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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 Executives continued employment with the Company and of the Executives 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 Companys 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 Companys 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 Executives 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 Companys 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 business of the Company, FTDI, any predecessor of the Company, FTDI or any of the Companys, or FTDIs subsidiaries or successors. The Executive agrees and acknowledges that all of such information, in any form, and copies and extracts thereof are and shall remain the sole and exclusive property of the Company, and upon termination of his employment with the Company, the Executive shall return to the Company the originals and all copies (and shall delete all such items in electronic format) of any such information provided to or acquired by the Executive in connection with the performance of his duties for the Company, and shall return to the Company all files, correspondence, computer equipment and disks or other communications (including any such materials in electronic format) received, maintained or originated by the Executive during the course of his employment.
(c) No Interference and Non-Solicitation. During the Restricted Period, the Executive shall not, whether for his own account or for the account of any other individual, partnership, firm, corporation or other business organization (other than the Company), solicit, endeavor to entice away from the Company, FTDI, or any of the Companys or FTDIs subsidiaries or affiliated companies, or otherwise interfere with the relationship of the Company
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or any of its subsidiaries or affiliated companies with, any person who, to the knowledge of the Executive, is (or has at any time within the preceding three months been) employed by or otherwise engaged to perform services for the Company, FTDI or any of the Companys or FTDIs subsidiaries or affiliated companies (including, but not limited to, any independent sales representatives or organizations) or any entity who is, or was within the then most recent 12-month period, a customer or client of the Company, FTDI, any predecessor of the Company or FTDI or any of the Companys or FTDIs subsidiaries or affiliated companies (a Customer) or a supplier or vendor of the Company or FTDI or any of the Companys or FTDIs subsidiaries or affiliated companies (a Supplier); provided, however, that this Section 1(c) shall not prohibit the Executive from employing, for his own account, following a termination of the employment of the Executive, any person employed by a Customer or Supplier, if such employment is not in connection with a Competitive Activity.
Section 2. Calculation of Time Period. The Executive agrees th






