Exhibit 10.1


 


EXECUTIVE
EMPLOYMENT AGREEMENT


 


This
Executive Employment Agreement (the “Agreement”) is made and entered into as of
the 17th day of January 2005, by and between Ida K. Kane (“Executive”) and
INVESTools Inc. (the “Company”).


 


In consideration of the mutual covenants set forth
herein and other good and valuable consideration, the receipt and sufficiency
of which the parties acknowledge, the Company and Executive, intending to be
legally bound, hereby agree as follows:


 


1.             EMPLOYMENT.  The Company agrees to employ Executive and
Executive hereby accepts such employment on an at-will basis pursuant to the
terms and conditions of this Agreement, subject to Executive’s satisfaction of
the Company’s pre-employment background screening.  In the event that Executive fails to achieve
satisfactory results on the Company’s pre-employment background screening, this
Agreement shall be null and void. 
Executive’s employment with the Company will continue hereunder until
such time as it is terminated pursuant to Section 5 (“Employment Period”).  Executive represents and warrants that she is
not engaged in other work or under a contractual commitment that is
inconsistent with or prohibits Executive from performing Executive’s work for
the Company under this Agreement. 
Executive further warrants and represents that she shall not disclose to
the Company any confidential information obtained from a third party or
otherwise violate any confidentiality or non-competition obligations Executive
may have incurred with a third party.


 


2.             SERVICES. 
During the Employment Period, Executive shall be employed as Chief
Financial Officer with job responsibilities related thereto, and such job
responsibilities may be modified at the sole discretion of the Chief Executive
Officer.  Executive shall report to the
Chief Executive Officer and shall devote her full time efforts to the faithful
performance of her duties on behalf of the Company.  Executive shall also perform such other
duties, and may have job responsibilities modified from time to time as may be
requested by the Chief Executive Officer, provided such duties are generally
consistent with the level of responsibility currently held by Executive.  Executive’s principal place of performance of
her duties during the term of this Agreement shall be Provo, Utah.  Executive shall not engage in additional
gainful employment of any kind or undertake any role or position, whether or
not for compensation, with any person or entity during the term of this
Agreement without advance written approval of the Chief Executive Officer.


 


3.             ADHERENCE
TO COMPANY RULES.  Executive, at all
times during the Employment Period, shall strictly adhere to and obey all of
the Company’s written rules, regulations and policies, including without
limitation the INVESTools Code of Business Ethics (attached hereto as Exhibit
A), which will be provided to Executive and are now in effect, or as
subsequently adopted or modified by the Company and provided to Executive which
govern the operation of the Company’s business and the conduct of employees of
the Company.


 


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4.             COMPENSATION.


 


a.             Salary.  During 2005, Executive shall receive an
annual base salary of $225,000 payable in bi-weekly gross amounts of $8,653.85.
 Executive’s salary shall be subject to
all appropriate federal and state withholding taxes and shall be payable in
accordance with the normal payroll procedures of the Company.  Beginning in 2006, Executive’s salary may be
increased or decreased by the Company at any time, in its sole discretion, upon
providing Executive thirty (30) days notice of such change.


 


b.             Benefits.  During the Employment Period, Executive shall
be entitled to participate in the employee benefit plans provided by the
Company for all employees generally subject to the terms and conditions of the
applicable plan.  Additionally, Executive
shall be entitled to additional travel insurance (Accidental Life &
Dismemberment).  Benefits will commence
on the first day of the month following Executive’s first day of employment
(February 1, 2005), except that the 401(k) plan benefits will be available 90
days after Executive’s employment starts. 
The Company shall be entitled to change, amend or terminate such plans
from time to time in its sole discretion.


 


c.             Paid Time Off.  During the Employment Period,
Executive shall be entitled to four (4) weeks of paid personal time (PTO) off
per year, which shall accrue at a rate of 6.1538 hours per bi-weekly pay
period.  Executive shall take her PTO time
in accordance with Company policies and procedures.


 


d.             Expenses.  Executive shall be entitled to reimbursement
of her ordinary and necessary business expenses incurred in the performance of
her duties in accordance with Company policy.


