Exhibit 10.1
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FORMATION AGREEMENT
between
FLORISTS' TRANSWORLD DELIVERY, INC.,
a Michigan corporation
and
xxx.xxx inc.,
a Delaware corporation
Dated as of May 19, 1999
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TABLE OF CONTENTS
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Section Page
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ARTICLE I CAPITAL CONTRIBUTION............................... 1
ARTICLE II TRANSFER OF ASSETS................................. 1
2.1 Transfer of Assets................................. 1
2.2 Retained Assets.................................... 3
2.3 Assignability and Consents......................... 4
2.4 Covenants of Further Assurance..................... 4
ARTICLE III ASSUMPTION......................................... 4
3.1 Assumption by xxx.xxx.............................. 4
3.2 Retained Liabilities............................... 4
3.3 Covenants of Further Assurance..................... 4
ARTICLE IV REPRESENTATIONS AND WARRANTIES..................... 5
4.1 As Is.............................................. 5
4.2 Representations and Warranties of FTDI............. 5
4.3 Representations and Warranties of.................. 6
4.4 Survival of Representations and Warranties......... 6
ARTICLE V CERTAIN COVENANTS AND ASSURANCES................... 6
5.1 Cooperation by FTDI................................ 6
5.2 Cooperation by xxx.xxx............................. 7
5.3 Expenses........................................... 7
5.4 Filings............................................ 7
5.5 Bulk Transfer Laws................................. 7
5.6 Certain Payments................................... 7
ARTICLE VI POST-CLOSING COVENANTS............................. 7
ARTICLE VII CONDITIONS TO CLOSING.............................. 8
7.1 Conditions to the Obligations of xxx.xxx........... 8
7.2 Conditions to the Obligations of FTDI.............. 9
ARTICLE VIII MISCELLANEOUS...................................... 9
8.1 Schedules.......................................... 9
8.2 Amendments......................................... 9
8.3 Entire Agreement................................... 9
8.4 Governing Law...................................... 10
8.5 Notices............................................ 10
8.6 Transfer Taxes..................................... 10
8.7 Counterparts....................................... 10
8.8 Assignment......................................... 10
8.9 Waivers............................................ 10
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8.10 Third Parties...................................10
8.11 Headings........................................11
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Schedules:
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2.1 -- Balance Sheet as of March 31, 1999
2.1.1 -- Personal Property
2.1.3 -- Contracts
2.1.4 -- Permits and Approvals
iii
FORMATION AGREEMENT
-------------------
This FORMATION AGREEMENT (this "Agreement") is dated as of May 19, 1999
between Florists' Transworld Delivery, Inc., a Michigan corporation ("FTDI"),
and xxx.xxx inc., a Delaware corporation ("xxx.xxx").
R E C I T A L S:
- - - - - - - -
A. FTDI has, as of May 19, 1999, formed xxx.xxx.
B. FTDI is engaged in, among other things, the business of offering
consumers the opportunity to place floral and specialty gift orders directly
with FTDI through FTDI's toll free telephone number (0-000-XXXX-XXX) or its
online Internet site (xxx.xxx.xxx) (the "Direct Access Business").
C. FTDI has agreed to make a capital contribution to xxx.xxx of
substantially all of FTDI's assets, rights and interests (subject to certain
associated liabilities) relating to the Direct Access Business and reflected on
the Balance Sheet (as hereinafter defined) in exchange for one hundred percent
(100%) of xxx.xxx's Class B common stock and it is intended that such
transaction qualify as a tax-free transaction under Section 351 of the Internal
Revenue Code of 1986, as amended.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants hereinafter set forth, and other good and valuable consideration had
and received, the parties agree as follows:
ARTICLE I CAPITAL CONTRIBUTION
-------------------------------
Upon the terms and subject to the conditions herein contained, FTDI hereby
transfers to xxx.xxx as a contribution to the capital of xxx.xxx, and xxx.xxx
hereby accepts and acquires from FTDI, the Acquired Assets (as hereinafter
defined), subject to the Assumed Liabilities (as hereinafter defined), effective
as of the date hereof (the "Effective Time"), in exchange for such number of
shares of Class B common stock that represent one hundred percent (100%) of the
issued and outstanding equity securities of xxx.xxx as of the Effective Time.
