Exhibit

10.4




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 subsidiaries.  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 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 Company’s or FTDI’s subsidiaries, or

otherwise interfere with the relationship of the Company 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 Company’s or FTDI’s subsidiaries




 




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(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 Company’s or FTDI’s

subsidiaries (a “Customer”); 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 that if the Executive

violates the provisions of Section 1(a) of this Agreement, the running of

the Restricted Period shall be tolled for the period in which the Executive is

in violation of such non-competition provisions.  The Executive understands that the foregoing restrictions may

limit the Executive’s ability to earn a livelihood in a business engaged in a

Competitive Activity, but the Executive nevertheless believes that the

Executive has received and will receive sufficient consideration and other

benefits as an employee of the Company and as otherwise provided under the

Employment Agreement to clearly justify restrictions that, in any event, given

his education, skills and ability, the Executive does not believe would prevent

the Executive from earning a living.




Section 3.       Irreparable Injury.  It is further expressly agreed that the

Company will or would suffer irreparable injury if the Executive were to

compete with the Company, FTDI or any of its or their subsidiaries or

affiliated companies in violation of this Agreement and that the Company would

by reason of such competition be entitled to injunctive relief in a court of

appropriate jurisdiction, and the Executive further consents and stipulates to

the entry of such injunctive relief in such a court prohibiting the Executive

from competing with the Company or  FTDI

or any of its or their subsidiaries or affiliated companies in violation of

this Agreement.




Section 4.       Representation and Warranties of the

Executive.  The Executive represents

and warrants that the execution of this Agreement and subsequent employment

with the Company does not and will not conflict with any obligations and the

Executive has to any former employers or any other entity.  The Executive further represents and

warrants that he has not brought to the Company, and will not at any time bring

to the Company, any materials, documents or other property of any nature of a

former employer.




Section 5.       Miscellaneous.




(a)   Jurisdiction, Choice of Law and Venue.  The validity and construction of this

Agreement shall be governed by the internal laws of the State of Illinois,

excluding the conflicts-of-laws principles thereof.  Each party hereto consents to the jurisdiction of, and venue in,

any federal or state court of competent jurisdiction located in the City of

Chicago.




(b)   Entire Agreement.  This Agreement and any other agreement or

document delivered in connection with this Agreement, including the Employment

Agreement and the Restricted Shares Agreement, dated as of the date hereof,

between the Company and the Executive, state the entire agreement and

understanding of the parties on the subject matter of this Agreement, and

supersede all previous agreements, arrangements, communications and

understandings relating to that subject matter.




 




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(c)   Counterparts.  This Agreement may be signed in two or more

counterparts, each of which shall be deemed an original, with the same effect

as if all signatures were on the same document.




(d)   Amendment; Wavier; etc.  This Agreement, and each other agreement or

document delivered in connection with this Agreement, may be amended, modified,

superseded or canceled, and any of the terms thereof may be waived, only by a

written document signed by each party to this Agreement or, in the case of

waiver, by the party or parties waiving compliance.  The delay or failure of any party at any time or times to

exercise any right or require the performance of any duty under this Agreement

or any other agreement or document delivered in connection with this Agreement

shall in no way affect the right of that party at a later time to exercise that

right or enforce that duty or any other right or duty.  No waiver by any party of any condition or

of any breach of this Agreement, whether by conduct or otherwise, in any one or

more instances, shall be deemed or construed to be a further or continuing

waiver of any such condition or breach or of the breach of any other term of

this Agreement.  A single or partial

exercise of any right shall not preclude any other or further exercise of the

same right or of any other right.  The

rights and remedies provided by this Agreement shall be cumulative and not

exclusive of each other or of any other rights or remedies provided by law.




(e)   Severability.  If any provision of this Agreement or any

other agreement or document delivered in connection with this Agreement, if

any, is partially or completely invalid or unenforceable in any jurisdiction,

then that provision shall be ineffective in that jurisdiction to the extent of

its invalidity or unenforceability, but the invalidity or unenforceability of

that provision shall not affect the validity or enforceability of any other

provision of this Agreement, all of which shall be construed and enforced as if

that invalid or unenforceable provision were omitted, nor shall the invalidity

or unenforceability of that provision in one jurisdiction affect its validity

or enforceability in any other jurisdiction. 

The Company and the Executive agree that the period of time and the

geographical area described in Section 1 are reasonable in view of the

nature of the business in which the Company is engaged and proposes to be

engaged, and the Executive’s understanding of his prospective future employment

opportunities.  However, if the time

period or the geographical area, or both, described in Section 1 should be

judged unreasonable in any judicial proceeding, then the period of time shall

be reduced by that number of months and the geographical area shall be reduced

by elimination of that portion, or both, as are deemed unreasonable, so that

the restriction covenant of Section 1 may be enforced during the longest

period of time and in the fullest geographical area as is adjudged to be

reasonable.




(f)    Arbitration.




(i)            Any controversy or claim arising out

of or relating to this Agreement, or the breach thereof, shall be settled by

arbitration in Chicago, Illinois in accordance with the commercial arbitration

rules of the American Arbitration Association. 

Judgment upon the award rendered in the arbitration may be entered in

any court having jurisdiction.




(ii)           Notwithstanding the clause (i)

above, the Executive acknowledges and understands that the provisions of this

Agreement are of a special and unique nature,




 




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the loss of which cannot be accurately compensated for

in damages by an action at law, and that the breach or threatened breach of the

provisions of this Agreement would cause the Company irreparable harm.  In the event of a breach or threatened

breach by the Executive of the provisions of Section 1, the Company shall

be entitled to seek to obtain a court-ordered injunction restraining the

Executive from the breach or threatened breach upon the terms and conditions as

the court ordering the injunction may impose.




 




IN WITNESS WHEREOF, the parties hereto have executed

this Agreement as of the date first above written.




Florists’ Transworld

Delivery Inc.




 




 




 




 




	

  By:


  	

   


  
	

   


  	

   


  
	

   


  	

   


  





 




 




 




 




	

   


  
	

  [Signature of Executive]


  





 




 




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