Exhibit
10.30


 


EMPLOYMENT AGREEMENT


 


This Employment Agreement (this “Agreement”) is made by and between
INVESTools 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 executive
capacity on the terms and conditions, and for the consideration, hereinafter
set forth for the period provided herein commencing upon the Effective Date,
and Employee is desirous of employment with the Company on such terms and
conditions and for such consideration.


 


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


 


ARTICLE I


EMPLOYMENT AND DUTIES


 


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


 


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


 


Section 1.3  Employee agrees
to serve in the position referred to in Section 1.2 hereof and to perform
diligently and to the best of his abilities the duties and services pertaining
to such office as set forth in the Bylaws of the Company in effect on the
Effective Date, as well as such additional duties and services appropriate to
such 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  Employee
agrees, during the period of his employment by the Company, to devote his full
business time, energy and best efforts to the business and affairs of the
Company and its affiliates and not to engage, directly or indirectly, in any
other business or businesses, whether or not similar to that of the Company,
except with the prior written consent of the Board of Directors. The foregoing
notwithstanding, the parties recognize and agree that Employee may engage in
passive personal investments and charitable or public service activities and
serve on the board of directors of corporations to the extent that such
activities do not conflict with the business and affairs of the Company or
interfere with Employee’s performance of his duties and obligations hereunder.


 


ARTICLE II


TERM AND TERMINATION OF EMPLOYMENT


 


Section 2.1  Unless sooner
terminated pursuant to other provisions hereof, the Company agrees to employ
Employee for a three-year period beginning on the Effective Date, and
thereafter automatically extend the term of this Agreement for successive
one-year periods unless and until such time as either party shall give written
notice to the other at least 15 days prior to the expiration of the then
current term that no such automatic extension shall occur, in which event
Employee’s employment shall terminate on the expiration of the then current term.


 

















 


Section 2.2  Notwithstanding
the provisions of Section 2.1 hereof, the Company shall have the right to
terminate Employee’s employment under this Agreement at any time in accordance
with the following provisions:


 


(a)          upon Employee’s death;


 


(b)         upon Employee’s becoming incapacitated or disabled by accident, sickness
or other circumstance which impairment (despite reasonable accommodation)
renders him mentally or physically incapable of performing the duties and
services required of him hereunder for a period of at least 120 consecutive
days 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 the
following:


 


(i)             a material act or material acts of dishonesty or
disloyalty 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 the
duties and services required of him pursuant to this Agreement; or


 


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


 


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


 


(i)             a material diminution of Employee’s
responsibilities, including, without limitation, title and reporting
relationship;


 


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


 


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


 


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


 


Section 2.3  Employee shall
have the right to terminate his employment under this Agreement at any time in
accordance with the following provisions:


 


(a)          a breach by the Company
of any of its obligations under this Agreement which, if correctable, remains
uncorrected for 30 days following written notice specifying such breach
given 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 the
Company of his intention to terminate his employment with the Company.


 


Section 2.4  If the Company
desires to terminate Employee’s employment hereunder as provided in
Section 2.2 hereof or Employee desires to terminate Employee’s employment
hereunder as provided in Section 2.3 hereof, it or he shall do so by
giving written notice to the other party that it or he has elected to terminate
Employee’s employment hereunder and stating the effective date and reason, if
any, for such termination. In the event of such termination, the provisions of
Articles IV through IX hereof shall continue to apply in accordance with their
terms. Any question as to whether and when there has been a termination of
Employee’s employment, and the cause of such termination, shall be determined
by the Board of Directors in its sole discretion.


 


ARTICLE III


COMPENSATION AND BENEFITS


 


Section 3.1 
Compensation.  During
the term of this Agreement, the Company shall provide compensation to Employee
in the following forms:


 


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


 


(b)         Bonus.