ARTICLE II TRANSFER OF ASSETS.
------------------------------
2.1 Transfer of Assets. Upon the terms and subject to the conditions
herein contained, except as otherwise provided in Section 2.2 hereof, effective
as of the Effective Time, FTDI hereby transfers to xxx.xxx as a contribution to
the capital of xxx.xxx, and xxx.xxx hereby accepts and acquires from FTDI, all
of FTDI's right, title and interest in and to all of the tangible and intangible
assets, rights and interests reflected on the unaudited balance sheet dated as
of March 31, 1999 of the Direct Access Business attached hereto as Schedule 2.1
(the "Balance Sheet") and owned, used or held by or for the benefit of FTDI,
solely to the extent of FTDI's interest therein and to the extent such assets,
rights and interests relate to the Direct Access Business (except to the extent
that any such assets have been disposed of by FTDI between the date of the
Balance Sheet and the Effective Time), wherever situated, including, without
limiting
the generality of the foregoing, the following assets, rights and interests
(collectively, the "Acquired Assets"):
2.1.1 Tangible Personal Property. The equipment, machines, supplies,
furniture, tools, fixtures, vehicles and other items of tangible personal
property, including leased personal property, identified on Schedule 2.1.1,
solely to the extent such tangible personal property relates to the Direct
Access Business.
2.1.2 Third Party Warranties; Claims. All rights and benefits of FTDI
under any and all manufacturers' and third party warranties and service or
replacement programs, solely to the extent such warranties and programs relate
to the Direct Access Business, and all claims, demands, causes of action,
judgments and pending litigation of whatever nature as to which FTDI is a
claimant, plaintiff, judgment creditor, beneficiary or the like, including,
without limitation, all warranty or infringement claims against third-party
manufacturers or sellers relating to the conduct or operation of the Direct
Access Business, solely to the extent such claims, demands, causes of action,
judgments and pending litigation relate to the Direct Access Business.
2.1.3 Contracts. All rights and benefits of FTDI in, to or under
those licenses, contracts, leases of personal property, agreements, purchase
orders, commitments, undertakings and all other arrangements, whether oral or
written, and to which FTDI is a party or by which any of the Acquired Assets are
bound, solely to the extent such agreements and instruments relate to the Direct
Access Business, including, without limitation, the agreements and instruments
identified on Schedule 2.1.3 attached hereto (collectively, "Acquired
Contracts").
2.1.4 Permits and Approvals. All of the transferable licenses,
permits, approvals, variances, waivers or consents issued to FTDI by any United
States, state, county, local or foreign governmental entity or municipality or
subdivision thereof or any authority, department, commission, board, bureau,
agency, court or instrumentality, solely to the extent such licenses, permits,
approvals, variances, waivers and consents relate to the Direct Access Business,
including (to the extent transferable), without limitation, the licenses,
permits, approvals, variances, waivers or consents identified on Schedule 2.1.4,
and all rights of FTDI relating to any such license, permit, approval, variance,
waiver or consent.
2.1.5 Receivables. All accounts and notes receivable, other accrued
or future rights to receive money, unpaid interest accrued thereon, and any
security or collateral relating thereto, solely to the extent such receivables,
unpaid interest accrued thereon and any security or collateral relating thereto
relate to the Direct Access Business ("Accounts Receivables").
2.1.6 Prepaids. All prepaid expenses, advance payments, deposits,
surety accounts and other similar assets, solely to the extent such assets
relate to the Direct Access Business.
2.1.7 Cash and Cash Equivalents. All cash and cash equivalents
reflected on the Balance Sheet, solely to the extent such cash and cash
equivalents relate to the Direct Access Business and except to the extent that
FTDI disposed of any such cash or cash equivalents between the date of the
Balance Sheet and the Effective Time.
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2.1.8 Goodwill. The goodwill of FTDI solely related to the Direct
Access Business as a going concern.
