**Exhibit10.10**

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**AMENDEDAND RESTATEDEMPLOYMENT AGREEMENT**

 

ThisEmployment Agreement (this “Agreement”) is made by and between INVESTools Inc.,a Delaware corporation (the “Company”), and Lee K. Barba (“Employee”) effectiveas of December 6, 2001 (the “Effective Date”).

 

WHEREAS,the Company is desirous of employing Employee in an executive capacity on theterms and conditions, and for the consideration, hereinafter set forth for theperiod provided herein commencing upon the Effective Date, and Employee is desirousof employment with the Company on such terms and conditions and for suchconsideration.

 

NOW,THEREFORE, for and in consideration of the mutual promises, covenants andobligations contained herein, the Company and Employee agree as follows:

 

# **ARTICLE IEMPLOYMENT AND DUTIES**

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## Section 1.1                                      TheCompany agrees to employ Employee and Employee agrees to be employed by theCompany, subject to the terms and conditions of this Agreement, beginning as ofthe Effective Date and continuing for the term hereof.

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## Section 1.2                                      Fromand after the Effective Date, the Company shall employ Employee in the positionof Executive Vice President of the Company, or in such other positions as theparties mutually may agree.

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## Section 1.3                                      Employeeagrees to serve in the position referred to in Section 1.2 hereof and toperform diligently and to the best of his abilities the duties and servicespertaining to such office as set forth in the Bylaws of the Company in effecton the Effective Date, as well as such additional duties and servicesappropriate to such office as the Board of Directors of the Company (the “Boardof Directors”) may reasonably assign to Employee from time to time.

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## Section 1.4                                      Employeeagrees, during the period of his employment by the Company, to devote his fullbusiness time, energy and best efforts to the business and affairs of theCompany and its affiliates and not to engage, directly or indirectly, in anyother business or businesses, whether or not similar to that of the Company,except with the prior written consent of the Board of Directors. The foregoingnotwithstanding, the parties recognize and agree that Employee may engage inpassive personal investments and charitable or public service activities andserve on the board of directors of corporations to the extent that suchactivities do not conflict with the business and affairs of the Company orinterfere with Employee’s performance of his duties and obligations hereunder.

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# **ARTICLE IITERM AND TERMINATION OF EMPLOYMENT**

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## Section 2.1                                      Unlesssooner terminated pursuant to other provisions hereof, the Company agrees toemploy Employee for a three-year period beginning on the Effective Date,

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## and thereafterautomatically extend the term of this Agreement for successive one-year periodsunless and until such time as either party shall give written notice to theother at least 15 days prior to the expiration of the then current termthat no such automatic extension shall occur, in which event Employee’semployment shall terminate on the expiration of the then current term.

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## Section 2.2                                      Notwithstandingthe provisions of Section 2.1 hereof, the Company shall have the right toterminate Employee’s employment under this Agreement at any time in accordancewith the following provisions:

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### (a)          upon Employee’s death;

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### (b)         upon Employee’s becoming incapacitated ordisabled by accident, sickness or other circumstance which impairment (despitereasonable accommodation) renders him mentally or physically incapable ofperforming the duties and services required of him hereunder for a period of atleast 120 consecutive days or for a period of 180 business days during any12-month period;

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### (c)          for cause, which for purposes of thisAgreement shall mean each of the following:

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#### (i)                  a material act or material acts ofdishonesty or disloyalty by Employee adversely affecting the Company;

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#### (ii)               Employee’s breach of any of hisobligations of this Agreement;

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#### (iii)            Employee’s gross negligence or willfulmisconduct in performance of the duties and services required of him pursuantto this Agreement; or

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#### (iv)           Employee’s conviction of a felony, orEmployee’s conviction of a misdemeanor involving moral turpitude.

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### (d)         by “Constructive Termination,” which forpurposes of this Agreement shall mean each of the following:

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#### (i)                  a material diminution of Employee’sresponsibilities, including, without limitation, title and reportingrelationship;

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#### (ii)               relocation of any New York, New Yorkoffice of the Company without the consent of Employee; or

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#### (iii)            a material reduction in Employee’scompensation and benefits received hereunder.

