(I) WORDS OF ANY GENDER SHALL BE DEEMED TO INCLUDE
EACH OTHER GENDER; (II) WORDS USING THE SINGULAR OR PLURAL NUMBER SHALL ALSO
INCLUDE THE PLURAL OR SINGULAR NUMBER, RESPECTIVELY; AND (III) THE TERMS
"HEREOF," "HEREIN," "HEREBY," "HERETO," AND DERIVATIVE OR SIMILAR WORDS SHALL
REFER TO THIS ENTIRE AGREEMENT.
18.
GOVERNING LAW.
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY
PRINCIPLE OF CONFLICT OF LAWS THAT WOULD REQUIRE THE APPLICATION OF THE LAW OF
ANY OTHER JURISDICTION.
19.
SURVIVAL.
EXECUTIVE'S TERMINATION FROM EMPLOYMENT AND/OR THE
TERMINATION OF THIS AGREEMENT, FOR WHATEVER REASON, SHALL NOT REDUCE OR
TERMINATE EXECUTIVE'S COVENANTS AND AGREEMENTS SET FORTH HEREIN.
20.
NOTICES.
ANY NOTICE NECESSARY UNDER THIS AGREEMENT SHALL BE IN
WRITING AND SHALL BE CONSIDERED DELIVERED THREE DAYS AFTER MAILING IF SENT
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR WHEN RECEIVED, IF SENT BY TELECOPY,
PREPAID COURIER, EXPRESS MAIL OR PERSONAL DELIVERY TO THE FOLLOWING ADDRESSES:
If to the Company:
INVESTools Inc.
Attn:
Lee Barba
5959 Corporate Drive, Suite LL250
Houston, Texas 77036
cc to:
Paul G. Nason, Esq.
Locke Liddell & Sapp LLP
2200 Ross Avenue, Suite 2200
Dallas, Texas 75201
(214) 740-8000 (telephone)
(214) 740-8800 (facsimile)
If to the Executive:
Don Klabunde
999 Fifth Avenue, Suite 400
San Rafael, California 94901
(415) 258-2900 (telephone)
(415) 258-2715 (facsimile)
8
21.
ENTIRE AGREEMENT.
EXCEPT AS PROVIDED HEREIN, THIS AGREEMENT,
INCLUDING THE RECITALS AND INTRODUCTIONS, EMBODIES THE ENTIRE AGREEMENT AND
UNDERSTANDING OF THE PARTIES HERETO IN RESPECT OF THE SUBJECT MATTER CONTAINED
HEREIN AND SUPERSEDES ALL PRIOR CONFLICTING OR INCONSISTENT AGREEMENTS, CONSENTS
AND UNDERSTANDINGS RELATING TO SUCH SUBJECT MATTER.
NOTHING HEREIN SHALL BE
CONSTRUED AS SUPERCEDING OR OTHERWISE AFFECTING EXECUTIVE'S OBLIGATIONS AND
COVENANTS UNDER SECTION 8 OF HIS PRIOR EMPLOYMENT AGREEMENT WITH 360 GROUP,
DATED APRIL 25, 2001 ("PRIOR EMPLOYMENT AGREEMENT").
EXECUTIVE ACKNOWLEDGES AND
AGREES THAT THERE IS NO ORAL OR OTHER AGREEMENT BETWEEN THE COMPANY AND
EXECUTIVE WHICH HAS NOT BEEN INCORPORATED IN THIS AGREEMENT.
THIS AGREEMENT MAY
ONLY BE MODIFIED PURSUANT TO SECTION 25 AND NOTHING HEREIN SHALL AFFECT THE
PARTIES' OBLIGATIONS UNDER THE MERGER AGREEMENT.
22.
NO WAIVER.
THE FORBEARANCE OR FAILURE OF ONE OF THE PARTIES HERETO
TO INSIST UPON STRICT COMPLIANCE BY THE OTHER WITH ANY PROVISIONS OF THIS
AGREEMENT, WHETHER CONTINUING OR NOT, SHALL NOT BE CONSTRUED AS A WAIVER OF ANY
RIGHTS OR PRIVILEGES HEREUNDER.
NO WAIVER OF ANY RIGHT OR PRIVILEGE OF A PARTY
ARISING FROM ANY DEFAULT OR FAILURE HEREUNDER OF PERFORMANCE BY THE OTHER SHALL
AFFECT SUCH PARTY'S RIGHTS OR PRIVILEGES IN THE EVENT OF A FURTHER DEFAULT OR
FAILURE OF PERFORMANCE.
23.
ASSIGNMENT.
NO APPROVAL SHALL BE REQUIRED FOR THE COMPANY TO
ASSIGN THIS AGREEMENT TO ANY AFFILIATE OR SUCCESSOR IN INTEREST TO THE COMPANY'S
BUSINESS.
EXECUTIVE SHALL NOT ASSIGN HIS OBLIGATIONS UNDER THIS AGREEMENT.
ANY
ASSIGNMENT MADE BY EITHER PARTY IN CONTRAVENTION OF THIS SECTION 23 SHALL BE
NULL AND VOID FOR ALL PURPOSES.
24.
BINDING EFFECT.
THIS