Exhibit
10.1


 


EMPLOYMENT AGREEMENT


 


This Employment
Agreement (“Agreement”) is entered into this 26th day of February,
2004, by and between Scott K. Waltz (“Executive”) and INVESTools Inc.
(“Company”).


 


RECITALS


 


WHEREAS,
contemporaneous with the execution of this Agreement, INVESTools Inc., SES
Acquisition Corp., Service Enhancement Systems, Inc., d/b/a 360 Group (“360
Group”), Ted B. Shuel and Jamie Lynn Speas Shuel, as trustee of The Shuel
Family Trust, Scott K. Waltz, individually, Ted B. Shuel, individually, and
Jamie Lynn Speas Shuel, individually, are entering into a certain Agreement and
Plan of Merger (the “Merger Agreement”);


 


WHEREAS, this
Agreement is contemplated by Section 3.10 of the Merger Agreement;


 


WHEREAS, as an
executive of 360 Group and current shareholder of 360 Group, Executive has had
access to, and gained significant knowledge about, the Confidential
Information, as herein defined, relating to 360 Group’s business, including
trade secrets, proprietary methods, processes, marketing information, pricing
and customer information;


 


WHEREAS, in the
course of Executive’s employment with the Company, Executive will have access
to the Confidential Information, as herein defined, relating to the business of
the Company;


 


NOW, THEREFORE, in
consideration of the mutual promises hereinafter contained, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:


 


1.             Term
of Employment.  The Company agrees
to employ Executive and Executive hereby accepts such employment from the
Company upon the terms and conditions set forth in this Agreement for the
period beginning on the date hereof and continuing for a period of three years
(unless otherwise terminated earlier in accordance with Section 5
hereof) (“Employment Period”).


 


2.             Nature of Duties.  Executive shall be employed as the
Company’s Senior Vice President and Chief Marketing Officer.  As such, Executive shall work exclusively
for the Company and its wholly owned subsidiaries and shall have all of the customary
powers and duties associated with that position.  Notwithstanding the foregoing, Executive shall be permitted to
spend no more than 10% of his productive time on the Sugarshots line of
products, so long as such duties do not interfere with his responsibilities
hereunder. 
Executive shall report to the Chief Executive Officer of the
Company or his designee.  Executive
shall also be subject to the Company’s supervisory procedures and approval
practices, as are generally in effect from time-to-time.


 


3.             Place of Performance.  While the Executive will initially perform
his duties in the San Francisco, California vicinity, he will be expected to
travel extensively on Company 


 

















 


business and may
be required by the Company to relocate within the San Francisco Bay Area during
the Employment Period.


 


4.             Compensation and Related Matters.


 


(a)           Base Salary.  During the first year of the Employment Period, the Company shall
pay Executive a base salary at an annual rate of $300,000.00.  The Company shall pay Executive his base
salary in conformity with the Company’s salary payment practices generally
applicable to other similarly situated Company executives.  After the first year of the Employment
Period, the Company may, in its sole discretion, adjust Executive’s base salary
from time to time during the Employment Period, but in no event shall
Executive’s base salary be adjusted below an annual rate of $300,000.00


 


(b)           Bonuses. 
During the Employment Period, Executive shall be eligible for a bonus,
on an annual basis, up to $150,000.00. 
The amount of bonus, if any, shall be determined within the sole
discretion of the Company.


 


(c)           Standard
Benefits.  During the
Employment Period, Executive shall be entitled to participate in all employee
benefit plans and programs, including paid vacations, generally available to
other similarly situated Company executives.


 


(d)           Expenses.  The Company shall supply Executive with a
Company credit card on which to charge all reasonable and customary travel and
business expenses he incurs in connection with his employment hereunder.  Executive must account for those expenses in
accordance with the policies and procedures established by the Company.