 


(i)             Employee shall participate in, and receive an
annual 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 shares
of the Company’s common stock at an exercise price equal to the per share Fair
Market Value (as hereinafter defined) on the date of grant.  The options will be granted pursuant to a
stock option agreement(s) to be executed by Employee and the Company 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 options granted to Employee
(valued at Fair Market Value on the date of grant) first exercisable in any calendar
year will be treated as incentive stock options and the excess, if any, will be
treated as non-qualified options and (B) the options will vest in four equal
annual installments beginning one year from the date of this Agreement; provided,  however,
that all options granted to Employee hereunder shall vest immediately upon a
Change of Control (as hereinafter defined).


 


“Fair
Market Value” means (i) if the Company’s common stock is not listed or admitted
to trade on a national securities exchange and if bid and ask prices for the
common stock are not furnished through NASDAQ or a similar organization, the
value established by the Compensation Committee of the Board of Directors (the
“Compensation Committee”), in its sole discretion; (ii) if the Company’s common
stock is listed or admitted to trade on a national


 


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securities
exchange or a national market system, the closing price of the common stock, as
published in the Wall Street Journal,
so listed or admitted to trade on such day or, if there is no trading of the
common stock on such date, then the closing price of the common stock on the
next preceding date on which there was trading in such shares; or (iii) if the
common stock is not listed or admitted to trade on a national securities
exchange or a national market system, the mean between the bid and asked price
for the common stock on such date, as furnished by the National Association of
Securities Dealers, Inc. through NASDAQ or a similar organization if NASDAQ is
no longer reporting such information.


 


(ii)                In addition, Employee shall be eligible to receive
future stock option grants, as determined by the Compensation Committee.


 


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


 


(a)          Business and
Entertainment Expenses.  Subject to the Company’s standard policies
and procedures with respect to expense reimbursement as applied to its
executive employees generally, the Company will reimburse Employee for, or pay
on behalf of Employee, reasonable and appropriate expenses incurred by Employee
for business related purposes, including dues and fees to approved industry and
professional organizations, and reasonable costs of entertainment incurred in
connection with business development.


 


(b)         Club Membership.  The
Company shall reimburse Employee for membership dues at social or country clubs
designated by Employee as mutually agreed by the Company and Employee.


 


(c)          Other.  Employee
and, to the extent applicable, Employee’s family, dependents and beneficiaries,
shall be allowed to participate in all benefits, plans and programs, 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 profit sharing plan, a thrift
plan, a health insurance or health care plan, life insurance, disability
insurance or a pension plan. The Company shall not, however, by reason of this
paragraph be obligated to institute, maintain, or refrain from changing,
amending or discontinuing, any such benefit plan or program, so long as such
changes are similarly applicable to executive employees of the Company
generally.


 


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


 


ARTICLE IV


EFFECT OF TERMINATION ON COMPENSATION


 


Section 4.1  By the
Company.


 


(a)          Termination Upon
Death.  In the event of Employee’s death during the term of this
Agreement, this Agreement will terminate upon the first day of the month
following the Employee’s date of death, and all of Employee’s rights and
benefits provided for in this Agreement will terminate as of such date; provided,
however, that Employee’s estate will be paid Employee’s annual
salary and pro rata bonus through the date of death for a period of six months
after such death occurs and, provided, further, all stock options
referenced 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 of
one year from the date of termination.


 


(b)         Termination Upon
Disability.  If Employee’s employment hereunder is
terminated by the Company pursuant to Section 2.2(b) hereof prior to the
expiration of the then current term, all of Employee’s rights and benefits provided
for in this Agreement will terminate as of such date; provided, however, that
Employee will be paid Employee’s annual salary and pro rata bonus through the
date of termination for a period of six months after such termination occurs
and, provided,
further, all stock options referenced in Section 3.1(c) shall
vest effective as of the termination date, and Employee may exercise such
options for a period of one year from the date of termination.


 


(c)          Termination for
Cause.  Employer shall be entitled to terminate Employee’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 benefits provided for in
this Agreement shall terminate, except as to any accrued and unpaid base salary
provided for in Section 3.1(a).


