**Exhibit10.30**

 

# **EMPLOYMENT AGREEMENT**

 

This Employment Agreement (this “Agreement”) is made by and betweenINVESTools Inc., a Delaware corporation (the “Company”), and Lee K. Barba(“Employee”) effective as of December 6, 2001 (the “Effective Date”).

 

WHEREAS, the Company is desirous of employing Employee in an executivecapacity on the terms and conditions, and for the consideration, hereinafterset forth for the period provided herein commencing upon the Effective Date,and Employee is desirous of employment with the Company on such terms andconditions and for such consideration.

 

NOW, THEREFORE, for and in consideration of the mutual promises,covenants and obligations contained herein, the Company and Employee agree asfollows:

 

# **ARTICLE I**

# **EMPLOYMENT AND DUTIES**

 

Section 1.1  The Companyagrees to employ Employee and Employee agrees to be employed by the Company,subject to the terms and conditions of this Agreement, beginning as of theEffective Date and continuing for the term hereof.

 

Section 1.2  From and afterthe Effective Date, the Company shall employ Employee in the position ofExecutive Vice President of the Company, or in such other positions as theparties mutually may agree.

 

Section 1.3  Employee agreesto serve in the position referred to in Section 1.2 hereof and to performdiligently and to the best of his abilities the duties and services pertainingto such office as set forth in the Bylaws of the Company in effect on theEffective Date, as well as such additional duties and services appropriate tosuch office as the Board of Directors of the Company (the “Board of Directors”)may reasonably assign to Employee from time to time.

 

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.

 

# **ARTICLE II**

# **TERM AND TERMINATION OF EMPLOYMENT**

 

Section 2.1  Unless soonerterminated pursuant to other provisions hereof, the Company agrees to employEmployee for a three-year period beginning on the Effective Date, andthereafter automatically extend the term of this Agreement for successiveone-year periods unless and until such time as either party shall give writtennotice to the other at least 15 days prior to the expiration of the thencurrent term that no such automatic extension shall occur, in which eventEmployee’s employment 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:

 

(a)          upon Employee’s death;

 

(b)         upon Employee’s becoming incapacitated or disabled by accident, sicknessor other circumstance which impairment (despite reasonable accommodation)renders him mentally or physically incapable of performing the duties andservices required of him hereunder for a period of at least 120 consecutivedays or for a period of 180 business days during any 12-month period;

 

(c)          for cause, which for purposes of this Agreement shall mean each of thefollowing:

 

(i)             a material act or material acts of dishonesty ordisloyalty by Employee adversely affecting the Company;

 

(ii)          Employee’s breach of any of his obligations of this Agreement;

 

(iii)       Employee’s gross negligence or willful misconduct in performance of theduties and services required of him pursuant to this Agreement; or

 

(iv)      Employee’s conviction of a felony, or Employee’s conviction of amisdemeanor involving moral turpitude.

 

(d)         by “Constructive Termination,” which for purposes of this Agreementshall mean each of the following:

 

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

 

(ii)          relocation of any New York, New York office of the Company without theconsent of Employee; or

 

(iii)       a material reduction in Employee’s compensation and benefits receivedhereunder.

 

(e)          in the sole discretion of the Board of Directors without cause; *provided,however,* in such case the Company shall give 15 days priorwritten notice to Employee of its intention to terminate Employee’s employmentwith the Company and shall continue to provide compensation to Employee inaccordance with the terms set forth in Section 4.1(e) hereof.

 

Section 2.3  Employee shallhave the right to terminate his employment under this Agreement at any time inaccordance with the following provisions:

 

(a)          a breach by the Companyof any of its obligations under this Agreement which, if correctable, remainsuncorrected for 30 days following written notice specifying such breachgiven by Employee to the Company; or

 

(b)         In the sole discretion of Employee, *provided,however,* in such case Employee shall give 15

 

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days prior written notice to theCompany of his intention to terminate his employment with the Company.

 

Section 2.4  If the Companydesires 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.

 

# **ARTICLE III**

# **COMPENSATION AND BENEFITS**

 

Section 3.1* Compensation.*  Duringthe term of this Agreement, the Company shall provide compensation to Employeein the following forms:

 

(a)          *Base Salary.*  Employeeshall receive an annual base salary of $350,000, which amount shall be subjectto annual review by the Board of Directors and/or the Compensation Committee ofthe Company for possible increases.

