Exhibit 10.15
FORM OF CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
CONFIDENTIALITY AND NON-COMPETITION AGREEMENT dated as of ______, ____
between XXX.XXX 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., American Floral Services, Inc., Xxxxx,
Xxxxxx Xxxxxxx, Inc., 0-000-XXXXXXX.XXX, Inc., PC Flowers & Xxxxx.xxx Inc.,
U.S.A. Floral Products, Inc. or World Commerce Online, 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, Florists' Transworld Delivery, Inc., a Michigan
corporation and the direct parent corporation of the Company ("FTDI"), or IOS
BRANDS Corporation, a Delaware corporation and the indirect parent corporation
of the Company ("IOS"), 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, IOS, any predecessor of the
Company, FTDI or IOS or any of the Company's, FTDI's or IOS' 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, IOS
or any of the Company's, FTDI's or IOS' 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
2
(or has at any time within the preceding three months been) employed by or
otherwise engaged to perform services for the Company, FTDI, IOS or any of the
Company's, FTDI's or IOS' subsidiaries (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, IOS, any predecessor of the Company, FTDI or IOS or any of the
Company's, FTDI's or IOS' 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, IOS 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, FTDI or IOS 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
3
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.
(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
4
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, 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.
[signature page follows]
5
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
XXX.XXX INC.
By: __________________________
Name: ________________________
Title: _______________________
_________________________
[Executive]
6
