Exhibit
10.1


 


TRANSITION
AGREEMENT


 


THIS TRANSITION AGREEMENT (this “Agreement”)
dated May 2, 2005, is by and between INVESTools Inc., a Delaware
corporation (“INVESTools”), and CNBC, Inc., a Delaware corporation
(“CNBC”).  Each of INVESTools and
CNBC is a “Party” and, collectively, they are the “Parties.”


 


WHEREAS, the Parties entered into that certain binding
Letter of Intent dated as of February 20, 2002 and an addendum dated March 21,
2002 (collectively, the “Original Contract”), pursuant to which INVESTools
conducted CNBC-branded investor education programs;


 


WHEREAS, the Original Contract expired under its terms
in May 2004, and since then the Parties have been negotiating an extension
in good faith and have continued to operate under the terms of the Original
Contract; and


 


WHEREAS, in light of their diverging business
interests, the Parties now desire to mutually terminate the Original Contract
and terminate negotiations for an extension, so that they can be released and
forever discharged from further performance thereunder.


 


NOW, THEREFORE, in consideration of the premises
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:


 


Section 1.                                            Termination.  Each Party acknowledges and agrees that the
Original Contract will be terminated effective as of the date five (5) business
days after the date hereof (the “Termination Date”) and that all
negotiations for an extension shall cease and that no Party shall thereafter
have any liabilities, rights, duties or obligations to any other Party (or its
successors or assigns) under or in connection with the Original Contract, other
than those provided in Sections 11, 16, 17 and 20 of the Original Contract,
which shall survive in perpetuity.


 


Section 2.                                            Transition.  Each Party acknowledges and agrees that
INVESTools, at its sole cost and expense, is entitled


 


(a)               to
continue to use the “Education Products” and other CNBC-branded or CNBC
University-branded materials (collectively, “CNBC-branded Materials”)
that have been approved by CNBC, only until the Termination Date;


 


(b)              to
make efforts to transition, transfer, and/or retain, and to solicit, “prospects,”
“leads” and “customers” to other INVESTools’ products (regardless of brand)
and/or the Education Products, including (without limitation) by using any “prospect,”
“lead” and/or “customer” lists;


 


(c)               to
provide notice to “prospects,” “leads” and/or “customers” of the Parties’
mutual agreement to terminate their business relationship pursuant to this
Agreement;


 





















 


provided that such notices are approved by CNBC in
advance (such approval not to be unreasonably withheld or delayed); and


 


(d)              to
provide any public disclosure required by the federal securities laws;


 


provided,
however, that all such activities shall be conducted in a good faith,
professional manner, and shall not involve any form of harassment of “prospects,”
“leads” or “customers” and provided further, however, that INVESTools
agrees that upon the Termination Date, it will cease using all CNBC-branded
Materials, and all of CNBC’s marks, trademarks, “CNBC Content,” talent, and
User Data.  For purposes of this Section 2,
“Education Products,” “prospects,” “leads,” “customers,” “CNBC Content” and “User
Data” shall be as defined in the Original Contract.  This Section 2 of this Agreement
supersedes Section 14 of the Original Contract in its entirety.


 


Section 3.                                            Representations.  Each Party represents and warrants that such
Party has all requisite power and authority to execute, deliver and perform
under this Agreement, and that the execution, delivery and performance of this
Agreement by such Party has been duly authorized by all necessary corporate
action.


 


Section 4.                                            No
Admissions.  Nothing contained in
this Agreement shall be construed as an admission by either Party of any
improper, unlawful or wrongful conduct against the other Party, or against any
other person or entity.


 


Section 5.                                            Prohibition
on Disparaging Remarks; Public Statements. 
Each Party shall refrain from making disparaging, negative or other
similar remarks concerning the other Party, except to the extent (i) required
by applicable law or regulation or (ii) in connection with any legal
proceeding between the Parties.  Neither
Party shall make any press release or other public statement with respect to
the Original Contract, this Agreement, or the relationship between the Parties,
without the prior written consent of the other Party.


