Exhibit 10.5
CONFIDENTIALITY AND NON-COMPETITION
AGREEMENT
CONFIDENTIALITY AND NON-COMPETITION AGREEMENT (the
“Agreement”) dated as of April 30, 2008 between
Florists’ Transworld Delivery Inc. (the
“Company”) and Michael J. Soenen (the
“Executive”) and effective upon consummation of the
Merger as hereinafter described.
In consideration of the obligations of the Executive’s
continued employment with the Company and of the Executive’s
receipt of a transaction bonus in connection with the consummation
of the Agreement and Plan of Merger dated April 30, 2008, by
and among United Online, Inc. (“United Online”),
UNOLA Corp., an indirect wholly-owned subsidiary of United Online
(“Merger Sub”), and FTD Group, Inc., the ultimate
parent of the Company (“FTD”), whereby Merger Sub will
merge with and into FTD (the “Merger”), the Company and
the Executive agree as follows:
Section 1.
Secrecy, Non-Competition, No Interference and
Non-Solicitation .
(a)
No Competing Employment . The Executive acknowledges
that (i) the agreements and covenants contained in this
Section 1 are essential to protect the value of the
Company’s business and assets and (ii) by virtue of his
employment with the Company, the Executive will obtain such
knowledge, know-how, training and experience of such a character
that there is a substantial probability that such knowledge,
know-how, training and experience could be used to the substantial
advantage of a competitor of the Company and to the Company’s
substantial detriment. Therefore, the Executive agrees that,
for the period (the “Restricted Period”) commencing on
the date of this Agreement and ending on the date that is eighteen
(18) months after the date on which the Executive ceases to receive
compensation (including salary, bonus or consulting payments) from
the Company or any of its affiliates, or any of its successors or
their subsidiaries or affiliated companies, the Executive shall not
participate, operate, manage, consult, join, control or engage,
directly or indirectly, for himself or on behalf of or in
conjunction with any person, partnership, corporation or other
entity, whether as an employee, consultant, agent, officer,
stockholder, member, investor, agent or otherwise, in any business
activity if such activity constitutes the sale or provision of
floral products or services that are similar to, or competitive
with, floral products or services then being sold or provided by
the Company or any of its subsidiaries or affiliated companies,
including, without limitation, retail florists’ business
services, floral order transmission and related network services,
development and distribution of branded floral products on the
Internet or other consumer direct segment of the floral industry
(including, without limitation, Interflora, Inc., Teleflora
LLC., 1-800-FLOWERS.COM, Inc., Proflowers.com, Floral Source,
(a “Competitive Activity”), in any of: the City
of Downers Grove, Illinois, the County of DuPage, Illinois or any
other city or county in the State of Illinois; the District of
Columbia or any other state, territory, district or commonwealth of
the United States or any county, parish, city or similar political
subdivision in any other state, territory, district or commonwealth
of the United States; any other country or territory anywhere in
the world or in any city, canton, county, district, parish,
province or any other political subdivision in any such country or
territory; or anywhere in the world (each city, canton,
commonwealth, county, district, parish, province, state, country,
territory or other political subdivision or other location in the
world shall be referred to as a “Non-competition
Area”). The parties to this Agreement intend that the
covenant contained in the preceding
sentence of
this Section 1(a) shall be construed as a series of
separate covenants, one for each city, canton, commonwealth,
county, district, parish, state, province, country, territory, or
other political subdivision or other area of the world
specified. Except for geographic coverage, each separate
covenant shall be considered identical in terms to the covenant
contained in the preceding sentence. The parties further
acknowledge the breadth of the covenants, but agree that such broad
covenants are necessary and appropriate in the light of the global
nature of the Competitive Activity. If, in any judicial or
other proceeding, a court or other body declines to enforce any of
the separate covenants included in this Section 1(a), the
unenforceable covenant shall be considered eliminated from these
provisions for the purpose of those proceedings to the extent
necessary to permit the remaining separate covenants to be
enforced. Notwithstanding the foregoing, the Executive may
maintain or undertake purely passive investments on behalf of
himself, his immediate family or any trust on behalf of himself or
his immediate family in companies engaged in a Competitive Activity
so long as the aggregate interest represented by such investments
does not exceed 1% of any class of the outstanding publicly traded
debt or equity securities of any company engaged in a Competitive
Activity.
(b)
Nondisclosure of Confidential Information . The
Executive, except in connection with his employment hereunder,
shall not disclose to any person or entity or use, either during
his employment with the Company or at any time thereafter, any
information not in the public domain, in any form, acquired by the
Executive while employed by the Company or, if acquired following
his employment with the Company, such information that, to the
Executive’s knowledge, has been acquired, directly or
indirectly, from any person or entity owing a duty of
confidentiality to the Company or any of its affiliates, relating
to the Company, FTD, Inc., a Delaware corporation and the
direct parent corporation of the Company collectively referred to
as (“FTDI”), or any of its successors or their
subsidiaries or affiliated companies, including but not limited to
trade secrets, technical information, systems, procedures, test
data, price lists, financial or other data (including the revenues,
costs or profits associated with any of the Company’s
products), business and product plans, code books, invoices and
other financial statements, computer programs, discs and printouts,
customer and supplier lists or names, personnel files, sales and
advertising material, telephone numbers, names, addresses or any
other compilation of information, written or unwritten, that is or
was used in the busine
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