 


e.
            Sign-on
Bonus.  Executive shall receive a
one-time sign-on bonus in the amount of $15,000.00, less applicable taxes,
payable within thirty (30) days of Executive’s first date of employment.   In the event Executive voluntarily resigns
her employment with the Company for any reason prior to the second anniversary
of the effective date of this Agreement, Executive agrees to immediately repay
the Company a lump sum amount equal to $625 per month for each month in the
period between Executive’s resignation date and the second anniversary of the
effective date of this Agreement.


 


f.              Discretionary Bonus.  During the Employment Period, Executive shall
be entitled to an annual bonus up to maximum of 35% of Executive’s base salary
as determined in the sole discretion of the Company, provided that Executive
and/or the Company meet performance goals as established by the Company in its
sole discretion.  For 2005, Company
agrees to guarantee a minimum of $50,000 in the discretionary bonus.


 


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g.             Stock Options.  Upon
Executive’s employment under this Agreement, the Company shall grant Executive
100,000 options to purchase common stock of the Company at a strike price equal
to the closing price of the stock on the date Executive’s employment commences
hereunder.  Such options shall vest at a
rate of 25% per year.  The applicable
stock option agreement and plan shall govern all other terms and conditions of
Executive’s options.


 


5.             TERMINATION.  The Company or Executive may terminate this Agreement
and Executive’s employment as provided below:


 


a.             Termination
by the Company for Cause.  The
Company shall have the right to immediately terminate Executive’s employment at
any time for any of the following reasons (each of which is referred to herein
as “Cause”) by giving Executive written notice of the effective date of
termination (which effective date may be the date of such notice):


 


(i)            willful
and material breach by Executive of any provision of this Agreement;


 


(ii)           any
act by Executive of fraud or dishonesty including, but not limited to, stealing
or falsification of Company records, with respect to any aspect of the Company’s
business;


 


(iii)          failure
by Executive to follow the lawful instructions or directions from the Chief
Executive Officer of the Company;


 


(iv)          failure
by Executive to perform in any manner under this Agreement after being given
notice of such failure by the Company, along with an explanation of such
failure of performance;


 


(v)           misappropriation
of Company funds or of any corporate opportunity;


 


(vi)          conviction
of Executive of a felony, or of a crime that the Company, in its sole
discretion, determines involves a subject matter which may reflect negatively
on the Company’s reputation or business (or a plea of nolo contendere thereto);


 


(vii)         acts
by Executive attempting to secure or securing any personal profit not fully
disclosed to and approved by the Chief Executive Officer and/or the Board of
Directors (“Board”) of the Company in


 


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connection with
any transaction entered into on behalf of the Company;


 


(viii)        gross,
willful or wanton negligence, misconduct, or conduct which constitutes a breach
of any fiduciary duty or duty of loyalty owed to the Company by Executive;


 


(ix)           material
violation of any lawful Company policy, rule, regulation or directive;


 


(x)            conduct
on the part of Executive, even if not in connection with the performance of her
duties contemplated under this Agreement, that could result in serious prejudice
to the interests of the Company, as determined by the Company in its sole
discretion, and Executive fails to cease such conduct immediately upon receipt
of notice to cease such conduct;


 


(xi)           acceptance
by Executive of employment with another employer; or


 


(xii)          violation
of material federal or state securities laws as determined in the sole
discretion of the Company.


 


If the Company terminates
Executive’s employment for any of the reasons set forth above, the Company
shall have no further obligations to Executive hereunder from and after the
effective date of termination and shall have all other rights and remedies
available under this or any other agreement and at law or in equity and
Executive gets nothing else.