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### (e)          in the sole discretion of the Board ofDirectors without cause; *provided, however,* in such case theCompany shall give 15 days prior written notice to Employee of itsintention to terminate Employee’s employment with the Company and shallcontinue to provide compensation to Employee in accordance with the terms setforth in Section 4.1(e) hereof.

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## Section 2.3                                      Employeeshall have the right to terminate his employment under this

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## Agreement atany time in accordance with the following provisions:

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### (a)          a breach by the Company of any of itsobligations under this Agreement which, if correctable, remains uncorrected for30 days following written notice specifying such breach given by Employeeto the Company; or

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### (b)         in the sole discretion of Employee, *provided,however,* in such case Employee shall give 15 days prior writtennotice to the Company of his intention to terminate his employment with theCompany.

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## Section 2.4                                      Ifthe Company desires to terminate Employee’s employment hereunder as provided inSection 2.2 hereof or Employee desires to terminate Employee’s employmenthereunder as provided in Section 2.3 hereof, it or he shall do so bygiving written notice to the other party that it or he has elected to terminateEmployee’s employment hereunder and stating the effective date and reason, ifany, for such termination. In the event of such termination, the provisions ofArticles IV through IX hereof shall continue to apply in accordance with theirterms. Any question as to whether and when there has been a termination ofEmployee’s employment, and the cause of such termination, shall be determinedby the Board of Directors in its sole discretion.

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# **ARTICLE IIICOMPENSATION AND BENEFITS**

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## Section 3.1                                      *Compensation.*  During the term of this Agreement, the Company shall providecompensation to Employee in the following forms:

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### (a)          *Base Salary.*  Employee shall receive an annual base salary of $350,000, whichamount shall be subject to annual review by the Board of Directors and/or theCompensation Committee of the Company for possible increases.

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### (b)         Bonus.

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#### (i)                  Employee shall participate in, andreceive an annual bonus pursuant to, the Company’s Executive Committee AnnualBonus Plan.

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#### (ii)               Employee shall participate in, and receivean annual bonus pursuant to, the Company’s Management Incentive Bonus Plan.

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### (c)          Stock Options.

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#### (i)                  Upon approval of the Company’s Boardof Directors, Employee will be granted options to purchase an aggregate of1,200,000 shares of the Company’s common stock at an exercise price equal tothe per share Fair Market Value (as hereinafter defined) on the date ofgrant.  The options will be grantedpursuant to a stock option agreement(s) to be executed by Employee and theCompany as of the date hereof, which stock option agreement(s) will provide,among other things, that (A) not more than $100,000 worth of the optionsgranted to Employee (valued at Fair Market Value on the date of grant) firstexercisable in any calendar year will

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#### be treated as incentive stock options and the excess, if any, will betreated as non-qualified options and (B) the options will vest in four equalannual installments beginning one year from the date of this Agreement; *provided,**however,*that all options granted to Employee hereunder shall vest immediately upon aChange of Control (as hereinafter defined).

 

“FairMarket Value” means (i) if the Company’s common stock is not listed or admittedto trade on a national securities exchange and if bid and ask prices for thecommon stock are not furnished through NASDAQ or a similar organization, thevalue established by the Compensation Committee of the Board of Directors (the“Compensation Committee”), in its sole discretion; (ii) if the Company’s commonstock is listed or admitted to trade on a national securities exchange or anational market system, the closing price of the common stock, as published inthe *Wall Street Journal*, solisted or admitted to trade on such day or, if there is no trading of thecommon stock on such date, then the closing price of the common stock on thenext preceding date on which there was trading in such shares; or (iii) if thecommon stock is not listed or admitted to trade on a national securitiesexchange or a national market system, the mean between the bid and asked pricefor the common stock on such date, as furnished by the National Association ofSecurities Dealers, Inc. through NASDAQ or a similar organization if NASDAQ isno longer reporting such information.

