1
EXHIBIT 4.4
FTD CORPORATION
FORM OF SUBSCRIPTION AGREEMENT
THE OFFERING WILL TERMINATE AT 5:00 P.M., NEW YORK CITY TIME, ON
________ __, 199_ (THE "EXPIRATION DATE"). SUBSCRIPTION
AGREEMENTS MUST BE RECEIVED BY FTD CORPORATION BY 5:00 P.M., NEW
YORK CITY TIME, ON THE EXPIRATION DATE.
[AFFIX LABEL HERE]
Initial Allocation of Shares [ ]
On the terms and subject to the conditions set forth in this Agreement, I
hereby subscribe for and agree to purchase the number of shares (the "Shares")
of Class A Common Stock, par value $.01 per share (the "Class A Common Stock"),
of FTD Corporation (the "Company") indicated below in the box entitled "Shares
To Be Purchased," at a price of $[ ] per Share. I acknowledge that I am
an Active Member of FTD Association (as such term is defined in the Articles of
Incorporation of FTD Association) and am therefore entitled to purchase the
Shares, provided, however, that the Company shall have no obligation to sell
any Shares to any Active Member who is a resident of a jurisdiction in which
the sale of Class A Common Stock to him would constitute a violation of the
securities, "Blue Sky" or other laws of such jurisdiction. See "THE OFFERING"
section of the Prospectus, dated ________ __, 199_ (the "Prospectus"), for a
complete description of the procedures for subscribing for Shares of Class A
Common Stock. For a description of certain of the risks associated with an
investment in the Shares, see the information set forth in the Prospectus under
the heading "RISK FACTORS."
RESTRICTIONS ON TRANSFER OF COMMON STOCK; OPTIONAL REDEMPTION
By executing this Agreement, I agree to be bound by the restrictions on
transfer of the Shares and the provisions regarding optional redemption of the
Shares by the Company under certain circumstances, all as set forth in more
detail on the attached Exhibit A.
2
FTD CORPORATION
INVESTMENT PROCEDURES
Prospective investors should complete the following steps prior to 5:00 p.m. on
the Expiration Date:
(1) Complete and return this Subscription Agreement by mail, overnight
delivery or hand delivery to:
American Stock Transfer & Trust Company
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: FTD Member Offering
(2) Upon acceptance of the subscription, a copy of the executed
Subscription Agreement, signed as accepted on behalf of the Company,
will be returned to the investor.
2
3
PAYMENT OF PURCHASE PRICE
I agree that I will be billed through Florists' Transworld Delivery,
Inc.'s ("FTD") Clearinghouse system for the aggregate purchase price of the
Shares (the "Purchase Price"). I further agree that if I fail to pay any
portion of my xxxx for the Purchase Price by ________ __, 199_, unless extended
at the Company's discretion for up to an additional sixty-day period (the
"Final Payment Date"), I will not be entitled to purchase Shares, and this
Agreement will automatically terminate and the billing for the Purchase Price
will be reversed. As soon as practicable following the Final Payment Date, the
Company will deliver to me a duly executed stock certificate representing the
Shares, registered as set forth herein.
To the extent that other Active Members of FTD Association do not purchase
the Shares of Class A Common Stock allocated to them ("Unsubscribed Shares"),
the Company may elect, at its sole discretion and in a manner the Company deems
appropriate, to reoffer the Unsubscribed Shares to other Active Members. I
understand that if I would like to purchase any Unsubscribed Shares, I should,
ox captioned "Shares To Be Purchased," indicate the maximum number of
additional shares of Class A Common Stock I would like to purchase, in addition
to my Initial Allocation. I understand the Company will notify me of the total
number of Shares of Class A Common Stock allotted to me and the total purchase
price for such Shares following the Expiration Date.
If this Agreement is executed on behalf of a corporation, partnership,
trust or other entity, I represent that the person(s) signing this Agreement
has/have been duly authorized to execute this Agreement and all other
instruments in connection with the purchase of the Shares and the signature(s)
is/are binding upon such corporation, partnership, trust or other entity. The
Company retains the right to request the production of an appropriate
certification of such authorization.
In the event there is any conflict between this Agreement and the
Prospectus, the terms set forth in the Prospectus shall be controlling.
This Agreement constitutes the entire agreement between the parties hereto
with respect to the offering and sale of the Shares hereof and may be amended
only in writing by the parties to be bound hereby.
__________________________
Shares will be issued in the name(s) and sent to the address specified in
the box captioned "Stock Registration."