 


b.             Termination
by the Company Without Cause.  The
Company shall have the right to terminate Executive without Cause for any
reason by providing thirty (30) days’ written notice to Executive.  If the Company terminates Executive without
Cause by providing thirty (30) days’ notice and Executive is diligently and
effectively rendering services to the Company (as determined by the Company in
its sole discretion) as directed in Section 2 above at the time of her
termination, the Company shall pay Executive through the date of termination
and, subject to the limitations set forth below, the Company shall provide
Executive with severance compensation in an amount equal to the greater of (i)
six (6) month’s base salary (based on Executive’s annual salary on the date of
termination), less applicable taxes or (ii) the severance pay to which
Executive would be entitled under a severance pay plan, if any, in effect at
the time of Executive’s termination without Cause.  Such severance compensation shall be paid in
bi-weekly installments (“Installment Severance Payments”) over the following
six months (referred to herein as the “Severance Period”) in accordance with
the Company’s normal payroll practices and schedule.  In the event Executive is in violation of
Sections 7, 8, 9, 10 or 12 of this Agreement at any time during the Severance
Period, the Company shall be entitled


 


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to immediately cease the payment of the Installment
Severance Payments, the Company’s severance obligation shall terminate and
expire, and the Company shall have no further obligations hereunder from and
after the date of such other employment or violation and shall have all other
rights and remedies available under this Agreement or any other agreement and
at law or in equity.


 


c.             Voluntary
Termination by Executive.  In the
event that Executive’s
employment with the Company is voluntarily terminated by Executive for any
reason, the Company shall have no further obligations hereunder from and after
the date of such termination and shall have all other rights and remedies
available under this Agreement or any other agreement and at law or in equity.


 


d.             Termination Upon Death. 
In the event that Executive shall die during her employment by the
Company, the Company shall pay to Executive’s estate any compensation due that
would otherwise have been payable through the date of death.


 


e.             Termination
Upon Disability.  In the event that
Executive shall become disabled during her employment by the Company, Executive’s
employment hereunder shall terminate and the Company shall provide Executive
with severance payments equal to three (3) months’ salary (based on Executive’s
monthly salary on the date of termination), less applicable taxes.  Such severance payments shall be paid
bi-weekly over a period of three months in accordance with the Company’s normal
payroll practices and schedule.   For
purposes of this Agreement, Executive shall become “disabled” if she shall
become, because of illness or incapacity, unable to perform the essential
functions of her job under this Agreement with or without reasonable
accommodation for a continuous period of ninety (90) days during the Employment
Period.


 


6.             CHANGE OF CONTROL.


 


a.             For purposes of this Agreement, a “Change
in Control” of the Company shall be deemed to have occurred at such time as:


 


i.              any “person” (as the term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”)) is or becomes the “beneficial owner” (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of voting securities of
the Company representing more than 50% of the Company’s outstanding voting
securities or rights to acquire such securities except for any voting
securities issued or purchased under any employee benefit plan of the Company
or its subsidiaries;  or


 


ii.            a plan of reorganization, merger,
consolidation, sale of all or substantially all of the assets of the Company or
similar transaction occurs or is effectuated in which the Company is not the
resulting or surviving entity; provided, however, that such an event listed
above will be deemed to have


 


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occurred or to have been
effectuated only upon receipt of all required regulatory approvals not
including the lapse of any required waiting periods; or


 


iii.           the Board determines in its sole
discretion that a Change in Control has occurred.


 


b.             Benefits Upon Change in Control.


 


i.              Severance Benefits.  If a Change of Control occurs within the
first three (3) years of Executive’s employment pursuant to this Agreement, and
Executive no longer reports to Lee Barba or the then current Chief Executive
Officer of the Company as a result of the Change of Control, Executive shall
have the right to resign within thirty (30) days following the Change of
Control and be entitled to receive a cash severance benefit in an amount equal
to six (6) month’s base salary (based on Executive’s annual salary on the date
of the Change of Control), less applicable taxes.  Such amount shall be paid in bi-weekly
installments in accordance with the Company’s normal payroll practices and
schedule.  Provided however, the Company
shall have no obligation to provide Executive with any severance compensation
under this Section 6 if Executive is in breach or violation of any of the
covenants contained in Sections 7, 8, 9, 10 or 12, during the time period in
which the Company is making the severance payments.


 


c.             No Mitigation or Offset.  Executive shall not be required to
mitigate the amount of any payment provided for in this Section 6 of this
Agreement by seeking other employment or otherwise. The Company shall not be
entitled to set off or reduce any severance payments owed to Executive under
this Section 6 by the amount of earnings or benefits received by Executive in
future employment.