 

#### (ii)               In addition, Employee shall be eligibleto receive future stock option grants, as determined by the CompensationCommittee.

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## Section 3.2                                      *Benefits.* During the term of this Agreement, Employee shall be afforded thefollowing benefits as incidences of his employment:

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### (a)          *Business and Entertainment Expenses.*  Subject to the Company’s standard policiesand procedures with respect to expense reimbursement as applied to itsexecutive employees generally, the Company will reimburse Employee for, or payon behalf of Employee, reasonable and appropriate expenses incurred by Employeefor business related purposes, including dues and fees to approved industry andprofessional organizations, and reasonable costs of entertainment incurred inconnection with business development.

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### (b)         *Club Membership.*  The Company shall reimburse Employee for membership dues atsocial or country clubs designated by Employee as mutually agreed by theCompany and Employee.

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### (c)          *Other.* Employee and, to the extent applicable, Employee’s family, dependentsand beneficiaries, shall be allowed to participate in all benefits, plans andprograms, including improvements or modifications of the same, which are now,or may hereafter be, available to executive employees of the Company generally.Such benefits, plans and programs may include, without limitation, a profitsharing plan, a thrift plan, a health insurance or health care plan, lifeinsurance, disability insurance or a pension plan. The Company shall not,however, by reason of this paragraph be obligated to institute, maintain, orrefrain from changing, amending or discontinuing,

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### any such benefit plan or program, so long as such changes are similarlyapplicable to executive employees of the Company generally.

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## Section 3.3                                      *Payroll.* Employee shall receive all compensation pursuant to this Agreement inaccordance with the Company’s Houston, Texas customary payroll practices withrespect to time and manner of payment.

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# **ARTICLE IVEFFECT OF TERMINATION ON COMPENSATION**

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## Section 4.1                                      Bythe Company.

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### (a)          *Termination Upon Death.*  In the event of Employee’s death during theterm of this Agreement, this Agreement will terminate upon the first day of themonth following the Employee’s date of death, and all of Employee’s rights andbenefits provided for in this Agreement will terminate as of such date; *provided,however*, that Employee’s estate will be paid Employee’s annualsalary and pro rata bonus through the date of death for a period of six monthsafter such death occurs and, *provided, further*, all stock optionsreferenced in Section 3.1(c) shall vest on Employee’s death, andEmployee’s estate may exercise such options for a period of one year from thedate of termination.

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### (b)         *Termination Upon Disability.*  If Employee’s employment hereunder isterminated by the Company pursuant to Section 2.2(b) hereof prior to theexpiration of the then current term, all of Employee’s rights and benefitsprovided for in this Agreement will terminate as of such date; *provided,however*, that Employee will be paid Employee’s annual salary and prorata bonus through the date of termination for a period of six months aftersuch termination occurs and, *provided, further*, all stock optionsreferenced in Section 3.1(c) shall vest effective as of the terminationdate, and Employee may exercise such options for a period of one year from thedate of termination.

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### (c)          *Termination for Cause.*  Employer shall be entitled to terminateEmployee’s employment at any time for cause, as defined by Section 2.2(c).In the event of termination for cause, all of Employee’s rights and benefitsprovided for in this Agreement shall terminate, except as to any accrued andunpaid base salary provided for in Section 3.1(a).

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### (d)         *Termination After Change of Control.*  If, within 24 months following a Changeof Control (as hereinafter defined), the Company or its successor terminatesEmployee’s employment without cause or by Constructive Termination, Employeeshall receive $637,500 per year for a period of two years.  All unvested stock options referenced inSection 3.1(c) shall vest effective as of the date of termination andEmployee may exercise such options for a period of 90 days from the dateof termination. Employee shall receive his accrued and unpaid salary and anyaccrued and unpaid pro rata bonus through the date of termination, and Employeewill continue to participate in any

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### benefits referenced in Section 3.2(c) for a period of two yearsfrom the date of termination; *provided, however*, to the extent that anybenefit under Section 3.2(c) cannot be continued during a period whenEmployee is not an employee of the Company, the Company shall pay Employee anamount in cash equal to the economic value of such benefit, such value to bedetermined as of the time of termination.

