Exhibit 10.1


 


EXECUTIVE
EMPLOYMENT AGREEMENT


 


This
Executive Employment Agreement (the “Agreement”) is made and entered into as of
the 31st day of December 2008,
by and between Ida K. Kane (“Executive”) and thinkorswim Group Inc. formerly
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 for a two (2) year period
commencing on the date of this Agreement and terminating, unless otherwise
terminated earlier in accordance with Section 5 (“Employment Period”) on December 21, 2010. 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 the first year of the Agreement,
Executive shall receive an annual base salary of $285,000 payable in bi-weekly
gross amounts of $10,961.54.  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 the second year of the
agreement, Executive’s salary may be increased 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).    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.             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.


 


f.              Stock
Options.   Executive shall be eligible to receive future
additional stock option grants, as determined by the Compensation Committee, in
its sole discretion..  The applicable stock option agreement and
plan shall govern all other terms and conditions of Executive’s options.


 


g.             Restricted Shares.  Executive
shall be eligible to receive future additional Restricted Shares, as determined
by the Compensation Committee, in its sole discretion.


 


h.             During the Employment Period,
Executive shall be entitled to an annual complete physical exam at Cooper
Clinic or a medical equivalent and
shall include the travel 


 


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expense between Salt Lake
City and the Cooper Clinic, and said annual benefit shall not exceed an
amount equal to $15,000.00


 


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


 


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(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
addition, the Company will pay the premiums for the Executive to continue your
group health insurance coverage (as provided to other


 


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employees at the time of termination) under
COBRA, at active employee contribution rates for the earlier of six (6) month’s
following termination or until the Executive obtains comparable coverage.
In the event Executive is in violation of Sections 7, 8, 10, 12 or Section 9,
but only to the extent Restricted Business applies to the competitors listed in
Exhibit B, of this Agreement at any time during the Severance Period, the
Company shall be entitled 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 (1) is unable to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be expected to last
for a continuous period of not less than 12 months; or (2) is, by reason
of any medically determinable physical or mental impairment which can be
expected to result in death or can be expected to last for a continuous period
of not less than 12 months, receiving income replacement benefits for a period
of not less than three months under any accident and health plan maintained by
the Executive’s employer; or (3) is determined to be totally disabled by
the U.S. Social Security Administration and has provided documentation to such
effect.


 


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6.                                      CHANGE
IN CONTROL.


 


a.             Definition
of Change in Control. 
With respect to any payments or benefits payable as the result of a
Change in Control under this Agreement, other than any such provisions relating
to awards and vesting of stock options or restricted stock, including any right
to severance in the event of a termination following such Change in Control, “Change
in Control” shall mean a change in the ownership or effective control, or a
change in the ownership of a substantial portion of the assets, of the Company,
within the meaning of Section 409A(a)(2)(A)(v) of the Internal
Revenue Code of 1986, as amended (the “Code”) and U.S. Treasury Regulation Section 1.409A-3(i)(5).
For provisions of this Agreement relating to awards and vesting of stock
options or restricted stock, 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 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.
Equity Vesting.  If a
Change in Control occurs within the Employment Period, then Executive shall be
entitled to the full vesting of all outstanding options and restricted shares
and other equity units granted prior to and through the date upon which the
Change in Control occurs.  All other
provisions governing the award agreements will remain in force.


 


ii.  Severance Benefits.  If a Change in Control
occurs within the Employment Period, and within one hundred eighty (180) days
following the Change in Control (1) the Company terminates Executive’s
employment without Cause, or (2) Executive no longer reports to the then
current Chief Executive 


 


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Officer of the Company as
a result of the Change in Control and Executive resigns, Executive shall be
entitled to receive a cash severance benefit in an amount equal to twelve (12)
month’s base salary (based on Executive’s annual salary on the date of the
Change in Control), less applicable taxes. 
Such amount shall be paid in bi-weekly installments in accordance with
the Company’s normal payroll practices and schedule.  Employee shall also be entitled to the full
vesting of all outstanding options and restricted shares and other equity units
granted prior to and through to the termination date.  All other provisions of the Stock Options
Agreement and the Restricted Stock Award Agreement will remain in force. In
addition, the Company will pay the premiums for the Executive to continue your
group health insurance coverage (as provided to other employees at the time of
termination) under COBRA, at active employee contribution rates for the earlier
of twelve (12) month’s following termination or until the Executive obtains
comparable coverage.  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, 10, 12 or Section 9,
but only to the extent Restricted Business applies to the competitors listed in
Exhibit B, 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.