3
4
SHARES TO BE PURCHASED
Initial Allocation:
Instruction: Your "Initial Allocation" is the number of Shares set forth on
the cover letter accompanying this Subscription Agreement. You
may subscribe to purchase your Initial Allocation in full (or, if
your Initial Allocation exceeds 100 Shares, you may subscribe to
purchase any number of Shares not less than 100 but not greater
than your Initial Allocation). Indicate below the number of
shares you will purchase. Please complete the following
sentence:
I HEREBY SUBSCRIBE TO PURCHASE FROM THE COMPANY _______________________
SHARES AT A PURCHASE PRICE OF $[ ] PER SHARE.
REQUEST TO PURCHASE ADDITIONAL SHARES:
Instruction: Indicate below the maximum number of additional Shares you
agree to purchase if Unsubscribed Shares are available.
FTD Corporation cannot guarantee that any Unsubscribed
Shares will be available. Please complete the following
sentence:
I HEREBY SUBSCRIBE TO PURCHASE FROM THE COMPANY UP TO ___________________
ADDITIONAL SHARES AT A PURCHASE PRICE OF $[ ] PER SHARE IF UNSUBSCRIBED
SHARES ARE AVAILABLE.
4
5
STOCK REGISTRATION
(See Guidelines for Registering Stock on page 8)
__________________________________________ ___________________________
Name(s) in which stock is to be registered Member Code #
__________________________________________ ___________________________
Name(s) in which stock is to be registered Member Code #
_____________________________________________________________________
Street Address
____________________________________ ___________________________
City County
____________________________________ ___________________________
State Zip Code
___________________________________________________________________________
Social Security or Tax ID Number
Day Telephone __________________________________
Evening Telephone ___________________________________
The manner of ownership shall be:
[] Individual
[] Joint Tenants
[] Tenants in Common
[] Other _______________________________________________________
(write in corporation, partnership, trust, estate, etc.)
Delivery of stock certificate will be made to the address you specify above.
5
6
SUBSTITUTE FORM W-9
[ ] CHECK THIS BOX IF THE FOLLOWING STATEMENT IS TRUE: I AM NOT SUBJECT TO
BACKUP WITHHOLDING EITHER (1) BECAUSE I AM EXEMPT FROM BACKUP
WITHHOLDING, (2) I HAVE NOT BEEN NOTIFIED BY THE INTERNAL REVENUE SERVICE
THAT I AM SUBJECT TO BACKUP WITHHOLDING AS A RESULT OF A FAILURE TO
REPORT ALL INTEREST OR DIVIDENDS, OR (3) THE INTERNAL REVENUE SERVICE HAS
NOTIFIED ME THAT I AM NO LONGER SUBJECT TO BACKUP WITHHOLDING. UNDER THE
PENALTY OF PERJURY, I CERTIFY, BY SIGNING THIS AGREEMENT BELOW, THAT THE
INFORMATION CONTAINED HEREIN, INCLUDING THE SOCIAL SECURITY NUMBER OR
TAXPAYER IDENTIFICATION NUMBER GIVEN ABOVE, IS TRUE, CORRECT AND
COMPLETE.
________________________________________________________________________________
INSTRUCTIONS FOR SUBSTITUTE FORM W-9
If the box under the caption "Substitute Form W-9" is not checked, the
Company will withhold federal income taxes from any dividends the Company pays
on the Class A Common Stock. Therefore, if the statement next to such box is
true, it is in the Participating Member's best interest to check the indicated
box, as this will increase the amount received by the Participating Member if
and when dividends are paid by the Company on the Shares.
6
7
ACKNOWLEDGMENT
I have received and carefully reviewed the Prospectus with respect to the
offering and sale of the Shares, including the information set forth under the
heading "RISK FACTORS" which describes certain of the risks associated with an
investment in the Shares. No information or representations have been given to
me by representatives of the Company or anyone else other than those contained
in the Prospectus. I understand that I may not sell, transfer or assign this
Subscription Agreement, or any interest herein, and I may not transfer or
assign the Shares except in accordance with this Subscription Agreement and
applicable laws.
This Subscription Agreement cannot be revoked by me and it shall become an
agreement binding on the Company only upon its acceptance by the Company.
After acceptance by the Company, this Subscription Agreement shall also be
binding on my heirs, estate, legal representatives, assigns and successors, and
shall survive my death, disability or dissolution.
THIS SUBSCRIPTION AGREEMENT MUST BE RECEIVED BY 5:00 P.M. NEW YORK CITY
TIME ON ________ __, 199_ IN ORDER TO PARTICIPATE IN THE OFFERING. RETURN YOUR
COMPLETED SUBSCRIPTION AGREEMENT IN THE ENVELOPE PROVIDED.
SIGNATURE(S) OF STOCKHOLDER(S)
(See Guidelines for Registering Stock on Page 8)
NOTE: THIS SUBSCRIPTION AGREEMENT IS NOT VALID UNLESS SIGNED.
THE INTERNAL REVENUE SERVICE DOES NOT REQUIRE YOUR CONSENT TO ANY PROVISION OF
THIS DOCUMENT OTHER THAN THE CERTIFICATIONS REQUIRED TO AVOID BACKUP
WITHHOLDING.