 


7.             NONDISCLOSURE.  During the Employment Period, the Company
agrees and promises to provide, and Executive will acquire, knowledge with
respect to the Company’s business operations, including, by way of
illustration, the Company’s Work Product (as defined below), trade secrets,
processes, methodologies and methods for analyzing and investing in the stock
market, software, databases, and other technical information, business
information, customer lists and information, customer preferences, promotional
and marketing materials, marketing plans and strategies, business planning,
financial, and costing information related thereto, regardless of the form or
media containing such information, and confidential information relating to the
Company’s policies and employees (all of such information herein referred to as
the “Confidential Information”).  The
protection of the Confidential Information against unauthorized disclosure or
use is of critical importance to the Company. 
Executive agrees that Executive will not, during her employment, divulge
to any person, directly or indirectly, except to the Company or its officers
and agents (including Company attorneys or accountants) or as reasonably
required in connection with Executive’s duties on behalf of the Company, or
use, except on behalf of the Company, any Confidential Information acquired by
Executive during her employment. 
Executive agrees that her confidentiality obligation applies to all Confidential
Information she has


 


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received, learned or accessed, no matter when she
accessed, learned or received such information. 
Executive further agrees that Executive will not, at any time after her
employment has ended (for whatever reason), use or divulge to any person
directly or indirectly any Confidential Information, or use any Confidential
Information in subsequent employment of any nature.  If Executive is subpoenaed, or is otherwise
required by law to testify concerning Confidential Information, Executive
agrees to immediately notify Company upon receipt of a subpoena, or upon belief
that such testimony shall be required. 
Executive shall not copy or remove from the Company’s places of business
any of the of the Company’s documents, materials or items containing
Confidential Information except with the express written permission of the
Company or in the normal course of employment.


 


8.             NON-INTERFERENCE
OR SOLICITATION.  Executive agrees
that during the Employment Period, and for a period of six (6) months following
the termination of her employment (for whatever reason), that Executive shall
not knowingly, directly or indirectly, induce, solicit, or attempt to persuade,
directly or indirectly, (1) any former, current or future employee, agent,
contractor, manager, consultant, director or other participant in the Company,
or (2) any person who has purchased a program or product of the Company during
the term of this Agreement, or (3) any person or entity who has collaborated or
was affiliated with the Company during the term of this Agreement, (all the
foregoing three groups being collectively referred to herein as “Participant”)
to enter into any business relationship with Executive, except for the benefit
of the Company, or any business organization in which Executive is involved or
which is in competition with the Restricted Business.  In addition, during the Employment Period and
for a period of six (6) months following the termination of her employment (for
whatever reason), Executive shall not (1) directly or indirectly contact any
person or entity having a Relationship (as defined below) with the Company or
disclosed by the Company to Executive for the purpose of taking advantage of a
business opportunity to the detriment of the Company, (2) otherwise circumvent
a Relationship with the Company or, to the detriment of the Company, establish
a Relationship with a party with whom the Company has a Relationship, or (3)
seek to establish any rights, including but not limited to intellectual
property rights, anywhere in the world in conflict with any intellectual
property rights related to Work Product.


 


For purposes of this
Agreement, the term “Restricted Business” shall mean the area of business
dealing with providing telemarketing, and seminar products, workshops, and
self-study programs, all relating to stocks and stock market investing
information and analysis, as well as any other area of business in which the
Company is engaged.   For purposes of
this Agreement, “directly or indirectly” means as a paid or unpaid director,
officer, agent, representative, manager, employee of, or consultant to any
enterprise, or acting as a proprietor of an enterprise, or holding any direct
or indirect participating role in any enterprise as an owner, partner, limited
partner, member, manager, joint venturer, shareholder or creditor.  For purposes of this Agreement, the term “Relationship”
shall mean a business arrangement, transaction, contract, understanding or
other business relationship.  The
foregoing prohibition against soliciting Participants shall include Executive
agreeing to enter into any such prohibited relationship, even if Participant
made the initial contact regarding such relationship.