 


5.             Termination.  Executive’s
employment with the Company will continue throughout the Employment Period,
unless earlier terminated pursuant to any of the following provisions:


 


(a)           Termination by the Company for Cause. 
The Company shall have the right to immediately terminate Executive’s
employment at any time for any of the following reasons (each of which is
referred to herein as “Cause”) by giving Executive written notice of the
effective date of termination (which effective date may be the date of such
notice):


 


(i)            willful and material breach by Executive of any
provision of this Agreement;


 


(ii)           any act by Executive of fraud or material dishonesty,
including but not limited to stealing or falsification of Company records with
respect to any aspect of the Company’s business;


 


(iii)          violation of material state or federal laws, in the
reasonable discretion of the Company;


 


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(iv)          drug or alcohol use of Executive in material violation
of Company policy or that impedes Executive’s job performance or brings
Executive into disrepute in the community;


 


(v)           failure by Executive to perform hereunder after 14
days notice of such failure and an opportunity to explain and cure such failure
of performance;


 


(vi)          misappropriation of funds or of any corporate
opportunity;


 


(vii)         conviction of Executive of a felony, or of a crime
that the Company, in its reasonable discretion, determines involves a subject
matter which may reflect negatively on the Company’s reputation or business (or
a plea of nolo contendere
thereto);


 


(viii)        acts by Executive attempting to secure or securing any
personal profit not fully disclosed to and approved by the Chief Executive
Officer and/or Board of Directors of the Company in connection with any
transaction entered into on behalf of the Company;


 


(ix)           gross negligence, material misconduct, or conduct
which constitutes a breach of any fiduciary duty owed to the Company by
Executive;


 


(x)            the failure of Executive to follow the lawful
instructions or directions from the Chief Executive Officer of the Company;


 


(xi)           material violation of any lawful Company policy, rule,
regulation or directive;


 


(xii)          conduct on the part of Executive, even if not in
connection with the performance of his
duties contemplated under this Agreement, that could result in serious
prejudice to the interests of the Company, and Executive fails to cease such
conduct immediately upon receipt of notice to cease such conduct; or


 


(xiii)         acceptance by Executive of employment with any other
employer.


 


If the Company
terminates Executive’s employment for Cause as defined above, the Company shall
have no further obligations hereunder from and after the effective date of
termination and the Company shall have all other rights and remedies available
under this or any other agreement and at law or in equity and Executive gets
nothing else.


 


(b)           Termination
by the Company Without Cause.  
Subject to the severance pay obligations set forth in subsection (g)
below, the Company shall have the right to terminate Executive without Cause
for any reason at any time.


 


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(c)           Voluntary Termination by Executive. 
Except as provided in Section 5(d), in the event that Executive’s
employment with the Company is terminated by Executive for any reason prior to
the end of the Employment Period, the Company shall have no further obligations
hereunder from and after the date of such termination and shall have all other
rights and remedies available under this Agreement or any other agreement and
at law or in equity.


 


(d)           Termination
by Executive for Compensation Non-Payment.  If the Company fails to make any
payment of any compensation to Executive when due hereunder, whether due
pursuant to Section 4(a) and 5(b) or otherwise, Executive shall provide
written notice of the failure to the Chief Executive Officer of the
Company.  If the Company fails to remedy
the non-payment within ten business days of such written notice, this Agreement
shall be deemed terminated without Cause by the Company, and all sums due under
subsection (g) below will be due and payable as provided in that
subsection.  If, after the Agreement has
been terminated for compensation non-payment, the Company fails to timely make
a payment under Section 5(g), Executive shall provide written notice to
the Chief Executive Officer of the Company of the failure to pay.  If the Company fails to remedy the
non-payment within ten business days after receipt of the notice, the unpaid
balance of the severance pay due under Section 5(g) shall be accelerated
and will be due and payable in a lump sum within thirty days from the date of
acceleration.  Except as provided below,
in the event the Company fails to remedy the non-payment within thirty days
from the date of acceleration, Executive shall have no further obligations
under Section 7 hereunder beginning on the thirtieth day after the date
of acceleration.  Executive shall not
have the right to accelerate the severance payments and be released from
Section 7 if the Company terminates the severance payments because of the
Executive’s material breach of Sections 6, 7, 8, and/or 10, as provided in
Section 5(g). Nothing contained in this subsection (d) shall affect Executive’s
obligations under any other section contained herein.