 

(b)         *Bonus.*

 

(i)             Employee shall participate in, and receive anannual bonus pursuant to, the Company’s Executive Committee Annual Bonus Plan.

 

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

 

(c)          *Stock Options.*

 

(i)             Upon approval of the Company’s Board of Directors,Employee will be granted options to purchase an aggregate of 1,200,000 sharesof the Company’s common stock at an exercise price equal to the per share FairMarket Value (as hereinafter defined) on the date of grant.  The options will be granted pursuant to astock option agreement(s) to be executed by Employee and the Company as of thedate hereof, which stock option agreement(s) will provide, among other things,that (A) not more than $100,000 worth of the options granted to Employee(valued at Fair Market Value on the date of grant) first exercisable in any calendaryear will 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

 

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securitiesexchange or a national market system, the closing price of the common stock, aspublished in the *Wall Street Journal*,so listed 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 eligible to receivefuture stock option grants, as determined by the Compensation Committee.

 

Section 3.2*  Benefits.*  During the term of this Agreement, Employeeshall be afforded the following benefits as incidences of his employment:

 

(a)          *Business andEntertainment 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.

 

(b)         *Club Membership.*  TheCompany shall reimburse Employee for membership dues at social or country clubsdesignated by Employee as mutually agreed by the Company and Employee.

 

(c)          *Other.*  Employeeand, to the extent applicable, Employee’s family, dependents and beneficiaries,shall be allowed to participate in all benefits, plans and programs, includingimprovements or modifications of the same, which are now, or may hereafter be,available to executive employees of the Company generally. Such benefits, plansand programs may include, without limitation, a profit sharing plan, a thriftplan, a health insurance or health care plan, life insurance, disabilityinsurance or a pension plan. The Company shall not, however, by reason of thisparagraph be obligated to institute, maintain, or refrain from changing,amending or discontinuing, any such benefit plan or program, so long as suchchanges are similarly applicable to executive employees of the Companygenerally.

 

Section 3.3*  Payroll.*  Employee shall receive all compensationpursuant to this Agreement in accordance with the Company’s Houston, Texascustomary payroll practices with respect to time and manner of payment.

 

**ARTICLE IV**

**EFFECT OF TERMINATION ON COMPENSATION**

 

Section 4.1*  By theCompany.*

 

(a)          *Termination UponDeath.*  In the event of Employee’s death during the term of thisAgreement, this Agreement will terminate upon the first day of the monthfollowing 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

 

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death, and Employee’s estate may exercise such options for a period ofone year from the date of termination.

 

(b)         *Termination UponDisability.*  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 benefits providedfor in this Agreement will terminate as of such date; *provided, however*, thatEmployee will be paid Employee’s annual salary and pro rata bonus through thedate of termination for a period of six months after such termination occursand, *provided,further*, all stock options referenced in Section 3.1(c) shallvest effective as of the termination date, and Employee may exercise suchoptions for a period of one year from the date of termination.

 

(c)          *Termination forCause.*  Employer shall be entitled to terminate Employee’s employment atany time for cause, as defined by Section 2.2(c). In the event oftermination for cause, all of Employee’s rights and benefits provided for inthis Agreement shall terminate, except as to any accrued and unpaid base salaryprovided for in Section 3.1(a).

 

(d)         *Termination AfterChange 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, Employeewill be paid, in a lump sum payment, an amount equal to two times the sum of(i) his annual salary for the year in which such termination occurs and(ii) the greater of (A) the target bonuses for each of the fourquarters in the year in which such termination occurs and (B) the actualbonus earned by Employee for the four fiscal quarters immediately precedingsuch termination. All unvested 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 90 days from the date of termination.Employee shall receive his accrued and unpaid salary and any accrued and unpaidpro rata bonus through the date of termination, and Employee will continue toparticipate in any benefits referenced in Section 3.2(c) for a period oftwo years from 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 theevent that Employee is deemed to have received an excess parachute payment (assuch term is defined in Section 280G(b) of the Internal Revenue Code of1986, as amended (the “Code”)) which is subject to excise taxes (“ExciseTaxes”) imposed by Section 4999 of the Code with respect to compensationpaid to Employee pursuant to this Agreement, the Company shall make a BonusPayment (as defined below) to Employee when Employee receives any excessparachute payments.  “Bonus Payment”means a cash payment equal to the sum of (i) all Excise Taxes payable byEmployee plus (ii) any additional Excise Tax or federal or state incometaxes imposed with respect to the Bonus Payment.

