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,