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VOTING AND SUPPORT AGREEMENT

Voting Agreement

VOTING AND SUPPORT AGREEMENT You are currently viewing:
This Voting Agreement involves

UNITED ONLINE INC | FTD Co-Investment, LLC | LGP Management, Inc | Purchaser, UNOLA Corp | United Online, Inc

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Title: VOTING AND SUPPORT AGREEMENT
Governing Law: Delaware     Date: 5/6/2008
Industry: CMPSRV     Law Firm: Skadden Arps;Latham Watkins     Sector: TECHNO

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Exhibit 10.1

 

EXECUTION VERSION

 

VOTING AND SUPPORT AGREEMENT

 

VOTING AND SUPPORT AGREEMENT, dated as of April 30, 2008 (this “Agreement”), by and among Green Equity Investors IV, L.P. (“GEI”), FTD Co-Investment, LLC (“LLC” and, together with GEI, the “Principal Stockholders”), and United Online, Inc., a Delaware corporation (“Purchaser”).

 

RECITALS

 

As of the date hereof, GEI owns 9,183,539 shares of the Common Stock, par value $0.01 per share (the “Company Common Stock”), of FTD Group, Inc., a Delaware corporation (the “Company”);

 

As of the date hereof, LLC owns 93,256 shares of Company Common Stock;

 

Purchaser proposes to enter into a transaction with the Company, upon the terms and subject to the conditions set forth in the Agreement and Plan of Merger, dated as of the date hereof, by and among Purchaser, UNOLA Corp., a Delaware corporation and a wholly owned Subsidiary of Purchaser, and the Company (the “Merger Agreement”); and

 

As a condition to its willingness to enter into the Merger Agreement, Purchaser has required that the Principal Stockholders execute and deliver this Agreement.

 

NOW, THEREFORE, in consideration of the foregoing and the representations, warranties, covenants and agreements contained herein, the parties hereto, intending to be legally bound hereby, agree as follows:

 

1. Definitions.   For purposes of this Agreement, capitalized terms used and not defined herein shall have the respective meanings ascribed to them in the Merger Agreement.

 

2. Representations of the Principal Stockholders.   Each Principal Stockholder hereby represents and warrants to Purchaser as follows:

 

(a) Such Principal Stockholder is the beneficial owner (for purposes of this Agreement, such term shall have the meaning set forth in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations promulgated thereunder, but without regard to any conditions (including the passage of time) to the acquisition of such shares) of, and has good and valid and marketable title to, the number of shares of Company Common Stock described in the Recitals as owned by it.  With respect to either Principal Stockholder, all of such shares are collectively referred to herein as the “Shares .

 

(b) Such Principal Stockholder is not the beneficial owner of any shares of Company Common Stock or other voting securities or instruments of the Company, other than the applicable Shares.

 



 

(c) Such Principal Stockholder is a limited partnership or limited liability company, duly formed, validly existing and in good standing under the laws of its jurisdiction of organization and has all requisite power and authority necessary to execute and deliver this Agreement and to consummate the transactions contemplated hereby.  Other than as required or permitted by this Agreement, such Principal Stockholder has the power and authority (corporate or other) to vote the Shares.

 

(d) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all requisite partnership or limited liability company action on the part of such Principal Stockholder and no other proceedings on the part of such Principal Stockholder are necessary to authorize this Agreement or the consummation of the transactions contemplated hereby.  This Agreement has been duly executed and delivered by such Principal Stockholder and this Agreement constitutes a valid and binding agreement of such Principal Stockholder, enforceable against such Principal Stockholder in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights and to general equity principles (regardless of whether such enforcement is considered in a proceeding at law or in equity).

 

(e) Other than as required or permitted by this Agreement, the applicable Shares are now and shall at all times during the term of this Agreement be owned of record by such Principal Stockholder (or by a nominee or custodian for the account of such Principal Stockholder), free and clear of all pledges, liens, proxies, claims, charges, security interests, preemptive rights, voting trusts, voting agreements, options, rights of first offer or refusal and any other encumbrances or arrangements whatsoever (other than transfer restrictions imposed by generally applicable securities Laws) with respect to the ownership, transfer or voting of such Shares, and there are no outstanding options, warrants or rights to purchase or acquire, or agreements or arrangements relating to the voting of, any of such Shares other than this Agreement.

