Exhibit
10.31


 


EMPLOYMENT
AGREEMENT


 


This Employment Agreement (this “Agreement”) is
made by and between INVESTools Inc., a Delaware corporation (the “Company”),
and D. Scott Elder (“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.


 


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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 Provo, Utah 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 days prior written
notice to the Company of his intention to terminate his employment with the


 


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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.


 


(iii)       In addition, Employee shall receive a one-time payment of $175,000 cash
to be paid on December 31, 2002.


 


(c)          Stock Options.


 


(i)             Upon approval of the Company’s Board of Directors,
Employee will be granted options to purchase an aggregate of 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.  To the extent permitted by applicable laws, the options to be
granted to Employee shall be granted as incentive options.  All options granted to Employee hereunder
shall vest immediately upon a Change of Control (as hereinafter defined).  The options will be granted pursuant to a
stock option agreement to be executed by Employee and the Company as of the
date hereof, which shall provide, among other things, that the options will
vest in four equal annual installments beginning one year from the date of this
Agreement.


 


“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.


 


(d)         Merger Transition
Award.


 


(i)                   Employee shall receive a merger transition award
(the “Merger Transition Award”) consisting of an aggregate of $1,200,000 in
cash which shall be payable in three equal installments beginning one year from
the date of this Agreement.


 


(ii)                In the event of a Change of Control (as
hereinafter defined), any remaining unpaid amount of the Merger Transition
Award shall be paid in full; provided, however, that this subsection (ii) shall
not apply to a Change of Control resulting from action by the directors or
management of the Company or their affiliates.


 


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 Provo, Utah customary payroll practices with respect to time and
manner of payment.


 


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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 death, and
Employee’s estate may exercise such options for a period of one year from the
date of termination and, provided further that, the Merger
Transition Award shall be paid in full within three months after such death
occurs.


 


(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 and, provided further, that, the Merger
Transition Award shall be paid in full within six months after such termination
occurs.


 


(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.  Except as set forth in
Section 3.1(d)(ii), 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


 


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“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 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


 


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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 and provided, further, that the Merger
Transition Award shall be paid in full upon 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 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 and provided,
further, that, the Merger Transition Award shall be paid in
full upon 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, and provided, further,
that any Employee shall not receive any additional unpaid amounts of the Merger
Transition Award.


 


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 


 


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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.


 


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


 


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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 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.


 


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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 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:

  	
   

  	
  D.
  Scott Elder  

  1156 E. 100 North  

  Orem, UT 
  84097

  



 


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 


 


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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 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


 


11

















 


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/
  D. SCOTT ELDER

  	
   

  
	
   

  	
  D.
  Scott Elder

  
						



 


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