 


(e)           Termination
Upon Death.  In the event that
Executive shall die during his employment by the Company hereunder, the Company
shall pay to Executive’s estate any compensation due that would otherwise have
been payable through the date of his death.


 


(f)            Termination
Upon Disability.  In the event that
Executive shall become disabled during his employment by the Company,
Executive’s employment hereunder shall terminate and the Company shall provide
Executive with severance payments equal to three months salary (based on
Executive’s monthly salary on the date of termination).  Such severance payments shall be paid over a
period of three months in accordance with the Company’s normal payroll
practices and schedule.   For purposes
of this Agreement, Executive shall become “disabled” if he shall become,
because of illness or incapacity, unable to perform the essential functions of
his job under this Agreement with or without reasonable accommodation for a
continuous period of 90 days during his employment by the Company.


 


(g)           Severance Pay.  If the Company terminates Executive other
than for Cause, death or disability, or if the Executive terminates his
employment for compensation non-payment pursuant to Section 5(d), the
Company shall provide Executive with severance payments equal to the balance of
Executive’s base salary remaining in the Employment Period under this Agreement
(the “Severance Period”).  Such
severance payments shall be paid in accordance with the Company’s normal
payroll practices and schedule, subject to the limitations 


 


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set forth
below.  In the event Executive is in
material breach of his post-employment covenants contained in Sections 6, 7,
8, and 10, at any time during the Severance Period, the Company shall be
entitled to immediately cease any severance payments, the Company’s severance
obligation shall terminate and expire, and the Company shall have no further
obligations to Executive hereunder from and after the date of such breach and
shall have all other rights and remedies available under this Agreement or any
other agreement, and at law or in equity.


 


6.             Nondisclosure.  Executive acknowledges that during his
employment by 360 Group and as a shareholder of 360 Group, he acquired
substantial knowledge with respect to the operations of 360 Group’s business,
including Confidential Information, as defined below.  In addition, Executive acknowledges that during his employment
with the Company, the Company will provide to Executive, and Executive will
acquire, Confidential Information, as defined below.  During the term of this Agreement, Executive shall keep secret
and retain in strictest confidence, and shall not, without the prior written
consent of the Chief Executive Officer of the Company, furnish, make available
or disclose to any third party or use for the benefit of himself or any third
party, except in the furtherance of his job duties with the Company, any
Confidential Information.  Executive
shall not at any time after his employment with the Company has ended (for
whatever reason), use or divulge to any person or entity, directly or
indirectly, any Confidential Information, or use any Confidential Information
in subsequent employment of any nature. 
As used in this Agreement, “Confidential Information” shall mean any
information relating to the business or affairs of the Company and its
affiliates and predecessors (including 360 Group) including, but not limited
to, trade secrets, information relating to financial statements, operations
manuals, systems manuals, customer identities, customer profiles, customer
preferences, partner or investor identities, employees, suppliers, project
designs, project methods, advertising programs, advertising techniques, target
markets, servicing methods, equipment, programs, strategies and information,
market analyses, profit margins, pricing information, cost structure, past,
current or future marketing strategies, or any other proprietary information
used by the Company or its affiliates; provided however, that Confidential
Information shall not include any information which is in the public domain or
becomes known in the industry through no wrongful act on the part of
Executive.  Executive acknowledges that
the Confidential Information is vital, sensitive, confidential and proprietary
to the Company and that he is under a contractual and common law duty to not
disclose the Confidential Information to any third party at any time.  Executive acknowledges and agrees that his
non-disclosure obligation applies to all Confidential Information of 360 Group
and the Company, no matter when he obtained knowledge of or access to such
Confidential Information.