 


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Executive agrees that her confidentiality obligation
applies to all Confidential Information she has 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 twelve (12) 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 twelve (12) 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 


 


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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.


 


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 twelve (12)
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, 


 


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design, documentation, technology, or other Work
Product provided to the Company during Executive’s employment shall
automatically become part of the Work Product 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.


 


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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 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.          COMPLIANCE WITH SECTION 409A.  The intent of the parties is that payments and benefits under the
Agreement comply with Section 409A of the Code (“Section 409A”) and
the regulations and guidance promulgated thereunder (except to the extent
exempt as short-term deferrals or pursuant to the rules with respect to
separation pay plans) and, accordingly, to the maximum extent permitted, the
Agreement shall be interpreted to be in compliance therewith.  The Company may reform any provision to the
extent necessary to comply with Section 409A.  To the extent that any provision of the
Agreement is modified in order to comply with Section 409A, such
modification shall be made in good faith and shall, to the maximum extent
reasonably possible, maintain the original intent and economic benefit to
Executive and the Company of the applicable provision without violating the
provisions of Section 409A.  A
termination of employment shall not be deemed to have occurred for purposes of
any provision of the Agreement providing for the payment of any amounts or
benefits subject to Section 409A upon or following a termination of
employment unless such termination is also a “separation from service” within
the meaning of Section 409A and, for purposes of any such provision of the
Agreement, references to a “termination,” “termination of employment” or like
terms shall mean “separation from service.” 
The determination of whether and when a separation from service of
Executive from the Company has occurred shall be made in a manner consistent
with, and based on the presumptions set forth in, Treasury Regulation Section 1.409A-1(h) or
any successor provision thereto.  Solely
for purposes of applying this provision, “Company” shall include all persons
with whom the Company would be considered a single employer under Sections 414(b) and
414(c) of the Code.  The following rules shall
apply with respect to distribution of any severance payments and benefits, if
any, to be provided to Executive following such a “separation from service”.  It is intended that each installment, if any,
of the payments and benefits provided shall be treated as a separate “payment”
for purposes of Section 409A. 
Neither the Company nor Executive shall have the right to accelerate or
defer the delivery of any such payments or benefits except to the extent
specifically permitted or required by Section 409A of the Code.  If, as of the date of the “separation from
service” of Executive from the Company, Executive is a “specified employee”
(within the meaning of that term under Section 409A(a)(2)(B) of the
Code, or any successor provision thereto), then with regard to any payment or
the provision of any benefit that is subject to this provision (whether under
the Agreement, any other plan, program, payroll practice or any equity grant)
and is due upon or as a result of Executive’s separation from service, such
payment or benefit shall not be made or provided, to 


 