 

In the event that Employee is deemed to have receivedan excess parachute payment (as such term is defined in Section 280G(b) ofthe Internal Revenue Code of 1986, as amended (the “Code”)) which is subject toexcise taxes (“Excise Taxes”) imposed by Section 4999 of the Code withrespect to compensation paid to Employee pursuant to this Agreement, theCompany shall make a Bonus Payment (as defined below) to Employee when Employeereceives any excess parachute payments. “Bonus Payment” means a cash payment equal to the sum of (i) allExcise Taxes payable by Employee plus (ii) any additional Excise Tax orfederal or state income taxes imposed with respect to the Bonus Payment.

 

“Change of Control” means the happening of any of thefollowing events:

 

#### (i)                  The acquisition by any individual,entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of theSecurities Exchange Act of 1934, as amended (the “Exchange Act”)) (a “Person”),of beneficial ownership (within the meaning of Rule 13d-3 promulgatedunder the Exchange Act) of 50% or more of either (A) the then outstandingshares of common stock of the Company or (B) the combined voting power ofthe then outstanding voting securities of the Company entitled to votegenerally in the election of directors; provided, however, that the followingacquisitions shall not constitute a Change of Control under this subsection(i): (x) any acquisition directly from the Company (excluding anacquisition by virtue of the exercise of a conversion privilege), (y) anyacquisition by the Company, or (z) any acquisition by any employee benefitplan (or related trust) sponsored or maintained by the Company or anycorporation controlled by the Company; or

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#### (ii)               Individuals who, as of the effectivedate hereof, constitute the Board of Directors (the “Incumbent Board”) ceasefor any reason to constitute at least a majority of the Board; provided,however, that any individual becoming a director subsequent to the effectivedate hereof whose election, or nomination for election by the Company’sstockholders, was approved by a vote of at least a majority of the directorsthen comprising the Incumbent Board shall be considered as though suchindividual were a member of the Incumbent Board, but excluding, for thispurpose, any such individual whose initial assumption of office occurs as aresult of either an actual or threatened election contest (as such terms areused in Rule 14a-11 of Regulation 14A promulgated under the ExchangeAct) or other actual or threatened solicitation of proxies or consents by or onbehalf of a Person other than the Board; or

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#### (iii)            Approval by the stockholders of the Companyof a complete liquidation or dissolution of the Company or the sale or otherdisposition of all or substantially

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#### all of the assets of the Company.

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### (e)          *Other Events Upon Termination.*  If Employee’s employment hereunder shall beterminated by the Company without cause or by Constructive Termination otherthan within 24 months following a Change of Control, Employee shallreceive in accordance with the Company’s then current payroll practices anamount equal to the sum of (i) Employee’s annual base salary for the yearin which such termination occurs and (ii) the greater of (A) thetarget bonuses for each of the four quarters in the year in which suchtermination occurs and (B) the actual bonus earned by Employee for thefour fiscal quarters immediately preceding such termination, payable for aperiod of time equal to the longer of (i) two years and (ii) theperiod of time remaining under the then current term of this Agreement (suchlonger period, the “Severance Period”). Employee shall receive his accrued andunpaid salary and any accrued and unpaid pro rata bonus through the date oftermination, and Employee will continue to participate in any benefitsreferenced in Section 3.2(c) for the Severance Period; *provided,however*, to the extent that any benefit under Section 3.2(c)cannot be continued during a period when Employee is not an employee of theCompany, the Company shall pay Employee an amount in cash equal to the economicvalue of such benefit, such value to be determined as of the time oftermination. In addition, all stock options referenced in Section 3.1(c)shall vest effective as of the date of termination, and Employee may exercisesuch options for a period of three months from the date of termination.