___________________________________________ _______________________
Signature Date
___________________________________________ _______________________
Signature Date
___________________________________________________________
Title (if subscribing as custodian, corporate officer, etc.)
ACCEPTANCE
Accepted and agreed for __________________ Shares of Class A Common Stock
at a total Purchase Price of $___________________.
FTD Corporation
By:___________________________
Authorized Officer
7
8
================================================================================
GUIDELINES FOR REGISTERING STOCK
For reasons of clarity and standardization, the stock transfer industry
has developed uniform stockholder registrations which we will use in issuing
your FTD Corporation Stock Certificate(s). If you have any questions, please
consult your legal advisor.
Stock ownership must be registered in one of the following manners.
--------------------------------------------------------------------------------
GENERAL INSTRUCTIONS: o Include the first name, middle initial and last
name of each person listed. Avoid the use of
an initial in place of the first name.
o Do not use titles such as "Mr.," "Mrs.," "Dr.",
etc.
o Omit words that do not affect ownership rights
such as "special account," "personal property,"
etc.
o Check the appropriate space in the box
captioned "Stock Registration" to indicate
manner of ownership.
--------------------------------------------------------------------------------
INDIVIDUAL: Instructions: In the box captioned "Stock
Registration," print the first name, middle initial
and last name of the stockholder. In the box
captioned "Signature(s) of Stockholder(s)," the
stockholder must sign his or her name.
--------------------------------------------------------------------------------
JOINT TENANTS: Joint Tenancy with Right of Survivorship identifies
two or more persons as owners of the stock. Upon
the death of one of the owners, ownership
automatically passes to the surviving tenant(s).
Instructions: In the box captioned "Stock
Registration," print the first name, middle initial
and last name of each joint tenant. In the box
captioned "Signature(s) of Stockholder(s)," each
stockholder must sign his or her name.
8
9
--------------------------------------------------------------------------------
TENANTS IN COMMON: Tenants in Common identifies two or more persons as
owners of the stock. Upon the death of one co-
tenant, ownership of the stock passes to the heirs
of the deceased co-tenant and the surviving co-
tenant(s).
Instructions: In the box captioned "Stock
Registration," print the first name, middle initial
and last name of each co-tenant. In the box
captioned "Signature(s) of Stockholder(s)," each
stockholder must sign his or her name.
--------------------------------------------------------------------------------
CORPORATION OR Instructions: In the box captioned "Stock
PARTNERSHIP: Registration," print the name of the corporation,
partnership, trust, estate or other entity. In the
box captioned "Signature(s) of Stockholder(s)," the
authorized signatory/signatories for the
corporation, partnership, trust, estate or other
entity must sign his, her or their names, as the
case may be.
================================================================================
FOR ASSISTANCE COMPLETING THIS SUBSCRIPTION AGREEMENT OR QUESTIONS REGARDING
THE OFFERING, CALL FTD CORPORATION AT (000) 000-0000 AND ASK TO SPEAK TO A
REPRESENTATIVE ABOUT THE FTD MEMBER OFFERING.
9
10
EXHIBIT A
RESTRICTIONS ON TRANSFER
OF COMMON STOCK; OPTIONAL REDEMPTION
The Participating Member executing the Subscription Agreement to which
this exhibit is attached hereby agrees that, until the earlier of (i) three
years from the Final Payment Date (as defined in the Subscription Agreement) or
(ii) 180 days after the consummation of an Initial Public Offering (as defined
below) (the "Restriction Period"), the Participating Member shall not transfer
the Shares except to (1) Family Members (as defined below) or Affiliates (as
such term is defined in Rule 12b-2 promulgated under the Securities Exchange
Act of 1934, as amended) of the Participating Member or (2) subject to the
Company's right of first refusal (as described below), other Active Members of
FTD Association in good standing. "Family Members" shall mean with respect to
any Participating Member, a spouse, parent, child or any of the lineal
descendants of such Participating Member. Rule 12b-2 defines an "Affiliate" of
a person to mean a person that, directly or indirectly through one or more
intermediaries, controls or is controlled by, or is under common control with
the person specified.
The Participating Member further agrees that, during the Restriction
Period, any transfer other than to a Family Member or Affiliate will be subject
to the Company's right of first refusal. During the Restriction Period, the
Participating Member agrees to give the Company written notice at least 30 days
in advance of the proposed sale of Shares (the "Notice Period"), stating the
Participating Member's intention to make such sale, the name of the proposed
purchaser, the number of Shares to be sold (the "Offered Shares"), the proposed
amount and form of consideration to be paid for the Offered Shares (the "Offer
Price") and the other material terms upon which such sale is proposed. During
the Notice Period, the Company shall have an irrevocable option to purchase all
(but not less than all) of the Offered Shares at the applicable Offer Price.