 

(f) The execution and delivery of this Agreement by such Principal Stockholder, the consummation by such Principal Stockholder of the transactions contemplated hereby and the performance by such Principal Stockholder of its obligations hereunder shall not (including with notice or lapse of time or both):

 

(i) require any consent, approval, order, authorization or permit of, or registration, filing with or notification to, any governmental body, court, agency, official or regulatory or other authority, whether federal, state, local or foreign (each, a “Governmental Entity”) or other party and except for the filing with the Securities and Exchange Commission (the “Commission”) of any Schedules 13D or 13G or amendments to Schedules 13D or 13G and filings under Section 16 of the Exchange Act, as may be required in connection with this Agreement and the transactions contemplated hereby;

 

(ii) contravene or conflict with the certificate of formation, limited partnership agreement or limited liability company agreement of such Principal Stockholder;

 

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(iii) result in any violation or the breach of, or constitute a default under, or give rise to any right of termination, cancellation or acceleration or any payments under, or result in a loss of a benefit or in the creation or imposition of a lien under, any of the terms, conditions or provisions of any note, lease, mortgage, indenture, license, agreement or other instrument or obligation to which such Principal Stockholder is a party or by which such Principal Stockholder or any of its assets is bound; or

 

(iv) violate the provisions of any order, writ, injunction, judgment, decree, statute, rule or regulation applicable to such Principal Stockholder in such a manner as would, individually or in the aggregate, or reasonably be expected to materially impair the ability of such Principal Stockholder to perform its obligations under this Agreement or prevent or delay the consummation of any of the transactions contemplated by this Agreement.

 

(g) Such Principal Stockholder acknowledges receipt and review of the Merger Agreement and understands the terms and conditions thereof.  Such Principal Stockholder has had the opportunity to review this Agreement and the Merger Agreement with counsel of its own choosing.  Such Principal Stockholder understands and acknowledges that Purchaser is entering into the Merger Agreement in reliance upon such Principal Stockholder’s execution, delivery and performance of this Agreement.

 

(h) Such Principal Stockholder hereby waives, and agrees not to assert or perfect, any dissenters’ rights or any similar rights that it may have by virtue of ownership of the Shares.

 

(i) As of the date hereof, there is no action, suit, investigation or proceeding pending, or, to the knowledge of such Principal Stockholder, threatened, against or affecting, such Principal Stockholder or any of its properties or assets (including the Shares) that could reasonably be expected to impair the ability of such Principal Stockholder to perform its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis.

 

3. Agreement to Vote Shares.  During the period commencing on the date hereof and continuing until the termination of this Agreement in accordance with its terms (except as provided in the last sentence of this Section 3), each Principal Stockholder agrees to: (i) appear, or cause the record holder of any Shares on the applicable record date (each a “Record Holder”) to appear (in person or by proxy), at any annual or special meeting of the stockholders of the Company for the purpose of obtaining a quorum, or, if stockholders of the Company are requested to vote their shares through the execution of an action by written consent in lieu of any such annual or special meeting of stockholders of the Company, such Principal Stockholder agrees to execute or cause all Record Holders to execute such consent, and (ii) vote (or, if requested, execute consents or proxies with respect to), or cause each Record Holder to vote (or, if requested, execute consents or proxies with respect to), the Shares and any New Shares (as defined in Section 8 hereof): (A) in favor of adoption and approval of the Merger Agreement and the transactions contemplated thereby, including the Merger, at every meeting (or in connection with any action by written consent) of the stockholders of the Company at which such matters are considered and at every adjournment or postponement thereof; (B) against any Acquisition

 

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Proposal; (C) against any action, proposal, transaction or agreement which would reasonably be expected to result in a breach of any covenant, representation or warranty or any other obligation or agreement of the Company under the Merger Agreement or of such Principal Stockholder under this Agreement; (D) against any liquidation, dissolution, recapitalization, extraordinary dividend or significant corporate reorganization of the Company or any of its subsidiaries; (E) except as otherwise agreed to in writing in advance by Purchaser, against any other action, proposal, transaction or agreement that would reasonably be expected to compete or interfere with, or would reasonably be expected to delay, discourage, adversely affect or inhibit the timely consummation of, the Merger; and (F) in favor of any other matter necessary for the consummation of the transactions contemplated by the Merger Agreement which is considered at any such meeting of stockholders.  Each Principal Stockholder agrees not to enter into any agreement, letter of intent, agreement in principle or understanding whatsoever with any Person that would reasonably be expected to violate, conflict or interfere with the provisions of this Agreement or that would reasonably be expected to delay, discourage, adversely affect or inhibit the timely consummation of the Merger.  Notwithstanding the foregoing, each Principal Stockholder shall remain free to vote (or execute consents or proxies with respect to) the Shares with respect to any matter not covered by this Section 3 in any manner it deems appropriate, provided that such vote (or execution of consents or proxies with respect thereto) would not reasonably be expected to (i) violate or conflict with the provisions of this Agreement or (ii) materially impair the ability of such Principal Stockholder to perform its obligations under this Agreement.  Notwithstanding the foregoing or anything to the contrary contained herein, the obligations of the Principal Stockholders under this Section 3 shall be suspended during the pendency of an Adverse Recommendation Change due to an Intervening Event (provided that such obligations shall be reinstated at such time, if any, that the Board or a committee thereof withdraws the Adverse Recommendation Change or approves or recommends the Merger Agreement subsequent to the Adverse Recommendation Change).

 

4. Representations of Purchaser .  Purchas









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