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## Section 4.2                                      Section 4.2  By Employee.

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### (a)          *Breach of Agreement by Company.*  If Employee’s employment hereunder shall beterminated by Employee pursuant to the provisions set forth inSection 2.3(a) hereof prior to the expiration of the then current term ofthis Agreement, Employee shall receive in accordance with the Company’s thencurrent payroll practices an amount equal to the sum of (i) Employee’sannual base salary for the year in which such termination occurs and (ii) thegreater of (A) the target bonuses for each of the four quarters in theyear in which such termination occurs and (B) the actual bonus earned byEmployee for the four fiscal quarters immediately preceding such termination,payable for a period of time equal to the longer of (i) two years and(ii) the period of time remaining under the then current term of thisAgreement. Employee shall receive his accrued and unpaid salary and any accruedand unpaid pro rata bonus through the date of termination, and Employee willcontinue to participate in any benefits referenced in Section 3.2(c) forthe Severance Period; *provided, however*, to the extent that anybenefit under Section 3.2(c) cannot be continued during a period whenEmployee is not an employee of the Company, the Company shall pay Employee anamount in cash equal to the economic value of such benefit, such value to bedetermined as of the time of termination. In addition, all stock optionsreferenced in Section 3.1(c) shall vest effective as of the date oftermination, and Employee may exercise such options for a period of threemonths from the date of termination.

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### (b)         *Voluntary Resignation.*  If Employee’s employment hereunder shall beterminated by

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### Employee pursuant to the provisions set forth in Section 2.3(b)hereof prior to the expiration of the then current term, then, upon suchtermination, subject to COBRA, all compensation and all benefits to Employeehereunder shall terminate contemporaneously with the termination of suchemployment; *provided,however*, Employee shall not receive a bonus for the year duringwhich Employee’s employment terminated or any subsequent year.

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# **ARTICLE VCONFIDENTIAL INFORMATION**

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## Section 5.1                                      *Company Information.*  Employee acknowledges that the Company’sbusiness is highly competitive and that the Company’s books, records anddocuments, technical information concerning its products, equipment, servicesand processes, procurement procedures and pricing techniques and the names ofand other information (e.g., credit and financial data) concerning theCompany’s customers and business associates all comprise confidential businessinformation and trade secrets of the Company (collectively, “ConfidentialInformation”*)* which are valuable,special, and unique assets of the Company which the Company uses in itsbusiness to obtain a competitive advantage over the Company’s competitors whichdo not know or use this information. Employee further acknowledges thatprotection of the Confidential Information against unauthorized disclosure anduse is of critical importance to the Company in maintaining its competitiveposition. Accordingly, Employee hereby agrees that he will not, at any timeduring or after his employment by the Company, make any unauthorized disclosureof any Confidential Information or make any use thereof, except for the benefitof, and on behalf of, the Company. For the purposes of this Article 5, theterm “Company” shall also include affiliates of the Company.

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## Section 5.2                                      *Third Party Information.*  Employee acknowledges that, as a result ofhis employment by the Company, he may from time to time have access to, orknowledge of, confidential business information or trade secrets of thirdparties, such as customers, suppliers, partners, joint venturers, and the like,of the Company. Employee agrees to preserve and protect the confidentiality ofsuch third-party confidential information and trade secrets to the same extent,and on the same basis, as the Confidential Information.

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## Section 5.3                                      *Return of Documents.*  All written materials, records and otherdocuments made by, or coming into the possession of, Employee during the periodof his employment by the Company which contain or disclose the ConfidentialInformation shall be and remain the property of the Company. Upon request, andin any event upon termination of Employee’s employment by the Company, for anyreason, he promptly shall deliver the same, and all copies, derivatives andextracts thereof, to the Company.