 


(d)         Termination After
Change of Control.  If, within 24 months following a Change
of Control (as hereinafter defined), the Company or its successor terminates
Employee’s employment without cause or by Constructive Termination, Employee
will 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 four
quarters in the year in which such termination occurs and (B) the actual
bonus earned by Employee for the four fiscal quarters immediately preceding
such termination. All unvested stock options referenced in Section 3.1(c)
shall vest effective as of the date of termination and Employee may exercise
such options for a period of 90 days from the date of termination.
Employee shall receive his accrued and unpaid salary and any accrued and unpaid
pro rata bonus through the date of termination, and Employee will continue to
participate in any benefits referenced in Section 3.2(c) for a period of
two years from the date of termination; 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 the Company, the Company shall pay Employee an
amount in cash equal to the economic value of such benefit, such value to be
determined as of the time of termination.


 


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


 


“Change
of 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 Securities
Exchange Act of 1934, as amended (the “Exchange Act”)) (a “Person”), of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) of 50% or more of either (A) the then outstanding shares
of common stock of the Company or (B) the combined voting power of the
then outstanding voting


 


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securities of the Company entitled to vote generally in the election of
directors; provided, however, that the following acquisitions shall not
constitute a Change of Control under this subsection (i): (x) any
acquisition directly from the Company (excluding an acquisition by virtue of
the exercise of a conversion privilege), (y) any acquisition by the
Company, or (z) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any corporation controlled by
the Company; or


 


(ii)          Individuals who, as of the effective date hereof, constitute the Board
of Directors (the “Incumbent Board”) cease for any reason to constitute at
least a majority of the Board; provided, however, that any individual becoming
a director subsequent to the effective date hereof whose election, or
nomination for election by the Company’s stockholders, was approved by a vote of
at least a majority of the directors then comprising the Incumbent Board shall
be considered as though such individual were a member of the Incumbent Board,
but excluding, for this purpose, any such individual whose initial assumption
of 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 promulgated
under the Exchange Act) or other actual or threatened solicitation of proxies
or 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 or
dissolution of the Company or the sale or other disposition of all or
substantially all of the assets of the Company.


 


(e)          Other Events Upon
Termination.  If Employee’s employment hereunder shall be
terminated by the Company without cause or by Constructive Termination other
than within 24 months following a Change of Control, Employee shall
receive in accordance with the Company’s then current payroll practices an
amount equal to the sum of (i) Employee’s annual base salary for the year
in which such termination occurs and (ii) the greater of (A) the
target bonuses for each of the four quarters in the year in which such
termination occurs and (B) the actual bonus earned by Employee 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 this Agreement (such
longer period, the “Severance Period”). Employee shall receive his accrued and
unpaid salary and any accrued and unpaid pro rata bonus through the date of
termination, and Employee will continue to participate in any benefits
referenced 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 the
Company, the Company shall pay Employee an amount in cash equal to the economic
value of such benefit, such value to be determined as of the time of
termination. In addition, all stock options referenced in Section 3.1(c)
shall vest effective as of the date of termination, and Employee may exercise
such options for a period of three months from the date of termination.


 


Section 4.2  By Employee.


 


(a)          Breach of
Agreement by Company.  If Employee’s employment hereunder shall be
terminated by Employee pursuant to the provisions set forth in
Section 2.3(a) hereof prior to the expiration of the then current term of
this Agreement, Employee shall receive in accordance with the Company’s then
current payroll practices an amount equal to the sum of (i) Employee’s
annual base salary for the year in which such termination occurs and
(ii) the greater of (A) the target bonuses for each of the four
quarters in the year in which such termination occurs and (B) the


 


6

















 


actual bonus earned by Employee 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 this Agreement. Employee shall receive his accrued and unpaid
salary and any accrued and unpaid pro rata bonus through the date of
termination, and Employee will continue to participate in any benefits
referenced 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 the
Company, the Company shall pay Employee an amount in cash equal to the economic
value of such benefit, such value to be determined as of the time of
termination. In addition, all stock options referenced in Section 3.1(c)
shall vest effective as of the date of termination, and Employee may exercise
such options for a period of three months from the date of termination.