 

“Changeof Control” means the happening of any of the following events:

 

(i)             The acquisition by any individual, entity or group(within the meaning of Section 13(d)(3) or 14(d)(2) of the SecuritiesExchange Act of 1934, as amended (the “Exchange Act”)) (a “Person”), ofbeneficial ownership (within the meaning of Rule 13d-3 promulgated underthe Exchange Act) of 50% or more of either (A) the then outstanding sharesof common stock of the Company or (B) the combined voting power of thethen outstanding voting

 

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securities of the Company entitled to vote generally in the election ofdirectors; provided, however, that the following acquisitions shall notconstitute a Change of Control under this subsection (i): (x) anyacquisition directly from the Company (excluding an acquisition by virtue ofthe exercise of a conversion privilege), (y) any acquisition by theCompany, or (z) any acquisition by any employee benefit plan (or relatedtrust) sponsored or maintained by the Company or any corporation controlled bythe Company; or

 

(ii)          Individuals who, as of the effective date hereof, constitute the Boardof Directors (the “Incumbent Board”) cease for any reason to constitute atleast a majority of the Board; provided, however, that any individual becominga director subsequent to the effective date hereof whose election, ornomination for election by the Company’s stockholders, was approved by a vote ofat least a majority of the directors then comprising the Incumbent Board shallbe considered as though such individual were a member of the Incumbent Board,but excluding, for this purpose, any such individual whose initial assumptionof office occurs as a result of either an actual or threatened election contest(as such terms are used in Rule 14a-11 of Regulation 14A promulgatedunder the Exchange Act) or other actual or threatened solicitation of proxiesor consents by or on behalf of a Person other than the Board; or

 

(iii)       Approval by the stockholders of the Company of a complete liquidation ordissolution of the Company or the sale or other disposition of all orsubstantially all of the assets of the Company.

 

(e)          *Other Events UponTermination.*  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.

 

Section 4.2*  By Employee.*

 

(a)          *Breach ofAgreement 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) the greater of (A) the target bonuses for each of the fourquarters in the year in which such termination occurs and (B) the

 

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actual bonus earned by Employee for the four fiscal quarters immediatelypreceding 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 thencurrent term of this Agreement. Employee shall receive his accrued and unpaidsalary 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.

 

(b)         *VoluntaryResignation.*  If Employee’s employment hereunder shall beterminated by Employee pursuant to the provisions set forth inSection 2.3(b) hereof prior to the expiration of the then current term,then, upon such termination, subject to COBRA, all compensation and allbenefits to Employee hereunder shall terminate contemporaneously with thetermination of such employment; *provided, however*, Employee shall notreceive a bonus for the year during which Employee’s employment terminated orany subsequent year.

 

# **ARTICLE V**

# **CONFIDENTIAL INFORMATION**

 

Section 5.1*  CompanyInformation.*  Employeeacknowledges that the Company’s business is highly competitive and that theCompany’s books, records and documents, technical information concerning itsproducts, equipment, services and processes, procurement procedures and pricingtechniques and the names of and other information (e.g., credit and financialdata) concerning the Company’s customers and business associates all compriseconfidential business information and trade secrets of the Company(collectively, “Confidential Information”*)* which are valuable, special, and uniqueassets of the Company which the Company uses in its business to obtain acompetitive advantage over the Company’s competitors which do not know or usethis information. Employee further acknowledges that protection of theConfidential Information against unauthorized disclosure and use is of criticalimportance to the Company in maintaining its competitive position. Accordingly,Employee hereby agrees that he will not, at any time during or after hisemployment by the Company, make any unauthorized disclosure of any ConfidentialInformation or make any use thereof, except for the benefit of, and on behalfof, the Company. For the purposes of this Article 5, the term “Company”shall also include affiliates of the Company.

