EXHIBIT 10.16
CONFIDENTIALITY AND
NON-COMPETITION AGREEMENT
CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
dated
between Florists’ Transworld Delivery Inc. (the
“Company”) and
(the “Executive”).
In consideration of the obligations
of the Company and the consideration to be received by the Company
pursuant to the Employment Agreement, dated as of the date hereof
(the “Employment Agreement”) between the Company and
the Executive, 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 one year
after the termination of the Executive’s employment under the
Employment Agreement for any reason, 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 Inc.,
1-800-FLOWERS.COM, Inc., PC Flowers & Gifts.com Inc.,(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 (“FTDI”), or
any of its 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 business of the Company,
FTDI, any predecessor of the Company, FTDI or any of the
Company’s, or FTDI’s subsidi
