EXHIBIT 10.31
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made by and between
INVESTools Inc., a Delaware corporation (the "Company"), and D. Xxxxx Xxxxx
("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 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
Company.
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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 securities exchange or a
national market system, the closing price of the common stock, as
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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.
0000 Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Chairman of the Compensation Committee
If to Employee to: D. Xxxxx Xxxxx
0000 X. 000 Xxxxx
Xxxx, XX 00000
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
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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/ XXXX X. XXXXXXXX
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Name: Xxxx X. Xxxxxxxx
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Title: Chief Financial Officer
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/s/ D. XXXXX XXXXX
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D. Xxxxx Xxxxx
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