2.2 Retained Assets. Notwithstanding any other provision of this
Agreement, the Acquired Assets shall not include, and FTDI shall, and hereby
does, retain all of FTDI's right, title and interest in and to all of the
tangible and intangible assets, rights and interest owned, used or held by or
for the benefit of FTDI, wherever situated, other than such of the foregoing to
the extent they relate to the Direct Access Business, including, without
limiting the severality of the foregoing, the following assets, rights and
interests (the "Retained Assets"):
(a) this Agreement;
(b) FTDI's ownership interest in xxx.xxx;
(c) the name "Florists' Transworld Delivery, Inc." or any
related or derivative name;
(d) FTDI's ownership interest in the trademarks, patents and
similar intellectual property, including the Universal Resource Locator
("URL"), xxx.xxx.xxx, to be licensed to xxx.xxx pursuant to the Trademark
License Agreement (the "Trademark License Agreement") to be dated as of the
date hereof by and between xxx.xxx and FTDI;
(e) the capital stock of any of FTDI's direct or indirect,
wholly or partially owned, subsidiaries and their respective assets,
properties and businesses;
(f) any and all assets, funds and properties (including without
limitation any such assets, funds or properties held in trust or any other
funding vehicle);
(g) Any cash or cash equivalent of, owned, or held by, FTDI not
transferred, assigned and conveyed to xxx.xxx pursuant to Section 2.1.7;
(h) FTDI's stock certificates, treasury stock, stock transfer
records, corporate seals and minute books;
(i) FTDI's federal income tax and information returns filed on
Form 1120S, its state and local income tax and information returns and
reports, and any tax supporting information related thereto;
(j) all assets, properties, rights and interests in, under or to
agreements, instruments or contracts relating to businesses, operations or
assets that immediately prior to the Effective Time (i) have been closed,
wound up or otherwise terminated or (ii) ceased to be held or used in
connection with FTDI's businesses or operations, including the Direct
Access Business;
(k) all books, records and written and electronic storage
materials to the extent relating to or used in connection with or
reasonably necessary to the use of the Retained Assets, the Acquired Assets
or the Direct Access Business or any part thereof; provided, however, that
xxx.xxx may make copies of such books, records and written and
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electronic storage materials, to the extent they relate to the Acquired
Assets or the Direct Access Business, or examinations thereof as needed.
(l) all other assets of FTDI of every kind and nature not
reflected on the Balance Sheet.
2.3 Assignability and Consents. To the extent that the assignment of any
Acquired Contract to xxx.xxx as provided herein shall require the consent or
waiver of other parties, this Agreement shall not constitute an agreement to
assign the same if an attempted assignment without such consent or waiver would
constitute a breach thereof or entitle the other party thereto to terminate, or
accelerate any obligation under, such Acquired Contract. FTDI shall cooperate
with xxx.xxx and shall use its best efforts to obtain the consent of the other
parties to such Acquired Contracts. If any such consent has not been obtained as
of the Effective Time, such Acquired Contract shall be retained by FTDI unless
and until such consent has been obtained, and FTDI shall use its reasonable best
efforts to make the full use and benefit of such Acquired Contract available to
xxx.xxx to the same extent, as nearly as may be possible, as if such impediment
to assignment or transfer did not exist, including, but not limited to, rights
arising out of any breach or cancellation by such other parties.
2.4 Covenants of Further Assurance. FTDI shall, at any time and from time
to time after the Effective Time, upon request of xxx.xxx and without further
cost or expense to xxx.xxx, prepare, execute and deliver such instruments of
conveyance and assignment and shall take such action as xxx.xxx may reasonably
request to more effectively transfer to and vest in xxx.xxx, or its successors
and assigns, and to put xxx.xxx in possession of, any and all of the Acquired
Assets.
ARTICLE III ASSUMPTION
------------------------
3.1 Assumption by xxx.xxx. Except as provided in Section 3.3 hereof or
otherwise herein, upon the terms and subject to the conditions set forth in this
Agreement, xxx.xxx hereby agrees, from and after the Effective Time, to assume,
pay, perform and discharge as and when due, and indemnify and hold FTDI, its
directors, stockholders, affiliates, officers, employees and agents harmless
from and against, all liabilities and obligations of whatever nature (whether
absolute, accrued, fixed, contingent or otherwise and whether known or unknown)
arising out of or in connection with (i) the Acquired Assets, (ii the Direct
Access Business and the operation thereof and (ii the ownership, use or sale of
the Acquired Assets (the "Assumed Liabilities").
