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SECURED PROMISSORY NOTE
$100,000 August 22, 2000
FOR VALUE, RECEIVED, MICHAEL J. SOENEN ("Payor"), promises to pay to
the order of Florists' Transworld Delivery, Inc., a Michigan corporation
(together with its successors and assigns, "Payee"), at its principle place of
business, 3113 Woodcreek Drive, Downers Grove, IL 60515, or at such other place
as Payee may designate, the principle sum of One Hundred Thousand Dollars
($100,000).
The principle amount of this Promissory Note ("the Note") shall be
payable on July 31, 2005 in accordance with the terms of this Note; PROVIDED,
HOWEVER, the principle amount of this Note shall immediately be due and payable
upon Payor's termination of employment.
The outstanding principle amount of this Note shall bear simple
interest at eight and one half percent (8.5%), per annum. Accrued interest shall
be payable at maturity (whether at final maturity or earlier) of this Note.
All payments of principle of and interest on this Note shall be payable
in lawful currency of the United States of America at the office of the Payee
described above, in immediately available funds.
In addition to, and not in limitation of the foregoing, Payor agrees to
pay all expenses, including, without limitation, attorney's fees and legal
expenses, incurred by the holder of this Note in connection with endeavoring to
collect any amounts payable hereunder which are not paid when due.
In order to secure obligations of Payor under this Note, Payor has
granted to Payee a security interest in, and lien and charge over, certain
collateral pursuant to the terms of that certain Pledge Agreement dated of the
date hereof between Payor and Payee.
All parties hereto waive presentment of payment, demand, protest and
notice of dishonor.
Payor shall make all payments hereunder immediately when due without
any set-off, counterclaim, defenses, withholding (for taxes or otherwise), or
reduction of any kind. Payee shall have the right to set-off any amounts owing
or to be owing (by acceleration or otherwise) by Payee to Payor.
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No delay on the part of Payee in the exercise of any right or remedy
shall operate as a waiver thereof, and no single or partial exercise by Payee of
any right or remedy shall preclude any other or future exercise thereof or the
exercise of any other right or remedy.
Payee shall have the right at any time to see, assign, transfer,
negotiate or pledge all or part of its interest in this Note. Payor may not
assign any of his obligations hereunder without the prior written consent of
Payee. This note shall be binding on Payor and his legal representatives.
No amendment, modification, or waiver of, or consent with respect to
any provision of this Note shall in any event be effective unless the same shall
be in writing and signed and delivered by Payee or any other holder hereof.
After maturity of this Note, the outstanding principal amount of this
Note and accrued and unpaid interest shall be unconditionally payable upon
demand.
For the avoidance of doubt, Payee shall have full recourse against
Payor.
THIS NOTE IS MADE UNDER AND GOVERNED BT THE INTERNAL LAWS OF THE STATE
OF NEW YORK. Wherever possible each provision of this Note shall be interpreted
in such a manner as to be effective and valid under applicable laws, but if any
provision of this Note shall be prohibited or invalid.
SIGNED AND DELIVERED as of this date first written above.
/s/ Michael J. Soenen
--------------------------
Michael J. Soenen
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PLEDGE AGREEMENT dated as of August 22, 2000 between Michael J. Soenen
1415 W Barry #2, Chicago, IL 60657 (the "Pledgor") and Florists' Transworld
Delivery, Inc. (the "Secured Party").
RECITALS
A. Secured Party has agreed to lend $100,000 to Pledgor (the
"Loan") pursuant to a Secured Promissory Note (the "Secured
Promissory Note") dated in the date hereof.
B. The execution and delivery of the Agreement are conditions
precedent to the obligation of the Secured Party to make the
Loan to the Pledgor under the Secured Promissory Note.
In consideration of the premises and mutual covenants and the
agreements herein set forth, the parties hereby agree as follows:
1. SECURITY INTEREST. In consideration of the Loan
evidenced by the Secured Promissory Note, Pledgor
hereby pledges, transfers and assigns to Secured
Party and grants to Secured Party a security interest
("Security Interest") in the Pledged Shares. As used
herein, "Pledged Shares" shall mean 6,666 shares of
FTD Corporation Class A Common Stock par value $.01
now owned by Pledgor and 10,000 shares of restricted
stock of FTD Corporation Class A Common Stock. The
pledged Shares constitute "Collateral" for the
Loan.