 


7.             Non-Interference
or Solicitation.  Executive
agrees that during his employment with the Company and for an additional period
of two years after the termination of Executive’s employment (for whatever
reason) that neither he nor any individual, partner(s), limited partnership,
corporation or other entity or business with which he is in any way affiliated,
including without limitation, any partner, limited partner, director, officer,
shareholder or employee of any such entity or business, will request, induce or
attempt to influence, directly or indirectly, any employee of the Company to
terminate their employment with the Company. 
Executive further agrees that during the period beginning with the
commencement of Executive’s employment with the Company and ending two years
after the termination of Executive’s employment with the Company (for whatever
reason), he shall not, directly or 


 


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indirectly, as an
individual, employee, agent, consultant, owner, director, partner or in any
other individual or representative capacity of any person, entity or business,
solicit or accept business from, or perform services on behalf of, the Men’s
Warehouse or any current or future client of the Company, or in any way
encourage them to terminate or otherwise alter their relationship with the
Company.


 


8.             Work Product.  For purposes
of this Section 8, “Work Product” shall mean all intellectual
property rights, including all trade secrets, U.S. and international
copyrights, trademarks, trade names, patentable inventions, discoveries and
other intellectual property rights in any work product that is created in
connection with Executive’s work or using the Company’s materials.  In addition, all rights in any preexisting
Work Product provided to the Company during Executive’s employment shall
automatically become part of the Work Product hereunder, whether or not it
arises specifically out of Executive’s “Work.” 
For purposes of this Agreement, “Work” shall mean (1) any direct
assignments and required performance by or for the Company, and (2) any other
productive output that relates to the business of the Company and is produced
during Executive’s employment by the Company. 
For this purpose, Work may be considered present even after normal
working hours, away from the Company’s premises, on an unsupervised basis,
alone or with others.  Unless otherwise
approved in writing by the Chief Executive Officer or the Board of Directors of
the Company, this Agreement shall apply to all Work Product created in
connection with all Work conducted before or after the date of this Agreement.


 


The Company shall
own all rights in the Work Product.  To
this end, all Work Product shall be considered work made for hire for the
Company.  If any of the Work Product may
not, by operation of law or agreement, be considered Work made by Executive for
hire for the Company (or if ownership of all rights therein do not otherwise
vest exclusively in the Company immediately), Executive agrees to assign, and
upon creation thereof does hereby automatically assign, without further
consideration, the ownership thereof to the Company.  Executive hereby irrevocably relinquishes for the benefit of the
Company and its assigns any moral rights in the Work Product recognized by
applicable law.  The Company shall have
the right to obtain and hold, in whatever name or capacity it selects,
copyrights, registrations, and any other protection available in the Work
Product.


 


Executive agrees
to perform upon the request of the Company, during or after Executive’s Work or
employment with the Company, such further acts as may be necessary or desirable
to transfer, perfect, and defend the Company’s ownership of the Work Product,
including by (1) executing, acknowledging, and delivering any requested
affidavits and documents of assignment and conveyance, (2) obtaining and/or
aiding in the enforcement of copyrights, trade secrets, and (if applicable) patents
with respect to the Work Product in any countries, and (3) providing testimony
in connection with any proceeding affecting the rights of the Company in any
Work Product.


 


9.             No Exclusions.  Executive
hereby represents that Executive has not heretofore created any Work Product or
prepared any work which is the subject of any Work Product that Executive
wishes to exclude from the provisions of Section 8 above.  For clarification, no work product related
to Sugarshots shall be deemed to be Company Work Product.  Executive 


 


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represents and
warrants that he has provided the Company with a complete and accurate
description of Sugarshots’ business, products and customers.


 


10.          Return of
Documents.  Executive agrees that if Executive’s
relationship with the Company is terminated (for whatever reason), Executive
shall not take with Executive, but will leave with the Company, all work
product, Confidential Information, records, files, memoranda, reports, financial
information, price lists, customer lists, supplier lists, documents and other
information, in whatever form (including on computer disk), and any copies
thereof, or if such items are not on the premises of the Company, Executive
agrees to return such items immediately upon Executive’s termination or at the
request of the Company.  Executive
acknowledges that all such items are and remain the property of the Company.