3.2 Retained Liabilities. Notwithstanding any other provision of this
Agreement or doctrine of law, FTDI shall retain, and xxx.xxx shall not assume,
or be liable with respect to, those liabilities and obligations of FTDI to the
extent not related to the Acquired Assets or the Direct Access Business.
3.3 Covenants of Further Assurance. xxx.xxx shall, at any time and from
time to time after the Effective Time, upon the request of FTDI and without
further cost or expense to FTDI, prepare, execute and deliver such instruments
of assumption and shall take such action as FTDI may reasonably request to
effect the assumption by xxx.xxx of the Assumed Liabilities.
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ARTICLE IV REPRESENTATIONS AND WARRANTIES
-------------------------------------------
4.1 As Is. xxx.xxx agrees and acknowledges that it is receiving the
Acquired Assets on an "as is" basis, without any representations or warranties,
written or implied, from FTDI regarding such Acquired Assets.
4.2 Representations and Warranties of FTDI. FTDI represents and warrants to
xxx.xxx that, as of the Effective Time, each of the following statements are
true and correct:
(a) Organization and Existence. FTDI is duly organized, validly
existing and in good standing under the laws of the State of Michigan. FTDI
has full corporate power and authority to own and lease the properties and
assets it now owns and leases and to carry on its business as and where
such properties and assets are now owned or leased and such business is now
conducted. FTDI is in good standing and duly qualified to conduct its
business as a foreign corporation in each of the jurisdictions in which the
ownership or leasing of its properties or assets or the conduct of its
business requires such qualification, except where any failure to be so
qualified would not have a material adverse effect.
(b) Authority and Approval. FTDI has the requisite corporate power and
authority to enter into this Agreement and is authorized to perform its
obligations hereunder. This Agreement has been duly authorized, executed
and delivered by FTDI and is a valid and binding obligation of FTDI,
enforceable against FTDI in accordance with its terms. No other act,
approval or proceedings on the part of FTDI is, or will be, required to
authorize the execution and delivery of this Agreement or the consummation
of the transactions contemplated by this Agreement.
(c) No Conflict. The execution and delivery of this Agreement by FTDI,
and the fulfillment and compliance with the terms and conditions of this
Agreement and the consummation of the transactions contemplated by this
Agreement, will not:
(i) conflict with, result in a breach of, constitute a default under,
or require the consent of any person under, any of the terms,
conditions or provisions of the articles of incorporation or by-
laws of FTDI other than such as has been obtained prior to the
Effective Time; or
(ii) violate any provision of, or require any notice, consent,
authorization, filing, registration or approval under, any law or
administrative regulation or any judicial, administrative or
arbitration order, award, judgment, writ, injunction or decree
applicable to FTDI.
(d) Securities Act. The shares of Class B common stock of xxx.xxx
received by FTDI pursuant to this Agreement are being acquired for
investment only and not with a view to any public distribution thereof, and
FTDI shall not offer to sell or otherwise dispose of the shares so acquired
by it in violation of any registration requirements of the Securities Act
of 1933, as amended.
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4.3 Representations and Warranties of xxx.xxx. xxx.xxx represents and
warrants to FTDI that
(a) Organization and Existence. xxx.xxx is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware. xxx.xxx has full legal power and authority to own and
lease the properties and assets it now owns and leases and to carry on its
business as and where such properties and assets are now owned or leased
and such business is now conducted.
(b) Authority and Approval. xxx.xxx has the requisite corporate power
and authority to enter into this Agreement and is authorized to perform its
obligations hereunder. This Agreement has been duly authorized, executed
and delivered by xxx.xxx and is a valid and binding obligation of xxx.xxx,
enforceable against xxx.xxx in accordance with its terms. No other act,
approval or proceedings on the part of xxx.xxx is, or will be, required to
authorize the execution and delivery of this Agreement or the consummation
of the transactions contemplated by this Agreement.