2. INDEBTEDNESS SECURED. The Security Interest secures
payment of all indebtedness of Pledgor to Secured
Party when due under the Secured Promissory Note and
all payment, indemnity and reimbursement obligations
of Pledgor to Secured Party under the Secured
Promissory Note and the Pledge Agreement
(collectively, "Indebtedness"), whether now or
existing or hereafter incurred, and whether such
Indebtedness is from time to time reduced.
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3. REPRESENTATIONS AND WARRANTIES OF PLEDGOR. Pledgor
represents and warrants and, so long as this Pledge
Agreement is in effect, shall be deemed continuously
to represent and warrant that; (a) Pledge is the
owner of the Collateral free of all security
interests, claims and encumbrances other than the
Security Interest; (b) this Pledge Agreement is the
valid binding obligation of Pledgor, enforceable
against pledgor in accordance with its terms; and (c)
the primary residence of the Pledgor is the address
listed above, and the Pledgor keeps all of its
records concerning the pledged Shares only at that
address.
4. COVENANTS OF PLEDGOR. So long as this Pledge
Agreement is in effect, Pledgor; (a) will defend the
Collateral against the claims and demands on all
other parties; will keep the Collateral free from all
security interests, claims and encumbrances other
than the Security Interest; and will not sell,
transfer, assign, deliver or otherwise dispose of any
of any Collateral without the prior written consent
of Secured Party; (b) will notify Secured Party
promptly in writing of any change in Pledgor's
address specified above; (c) will execute and deliver
to Secured Party such financing statements,
assignments and other documents and do such other
things relating to the Collateral and the Security
Interest as Secured Party may request; and (d) will,
pay all taxes, assessments and other charges that may
be imposed against the Collateral.
5. REGISTERED HOLDER OF COLLATERAL. Pledgor authorizes
Secured Party to transfer the Collateral or any part
thereof into its own name or that of its nominee so
that Secured Party or its nominee may appear on
record as the sole owners thereof; provided that at
any time after such transfer and so long as no Event
of Default (as defined below) has occurred, Secured
Party shall deliver promptly to Pledgor all notices,
statements or other communications received by it or
its nominee as such registered owner, and upon demand
and receipt of payment of necessary expenses thereof,
shall give to Pledgor or its designee a proxy or
proxies to vote and take all action with respect to
such securities. Pledgor waives all rights to be
advised of or to receive any notices, statements or
communications received by secured Party or its
nominee as such record owner after the occurrence of
any Event or Default, and agrees that no proxy or
proxies given by Secured Party to Pledgor or its
designees as aforesaid shall thereafter be effective.
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6. EVENTS OF DEFAULT.
(a) Any of the following events or conditions shall
constitute an Event of Default hereunder: (1)
failure of Pledgor to pay any amount under the
Secured Promissory Note when due (whether as a
result of any demand, acceleration, Pledgor's
Voluntary Termination or Termination for Cause
(as defined in the Employment Agreement), or
otherwise) or (ii) default by Pledgor in the
performance of any other material
representation, obligation, term, covenant or
condition of this pledge Agreement.
(b) Secured Party, at its sole election, may declare
all or any part of any Indebtedness to be
immediately due and payable without demand or
notice of any kind upon the happening of any
Event of Default; provided that with respect to
an Event of Default described in (a) (ii) above,
the Secured Party shall give Pledgor (a) 5 days'
prior written notice of its intent to declare
all or any part of the Indebtedness immediately
due and payable and (b) the opportunity to cure
such default during such period.
7. APPLICATION OF FUNDS. From and after the occurrence
of an Event of Default, payments received under or in
respect of the Pledged Shares and all cash proceeds
received by the Secured Party in respect of any sale
of, collection from, or other realization upon all or
part of the Pledged Shares shall be applied by the
Secured Party as follows: (i) first, to the payment
of all costs and expenses incurred by the Secured
Party in connection with this Agreement and any of
the Indebtedness; (ii) second, to the payment in full
of the Indebtedness, and (iii) third, to the Pledgor,
its successors or assigns, or as a court of competent
jurisdiction may otherwise direct. The Secured Party
shall have absolute discretion as to the time of
application or any such proceeds, monies or balances
in accordance with this Agreement.