 


11.          Severability
and Reformation.  If any provision of this Agreement is held
to be illegal, invalid or unenforceable under any present or future law, and if
the rights or obligations of Executive or the Company under this Agreement
would not be materially and adversely affected thereby, such provision shall be
fully severable, and this Agreement shall be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part thereof,
the remaining provisions of this Agreement shall remain in full force and
effect and shall not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom, and in lieu of such illegal, invalid or
unenforceable provision, there shall be added automatically as a part of this
Agreement a legal, valid and enforceable provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible, and the Company
and Executive hereby request the court or arbitrator to whom disputes relating
to this Agreement are submitted to reform the otherwise unenforceable provision
in accordance with this Section 11.


 


12.          Injunctive Relief.  Executive acknowledges that the breach
of any of the covenants contained herein, including, without limitation, the
confidentiality covenants contained in Section 6 and the
non-solicitation covenants in Section 7, will give rise to injury to the
Company and will deprive the Company of the benefit of its purchase of 360
Group’s stock and assets, including 360 Group’s business and its customer
goodwill.  Accordingly, the Company
shall be entitled to injunctive relief to prevent or cure breaches or
threatened breaches of the provisions of this Agreement and to enforce specific
performance of the terms and provisions hereof in any court of competent
jurisdiction, in addition to any other legal or equitable remedies which may be
available.  Executive further
acknowledges and agrees that the enforcement of a remedy hereunder by way of
injunction shall not prevent Executive from earning a reasonable livelihood.  Executive further acknowledges and agrees
that the covenants contained herein are necessary for the protection of the
Company’s legitimate business interests and are reasonable in scope and
content.


 


13.          Headings,
Gender, etc.  The headings used in this Agreement have
been inserted for convenience and do not constitute matter to be construed or
interpreted in connection with this Agreement. 
Unless the context of this Agreement otherwise requires, (i) words of
any gender shall be deemed to include each other gender; (ii) words using the
singular or plural number shall also include the plural or singular number,
respectively; and (iii) the terms “hereof,” “herein,” “hereby,” “hereto,” and
derivative or similar words shall refer to this entire Agreement.


 


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14.          Governing
Law.  THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,  WITHOUT GIVING EFFECT TO ANY PRINCIPLE OF
CONFLICT OF LAWS THAT WOULD REQUIRE THE APPLICATION OF THE LAW OF ANY OTHER
JURISDICTION.


 


15.          Survival. 
Executive’s termination from employment and/or the termination of this
Agreement, for whatever reason, shall not reduce or terminate either party’s
covenants and agreements set forth herein.


 


16.          Notices. 
Any notice necessary under this Agreement shall be in writing and shall
be considered delivered three days after mailing if sent certified mail, return
receipt requested, or when received, if sent by telecopy, prepaid courier,
express mail or personal delivery to the following addresses:


 


	
  If to the Company:

  	
  INVESTools Inc.

  
	
   

  	
  Attn:  Lee Barba

  
	
   

  	
  5959 Corporate Drive,
  Suite LL250

  
	
   

  	
  Houston, Texas 77036

  
	
   

  	
   

  
	
  cc to:

  	
  Paul G. Nason, Esq.

  
	
   

  	
  Locke Liddell &
  Sapp LLP

  
	
   

  	
  2200 Ross Avenue, Suite
  2200

  
	
   

  	
  Dallas, Texas 75201

  
	
   

  	
  (214) 740-8000
  (telephone)

  
	
   

  	
  (214) 740-8800
  (facsimile)

  
	
   

  	
   

  
	
  If to the Executive:

  	
  Scott K. Waltz

  
	
   

  	
  923 Alturas Way

  
	
   

  	
  Mill Valley, California
  94941

  
	
   

  	
   

  
	
  cc to:

  	
  Jay Landrum, Esq.