(c) No Conflict. The execution and delivery of this Agreement by
xxx.xxx, and the fulfillment and compliance with the terms and conditions
of this Agreement and the consummation of the transactions contemplated by
this Agreement, will not:
(i) conflict with, result in a breach of, constitute a default under,
or require the consent of any person under, the terms, conditions
or provisions of the certificate of incorporation, by-laws or
other corporate documents of xxx.xxx other than such as have been
obtained prior to the Effective Time; or
(ii) violate any provision of, or require any notice, consent,
authorization, filing or registration or approval under, any law
or administrative regulation or any judicial administrative or
arbitration order, award, judgment, writ, injunction or decree
applicable to xxx.xxx.
4.4 Survival of Representations and Warranties. All representations and
warranties made by FTDI or xxx.xxx in this Agreement and in any Schedules,
certificates or other documents delivered in connection with the transactions
contemplated hereby shall survive the Effective Time until December 31, 2000.
ARTICLE V CERTAIN COVENANTS AND ASSURANCES
--------------------------------------------
5.1 Cooperation by FTDI. FTDI will cooperate and will use its reasonable
best efforts to have its agents and employees cooperate with xxx.xxx, at
xxx.xxx's request and at xxx.xxx's expense, on and after the Effective Time, in
furnishing information, evidence, testimony and other assistance in connection
with any actions, proceedings, arrangements or disputes involving the operations
of the Direct Access Business or based upon contracts, understandings or acts of
the Direct Access Business that were in effect or occurred on or prior to the
Effective Time; provided, however, that FTDI shall not be required by this
Section 5.1 to provide any such cooperation if FTDI is a party, or is threatened
to be a party, to any such action, proceeding, arrangement or dispute and FTDI
or its legal counsel determines that any such
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information, evidence, testimony or other assistance would be adverse to FTDI's
interests therein.
5.2 Cooperation by xxx.xxx. xxx.xxx will cooperate and will use its
reasonable best efforts to have its agents and employees cooperate with FTDI, at
FTDI's request and at FTDI's expense, on and after the Effective Time, in
furnishing information, evidence, testimony and other assistance in connection
with any actions, proceedings, arrangements or disputes involving FTDI and the
operations of the Direct Access Business or based upon contracts, understandings
or acts of the Direct Access Business that are in effect or occur after the
Effective Time; provided, however, that xxx.xxx shall not be required by this
Section 5.2 to provide any such cooperation if xxx.xxx is a party, or is
threatened to be a party, to any such action, proceeding, arrangement or dispute
and xxx.xxx or its legal counsel determines that any such information, evidence,
testimony or other assistance would be adverse to xxx.xxx's interests therein.
5.3 Expenses. xxx.xxx will bear the reasonable legal, accounting and other
expenses incurred by each party in connection with this Agreement, the Ancillary
Agreements (as hereinafter defined) and the other agreements and transactions
contemplated hereby.
5.4 Filings. Each of the parties hereto agree to cooperate fully with the
other in the preparation and filing, whether before or after the Effective Time,
of all documents and instruments required to be filed by FTDI or xxx.xxx, in
connection with the transactions contemplated by this Agreement, including,
without limitation, any business certificate, or any trade, assumed or
fictitious name certificates, or any applications for authority to do business,
or any registrations or assignments of registrations of any patents, trademarks,
trade names, service marks, copyrights or similar rights.
5.5 Bulk Transfer Laws. xxx.xxx hereby waives compliance by FTDI with the
laws of any jurisdiction relating to bulk transfers of goods that may be
applicable in connection with the transfer of the Acquired Assets to xxx.xxx, if
any. FTDI shall indemnify and hold xxx.xxx, its directors, stockholders,
affiliates, officers, employees and agents harmless from and against any failure
by FTDI to comply with any such law. The foregoing covenants of this Section 5.5
shall survive indefinitely.
5.6 Certain Payments. If FTDI receives any payment relating to any Account
Receivable, such payment shall be the property of, and shall be immediately
forwarded and remitted to, xxx.xxx. FTDI will promptly endorse and deliver to
xxx.xxx any cash, checks or other documents received by FTDI on account of any
such Account Receivable.