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8. WAIVER. Pledgor unconditionally waives, to the full
extent permitted by law:
(i) any defense, set-off or counterclaim
which the Pledgor may otherwise assert
against the Secured Party; (ii)
presentment, protest, demand for payment,
promptness, diligence, notice of protest,
notice of any other action at any time
taken or omitted by the Secured Party and,
generally, all demands and notices of
every kind in connection with the
Indebtedness; (iii) any requirement to
exhaust any rights or remedies or to
mitigate the damages resulting from any
default under the Note or any other document
or any requirement to protect, secure,
perfect or insure any lien or any property
subject to the lien or take any other action
against any person or any collateral or
other property; (iv) all claims that the
sale price or any collateral was inadequate
or unreasonable for any reason and all other
claims to damages and demands of any nature
against the Secured Party; (v) all equities
and rights of appraisal, stay and redemption
(whether now or hereafter existing), in each
case arising out of the Secured Party
enforcing any of its rights and remedies
under the Note; and (vi) any exoneration of
release from the Indebtedness resulting from
any loss by the Pledgor of its rights, if
any, of subrogation or contribution.
9. SECURED PARTY'S FEES AND EXPENSES: INDEMNIFICATION.
(a) The Pledgor agrees to pay upon demand to the
Secured Party the amount of any and all
reasonable expenses, including the
reasonable fees and expenses of its consul
which the Secured Party may incur in
connection with the failure of the Pledgor
to perform or observe any of the provisions
hereof.
(b) Any such amounts payable as provided
hereunder shall be additional obligations
secured hereby. The provisions of this
Section shall remain operative and in full
force and effect regardless of the
termination of this agreement.
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10. MISCELLANEOUS.
(a) Pledgor hereby irrevocably appoints Secured
Party as Pledgor's attorney-in-fact (without
requiring Secured Party) to perform all acts
which Secured Party deems appropriate to
perfect and continue the Security Interest
and to protect, preserve and realize upon
the collateral. This power of attorney is
coupled with an interest and shall not be
affected by the subsequent disability or
incompetence of Pledgor.
(b) No course of dealing between Pledgor and
Secured Party and no delay or omission by
Secured Party in exercising any right or
remedy hereunder or with respect to any
Indebtedness shall operate as a waiver
thereof or any other right or remedy. All
rights and remedies of Secured Party
hereunder are cumulative. No modification,
rescission, waiver, release or amendment of
any provision of this Pledge Agreement shall
be made except by written agreement
subscribed by Pledgor and by the Secured
Party.
(c) This Pledge Agreement and the transaction
evidenced hereby shall be construed under
and governed by the internal laws of the
State of New York without regard to choice
of law principles. All terms, unless
otherwise defined in the pledge Agreement,
shall have the definitions set forth in the
Uniform Commercial Code adopted in the State
of New York, as the same may from time to
time be in effect.
(d) Any Action with respect to this Agreement
may be brought in the courts of the State of
New York or of the United States from the
Southern district of New York. Pledgor and
the Secured Party hereby accept for itself
and in respect of its property, the
jurisdiction of these courts and
irrevocably waive any objection including,
without limitation, any objection to venue
or based on grounds of FORUM NON
CONVENIENS. Each party waives any right
under this Agreement and agrees that any
action shall be tried before a court and
not before a jury.
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(d) This pledge Agreement is intended to be a
continuing Pledge Agreement and shall remain
in full force and effect until all of the
Indebtedness outstanding, or contracted or
committed for (whether or not outstanding),
and any extensions or renewals thereof,
shall be finally and irrevocably paid in
full.
PLEDGOR:
/s/ Michael J. Soenen
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Michael J. Soenen
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STOCK POWER
FOR VALUE RECEIVED, Michael J. Soenen hereby sells, assigns and transfers
unto ____________________________________________________________________
Six Thousand Six Hundred and Sixty Six (6,666) shares of the Class A Common
Stock of FTD Corporation and Ten Thousand (10,000) shares of restricted stock
of FTD Corporation Class A Common Stock standing in ___________________
name on the books of said corporation constitute and appoint
______________________________ attorney to transfer the said stock on the
books of the within named Company with full power of substitution in the
premises.
DATED: August 22, 2000
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IN PRESENCE OF
/s/ /s/ Michael J. Soenen
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Michael J. Soenen
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