Exhibit 10.1




 




 




 




 




November 12, 2002




 




 




 




Daniel Smith




Florists’ Transworld Delivery




3113 Woodcreek Drive




Downers Grove, Illinois 60515




 




Dear Dan:




 




This letter agreement (this “Agreement”) sets forth

the terms of your employment with Florists’ Transworld Delivery Inc. (“FTD”).




Duties.  You shall

serve as Executive Vice President, FTD.COM or in a substantially similar

position with any entity that acquires FTD or all or substantially all of FTD’s

assets through October  31, 2004, which term shall automatically renew for

two-year periods thereafter unless this Agreement is terminated as provided

herein upon notice by FTD Inc. and /or FTD prior to the commencement of any

two-year renewal period.  You shall

perform the duties assigned by FTD from time to time.  You shall devote your entire business time to the affairs of FTD

to the performance of your duties under this Agreement and to the promotion of

FTD’s interests.




Compensation.  As full

compensation for the performance by you of your duties under this Agreement,

FTD shall compensate you as follows:




(a)   Salary.  During the term of this Agreement, FTD shall

pay to you a salary of $175,000 per year, payable in the periodic installments

ordinarily paid by FTD to employees of FTD at comparable levels to you.  You shall be entitled to such merit

increases in base salary as the Board of Directors may determine, in its

discretion.




(b) Performance Bonus. 

You shall be entitled to participate in a performance bonus as set by

the Board of Directors based upon performance criteria to be set by the

Board.  If your employment with FTD is

terminated for any reason other than “cause” (as defined below under

“Severance”) following a change in control (as defined below), you shall be

entitled to received a pro rata bonus for the applicable fiscal year if you are

entitled to one based upon the performance criteria set by the Board.  For purposes of this agreement, “Change of

Control” shall mean:




(1) the

acquisition by any individual, entity or group (within the meaning of Section

13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934 (the “Exchange

Act”)) (a “Person”) of beneficial ownership (within the meaning of Rule 13d-3

promulgated under the Exchange Act) of more than 50% of the combined voting

power of the then-outstanding voting




 





























 




securities

entitled to vote generally in the election of directors (“Voting Stock”) of FTD

Inc. or FTD, respectively; provided, however, that for purposes of this

subsection (i), the following acquisitions shall not constitute a Change

of Control:  (A) any acquisition

directly from FTD Inc. or FTD, (B) any acquisition by FTD Inc., FTD, any

subsidiary of FTD Inc. or FTD or any employee benefit plan (or related trust)

sponsored or maintained by FTD Inc. or FTD or any such subsidiary or

(C) any acquisition by any of Perry Acquisition Partners, L.P., Bain

Capital, Inc., Fleet Private Equity Co. Inc. or any of their respective

affiliates;




(2) a change in a majority of the members of the Board

of Directors of FTD Inc. or FTD, respectively, occurs (A) within one year

following the public announcement of an actual or threatened election contest

(within the meaning of Rule 14a-11 under the Exchange Act) or the filing of a

Schedule 13D or other public announcement indicating a Person intends to effect

a change in control of FTD Inc. or FTD or (B) as a result of a majority of

the members of the Board having been proposed, designated or nominated by a

Person (other than FTD Inc. or FTD through their respective Boards of Directors

or duly authorized committees thereof or through the exercise of contractual

rights);




(3) consummation of a reorganization, merger or

consolidation or sale or other disposition of all or substantially all of the

assets of FTD Inc. or FTD (a “Business Combination”), in each case, unless,

following such Business Combination, (A) more than 50% of the Voting Stock

of the entity resulting from such Business Combination is held in the aggregate

by (1) the holders of securities entitled to vote generally in the

election of directors of FTD Inc. or FTD immediately prior to such transaction,

(2) any employee benefit plan (or related trust) sponsored or maintained

by FTD Inc. or FTD or such entity or any subsidiary of any of them or

(3) any of Perry Acquisition Partners, L.P., Bain Capital, Inc., Fleet

Private Equity Co. Inc. or any of their respective affiliates and (B) at

least half of the members of the board of directors of the entity resulting

from such Business Combination were members of the Board of Directors of  FTD Inc. or FTD at the time of the execution

of the initial agreement, or the action of the Board of Directors of  FTD Inc. or FTD, providing for such Business

Combination; or




(4) approval by the stockholders of FTD Inc. or FTD of

a complete liquidation or dissolution of FTD Inc. or FTD.




(c) Paid Vacation. 

You shall be entitled to four weeks of paid vacation per year in

accordance with FTD’s policies with respect to vacations then in effect.




(d) Benefits. 

You shall be entitled to the additional employment-related benefits that

are made available from time to time to employees of FTD at comparable levels

to you.




(e) Expense Reimbursement. 

FTD shall reimburse you, in accordance with the practice from time to

time in effect for other employees of FTD, for all reasonable and necessary travel

expenses and other disbursements incurred by you, for or on behalf of FTD, in

the performance of your duties under this Agreement.




 




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Severance.  FTD shall

have the right to terminate your employment by giving you written notice of the

effective date of the termination.  If

your employment is terminated (i) without “cause” by FTD or (ii) by

you following your assignment to a position that represents a material

diminution in your operating responsibilities (it being understood that a

change in your title shall not by itself entitle you to terminate your

employment and receive the right to severance payments under this paragraph),

FTD will pay you continued salary for one year from the effective date of any

such termination of employment and any pro rata bonus to which you may be

entitled pursuant to this Agreement. 