 


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9.             NON-COMPETITION.  In consideration of the numerous mutual
promises and agreements contained in this Agreement between the Company and
Executive, including, without limitation, those involving, employment,
compensation, and Confidential Information, and in order to protect the Company’s
Confidential Information and other legitimate business interests and to reduce
the likelihood of irreparable damage which would occur in the event such
information is provided to or used by a competitor of the Company, Executive
agrees that during her employment and for an additional period of six (6)
months immediately following the termination of her employment (for whatever
reason) (the “Noncompetition Term”), she shall not directly or indirectly enter
into or attempt to enter into the Restricted Business in the United States or
Canada.


 


Executive hereby acknowledges that the geographic
boundaries, scope of prohibited activities and the time duration of the
provisions of this Section 9 are reasonable and are no broader than are
necessary to protect the legitimate business interests of the Company. This
noncompetition provision shall survive the termination of Executive’s
employment (for any reason) and can only be revoked or modified by a writing
signed by the parties which specifically states an intent to revoke or modify
this provision.  Executive acknowledges
that the Company would not employ her or provide her with access to its
Confidential Information but for her covenants or promises contained in this
Section.


 


The Company and Executive agree and stipulate that the
agreements and covenants not to compete contained in this Section 9 hereof are
fair and reasonable in light of all of the facts and circumstances of the
relationship between Executive and the Company; however, Executive and the
Company are aware that in certain circumstances courts have refused to enforce
certain terms of agreements not to compete. 
Therefore, in furtherance of, and not in derogation of the provisions of
this Section 9, the Company and Executive agree that in the event a court
should decline to enforce any terms of any of the provisions of this Section 9,
that Section 9 shall be deemed to be modified or reformed to restrict Executive’s
competition with the Company to the maximum extent, as to time, geography and
business scope, which the court shall find enforceable; provided, however, in
no event shall the provisions of this Section 9 be deemed to be more
restrictive to Executive than those contained herein.


 


10.          WORK
PRODUCT.  For purposes of this
Section 10, “Work Product” shall mean all intellectual property rights,
including all trade secrets, U.S. and international copyrights, trademarks,
trade names, patentable inventions, discoveries and other intellectual property
rights in any programming, design, documentation, technology, or other work
product that is created in connection with Executive’s work.  In addition, all rights in any preexisting
programming, design, documentation, technology, or other Work Product provided
to the Company during Executive’s employment shall automatically become part of
the Work Product


 


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hereunder, whether or not it arises specifically out
of Executive’s “Work.”  For purposes of
this Agreement, “Work” shall mean (i) any direct assignments and required
performance by or for the Company, and (2) any other productive output that
relates to the business of the Company and is produced during the course of
Executive’s employment or engagement by the Company.  For this purpose, Work may be considered
present even after normal working hours, away from the Company’s premises, on
an unsupervised basis, alone or with others. 
Unless otherwise approved in writing by the Chief Executive Officer of
the Company, this Agreement shall apply to all Work Product created in
connection with all Work conducted before or after the date of this Agreement.


 


The Company shall own all rights in the Work
Product.  To this end, all Work Product
shall be considered work made for hire for the Company.  If any of the Work Product may not, by
operation of law or agreement, be considered Work made by Executive for hire
for the Company (or if ownership of all rights therein do not otherwise vest
exclusively in the Company immediately), Executive agrees to assign, and upon
creation thereof does hereby automatically assign, without further
consideration, the ownership thereof to the Company.  Executive hereby irrevocably relinquishes for
the benefit of the Company and its assigns any moral rights in the Work Product
recognized by applicable law.  The
Company shall have the right to obtain and hold, in whatever name or capacity
it selects, copyrights, registrations, and any other protection available in
the Work Product.


 


Executive agrees to perform upon the request of the
Company, during or after Executive’s Work or employment, such further acts as
may be necessary or desirable to transfer, perfect, and defend the Company’s
ownership of the Work Product, including by (1) executing, acknowledging, and
delivering any requested affidavits and documents of assignment and conveyance,
(2) obtaining and/or aiding in the enforcement of copyrights, trade secrets,
and (if applicable) patents with respect to the Work Product in any countries,
and (3) providing testimony in connection with any proceeding affecting the
rights of the Company in any Work Product.


 


Executive warrants that Executive’s Work for the
Company does not and will not in any way conflict with any remaining
obligations Executive may have with any prior or current employer or
contractor.  Executive also agrees to
develop all Work Product in a manner that avoids even the appearance of
infringement of any third party’s intellectual property rights.