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# **ARTICLE VIINVENTIONS, DISCOVERIES AND COPYRIGHTS**

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## Section 6.1                                      *Inventions and Discoveries.*  Employee agrees promptly and freely todisclose to the Company, in writing, any and all ideas, conceptions,inventions, improvements, and discoveries, whether patentable or not, which areconceived or made by Employee, solely or

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## jointly withanother, during the period of his employment by the Company and which arerelated to the business or activities of the Company. Employee agrees to assignand hereby does assign to the Company all his interest in such ideas, conceptions,inventions, improvements, and discoveries. Employee agrees that, wheneverrequested to do so by the Company, he shall assist in the preparation of anydocument that the Company shall deem necessary and shall execute any and allapplications, assignments or other instruments that the Company shall deemnecessary, in its sole discretion, to apply for and obtain protection,including patent protection, for such ideas, conceptions, inventions,improvements and discoveries in all countries of the world. The obligations inthe preceding sentence shall continue beyond the termination of Employee’semployment regardless of the reason for such termination.

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## Section 6.2                                      *Copyrights.*  If during Employee’s employment by the Company, Employee createsany original work of authorship (each, a “Work”) fixed in any tangible mediumof expression which is the subject matter of copyright *(*e.g.*,*written presentations, computer programs, videotapes, drawings, maps, models,manuals or brochures) relating to the Company’s business, products, orservices, whether a Work is created solely by Employee or jointly with others,the Company shall be deemed the author of a Work if the Work is prepared byEmployee in the scope of his employment; or, if the Work is not prepared by Employeewithin the scope of his employment but is specially ordered by the Company as acontribution to a collective work, as a part of a motion picture or otheraudiovisual work, as a translation, as a supplementary work, as a compilationor as an instructional text, then the Work shall be considered to be a workmade for hire and the Company shall be the author of the Work. In the event aWork is not prepared by Employee within the scope of his employment or is not aWork specially ordered and deemed to be a work made for hire, then Employeehereby agrees to assign, and by these presents, does assign, to the Company allof Employee’s worldwide right, title and interest in and to such Work and allrights of copyright therein. Both during the period of Employee’s employment bythe Company and thereafter, Employee agrees to assist the Company and itsnominee, at any time, in the protection of the Company’s worldwide right, titleand interest in and to the work and all rights of copyright therein, including butnot limited to, the execution of all formal assignment documents requested bythe Company or its nominee and the execution of all lawful oaths andapplications for registration of copyright in the United States and foreigncountries.

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## Section 6.3                                      Employeerepresents that he has not heretofore made any invention or discovery orprepared any work which is the subject matter of copyright related to theCompany’s business which he wishes to exclude from the provisions ofSection 6.1 and Section 6.2 hereof. As used in this Article VI,the “Company” shall include affiliates of the Company.

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# **ARTICLE VIINON-COMPETITION**

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## Section 7.1                                      Therestrictive covenants contained in this Article VII and inArticle VIII hereof are supported by consideration to Employee hereunder.As a material incentive for the Company to enter into this Agreement, Employeehereby agrees that he will not at any time during his employment by the Companyand for a period commencing on the date of termination

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## of hisemployment and continuing until the expiration of 24 months (the“Non-Competition Period”)*,*directly or indirectly, for himself or for others, in any state of the UnitedStates, or in any foreign country where the Company or any of its affiliates isthen conducting any business:

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### (a)          engage in any business that is directlycompetitive with activities conducted by the Company (or any of the Company’ssubsidiaries or divisions), which activities conducted by the Company (or anyof the Company’s subsidiaries or divisions) represent in the aggregate greaterthan 25% of the Company’s proforma consolidated revenues in 2001;

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### (b)         render advice or services to, or otherwiseassist, any other person or entity who is engaged, directly or indirectly, inany business that is directly competitive with activities conducted by theCompany (or any of the Company’s subsidiaries or divisions), which activitiesconducted by the Company (or any of the Company’s subsidiaries or divisions)represent in the aggregate greater than 25% of the Company’s proformaconsolidated revenues in 2001; or

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### (c)          transact any business in any mannerpertaining to suppliers or customers of the Company or any affiliate which, inany manner, would have, or is likely to have, an adverse effect upon theCompany or any affiliate.

