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EXHIBIT 10.13*
CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
CONFIDENTIALITY AND NON-COMPETITION AGREEMENT dated as of August 18, 1998
between Florists' Transworld Delivery, Inc. (the "Company") and Xxxxxx Xxxxxx
(the "Executive").
The Company and the Executive agree as follows:
Section 1. Confidential information.
(a) Executive acknowledges that in his employment hereunder he
occupies a position of trust and confidence. The Executive shall not, at any
time during or for a period of three years after the period the Executive is
employed by the Company, disclose to any other entity or organization any
non-public information concerning the business, customers or affairs of the
Company ("Confidential Information") and shall not make use of any Confidential
Information for the Executive's own purposes.
(b) Executive acknowledges that such Confidential Information is
specialized, unique in nature and of great value to the Company, and that such
information gives the Company a competitive advantage. The Executive agrees to
deliver or return to the Company, at the Company's request at any time or upon
termination or expiration of his employment or as soon thereafter as possible,
all documents furnished by the Company or prepared by the Executive during the
term of his employment by the Company.
(c) It is further expressly agreed that the Company will or would
suffer irreparable injury if Executive were to disclose or use Confidential
Information in violation of this Agreement and that the Company would by reason
of such disclosure or use be entitled to injunctive relief in a court of
appropriate jurisdiction, and Executive further consents and stipulates to the
entry of such injunctive relief in such a court prohibiting Executive from
disclosing or using Confidential Information in violation of this Agreement.
Section 2. Non-Competition.
(a) Restrictive covenant. In consideration of the obligations of
the Company and the consideration to be received by the Executive under the
Employment Agreement between the Executive and the Company dated August 18,
1998, the Executive will not, from and after the date of this Agreement until
the third anniversary of the termination of the Executive's employment with the
Company:
(i) directly or indirectly engage in, represent in any way,
or be connected with, any business that offers any product or service which
directly or indirectly competes with the products or services offered, by the
Company within any geographic area in which the Company transacts business;
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(ii) assist others in engaging in any business or activity
in direct or indirect competition with the Company or any of its subsidiaries
or affiliates in the manner described in clause (i);
(iii) induce or attempt to induce directly or indirectly any
customer of the Company to cease doing business in whole or in part with the
Company or solicit the business of any customer of the Company for any products
or services which compete with any of the products or services offered by the
Company; or
(iv) solicit, or attempt to solicit, interfere with, or
endeavor to cause any employee of the Company to leave his employment or induce
or attempt to induce any employee of the Company to breach his employment
agreement with the Company.
(b) Calculation of time period. The Executive agrees that if the
Executive violates the non-competition provisions of this Agreement, the running
of the time period of the provisions shall be extended for the greatest of (A)
one year from the date the Executive permanently ceases the violation, (B) one
year from the date of entry of a final order enforcing the non-competition
provisions and (C) the remaining time period specified in the non-competition
provisions. The Executive understands that the foregoing restrictions may limit
the Executive's ability to earn a livelihood in a business which directly or
indirectly competes with the Company or any of its subsidiaries or affiliates,
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 this Agreement to clearly justify
restrictions which, in any event, given his education, skills and ability, the
Executive does not believe would prevent the Executive from earning a living.
(c) Irreparable Injury. It is further expressly agreed that the
Company will or would suffer irreparable injury if Executive were to compete
with the Company or any subsidiary or affiliate of the Company 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
Executive further consents and stipulates to the entry of such injunctive relief
in such a court prohibiting Executive from competing with the Company or any
subsidiary or affiliate of the Company in violation of this Agreement.
Section 3. Representations and Warranties of Executive.
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 that Executive has to any former employers or any other entity.
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.
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Section 4. Miscellaneous.
(a) Jurisdiction, Choice of Law, and Venue. The validity and
construction of this Agreement shall be governed by the 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; any other agreement or
document delivered in connection with this Agreement, if any; and the
accompanying Exhibits and Schedules, if any; state the entire agreement and
understanding of the parties on the subject matter of the Agreement, and
supercede 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; waiver; 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 not 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.
(f) 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, by 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
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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.
(g) 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. Judgement 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 Sections 1 or 2, 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: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Vice President
Date: August 18, 1998
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
Date: August 18, 1998