 


(b)         Voluntary
Resignation.  If Employee’s employment hereunder shall be
terminated by Employee pursuant to the provisions set forth in
Section 2.3(b) hereof prior to the expiration of the then current term,
then, upon such termination, subject to COBRA, all compensation and all
benefits to Employee hereunder shall terminate contemporaneously with the
termination of such employment; provided, however, Employee shall not
receive a bonus for the year during which Employee’s employment terminated or
any subsequent year.


 


ARTICLE V


CONFIDENTIAL INFORMATION


 


Section 5.1  Company
Information.  Employee
acknowledges that the Company’s business is highly competitive and that the
Company’s books, records and documents, technical information concerning its
products, equipment, services and processes, procurement procedures and pricing
techniques and the names of and other information (e.g., credit and financial
data) concerning the Company’s customers and business associates all comprise
confidential business information and trade secrets of the Company
(collectively, “Confidential Information”) which are valuable, special, and unique
assets of the Company which the Company uses in its business to obtain a
competitive advantage over the Company’s competitors which do not know or use
this information. Employee further acknowledges that protection of the
Confidential Information against unauthorized disclosure and use is of critical
importance to the Company in maintaining its competitive position. Accordingly,
Employee hereby agrees that he will not, at any time during or after his
employment by the Company, make any unauthorized disclosure of any Confidential
Information or make any use thereof, except for the benefit of, and on behalf
of, the Company. For the purposes of this Article 5, the term “Company”
shall also include affiliates of the Company.


 


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


 


Section 5.3  Return of
Documents.  All written
materials, records and other documents made by, or coming into the possession
of, Employee during the period of his employment by the Company which contain
or disclose the Confidential Information shall be and remain the property of
the Company. Upon request, and in any event upon termination of Employee’s
employment 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  Inventions
and Discoveries.  Employee
agrees promptly and freely to disclose to the Company, in writing, any and all
ideas, conceptions, inventions, improvements, and discoveries, whether
patentable or not, which are conceived or made by Employee, solely or jointly
with another, during the period of his employment by the Company and which are
related to the business or activities of the Company. Employee agrees to assign
and 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 preparation
of any document that the Company shall deem necessary and shall execute any and
all applications, assignments or other instruments that the Company shall deem
necessary, 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 in
the preceding sentence shall continue beyond the termination of Employee’s
employment regardless of the reason for such termination.


 


Section 6.2  Copyrights.  If during Employee’s employment by the
Company, Employee creates any original work of authorship (each, a “Work”)
fixed in any tangible medium of 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, or
services, 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 Employee
in the scope of his employment; or, if the Work is not prepared by Employee
within the scope of his employment but is specially ordered by the Company as a
contribution to a collective work, as a part of a motion picture or other
audiovisual work, as a translation, as a supplementary work, as a compilation
or as an instructional text, then the Work shall be considered to be a work
made for hire and the Company shall be the author of the Work. In the event a
Work is not prepared by Employee within the scope of his employment or is not a
Work specially ordered and deemed to be a work made for hire, then Employee
hereby agrees to assign, and by these presents, does assign, to the Company all
of Employee’s worldwide right, title and interest in and to such Work and all
rights of copyright therein. Both during the period of Employee’s employment by
the Company and thereafter, Employee agrees to assist the Company and its
nominee, at any time, in the protection of the Company’s worldwide right, title
and interest in and to the work and all rights of copyright therein, including
but not limited to, the execution of all formal assignment documents requested
by the Company or its nominee and the execution of all lawful oaths and
applications for registration of copyright in the United States and foreign
countries.