The option of the Company shall be exercisable by written notice to the
Participating Member given on or before the 30th day of the Notice Period. The
Participating Member agrees that, if at the end of the Notice Period the
Company has not elected to exercise its option to purchase the Offered Shares,
the Participating Member is free, for a period of 20 days following the date
the Company's option lapses, to consummate the sale of the Offered Shares to
the purchaser at a price equal to or greater than the Offer Price.
If the Company exercises its option, the closing of the purchase of the
Offered Shares with respect to which such option has been exercised shall take
place on the 20th business day after the later of (i) the date the Company
gives notice of such exercise and the fair market value determination, as
provided below, if any, is completed and (ii) the expiration of such time as
the Company may reasonably require in order to comply with applicable United
States federal and state laws and regulations, which in no event shall be more
than 60 days after the date specified in clause (i). Upon exercise by the
Company of its option, the Company and the Participating Member shall be
legally obligated to consummate the purchase contemplated thereby and shall use
their best efforts to make all necessary filings and to secure any approvals
required and to comply as soon as practicable with all applicable United States
federal and state laws and regulations in connection therewith. If any portion
of the Offer Price is proposed to be paid in a form other than
10
11
cash, the Company shall have the option to pay such consideration in the form
proposed or in an amount of cash equal to the fair market value of such
non-cash consideration. The fair market value of any non-cash consideration
shall be determined by the mutual agreement of the Company and the
Participating Member or, if they cannot so agree within 20 business days after
exercise of the option, by a nationally recognized investment banking firm
selected by the Company and the Participating Member (which investment banking
firm shall be retained by, and the fees and expenses of which shall be shared
equally by the Company on the one hand, and the Participating Member on the
other hand). No transfer to another Active Member may occur in accordance with
these provisions unless the transferee shall agree to be bound, to the same
extent as the Participating Member, by the terms of the Subscription Agreement.
Such agreement shall be evidenced by the acceptance by the transferee of
securities containing the legend set forth below.
"Initial Public Offering" shall mean the sale of Class A Common Stock to
the public in an offering pursuant to an effective registration statement filed
with the Securities and Exchange Commission under the Securities Act of 1933,
as amended, which results in an active trading market in the Class A Common
Stock (such an active trading market shall be deemed to exist if, among other
things, the Class A Common Stock is listed on a national securities exchange or
on the Nasdaq National Market); provided that an Initial Public Offering does
not include an offering made in connection with a business acquisition or
combination or any employee benefit plan or an offering of securities by the
Company solely to members of FTD Association.
The certificates representing the Shares shall contain a legend in
substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO A SUBSCRIPTION AGREEMENT BETWEEN FTD
CORPORATION (THE "COMPANY") AND THE ORIGINAL HOLDER OF
THIS SECURITY, A COPY OF WHICH IS ON FILE WITH THE
SECRETARY OF THE COMPANY. NO TRANSFER, SALE,
ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION
OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY
BE MADE EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF
SUCH SUBSCRIPTION AGREEMENT. THE HOLDER OF THIS
CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE, AGREES
TO BE BOUND BY ALL OF THE PROVISIONS OF SUCH
SUBSCRIPTION AGREEMENT, INCLUDING RESTRICTIONS
RELATING TO THE TRANSFER OF SECURITIES REPRESENTED
HEREBY.
The Participating Member hereby agrees that if the Participating Member
ceases to be an Active Member of FTD Association during the Restriction Period,
the Company will have the irrevocable option for a period of 60 days following
the date the Participating Member ceases to be an Active Member to redeem any
Shares held by the Participating Member or any Family Member or Affiliate of
the Participating Member to which such Shares have been transferred at the
greater of (i) the then Fair Market Value (as defined below) of the Shares or
(ii) $[ ] per
11
12
Share. The Participating Member agrees to give the Company prompt notice
that the Participating Member has ceased to be an Active Member.
"Fair Market Value" as applied to any Shares shall mean the value of such
Shares, determined in good faith by an officer of the Company, in his sole
judgment, based on the earnings, book value and prospects of the Company in
light of market conditions generally.
The Participating Member hereby agrees that if the funds necessary to
consummate any such purchase of his, her or their Shares, as the case may be,
have been duly provided by the Company and are available to the Participating
Member on the date of purchase fixed in the written demand addressed to the
stockholder, then from and after such date all rights and privileges incident
to the ownership of the Shares (including, but not limited to, the right of
dividends thereon) shall cease, except the right to receive the purchase price
plus a sum equal to any dividends declared but remaining unpaid on the date of
purchase without interest; and from and after such date of purchase the Company
shall be at liberty to cancel the certificate or certificates representing said
Shares upon the books of the Company.
12