 


11.          NO EXCLUSIONS. 
Executive hereby represents that Executive has not heretofore created
any Work Product or prepared any work, which is the subject of any Work
Product, that Executive wishes to exclude from the provisions of Section 10
above.


 


12.          RETURN
OF DOCUMENTS.  Executive agrees that
if Executive’s relationship with the Company is terminated (for whatever
reason), Executive shall not take with Executive, but will leave with the
Company, all Work Product, Confidential Information, records, files, memoranda,
reports, price lists, customer lists, supplier lists, financial information,
documents and other information, in whatever form (including on computer disk),
and any copies thereof, or


 


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if such items are not on the premises of the Company,
Executive agrees to return such items immediately upon Executive’s
termination.  Executive acknowledges that
all such items are and remain the property of the Company.


 


13.          INJUNCTIVE RELIEF. 
Executive acknowledges that breach of any of the agreements contained
herein, including, without limitation, the confidentiality, nonsolicitation and
noncompetition covenants specified in Sections 7, 8 and 9, will give rise to
irreparable injury to the Company, inadequately compensable in damages.  Accordingly, Executive agrees that the
Company shall be entitled to injunctive relief to prevent or cure breaches or
threatened breaches of the provisions of this Agreement and to enforce specific
performance of the terms and provisions hereof in any court of competent
jurisdiction, in addition to any other legal or equitable remedies which may be
available.  Executive further
acknowledges and agrees that the enforcement of a remedy hereunder by way of
injunction shall not prevent Executive from earning a reasonable
livelihood.  Executive further
acknowledges and agrees that the covenants contained herein are necessary for
the protection of the Company’s legitimate business interests and Confidential
Information and are reasonable in scope and content.


 


14.          SEVERABILITY
AND REFORMATION.  If any provision of
this Agreement is held to be illegal, invalid or unenforceable under any
present or future law, and if the rights or obligations of Executive or the
Company under this Agreement would not be materially and adversely affected
thereby, such provision shall be fully severable, and this Agreement shall be
construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a part thereof, the remaining provisions of this Agreement
shall remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance herefrom, and in lieu of
such illegal, invalid or unenforceable provision, there shall be added
automatically as a part of this Agreement a legal, valid and enforceable
provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible, and the Company and Executive hereby request the
court to whom disputes relating to this Agreement are submitted to reform the
otherwise unenforceable covenant in accordance with this Section 14.


 


15.          HEADINGS,
GENDER, ETC.  The headings used in
this Agreement have been inserted for convenience and do not constitute matter
to be construed or interpreted in connection with this Agreement.  Unless the context of this Agreement
otherwise requires, (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.


 


16.          GOVERNING
LAW.  THIS AGREEMENT WILL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF UTAH WITHOUT
GIVING EFFECT TO ANY PRINCIPLE OF CONFLICT OF LAWS THAT WOULD REQUIRE THE
APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.


 


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17.          VENUE.  The venue for
any dispute arising out of this Agreement or Executive’s employment with the
Company shall be any state or federal court of competent jurisdiction in Provo,
Utah.


 


18.          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 and all such
covenants, including those contained in Sections 7, 8, 9, 10, & 12 shall
survive the termination of this Agreement.


 


19.          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: Nobumichi Hara

  
	
   

  	
   

  	
  585 E. 1860 S.

  
	
   

  	
   

  	
  Provo, Utah 84606

  
	
   

  	
   

  	
   

  
	
  If to Executive:

  	
   

  	
  Ida K. Kane

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


20.          ENTIRE AGREEMENT. 
This Agreement and the Stock Option Agreement contain the entire
understanding and agreement between the parties, and supersedes any other
agreement between Executive and the Company, whether oral or in writing, with
respect to the subject matter hereof. 
This Agreement may only be modified pursuant to Section 24.


 


21.          NO
WAIVER.  The forebearance 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.


 


22.          ASSIGNMENT. 
This Agreement is personal to Executive and may not be assigned in any
way by Executive without the prior written consent of the Company.  This Agreement shall be assignable or
delegable by the Company.  The rights and
obligations under this Agreement shall inure to the benefit of and shall be
binding upon the heirs, legatees, administrators and personal representatives
of Executive and upon the successors, representatives and assigns of the
Company.