ARTICLE VI POST-CLOSING COVENANTS
----------------------------------
FTDI and xxx.xxx agree to use reasonable efforts to negotiate and enter
into (1) the Intercompany Services Agreement to be dated as of the date hereof
between xxx.xxx and FTDI, (2) the Commission Agreement to be dated as of the
date hereof between xxx.xxx and FTDI, (3) the Indemnification Agreement to be
dated as of the date hereof among xxx.xxx, FTDI and FTD Corporation, a Delaware
corporation ("FTDC"), (4) the Trademark Licensing Agreement, (5) the Florists
Online Hosting Agreement to be dated as of the date hereof between xxx.xxx and
FTDI and (6) the Tax Sharing Agreement to be dated as of December 19, 1994, as
amended by that certain Amendment dated as of the date hereof, among xxx.xxx,
FTDI and FTDC (collectively, the "Ancillary Agreements"), within [60] days after
the Effective Time.
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ARTICLE VII CONDITIONS TO CLOSING
-----------------------------------
7.1 Conditions to the Obligations of xxx.xxx. The obligations of xxx.xxx
to proceed with its obligations hereunder are subject to the satisfaction on or
prior to the Effective Time of all of the following conditions, any one or more
of which may be waived in whole or in part by xxx.xxx:
(a) Representations and Warranties. The representations and
warranties contained in Section 4.2 and in all schedules and certificates
delivered by FTDI to xxx.xxx pursuant to this Agreement shall be true and
accurate on and as of the Effective Time with the same effect as though
made on and as of such date, except for such changes, if any, as may be
expressly permitted by this Agreement or agreed to in writing by the
parties hereto.
(b) Performance of Covenants. FTDI shall have performed and complied
in all material respects with each and every covenant, agreement and
condition required to be performed or complied with by it hereunder on or
prior to the Effective Time.
(c) Licenses, Consents, etc. FTDI shall have obtained all licenses,
approvals, and permits of or given all notices to and made all filings with
governmental authorities required to be obtained, given or made by it for
or in connection with the transactions contemplated hereby, and all
consents and approvals (including the giving of notice), if any, of other
parties, including, but not limited to, the consent of creditors or
contracting parties of FTDI, in each case in which the failure to obtain
such consent or approval of other parties would have a material adverse
effect on the Acquired Assets or would materially interfere with the right
or ability of xxx.xxx to use the Acquired Assets or interfere with the
rights or ability of xxx.xxx to transfer good and unencumbered title to or
lawful use of the Acquired Assets, and no such governmental license,
approval or permit or consent or approval of any third party shall have
been withdrawn or suspended.
(d) No Injunction. As of the Effective Time, there shall be no
injunction, writ, restraining order or any other order of any nature issued
by a court or governmental agency of competent jurisdiction directing that
any of the transactions provided for in this Agreement not be consummated
as herein or therein provided.
(e) No Actions. As of the Effective Time, there shall be no action or
proceeding pending or threatened by or before any court or other judicial,
administrative or regulatory body to restrain or prohibit the transactions
contemplated by this Agreement.
(f) Corporate Authorization. FTDI shall have delivered to xxx.xxx a
certificate of the Secretary of FTDI, in form reasonably satisfactory to
xxx.xxx and its counsel, dated as of the date hereof, certifying (i) that a
true and correct copy of the articles of incorporation and bylaws of FTDI,
as amended as of the date hereof, is attached thereto, and (ii) the
authorization and approval of this Agreement, and the transactions
contemplated hereby, by the Board of Directors of FTDI in accordance with
the provisions of its bylaws.
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7.2 Conditions to the Obligations of FTDI. The obligations of FTDI to
proceed with its obligation hereunder are subject to the satisfaction on or
prior to the Effective Time of all of the following conditions, any one or more
of which may be waived in whole or in part by FTDI:
(a) Representations and Warranties. The representations and
warranties contained in Section 4.3 and in all certificates delivered by
xxx.xxx to FTDI pursuant to this Agreement shall be true and accurate on
and as of the Effective Time with the same effect as though made on and as
of such date, except for such changes, if any, as may be expressly
permitted by this Agreement or agreed to in writing by the parties hereto.
(b) Performance of Covenants. xxx.xxx shall have performed and
complied in all material respects with each and every covenant, agreement
and condition required to be performed or complied with by it hereunder on
or prior to the Effective Time.
(c) Licenses, Consents, etc. xxx.xxx shall have obtained all
licenses, approvals, and permits of governmental authorities required to be
obtained by it for or in connection with the transactions contemplated
hereby.
