PRECLUDE EXECUTIVE FROM UTILIZING DEVELOPMENTS APPLICABLE TO RETAILING
GENERALLY (WHETHER FROM STORES, VIA CATALOG, VIA E-COMMERCE OR OTHERWISE)
FOLLOWING TERMINATION OF EMPLOYMENT, SUBJECT ALWAYS TO THE PROVISIONS OF
SECTION 8 BELOW.
8.
NON-COMPETITION AND NON-SOLICITATION.
(A)
NON-COMPETITION.
THE EXECUTIVE AGREES THAT
THE EXECUTIVE WILL NOT, DURING THE "RESTRICTIVE PERIOD", AS DEFINED BELOW,
ENGAGE IN, OR OTHERWISE DIRECTLY OR INDIRECTLY BE EMPLOYED BY, OR ACT AS A
CONSULTANT OR LENDER TO, OR BE A DIRECTOR, OFFICER, EMPLOYEE, OWNER,
CO-VENTURER, MEMBER OR PARTNER OF, OR USE OR EXPRESSLY PERMIT THE EXECUTIVE'S
NAME TO BE USED BY (COLLECTIVELY AN "ENGAGEMENT WITH"), ANY BUSINESS, ENTITY OR
ORGANIZATION WHICH HAS A PRIMARY LINE OF BUSINESS (I.E. REPRESENTING MORE THAN
4.9% OF ITS REVENUE) INVOLVING THE SALE AT RETAIL, WHETHER FROM STORE LOCATIONS,
AND/OR BY OR FROM DIRECT MAIL, CATALOGUES AND/OR WEBSITES, OF PARTY GOODS AND/OR
SUPPLIES ANYWHERE IN THE UNITED STATES (A "COMPETING ENTITY"); PROVIDED,
HOWEVER, THAT IN EACH CASE THE PROVISIONS OF THIS SECTION 8(A) WILL NOT BE
DEEMED BREACHED MERELY BECAUSE THE EXECUTIVE OWNS NOT MORE THAN FIVE PERCENT
(5.0%) OF THE OUTSTANDING COMMON STOCK OF A COMPETING ENTITY, IF, AT THE TIME OF
ITS ACQUISITION BY THE EXECUTIVE, SUCH STOCK IS LISTED ON A NATIONAL SECURITIES
EXCHANGE, IS REPORTED ON NASDAQ, OR IS REGULARLY TRADED
4
IN THE OVER-THE-COUNTER MARKET BY A MEMBER OF A NATIONAL SECURITIES EXCHANGE;
AND PROVIDED, FURTHER, HOWEVER, THAT, SUBJECT TO THE PROVISIONS OF SECTION 8(B),
NOTHING HEREIN SHALL PREVENT THE EXECUTIVE FROM WORKING FOR A BUSINESS SEGMENT
OR DEPARTMENT OF A COMPETING ENTITY, OR A SUBSIDIARY, DIVISION OR OTHER ENTITY
THAT CONTROLS OR IS CONTROLLED BY A COMPETING ENTITY IF (AND ONLY IF), THE
BUSINESS SEGMENT OR DEPARTMENT OF THE COMPETING ENTITY FOR WHICH THE EXECUTIVE
PROVIDES SERVICES, OR THE SUBSIDIARY, DIVISION OR OTHER ENTITY BY WHICH THE
EXECUTIVE HAS AN ENGAGEMENT WITH (AS THE CASE MAY BE), (1) DOES NOT ITSELF
COMPETE WITH THE COMPANY, AND (2) THE EXECUTIVE DOES NOT PROVIDE ANY SERVICES,
ADVICE, ASSISTANCE AND/OR GUIDANCE TO ANY BUSINESS SEGMENT OR DEPARTMENT,
SUBSIDIARY, DIVISION, OR OTHER ENTITY OF THE COMPETING ENTITY WHICH COMPETES
WITH THE COMPANY.
AS USED IN THIS SECTION THE "RESTRICTIVE PERIOD" SHALL BE (I)
THE PERIOD THE EXECUTIVE IS EMPLOYED BY THE COMPANY AND (II) THE PERIOD OF ONE
(1) YEAR AFTER THE EXECUTIVE CEASES TO BE EMPLOYED BY THE COMPANY FOR ANY
REASON, OR, IN THE CASE OF THE EXECUTIVE'S ENGAGEMENT WITH ANY COMPETING ENTITY
THAT OPERATES RETAIL STORES WHICH ARE LOCATED IN ANY STATES WHERE THE COMPANY
HAS RETAIL STORES ON THE DATE OF THE EXECUTIVE'S CESSATION OF EMPLOYMENT, THE
PERIOD OF EIGHTEEN (18) MONTHS PERIOD AFTER THE EXECUTIVE CEASES TO BE EMPLOYED
BY THE COMPANY FOR ANY REASON.
(B)
NON-SOLICITATION. DURING THE RESTRICTIVE
PERIOD, THE EXECUTIVE WILL NOT, EITHER DIRECTLY OR INDIRECTLY, (I) CALL ON OR
SOLICIT (FOR THE PURPOSE OF DIVERTING BUSINESS FROM THE COMPANY) ANY PERSON,
FIRM, CORPORATION OR OTHER ENTITY WHO OR WHICH AT THE TIME OF SUCH TERMINATION
WAS, OR WITHIN ONE (1)