 


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23.          BINDING
EFFECT.  This Agreement shall be
binding on and inure to the benefit of the parties and their respective
permitted successors and assigns.


 


24.          MODIFICATION.  This Agreement may be modified only by a
written agreement signed by both parties. 
Any such written modification may only be signed by the President or Chief
Executive Officer of the Company.


 


25.          COUNTERPARTS.  This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original instrument,
and all of which together shall constitute one and the same Agreement.


 


IN WITNESS WHEREOF, the parties hereto have executed
this Employment Agreement as of the day and year first above written.


 


 


	
  IDA K. KANE

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date: 

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  INVESTOOLS INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By 

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  LEE BARBA

  	
   

  	
   

  	
   

  
	
   

  	
  CEO

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date: 

  	
   

  	
   

  	
   

  	
   

  
							



 


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EXHIBIT A


 


 


INVESTOOLS
INC


CODE OF BUSINESS CONDUCT
AND ETHICS FOR

MEMBERS OF THE BOARD OF DIRECTORS

AND EXECUTIVE OFFICERS 

OF INVESTOOLS INC AND ITS SUBSIDIARIES

ADOPTED BY THE BOARD OF DIRECTORS ON AUGUST 14, 2003


 


 


The Board of Directors
(the “Board”) of INVESTools Inc. (“INVESTools”) has adopted the following Code
of Business Conduct and Ethics for Members of the Board of Directors and
Executive Officers (this “Code”). This Code is also applicable to officers and
directors of all subsidiaries of INVESTools. 
This Code is intended to focus the Board, each Director, Company
management, and each Executive Officer on areas of ethical risk, provide
guidance to Directors and management to help them recognize and deal with
ethical issues, provide mechanisms to report unethical conduct, and help foster
a culture of honesty and accountability. Each Director and Executive Officer
must comply with the letter and spirit of this Code. This Code encompasses
INVESTools’ policies on Business Ethics, Conflict of Interest, Employee
Inventions and Confidential Information, Improper Business Payments, U.S.
Antitrust Laws, Ethics for Senior Financial Officers and Insider Trading.


No code or policy can anticipate every situation that may arise.
Accordingly, this Code is intended to serve as a source of guiding principles
for Directors and Executive Officers. Directors and Executive Officers are
encouraged to bring questions about particular circumstances that may implicate
one or more of the provisions of this Code to the attention of the Chair of the
Audit Committee, who may consult with legal counsel as appropriate.


 


1. CONFLICT OF INTEREST.


 


A
“conflict of interest” occurs when a Director’s or Executive Officer’s private
interest interferes in any way, or appears to interfere, with the interests of
INVESTools as a whole. Conflicts of interest also arise when a Director or
Executive Officer, or a member of his or her immediate family, receives
improper personal benefits as a result of his or her position as a Director or
Executive Officer of INVESTools. Loans or guarantees of obligations may create
conflicts of interest; therefore, INVESTools shall not make any personal loans
or extensions of credit to nor become contingently liable for any indebtedness
of Directors or Executive Officers or a member of his or her family.


Directors
and Executive Officers must avoid conflicts of interest with INVESTools. Any
situation that involves, or may reasonably be expected to involve, a conflict
of interest with INVESTools must be disclosed immediately to the Chair of the
Audit Committee.


This
Code does not attempt to describe all possible conflicts of interest that could
develop. Some of the more common conflicts from which Directors and Executive
Officers must refrain, however, are set out below.


•      Relationship of Company with
third parties. Directors and Executive Officers may not engage in any conduct
or activities that are inconsistent with INVESTools’ best interests or that
disrupt or impair INVESTools’ relationship with any person or entity with which
INVESTools has or proposes to enter into a business or contractual
relationship.


•      Compensation from
non-Company sources. Directors and Executive Officers may not accept
compensation, in any form, for services performed for INVESTools from any
source other than INVESTools.