(d) No Injunction. As of the Effective Time, there shall be no
injunction, writ, restraining order or any other order of any nature issued
by a court or governmental agency of competent jurisdiction directing that
any of the transactions provided for in this Agreement not be consummated
as herein or therein provided.
(e) No Actions. As of the Effective Time, there shall be no action or
proceeding pending or threatened by or before any court or other judicial,
administrative or regulatory body to restrain or prohibit the transactions
contemplated by this Agreement.
(f) Corporate Authorization. xxx.xxx shall have delivered to FTDI a
certificate of a duly authorized officer of xxx.xxx, in form reasonably
satisfactory to FTDI and its counsel, dated as of the date hereof,
certifying (i) that a true and correct copy of the certificate of
incorporation and bylaws of xxx.xxx, as amended as of the date hereof is
attached thereto, and (ii) the authorization and approval of this
Agreement, and the transactions contemplated hereby and thereby, by the
Board of Directors of xxx.xxx in accordance with the provisions of its
bylaws.
ARTICLE VII MISCELLANEOUS
--------------------------
8.1 Schedules. All references in this Agreement to "Schedules" shall mean
the disclosure schedules identified in this Agreement and listed on page "(iii)"
hereof, which are attached hereto and incorporated herein and shall be deemed a
part of this Agreement for all purposes.
8.2 Amendments. This Agreement may be amended only by a writing executed
by all of the parties hereto.
8.3 Entire Agreement. This Agreement and the other agreements expressly
provided for herein set forth the entire understanding of the parties hereto and
supersede all prior contracts,
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agreements, arrangements, communications, discussions, representations and
warranties, whether oral or written, between the parties with respect to the
subject matter hereof.
8.4 Governing Law. This Agreement shall in all respects be governed by and
construed and enforced in accordance with the internal laws of the State of
Illinois without regard to the principles of conflict of laws thereof.
8.5 Notices. Any notice, request or other communication required or
permitted hereunder shall be in writing and shall be deemed to have been duly
given (i) upon receipt if personally delivered, or (ii) on the third business
days after being sent by registered or certified mail, return receipt requested,
postage prepaid, to the parties at their respective addresses set forth below.
To FTDI: Florists' Transworld Delivery, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxx 00000
Attention: President
To xxx.xxx: xxx.xxx inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxx 00000
Attention: President
Any party by written notice to the other may change the address or the persons
to whom notices or copies thereof shall be directed.
8.6 Transfer Taxes. FTDI and xxx.xxx shall each bear one-half of all
liabilities and obligations for taxes, if any, imposed upon FTDI, xxx.xxx or any
of the Acquired Assets arising out of or measured by the contribution of the
Acquired Assets pursuant hereto.
8.7 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which
together will constitute one and the same instrument.
8.8 Assignment. This Agreement shall be binding upon and inure to the
benefit of the successors and assigns of each party hereto, but no rights,
obligations or liabilities hereunder shall be assignable by xxx.xxx without the
prior written consent of FTDI.
8.9 Waivers. Any waiver by any party of any violation of, breach of or
default under any provision of this Agreement or any other agreements provided
for herein, by the other party shall not be construed as, or constitute, a
continuing waiver of such provision, or waiver of any other violation of, breach
of or default under any other provision of this Agreement or any other
agreements provided for herein.
8.10 Third Parties. Nothing expressed or implied in this Agreement is
intended, or shall be construed, to confer upon or give any person or entity
(including without limitation any employee or any beneficiary of any employee)
other than xxx.xxx and FTDI any rights or remedies under or by reason of this
Agreement.
10
8.11 Headings. The headings in this Agreement are solely for convenience of
reference and shall not be given any effect in the construction or
interpretation of this Agreement.
[The remainder of this page intentionally is left blank.]
11
IN WITNESS WHEREOF, the parties have caused their duly authorized
representatives to execute this Agreement as of the date first above written.
FLORISTS' TRANSWORLD DELIVERY, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
xxx.xxx inc.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President and
Chief Executive Officer
Schedule 2.1
Balance Sheet as of March 31, 1999
Attached
13
Schedule 2.1.1
Personal Property
None
14
Schedule 2.1.3
Contracts
15
Schedule 2.1.4
Permits and Approvals
16