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Theforegoing shall not prohibit Employee’s continued participation in thoseactivities in which he is engaged on the date hereof and which have beendisclosed to the Company.

 

Notwithstandingthe foregoing, in the event of termination of this Agreement pursuant toSection 4.1(d), 4.1(e) or 4.2(a), the prohibitions of thisArticle VII shall no longer apply at such time as Employee waives hisright to receive any further payments under Section 4.1(d), 4.1(e) or4.2(a), as the case may be.

 

## Section 7.2                                      Employeeunderstands that the foregoing restrictions may limit his ability to engage ina business similar to the Company’s business in specific areas of the world forthe Non-Competition Period, but acknowledges that he will receive sufficientlyhigh remuneration and other benefits from the Company hereunder to justify suchrestriction. In addition to any remedies provided under applicable law, theCompany and Employee agree that during the period the Company is payingcompensation and benefits to Employee pursuant to Articles III or IV hereof,the Company’s remedy for breach of the provisions of this Article VIIshall include, but shall not be limited to, the termination of all compensationand all benefits to Employee otherwise provided under this Agreement.

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## Section 7.3                                      Itis expressly understood and agreed that the Company and Employee consider therestrictions contained in Section 7.1 hereof to be reasonable andnecessary for the purposes of preserving and protecting the good will andproprietary information of the Company, nevertheless, if any of the aforesaidrestrictions is found by a court having jurisdiction to be unreasonable, overbroad as to geographic area or time or otherwise unenforceable, the partiesintend for the restrictions therein set forth to be modified by such court soas to be reasonable and enforceable and, as so modified by the court, to befully enforced.

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# **ARTICLE VIIISOLICITATION OF EMPLOYEES**

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Duringthe term of his employment by the Company and thereafter for theNon-Competition Period, Employee shall not, on his own behalf or on behalf ofany other person, partnership, entity, association, or corporation, hire orseek to hire any non-clerical or non-secretarial employee of the Company or inany other manner attempt directly or indirectly to influence, induce, orencourage any non-clerical or non-secretarial employee of the Company to leavethe employment of the Company, nor shall he use or disclose to any person,partnership, entity, association, or corporation any information concerning thenames, addresses or personal telephone numbers of any employees of the Company.

 

# **ARTICLE IXMISCELLANEOUS**

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## Section 9.1                                      Notices.  For purposes of this Agreement, notices andall other communications provided for herein shall be in writing and shall bedeemed to have been duly given when personally delivered or when mailed byUnited States registered or certified mail, return receipt requested, postageprepaid, addressed as follows:

 
| If to the Company to: | INVESTools  Inc.5959 Corporate Drive, Suite 2000Houston, TX 77036Attention: Chairman of the Compensation  Committee |
|-----------------------|---------------------------------------------------------------------------------------------------------------------|
|                  |                                                                                                                |
| If to Employee to:    | Lee  K. BarbaP.O. Box 587Bangall, New York 12506                                                                    |

 

orto such other address as either party may furnish to the other in writing inaccordance herewith, except that notices of changes of address shall beeffective only upon receipt.

 

## Section 9.2                                      *Applicable Law, Jurisdiction and Venue.*  This Agreement is entered into under, andshall be governed for all purposes by, the laws of the State of Texas. Any suitby the Company to enforce any right hereunder or to obtain a declaration of anyright or obligation hereunder may, at the sole option of the Company, bebrought (i) in any court of competent jurisdiction in the State of Texasor (ii) in any court of competent jurisdiction where jurisdiction may behad over Employee. Employee hereby expressly consents to the jurisdiction ofthe foregoing courts for such purposes and to the appointment of the Secretaryof State for the State of Texas as his agent for service of process.

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## Section 9.3*                                     **No Waiver.*  No failure by either party hereto at any time to give notice ofany breach by the other party of, or to require compliance with, any conditionor provision of this Agreement shall (i) be deemed a waiver of similar ordissimilar provisions or conditions at the same or at any prior or subsequenttime or (ii) preclude insistence upon strict compliance in the future.

