REIMBURSEMENT PLAN (THE "MERP"). ANY PERIOD
DURING WHICH HEALTH BENEFITS ARE CONTINUED PURSUANT TO THIS PARAGRAPH SHALL BE
CONSIDERED TO BE IN SATISFACTION OF THE COMPANY'S OBLIGATION TO PROVIDE
"CONTINUATION COVERAGE" PURSUANT TO SECTION 4980B OF THE CODE, AND THE PERIOD OF
COVERAGE REQUIRED UNDER SAID SECTION 4980B SHALL BE REDUCED BY THE PERIOD DURING
WHICH HEALTH BENEFITS WERE PROVIDED PURSUANT TO THIS PARAGRAPH.
SUCH HEALTH
INSURANCE COVERAGE SHALL BE SUBJECT TO OFFSET AS PROVIDED IN PARAGRAPH 3 ABOVE
FOR COMPARABLE COVERAGE RECEIVED BY EMPLOYEE FROM A THIRD PARTY DURING THE
CONTINUATION PERIOD.
7
Employee's right in connection with or following a Change in Control to receive
a pro rata bonus under the Incentive Bonus Plan or any other incentive
compensation program under the 2006 Incentive Plan shall be determined in
accordance with the provisions of Section 15.7 of the 2006 Incentive Plan.
8.
RESTRICTIVE COVENANTS; NON-DISCLOSURE OBLIGATIONS; FORFEITURE OF
TERMINATION COMPENSATION.
EMPLOYEE AND THE COMPANY UNDERSTAND AND AGREE THAT
THE PURPOSE OF THE PROVISIONS OF THIS PARAGRAPH 8 IS TO PROTECT THE LEGITIMATE
BUSINESS INTERESTS OF THE COMPANY, ESPECIALLY WITHIN THE MULTI-MERCHANDISE
RETAIL INDUSTRY, IN LIGHT OF EMPLOYEE'S LEADERSHIP POSITION WITH THE COMPANY AND
EXPOSURE AND ACCESS TO CONFIDENTIAL COMPANY INFORMATION AND TRADE SECRETS.
EMPLOYEE AND THE COMPANY FURTHER AGREE AND UNDERSTAND THAT THE MULTI-MERCHANDISE
RETAIL INDUSTRY AND THE COMPANY'S BUSINESS ARE NATIONAL IN SCOPE AND THAT THE
COMPANY HAS PLANS TO EXPAND THE COMPANY'S BUSINESS INTERNATIONALLY.
EMPLOYEE
ACKNOWLEDGES THAT THE EMPLOYMENT AND POST-EMPLOYMENT RESTRICTIONS SET FORTH IN
THIS PARAGRAPH 8 ARE THEREFORE REASONABLE IN THAT THESE RESTRICTIONS ARE LIMITED
TO THE MULTI-MERCHANDISE RETAIL INDUSTRY AND TO THE LEGITIMATE PROTECTION OF THE
COMPANY'S BUSINESS, AND THAT THEY DO NOT, AND WILL NOT, UNDULY IMPAIR EMPLOYEE'S
ABILITY TO EARN A LIVING DURING OR AFTER EMPLOYEE'S EMPLOYMENT WITH THE
COMPANY.
AS A RESULT OF EMPLOYEE'S EDUCATIONAL BACKGROUND, PRIOR WORK
EXPERIENCE, AND EMPLOYEE'S EMPLOYMENT AND POSITION WITH THE COMPANY, EMPLOYEE
POSSESSES GENERAL SKILLS AND KNOWLEDGE ENABLING EMPLOYEE, IF NEED BE, TO PURSUE
PROFITABLE WORK IN BUSINESSES NOT COMPETITIVE WITH THE COMPANY'S BUSINESS.
Therefore, in consideration of good and valuable consideration to which Employee
was not previously entitled, including, without limitation, as is set forth in
Paragraph 1.B above, Employee agrees as follows:
A.
COVENANT NOT TO COMPETE.
I.
EMPLOYEE AGREES THAT DURING EMPLOYEE'S EMPLOYMENT WITH THE
COMPANY AND FOR THE PERIOD OF TWELVE (12) MONTHS IMMEDIATELY FOLLOWING
EMPLOYEE'S TERMINATION DATE (SUCH PERIOD NOT TO INCLUDE ANY PERIOD(S) OF
VIOLATION OR PERIOD(S) OF TIME REQUIRED FOR LITIGATION TO ENFORCE THE PROVISIONS
OF THIS PARAGRAPH 8.A(I)) (THE "RESTRICTED PERIOD"), EMPLOYEE SHALL NOT, WITHOUT
THE PRIOR WRITTEN CONSENT OF THE COMPANY, DIRECTLY OR INDIRECTLY, ACCEPT,
OBTAIN, OR HOLD A COMPETITIVE POSITION WITHIN THE RESTRICTED TERRITORY WITH A
COMPETITOR.
NOTWITHSTANDING THE FOREGOING, THE PROVISIONS OF THIS PARAGRAPH
8.A(I) SHALL NOT APPLY FROM AND AFTER A CHANGE IN CONTROL.
II.
EMPLOYEE AGREES THAT IN THE EVENT EMPLOYEE, WITHOUT THE
COMPANY'S PRIOR WRITTEN CONSENT, DIRECTLY OR INDIRECTLY ACCEPTS, OBTAINS, OR
HOLDS A COMPETITIVE POSITION WITHIN THE RESTRICTED