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,