 


Section 6.                                            Discontinuation
and Destruction of Materials.  On the
Termination Date, INVESTools shall immediately discontinue all use of any CNBC
marks, CNBC-branded Materials and/or other references to CNBC, and shall
destroy all CNBC-branded Materials or other materials containing any reference
to CNBC.


 


Section 7.                                            Website.  Prior to the Termination Date, INVESTools
shall assign the registration to the URL www.cnbcu.com (the “Website”)
to CNBC.  For a period of sixty (60) days
following the Termination Date, the Website shall have no content other than a
transition notice, and shall simply direct users to the following website: www.investools.com
or such other transition website developed by INVESTools.


 


Section 8.                                            Indemnity.  To the fullest extent permitted by law, each
Party (the “Indemnifying Party”) agrees to indemnify and hold harmless
the Other Party, its shareholders, affiliates, sponsors and advertisers, and
their officers, directors, partners, representatives, agents and employees (the
“Indemnified Parties”) from and against any and all claims, suits,
liens, judgments, damages, losses and expenses including legal fees and all
court costs and liability


 


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(including statutory
liability), arising in whole or in part and in any manner resulting from the
business or activities of the other Party (the “Indemnifying Party’s
Business”).  Each Party agrees to
defend and bear all costs of defending any actions or proceedings brought
against any or all of the Indemnified Parties, arising in whole or in part out
of the Indemnifying Party’s Business.  In
the event of any actions or proceedings, each Party shall have the right, but
not the obligation, to control or participate in the defense thereof.  This indemnity shall survive the termination
or cancellation of this Termination Agreement or any other agreement between
the Parties.


 


Section 9.                                            Owed
Amount.  INVESTools acknowledges that
for the calendar quarter ending September 30, 2004, INVESTools currently
owes CNBC the sum of $764,231 in Revenue Share (as defined in the Original
Contract and computed at 10% of Net Revenue) pursuant to the Original Contract
(the “Owed Amount”).  Immediately upon
the execution of this Agreement, INVESTools shall pay the Owed Amount to CNBC
by wire transfer of immediately available funds to a bank account designated by
CNBC. Consistent with Section 1 hereof, upon payment of the Owed Amount,
INVESTools shall have no Revenue Share liabilities for any periods before or
after September 30, 2004


 


Section 10.                                      General.  This Agreement and the Original Contract
contain the entire understanding of the Parties with respect to the subject
matter hereof and supersedes all prior oral or written agreements or
understandings and all contemporaneous oral agreements and understandings
relating to the subject matter hereof. 
This Agreement shall govern any conflict with the Original
Contract.  This Agreement cannot be
modified or amended except in writing signed by all of the Parties.  This Agreement shall be binding on and inure
to the benefit of the Parties, and each of their respective affiliates,
successors and assigns.  This Agreement
shall be governed by, and construed in accordance with, the laws of the State
of New York, without giving effect to any choice or conflict of law provision
or rule.  This Agreement shall be
interpreted fairly in accordance with its terms and without any strict
construction in favor of or against either Party.  This Agreement may be executed in
counterparts, each of which shall be deemed an original, and which together
shall constitute a single instrument. 
Execution and delivery of this Agreement by exchange of facsimile copies
bearing the signature of a Party shall constitute a valid and binding execution
and delivery of this Agreement by such Party, and such facsimile copies shall constitute
enforceable original documents.  This
Agreement is not intended to create any rights in favor of, or confer benefits
upon, any third parties.


 


IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the Effective Date.


 


	
   

  	
  INVESTOOLS
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Lee K. Barba

  
	
   

  	
  Chief Executive
  Officer

  
	
   

  	
   

  
	
   

  	
  CNBC,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name: Brian
  Anderson

  
	
   

  	
  Title: VP,
  Business Development

  
				



 


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