party or parties shall, in writing, nominate a competent disinterested
person, and the two (2) arbitrators so designated shall, within 15 days
thereafter, select a third arbitrator. The three (3) arbitrators shall give
immediate written notice of such selection to the parties and shall fix in said
notice a time and place of the meeting of the arbitrators which shall be as soon
as conveniently possible (but in no event later than 30 days after the
appointment of the third arbitrator), at which time and place the parties to the
controversy shall appear and be heard with respect to the right, claim or cause
of action.
(c) In case the notified party or parties shall fail to make a selection
upon notice within the time period specified, the party asserting such claim
shall appoint an arbitrator on behalf of the notified party. In the event that
the first two (2) arbitrators selected shall fail to agree upon a third
arbitrator within 15 days after their selection, then such arbitrator may, upon
application made by either of the parties to the controversy, be appointed by
any judge of any United States court of record having jurisdiction in the State
of Illinois.
(d) Each party shall present such testimony, examinations and
investigations in accordance with such procedures and regulations as may be
determined by the arbitrators and shall also recommend to the arbitrators a
monetary award to be adopted by the arbitrators as the complete disposition of
such claim, right or cause of action. After hearing the parties in regard to the
matter in dispute, the arbitrators shall adopt as their determination with
respect to such claim, right or cause of action, within 45 days of the
completion of the examination, by majority
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decision signed in writing (together with a brief written statement of the
reasons for adopting such recommendation), one of the recommendations submitted
by the parties to the dispute and shall grant no other relief or remedy. The
decision of said arbitrators, absent fraud, duress or manifest error, shall be
final and binding upon the parties to such controversy and may be enforced in
any court of competent jurisdiction.
(e) The expense and cost of such arbitration shall be borne by the party
or parties whose recommendation was not adopted by the arbitrators. Each party
shall pay the fees and expenses of its own counsel.
(f) Notwithstanding any other provisions of this Section 3, in the event
that a party against whom any claim, right or cause of action is asserted
commences, or has commenced against it, bankruptcy, insolvency or similar
proceedings, the party or parties asserting such claim, right or cause of action
shall have no obligations under this Section 3 and may assert such claim, right
or cause of action in the manner and forum it deems appropriate, subject to
applicable laws. No determination or decision by the arbitrators pursuant to
this Section 9 shall limit or restrict the ability of any party hereto to obtain
or seek in any appropriate forum, any relief or remedy that is not a monetary
award or money damages.
Section 4. Miscellaneous.
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(a) Neither party may assign this Agreement, or their respective rights
and obligations hereunder, in whole or in part without the other party's prior
written consent. Any attempt to assign this Agreement without such consent shall
be void and of no effect ab initio. Notwithstanding the immediately preceding
sentence, either party may assign this Agreement or all, but not less than all,
of its rights and obligations hereunder to any entity controlled by it or to any
entity that acquires it by purchase of stock or by merger or otherwise, or by
obtaining all or substantially all of its assets (a "Permitted Assignee"),
provided that any such Permitted Assignee, or any division thereof, thereafter
succeeds to all of the rights and is subject to all of the obligations of the
assignor under this Agreement.
(b) This Agreement shall be governed by and construed in accordance with
the internal laws of the State of Illinois applicable to agreements made and to
be performed entirely within such State, without regard to the conflicts of law
principles of such State. Each party shall comply in all respects with all laws
and regulations applicable to its activities under this Agreement.
(c) Notwithstanding the provisions of Section 3, each party hereto
irrevocably submits to the exclusive jurisdiction of (a) the courts of the State
of Illinois, DuPage County, or (b) the United States District Court for the
Northern District of Illinois, for the purposes of any suit, action or other
proceeding arising out of this Agreement or any transaction contemplated hereby
or thereby. Each party agrees to commence any such action, suit or proceeding
either in the United States District Court for the Northern District of Illinois
or if such suit, action or other proceeding may not be brought in such court for
jurisdictional reasons, in the courts of the State of Illinois, DuPage County.
Each party further agrees that service of any process, summons, notice or
documents by U.S. registered mail to such party's respective address set forth
below shall be effective service of process for any action, suit or proceeding
in Illinois with respect to any maters to which it has submitted to jurisdiction
in this Section 4(c). Each party irrevocably
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and unconditionally waives any objection to the laying of venue of any action,
suit or proceeding arising out of this Agreement or the transactions
contemplated hereby and thereby in (i) the courts of the State of Illinois,
DuPage County, or (ii) the United States District Court for the Northern
District of Illinois, and hereby and thereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
(d) This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement, and shall become effective
when one or more such counterparts have been signed by each of the parties and
delivered to each of the other parties.
(e) This Agreement may not be amended except by an instrument in writing
signed on behalf of each of the parties hereto; provided, however, that as long
as (1) FTD Corporation ("FTDC") beneficially owns 25% or more of the voting
power represented by the voting securities of xxx.xxx, and no other Person
directly or beneficially owns a greater percentage of such voting power, or (2)
directors, officers or affiliates of FTDC or its subsidiaries constitute a
majority of the members of xxx.xxx's board of directors, no amendment of this
Agreement will be valid unless it has been approved by at least a majority of
the members of xxx.xxx's board of directors, which majority must include at
least one-half of the members of xxx.xxx's board of directors who are
"independent" directors pursuant to the applicable rules of Nasdaq or any other
exchange on which xxx.xxx's equity securities are then traded or listed.
(f) This Agreement is for the sole benefit of the parties hereto and
nothing herein expressed or implied shall give or be construed to give to any
person, other than the parties hereto any legal or equitable rights hereunder.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth above.
xxx.xxx inc.
By:
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Name:
Title:
Florists' Transworld Delivery, Inc.
By:
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Name:
Title:
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