  
	
   

  	
  Landrum & Company, Inc.

  
	
   

  	
  1102 Starwood Court

  
	
   

  	
  San Jose, CA 
  95120

  
	
   

  	
  (408) 278-1600 (telephone)

  
	
   

  	
  (408) 278-8608 (facsimile)

  



 


17.          Entire
Agreement.  Except as provided herein, this Agreement,
including the Recitals and introductions, embodies the entire agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and supersedes all prior conflicting or inconsistent agreements,
consents and understandings relating to such subject matter.  Nothing herein shall be construed as
superceding or otherwise affecting Executive’s obligations and covenants under
Section 8 of his prior Employment Agreement with 360 Group, dated September 8,
2002 (“Prior Employment Agreement”). 
Executive acknowledges and agrees that there is no oral or other
agreement between the Company and Executive which has not been incorporated in
this Agreement.  This Agreement may only
be modified pursuant to Section 21 and nothing herein shall affect the
parties’ obligations under the Merger Agreement.


 


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18.          No Waiver. 
The forbearance or failure of one of the parties hereto to insist upon
strict compliance by the other with any provisions of this Agreement, whether
continuing or not, shall not be construed as a waiver of any rights or
privileges hereunder.  No waiver of any
right or privilege of a party arising from any default or failure hereunder of
performance by the other shall affect such party’s rights or privileges in the
event of a further default or failure of performance.


 


19.          Assignment. 
No approval shall be required for the Company to assign this Agreement
to any affiliate or successor in interest to the Company’s business.  Executive shall not assign his obligations
under this Agreement.  Any assignment
made by either party in contravention of this Section 19 shall be null
and void for all purposes.


 


20.          Binding
Effect.  This Agreement shall be
binding on and inure to the benefit of the parties and their respective
permitted successors and assigns.


 


21.          Modification. 
This Agreement may be modified only by a written agreement signed by
both parties.  Any such written
modification may only be signed by the Chief Executive Officer of the Company.


 


22.          Knowledge.  Executive acknowledges that he has had the
opportunity to read and review this Agreement and that he understands all of
the terms of this Agreement and its importance.  Executive recognizes and agrees that the enforcement of this
Agreement is necessary and essential to ensure the preservation, continuity and
value of the Company’s business, including its assets and customer goodwill,
and the 360 Group’s and the Company’s Confidential Information.  Executive also recognizes and agrees that
the enforcement of this Agreement is necessary to allow the Company to realize
and derive all of the benefits, rights, and expectations of conducting such
business and owning and protecting the Company’s business, including its stock,
assets and customer goodwill, as well as its Confidential Information.  Executive acknowledges that the Company
encourages Executive to consider consulting with an attorney prior to execution
of this Agreement by Executive.


 


23.          Waiver of
Rights Under Prior Employment Agreement and Offer Letter. 
In exchange for the mutual promises and consideration contained herein
and in the Merger Agreement, Executive waives all rights to compensation,
including severance pay, under the Prior Employment Agreement and any offer
letter presented to Executive by 360 Group. 
Executive expressly waives any and all rights under Section 9 of the
Prior Employment Agreement.


 


24.          Counterparts. 
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original instrument, and all of which together
shall constitute one and the same Agreement.


 


25.          Taxes.  The Company may withhold from any
amounts payable to Executive hereunder all federal, state, local or other taxes
that the Company may reasonably determine are required to be withheld pursuant
to any applicable law or regulation.


 


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IN WITNESS
WHEREOF, the parties hereto have executed this Employment Agreement as of the
day and year first above written.


 


	
   

  	
  SCOTT K. WALTZ

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Scott K. Waltz

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  INVESTOOLS INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Lee K. Barba

  	
   

  
	
   

  	
  Lee K. Barba, Chief
  Executive Officer

  
	
   

  	
   

  



 


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