 


Section 6.3  Employee
represents that he has not heretofore made any invention or discovery or
prepared any work which is the subject matter of copyright related to the
Company’s business which he wishes to exclude from the provisions of
Section 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 restrictive
covenants contained in this Article VII and in Article VIII hereof
are supported by consideration to Employee hereunder. As a material incentive
for the Company to enter into this Agreement, Employee hereby agrees that he
will not at any time during his employment by the Company and for a period
commencing on the date of termination of his employment 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 United
States, or in any foreign country where the Company or any of its affiliates is
then


 


8

















 


conducting
any business:


 


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


 


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


 


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


 


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


 


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


 


Section 7.2  Employee
understands that the foregoing restrictions may limit his ability to engage in
a business similar to the Company’s business in specific areas of the world for
the Non-Competition Period, but acknowledges that he will receive sufficiently
high remuneration and other benefits from the Company hereunder to justify such
restriction. In addition to any remedies provided under applicable law, the
Company and Employee agree that during the period the Company is paying
compensation and benefits to Employee pursuant to Articles III or IV hereof,
the Company’s remedy for breach of the provisions of this Article VII
shall include, but shall not be limited to, the termination of all compensation
and all benefits to Employee otherwise provided under this Agreement.


 


Section 7.3  It is expressly
understood and agreed that the Company and Employee consider the restrictions
contained in Section 7.1 hereof to be reasonable and necessary for the
purposes of preserving and protecting the good will and proprietary information
of the Company, nevertheless, if any of the aforesaid restrictions is found by
a court having jurisdiction to be unreasonable, over broad as to geographic
area or time or otherwise unenforceable, the parties intend for the
restrictions therein set forth to be modified by such court so as to be
reasonable and enforceable and, as so modified by the court, to be fully
enforced.


 


ARTICLE VIII


SOLICITATION OF EMPLOYEES


 


During the term of his employment by the Company and thereafter for the
Non-Competition Period, Employee shall not, on his own behalf or on behalf of
any other person, partnership, entity, association, or corporation, hire or
seek to hire any non-clerical or non-secretarial employee of the Company or in
any other manner attempt directly or indirectly to influence, induce, or
encourage any non-clerical or non-secretarial employee of the Company to leave
the employment of the Company, nor shall he use or disclose to any


 


9

















 


person,
partnership, entity, association, or corporation any information concerning the
names, 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 communications
provided for herein shall be in writing and shall be deemed to have been duly given
when personally delivered or when mailed by United States registered or
certified mail, return receipt requested, postage prepaid, addressed as
follows:


 


	
  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

  



 


or
to such other address as either party may furnish to the other in writing in
accordance herewith, except that notices of changes of address shall be
effective only upon receipt.


 


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


 


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


 


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


 


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


 


Section 9.6  Withholding
of Taxes.  The Company may
withhold from any benefits payable under this Agreement all federal, state, city
or other taxes as may be required pursuant to any law or governmental
regulation or ruling.


 


Section 9.7  Headings.  The paragraph headings have been inserted
for purposes of convenience


 


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and
shall not be used for interpretive purposes.


 


Section 9.8  Affiliate.  As used in this Agreement, “affiliate” shall
mean any person or entity which directly or indirectly through one or more
intermediaries owns or controls, is owned or controlled by, or is under common
ownership or control with, the Company.


 


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


 


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


 


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


 


Section 9.11  Term.  This Agreement has a term co-extensive with
the term of employment as defined in Section 2.1 hereof. Termination of
this Agreement pursuant to the provisions of Section 2.1 hereof shall not
affect any right or obligation of either party hereto which is accrued or
vested prior to or upon such termination or the rights and set forth in
Articles IV, V, VI and VII hereof.


 


Section 9.12  Entire
Agreement.  This Agreement
constitutes the entire agreement of the parties with regard to the subject
matter hereof, and contains all the covenants, promises, representations,
warranties and agreements between the parties with respect to employment of
Employee by the Company. Each party to this Agreement acknowledges that no
representation, inducement, promise or agreement, oral or written, has been
made by either party, or by anyone acting on behalf of either party, which is
not embodied herein, and that no agreement, statement, or promise relating to
the employment of Employee by the Company, which is not contained in this
Agreement, shall be valid or binding. Any modification of this Agreement will
be effective only if it is in writing and signed by the party to be charged.


 


IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective 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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