 

Section 5.2*  Third PartyInformation.*  Employeeacknowledges that, as a result of his employment by the Company, he may fromtime to time have access to, or knowledge of, confidential business informationor trade secrets of third parties, such as customers, suppliers, partners, jointventurers, and the like, of the Company. Employee agrees to preserve andprotect the confidentiality of such third-party confidential informationand trade secrets to the same extent, and on the same basis, as theConfidential Information.

 

Section 5.3*  Return ofDocuments.*  All writtenmaterials, records and other documents made by, or coming into the possessionof, Employee during the period of his employment by the Company which containor disclose the Confidential Information shall be and remain the property ofthe Company. Upon request, and in any event upon termination of Employee’semployment by the Company, for any reason, he promptly shall deliver the same,and all copies, derivatives and extracts thereof, to the Company.

 

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# **ARTICLE VI**

# **INVENTIONS, DISCOVERIES AND COPYRIGHTS**

 

Section 6.1*  Inventionsand Discoveries.*  Employeeagrees promptly and freely to disclose to the Company, in writing, any and allideas, conceptions, inventions, improvements, and discoveries, whetherpatentable or not, which are conceived or made by Employee, solely or jointlywith another, 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,whenever requested to do so by the Company, he shall assist in the preparationof any document that the Company shall deem necessary and shall execute any andall applications, 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.

 

Section 6.2*  Copyrights.*  If during Employee’s employment by theCompany, Employee creates any original work of authorship (each, a “Work”)fixed in any tangible medium of expression which is the subject matter ofcopyright *(*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 by Employeein 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, includingbut not limited to, the execution of all formal assignment documents requestedby the Company or its nominee and the execution of all lawful oaths andapplications for registration of copyright in the United States and foreigncountries.

 

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.

 

# **ARTICLE VII**

# **NON-COMPETITION**

 

Section 7.1  The restrictivecovenants contained in this Article VII and in Article VIII hereofare supported by consideration to Employee hereunder. As a material incentivefor the Company to enter into this Agreement, Employee hereby agrees that hewill not at any time during his employment by the Company and for a periodcommencing on the date of termination of his employment and continuing untilthe 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

 

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conductingany business:

 

(a)           engage in any business that is directly competitive with activitiesconducted by the Company (or any of the Company’s subsidiaries or divisions),which activities conducted by the Company (or any of the Company’s subsidiariesor divisions) represent in the aggregate greater than 25% of the Company’sproforma consolidated revenues in 2001;

 

(b)          render advice or services to, or otherwise assist, any other person orentity who is engaged, directly or indirectly, 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; or

 

(c)           transact any business in any manner pertaining to suppliers or customersof the Company or any affiliate which, in any manner, would have, or is likelyto have, an adverse effect upon the Company or any affiliate.

 

The foregoing shall not prohibit Employee’s continued participation inthose activities in which he is engaged on the date hereof and which have beendisclosed to the Company.

 

Notwithstanding the foregoing, in the event of termination of thisAgreement pursuant to Section 4.1(d), 4.1(e) or 4.2(a), the prohibitionsof this Article VII shall no longer apply at such time as Employee waiveshis right 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.

 

Section 7.3  It is expresslyunderstood and agreed that the Company and Employee consider the restrictionscontained in Section 7.1 hereof to be reasonable and necessary for thepurposes of preserving and protecting the good will and proprietary informationof the Company, nevertheless, if any of the aforesaid restrictions is found bya court having jurisdiction to be unreasonable, over broad as to geographicarea or time or otherwise unenforceable, the parties intend for therestrictions therein set forth to be modified by such court so as to bereasonable and enforceable and, as so modified by the court, to be fullyenforced.

 

# **ARTICLE VIII**

# **SOLICITATION OF EMPLOYEES**

 

During the 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

 

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person,partnership, entity, association, or corporation any information concerning thenames, addresses or personal telephone numbers of any employees of the Company.

 

# **ARTICLE IX**

# **MISCELLANEOUS**

 

                Section 9.1  Notices. For purposes of this Agreement, notices and all other communicationsprovided for herein shall be in writing and shall be deemed to have been duly givenwhen personally delivered or when mailed by United States registered orcertified mail, return receipt requested, postage prepaid, addressed asfollows:

 
| If  to the Company to: |   | INVESTools  Inc.

