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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