THAT IN ACCORDANCE WITH THE
TERMS OF THE CHANGE OF CONTROL AGREEMENT, ANY AND ALL CONFIDENTIALITY PROVISIONS
THEREOF SHALL SURVIVE SUCH TERMINATION.
6.
COVENANT NOT TO COMPETE.
(A)
IN CONSIDERATION OF THE COMPANY'S PAYMENTS
PURSUANT TO SECTION 3 OF THIS AGREEMENT, DURING THE TERM OF THIS AGREEMENT AND
CONSULTANT'S RECEIPT OF CONFIDENTIAL INFORMATION, CONSULTANT HEREBY AGREES THAT,
DURING THE PERIOD BEGINNING ON THE EFFECTIVE DATE AND ENDING ONE YEAR AFTER
TERMINATION OF THIS AGREEMENT, HE WILL NOT (EXCEPT IN THE COURSE OF PERFORMING
HIS AUTHORIZED DUTIES FOR THE COMPANY UNDER THIS AGREEMENT), DIRECTLY OR
INDIRECTLY, ON HIS OWN BEHALF OR AS AN OFFICER, DIRECTOR, EMPLOYEE, CONSULTANT
OR OTHER AGENT OF, OR AS A STOCKHOLDER, PARTNER OR OTHER INVESTOR IN, ANY PERSON
OR ENTITY (OTHER THAN THE COMPANY OR ITS AFFILIATES):
(1)
ENGAGE IN THE MUTUAL FUND INDUSTRY TO THE
EXTENT IT MATERIALLY OVERLAPS WITH THE PREDOMINANT MARKETS OF THE COMPANY (A
"COMPETING BUSINESS") WITHIN THE UNITED STATES OF AMERICA (THE "TERRITORY");
(2)
DIRECTLY OR INDIRECTLY INFLUENCE OR ATTEMPT
TO INFLUENCE ANY CUSTOMER OR POTENTIAL CUSTOMER (WHICH FOR PURPOSES OF THIS
AGREEMENT, SHALL MEAN ANY PERSON OR ENTITY TO WHICH THE COMPANY OR ANY OF ITS
AFFILIATES MARKETED (OUTSIDE OF GENERAL ADVERTISING) ITS PRODUCTS OR SERVICES
DURING THE SIX MONTH PERIOD PRIOR TO ANY DATE OF DETERMINATION) LOCATED WITHIN
THE TERRITORY TO PURCHASE GOODS, SERVICES OR PRODUCTS RELATED TO A COMPETING
BUSINESS FROM ANY INDIVIDUAL, CORPORATION, PARTNERSHIP, OR OTHER ENTITY OTHER
THAN THE COMPANY OR ITS AFFILIATES; OR
(3)
EMPLOY, ATTEMPT TO EMPLOY OR SOLICIT FOR
EMPLOYMENT IN ANY POSITION RELATED TO THE CONDUCT OF A COMPETING BUSINESS IN THE
TERRITORY ANY INDIVIDUAL WHO IS AN EMPLOYEE OF THE COMPANY OR ANY OF ITS
AFFILIATES AT SUCH TIME OR WAS AN EMPLOYEE OF THE COMPANY OR ANY OF ITS
AFFILIATES DURING THE SIX MONTHS PRIOR TO ANY DATE OF DETERMINATION;
provided that the foregoing will not apply to any investment in publicly traded
securities constituting less than ten percent (10%) of the outstanding
securities in such class.
(B)
CONSULTANT REPRESENTS TO THE COMPANY THAT HE
IS WILLING AND ABLE TO ENGAGE IN BUSINESSES OTHER THAN A COMPETING BUSINESS
WITHIN THE TERRITORY AND THAT ENFORCEMENT OF THE RESTRICTIONS SET FORTH IN THIS
SECTION 6 ARE NOT UNDULY BURDENSOME TO CONSULTANT.
CONSULTANT ACKNOWLEDGES AND
AGREES THAT THE RESTRICTIONS SET FORTH IN THIS SECTION 6 ARE REASONABLE AS TO
TIME, GEOGRAPHIC AREA AND SCOPE OF ACTIVITY AND DO NOT IMPOSE A GREATER
RESTRAINT THAN IS NECESSARY TO PROTECT THE GOODWILL, TRADE SECRETS,
5
INFORMATION AND OTHER BUSINESS INTERESTS OF THE COMPANY, AND CONSULTANT AGREES
THAT THE COMPANY IS JUSTIFIED IN BELIEVING THE FOREGOING.
(C)
IF THE PROVISIONS OF THIS SECTION 6 ARE
FOUND BY A COURT OF COMPETENT JURISDICTION TO CONTAIN UNREASONABLE OR
UNNECESSARY LIMITATIONS OR RESTRICTIONS, THEN SUCH COURT IS HEREBY DIRECTED TO
REFORM SUCH PROVISIONS TO THE MINIMUM EXTENT NECESSARY TO CAUSE THE LIMITATIONS
OR RESTRICTIONS CONTAINED THEREIN AS TO TIME, GEOGRAPHICAL AREA AND SCOPE OF
ACTIVITY TO BE REASONABLE AND