5959  Corporate Drive, Suite 2000

Houston,  TX  77036

Attention:  Chairman of the Compensation Committee |
|------------------------|--------|-----------------------------------------------------------------------------------------------------------------------------------|
|                   |   |                                                                                                                              |
| If  to Employee to:    |   | Lee  K. Barba

P.O.  Box 587

Bangall,  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 andVenue.*  This Agreement isentered into under, and shall be governed for all purposes by, the laws of theState of Texas. Any suit by the Company to enforce any right hereunder or toobtain a declaration of any right or obligation hereunder may, at the soleoption of the Company, be brought (i) in any court of competentjurisdiction in the State of Texas or (ii) in any court of competentjurisdiction where jurisdiction may be had over Employee. Employee herebyexpressly consents to the jurisdiction of the foregoing courts for suchpurposes and to the appointment of the Secretary of State for the State ofTexas as his agent for service of process.

 

Section 9.3*  No Waiver.*  No failure by either party hereto at anytime to give notice of any breach by the other party of, or to requirecompliance with, any condition or provision of this Agreement shall (i) bedeemed a waiver of similar or dissimilar provisions or conditions at the sameor at any prior or subsequent time or (ii) preclude insistence upon strictcompliance in the future.

 

Section 9.4* Severability.*  If acourt of competent jurisdiction determines that any provision of this Agreementis invalid or unenforceable, then the invalidity or unenforceability of thatprovision shall not affect the validity or enforceability of any otherprovision of this Agreement, and all other provisions shall remain in fullforce and effect.

 

Section 9.5* Counterparts.*  ThisAgreement may be executed in one or more counterparts, each of which shall bedeemed to be an original, but all of which together will constitute one and thesame Agreement.

 

Section 9.6*  Withholdingof Taxes.*  The Company maywithhold from any benefits payable under this Agreement all federal, state, cityor other taxes as may be required pursuant to any law or governmentalregulation or ruling.

 

Section 9.7*  Headings.*  The paragraph headings have been insertedfor purposes of convenience

 

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andshall not be used for interpretive purposes.

 

Section 9.8*  Affiliate.*  As used in this Agreement, “affiliate” shallmean any person or entity which directly or indirectly through one or moreintermediaries owns or controls, is owned or controlled by, or is under commonownership or control with, the Company.

 

Section 9.9*  Assignment.*  This Agreement, and the rights andobligations of the parties hereunder, are personal and neither this Agreement,nor any right, benefit or obligation of either party hereto, shall be subjectto voluntary or involuntary assignment, alienation or transfer, whether byoperation of law or otherwise, without the prior written consent of the otherparty except that vested rights to payment shall be subject to devise, andshall descend in accordance with applicable laws of inheritance.

 

Section 9.10*  Legal Fees.*  If, prior to a Change of Control, eitherparty institutes any legal action to enforce his or its rights under, or torecover damages for breach of this Agreement, the Company shall pay up to anaggregate of $10,000 of Employee’s actual expenses incurred in pursuit ordefense of such legal action.

 

If, following a Change of Control, either party institutes any legalaction to enforce his or its rights under, or to recover damages for breach ofthis Agreement, the “prevailing party” in such action shall be entitled torecover from the other party any actual expenses for attorney’s fees anddisbursements incurred by him or it. For these purposes, a party shall beconsidered a “prevailing party” if and only if the parties agree to suchcharacterization of a party as a “prevailing party” or a final order of a courtspecifically recites that such party is a “prevailing party.”

 

Section 9.11*  Term.*  This Agreement has a term co-extensive withthe term of employment as defined in Section 2.1 hereof. Termination ofthis Agreement pursuant to the provisions of Section 2.1 hereof shall notaffect any right or obligation of either party hereto which is accrued orvested prior to or upon such termination or the rights and set forth inArticles IV, V, VI and VII hereof.

 

Section 9.12*  EntireAgreement.*  This Agreementconstitutes the entire agreement of the parties with regard to the subjectmatter hereof, and contains all the covenants, promises, 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 beenmade by either party, or by anyone acting on behalf of either party, which isnot embodied herein, and that no agreement, statement, or promise relating tothe employment 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.

 

IN WITNESS WHEREOF, the parties hereto have executed this Agreementeffective as of 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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