 


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•      Gifts. Directors and
Executive Officers and members of their families may not offer, give or receive
gifts from persons or entities who deal with INVESTools in those cases where
any such gift is being made in order to influence the Directors’ or Executive
Officers’ actions as members of the Board and senior management of INVESTools,
or where acceptance of the gifts could create the appearance of a conflict of
interest. De minimus gifts valued individually at less than $100, or less than
$250 in the aggregate value, from a single such person or entity on an annual
basis are excepted.


 


2. CORPORATE
OPPORTUNITIES.


 


Directors
and Executive Officers owe a duty to INVESTools to advance its legitimate
interests when the opportunity to do so arises. Executive Officers, and
Directors when an opportunity that relates to INVESTools’ business has been
presented to the Directors solely by INVESTools or its agents and until such
time as INVESTools has determined that it will not pursue the opportunity, are
prohibited from: (a) taking for themselves personally opportunities that are
discovered through the use of corporate property, information or the Director’s
or Executive Officer’s position; (b) using INVESTools’ property, information,
or position for personal gain; or (c) personally competing with INVESTools,
directly or indirectly, for business opportunities. However, if it has been
determined that INVESTools will not pursue an opportunity that relates to
INVESTools’ business, a non-management Director may do so.


 


3. CONFIDENTIALITY.


 


Directors
and Executive Officers must maintain the confidentiality of information
entrusted to them by INVESTools or its customers, and any other confidential
information about INVESTools that comes to them, from whatever source, in their
capacity as Director or Executive Officer, except when disclosure is authorized
or required by laws or regulations. Confidential information includes all
non-public information that might be of use to competitors, or harmful to
INVESTools or its customers, if disclosed.


 


4. PROTECTION AND PROPER
USE OF COMPANY ASSETS.


 


Theft,
carelessness and waste of assets have a direct impact on INVESTools’
profitability. Directors and Executive Officers shall protect INVESTools’
assets and ensure their efficient use.


 


5. FAIR DEALING.


 


The
conduct required by fair dealing requires honesty in fact and the observance of
reasonable commercial standards of fair dealing. Directors and Executive
Officers shall deal fairly and oversee fair dealing by employees and officers
with INVESTools’ directors, officers, employees, customers, suppliers and
competitors. None should do anything that could be interpreted as dishonest or
outside reasonable commercial standards of fair dealing.


 


6. COMPLIANCE WITH LAWS,
RULES AND REGULATIONS.


 


Directors
and Executive Officers shall comply, and oversee compliance by employees,
officers and other directors, with all laws, rules and regulations applicable
to INVESTools.


 


7. COMPLIANCE WITH THIS
CODE CANNOT BE WAIVED.


 


While
the Board or any Committee of the Board cannot waive compliance with this Code,
the Board may, upon a favorable recommendation from its Audit Committee,
determine that a proposed course of conduct does not contravene the substantive
requirements of this Code.


 


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8. ENCOURAGING THE
REPORTING OF ANY ILLEGAL OR UNETHICAL BEHAVIOR.


 


Directors
and Executive Officers should promote ethical behavior and take steps to create
a working environment at INVESTools that: (a) encourages employees to talk to
supervisors, managers and other appropriate personnel when in doubt about the
best course of action in a particular situation; (b) encourages employees to
report violations of laws, rules, regulations or INVESTools’ Code of Ethics to
appropriate personnel; and (c) fosters the understanding among employees that
INVESTools will not permit retaliation for reports made in good faith.


 


9. FAILURE TO COMPLY;
COMPLIANCE PROCEDURES.


 


A
failure by any Director or Executive Officer to comply with the laws or
regulations governing INVESTools’ business, this Code or any other Company
policy or requirement may result in disciplinary action, and, if warranted,
legal proceedings. Directors and Executive Officers should communicate any
suspected violations of this Code promptly to the Chair of the Audit Committee.
Violations will be investigated by the Audit Committee or by a person or persons
designated by the Audit Committee and appropriate action will be taken in the
event of any violations of this Code.


 


10. ANNUAL REVIEW.


 


Annually,
each Director and Executive Officer shall provide written certification that he
or she has read and understands this Code and its contents and that he or she
has not violated, and is not aware that any other Director or Executive Officer
has violated, this Code.


 


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