FTD’s severance obligations are subject to your best efforts to

mitigate.  FTD shall have no further

obligation hereunder.




For purposes of this Agreement, “cause” means any of

the following events that FTD or the FTD Board of Directors has determined, in

good faith, has occurred: (i) your continual or deliberate neglect of the

performance of your material duties; (ii) your failure to devote substantially

all of your working time to the business of FTD and its subsidiaries or

affiliated companies; (iii) your engaging willfully in misconduct in

connection with the performance of any of your duties, including, without

limitation, the misappropriation of funds or securing or attempting to secure

personally any profit in connection with any transaction entered into on behalf

of FTD or its subsidiaries or affiliated companies; (iv) your willful

breach of any confidentiality or nondisclosure agreements with FTD (including

this Agreement) or your violation, in any material respect, of any code or

standard of behavior generally applicable to employees or executive employees

of FTD; (v) your active disloyalty to FTD, including, without limitation,

willfully aiding a competitor or improperly disclosing confidential

information; or (vi) your engaging in conduct that may reasonably result

in material injury to the reputation of FTD, including conviction or entry of a

plea of nolo contendre for a felony or any crime involving fraud under Federal,

state or local laws, embezzlement, bankruptcy, insolvency or general assignment

for the benefit of creditors.




Confidential Information and Non-Competition. 

You agree to enter into a separate agreement with FTD (attached hereto

as Exhibit A) that provides for (i) non-disclosure of

confidential information, (ii) non-competition and

(iii) non-solicitation of customers, suppliers and employees.  This Agreement shall not be effective until you

have executed and delivered such agreement to the Company.




Limitation on

Payments and Benefits.  Notwithstanding any other

provision of this Agreement to the contrary, in the event that it shall be

determined (as hereafter provided) that any payment or distribution by FTD or

any of its affiliates to you or for your benefit, whether paid or payable or

distributed or distributable pursuant to the terms of this Agreement or

otherwise pursuant to or by reason of any other agreement, policy, plan,

program or arrangement, including without limitation any stock option,

performance share, performance unit, stock appreciation right or similar right,

or the lapse or termination of any restriction on or the vesting or

exercisability of any of the foregoing, would be subject to the excise tax imposed

by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”)

(or any successor provision thereto), by reason of being considered “contingent

on a change in ownership or




 




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control”

of FTD within the meaning of Section 280G of the Code (or any successor

provision thereto), or to any similar tax imposed by state or local law, or any

interest or penalties with respect to such taxes, then such payments and

benefits to be paid or provided shall be reduced to an amount (but not below

zero) that would result in the maximum possible net after tax receipts to you

from all such payments or distributions (determined by reference to the present

value determined in accordance with Section 280G(d)(4) of the Code (or any

successor provision thereto) of all such payments net of all such taxes, or any

interest or penalties with respect to such taxes, determined by applying the

highest marginal rate under Section 1 of the Code (or any successor provision

thereto) that applied to your taxable income for the immediately preceding

taxable year) (the “Reduced Amount”). 

The fact that your payments or benefits may be reduced by reason of the

limitations contained in this paragraph will not of itself limit or otherwise

affect any of your other rights other than pursuant to this Agreement.  If it is determined that you should receive

a Reduced Amount, FTD will provide you notice to that effect and a copy of the

detailed calculation thereof.  You will

then be entitled to designate the payments or benefits to be so reduced in

order to give effect to this paragraph. 

In the event that you fail to make such designation within ten business

days of notification of the reduction in payments or benefits is required

pursuant to this paragraph, FTD may effect such reduction in any manner it

deems appropriate.




Miscellaneous.  This

Agreement shall be governed by the internal laws of the State of Illinois,

excluding the conflicts-of-law principles thereof.  You and FTD consent to jurisdiction and venue in any federal or

state court in the City of Chicago. 

This Agreement and the accompanying Exhibit A state our

entire agreement and understanding regarding your employment with FTD.  This agreement may be amended only by a

written document signed by both you and FTD. 

No delay or failure to exercise any right under this Agreement waives

such rights under the Agreement.  If any

provision of this Agreement is partially or completely invalid or

unenforceable, then that provision shall only be ineffective to such extent of

its invalidity or unenforceability, and the validity or enforceability of any

other provision of this Agreement shall not be affected.  Any controversy relating to this Agreement shall

be settled by arbitration in Chicago, Illinois in accordance with the

Commercial Arbitration Rules of the American Arbitration Association, except as

otherwise provided in the Confidentiality and Non-Competition agreement

attached hereto as Exhibit A. 

In the event of any inconsistency between this Agreement and any

personnel policy or manual of FTD with respect to any matter, this Agreement

shall govern the matter.




 




Signature page follows




 




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                                                                                                                Sincerely,




 




 




	

   


  	

  /s/ Robert L. Norton


  
	

   


  	

  Robert L. Norton


  
	

   


  	

  CEO, and Chairman of the

  Board


  





 




 




Accepted

as of this 12th day of November, 2002




 




 




	

  /s/ Daniel Smith


  	

   


  
	

  Daniel Smith


  	

   


  





 




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