BE DEEMED TO CONSTITUTE CONSIDERATION FOR BOTH THE EXECUTIVE'S
TERMINATION OF EMPLOYMENT AND THE EXECUTIVE'S AGREEMENT REGARDING
NON-COMPETITION SET FORTH HEREIN AND IN THE CONFIDENTIALITY AND NON-COMPETITION
AGREEMENT.
6.
TAX MATTERS.
UPON THE OCCURRENCE OF A
CHANGE OF CONTROL DURING THE EXECUTIVE'S EMPLOYMENT, FTD SHALL BE OBLIGATED TO
MAKE "GROSS UP PAYMENTS" TO THE EXTENT REQUIRED BY LAW TO COVER CERTAIN TAX
OBLIGATIONS IN THE MANNER CONTEMPLATED BY EXHIBIT A HERETO.
7.
MISCELLANEOUS.
THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF
THE STATE OF ILLINOIS, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PRINCIPLES
THEREOF.
THE EXECUTIVE AND FTD CONSENT TO JURISDICTION AND
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VENUE IN ANY FEDERAL OR STATE COURT IN THE CITY OF CHICAGO.
THIS AGREEMENT AND
THE CONFIDENTIALITY AND NON-COMPETITION AGREEMENT STATE THE ENTIRE AGREEMENT AND
UNDERSTANDING REGARDING THE EXECUTIVE'S EMPLOYMENT WITH FTD.
THIS AGREEMENT
SUPERCEDES AND REPLACES IN ITS ENTIRETY THE LETTER AGREEMENT.
THIS AGREEMENT
MAY BE AMENDED ONLY BY A WRITTEN DOCUMENT SIGNED BY BOTH THE EXECUTIVE 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.
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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IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of the date
first set forth above.
FLORISTS' TRANSWORLD DELIVERY, INC.
By: /S/ ROBERT L. NORTON
Its:
CEO
/S/ MICHAEL J. SOENEN
Michael J. Soenen
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Exhibit A
Certain Additional Payments by FTD.
(a)
Notwithstanding any other provision of
the employment agreement to the contrary, in the event that it shall be
determined (as hereafter provided) that any payment (other than the Gross-Up
Payment (as defined below) provided for in this Exhibit A) or distribution by
FTD or any of its subsidiaries or affiliates to or for the Executive's 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,
plan, policy, program or arrangement, including but not limited to 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 (a "Payment"), would be subject to the
excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as
amended (the "Code") (or any