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## Section 9.4                                      *Severability.*  If a court of competent jurisdiction determines that anyprovision of this Agreement is invalid or unenforceable, then the invalidity orunenforceability of that provision shall not affect the validity orenforceability of any other provision of this Agreement, and all otherprovisions shall remain in full force and effect.

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## Section 9.5                                      *Counterparts.*  This Agreement may be executed in one or more counterparts, eachof which shall be deemed to be an original, but all of which together willconstitute one and the same Agreement.

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## Section 9.6                                      *Withholding of Taxes.*  The Company may withhold from any benefitspayable under this Agreement all federal, state, city or other taxes as may berequired pursuant to any law or governmental regulation or ruling.

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## Section 9.7                                      *Headings.* The paragraph headings have been inserted for purposes of convenienceand shall not be used for interpretive purposes.

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## Section 9.8                                      *Affiliate.*  As used in this Agreement, “affiliate” shall mean any person orentity which directly or indirectly through one or more intermediaries owns orcontrols, is owned or controlled by, or is under common ownership or controlwith, the Company.

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## Section 9.9                                      *Assignment.*  This Agreement, and the rights and obligations of the partieshereunder, are personal and neither this Agreement, nor any right, benefit orobligation of either party hereto, shall be subject to voluntary or involuntaryassignment, alienation or transfer, whether by operation of law or otherwise,without the prior written consent of the other party except that vested rightsto payment shall be subject to devise, and shall descend in accordance withapplicable laws of inheritance.

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## Section 9.10                                *Legal Fees.*  If, prior to a Change of Control, either party institutes anylegal action to enforce his or its rights under, or to recover damages forbreach of this Agreement, the Company shall pay up to an aggregate of $10,000of Employee’s actual expenses incurred in pursuit or defense of such legalaction.

 

If,following a Change of Control, either party institutes any legal action toenforce his or its rights under, or to recover damages for breach of thisAgreement, the “prevailing party” in such action shall be entitled to recoverfrom the other party any actual expenses for attorney’s fees and disbursementsincurred by him or it. For these purposes, a party shall be considered a “prevailingparty” if and only if the parties agree to such characterization of a party asa “prevailing party” or a final order of a court specifically recites that suchparty is a “prevailing party.”

 

## Section 9.11                                *Term.* This Agreement has a term co-extensive with the term of employment asdefined in Section 2.1 hereof. Termination of this Agreement pursuant tothe provisions of Section 2.1 hereof shall not affect any right orobligation of either party hereto which is accrued or vested prior to or uponsuch termination or the rights and set forth in Articles IV, V, VI and VIIhereof.

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## Section 9.12                                *Entire Agreement.*  This Agreement constitutes the entireagreement of the parties with regard to the subject matter hereof, and containsall the covenants, promises,

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## representations,warranties and agreements between the parties with respect to employment ofEmployee by the Company. Each party to this Agreement acknowledges that norepresentation, inducement, promise or agreement, oral or written, has been madeby either party, or by anyone acting on behalf of either party, which is notembodied herein, and that no agreement, statement, or promise relating to theemployment of Employee by the Company, which is not contained in thisAgreement, shall be valid or binding. Any modification of this Agreement willbe effective only if it is in writing and signed by the party to be charged.

 

INWITNESS WHEREOF, the parties hereto have executed this Agreement effective asof the Effective Date.

 
|   | INVESTools  Inc.                     |
|--------|--------------------------------------|
|   |                                 |
|   |                                 |
|   | By:                                  | /s/  Paul A. Helbling |   |
|   |                                 |
|   | Name:  Paul A. Helbling         |
|   |                                 |
|   | Title:  Chief Financial Officer |
|   |                                 |
|   |                                 |
|   | /s/  Lee K. Barba                    |   |
|   | Lee  K. Barba                        |

 

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