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the extent making or
providing such payment or benefit would result in additional taxes or interest
under Section 409A, until the date which is the earlier of  (A) the expiration of the six (6)-month
period measured from the date of such “separation from service” of Executive,
and (B) the date of Executive’s death (the “Delay Period”) and the
Agreement and each such plan, program, payroll practice or equity grant shall
hereby be deemed amended accordingly. 
Upon the expiration of the Delay Period, all payments and benefits
delayed (whether they would have otherwise been payable in a single sum or in installments
in the absence of such delay) shall promptly be paid or reimbursed to Executive
in a lump sum, and any remaining payments and benefits due under the Agreement
shall be paid or provided in accordance with the normal payment dates specified
for them herein.  All reimbursements and
in-kind benefits provided under the Agreement shall be made or provided in
accordance with the requirements of Section 409A to the extent that such
reimbursements or in-kind benefits are subject to Section 409A.  All expenses or other reimbursements paid
pursuant herewith that are taxable income to Executive shall in no event be
paid later than the end of the calendar year next following the calendar year
in which Executive incurs such expense or pays such related tax.  With regard to any provision herein that
provides for reimbursement of costs and expenses or in-kind benefits, except as
permitted by Section 409A, the right to reimbursement or in-kind benefits
shall not be subject to liquidation or exchange for another benefit, the amount
of expenses eligible for reimbursement, or in-kind benefits provided, during
any taxable year shall not affect the expenses eligible for reimbursement, or
in-kind benefits to be provided, in any other taxable year, provided that, the
foregoing clause shall not be violated with regard to expenses reimbursed under
any arrangement covered by Section 105(b) of the Code solely because
such expenses are subject to a limit related to the period the arrangement is
in effect and such payments shall be made on or before the last day of Executive’s
taxable year following the taxable year in which the expense occurred.


 


14.           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.


 


15.          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 


 


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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 15.


 


16.          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.


 


17.          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.


 


18.          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 Salt Lake City, Utah.


 


19.          SURVIVAL. 
Executive’s termination from employment and/or the termination of this
Agreement, for whatever reason, shall not reduce or terminate Executive’s
covenants and agreements set forth herein and all such covenants, including
those contained in Sections 7, 8, 9, 10, & 12 shall survive the
termination of this Agreement.


 


20.          NOTICES. 
Any notice necessary under this Agreement shall be in writing and shall
be considered delivered three days after mailing if sent certified mail, return
receipt requested, or when received, if sent by telecopy, prepaid courier,
express mail or personal delivery to the following addresses:


 


If to the Company:               Thinkorswim
Group Inc.


 


 


 


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If to Executive:      Ida K. Kane


 


 


 


 


21.          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 25.


 


22.          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.


 


23.          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.


 


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


 


25.          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.


 


26.          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.


 


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


 


	
  IDA K. KANE

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  THINKORSWIM
  GROUP INC.

  	
   

  
	
   

  	
   

  
	
  By

  	
   

  	
   

  
	
   

  	
  LEE BARBA,
  CEO

  	
   

  
	
   

  	
   

  
	
  Date:

  	
   

  	
   

  
				



 


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EXHIBIT A


 


THINKORSWIM
GROUP, INC


CODE OF BUSINESS
CONDUCT AND ETHICS FOR


MEMBERS OF THE
BOARD OF DIRECTORS


AND EXECUTIVE
OFFICERS


OF THINKORSWIM
GROUP, INC AND ITS SUBSIDIARIES


 


ADOPTED BY THE
BOARD OF DIRECTORS ON AUGUST 14, 2003


 


The Board of
Directors (the “Board”) of thinkorswim Group, Inc. formerly Investools Inc.
(“thinkorswim”) 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
Thinkorswim.  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 Thinkorswim’ 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 Thinkorswim 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 Thinkorswim. Loans or guarantees
of obligations may create conflicts of interest; therefore, Thinkorswim 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 Thinkorswim. Any situation that involves, or may reasonably be
expected to involve, a conflict of interest with Thinkorswim 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 Thinkorswim’ best
interests or that disrupt or impair Thinkorswim’ relationship with any person
or entity with which Thinkorswim has or proposes to enter into a business or
contractual relationship.


 


·                  Compensation
from non-Company sources. Directors and Executive Officers may not accept 


 


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compensation, in
any form, for services performed for Thinkorswim from any source other than
Thinkorswim.


 


·                  Gifts.
Directors and Executive Officers and members of their families may not offer,
give or receive gifts from persons or entities who deal with Thinkorswim 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 Thinkorswim, 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
Thinkorswim to advance its legitimate interests when the opportunity to do so
arises. Executive Officers, and Directors when an opportunity that relates to
Thinkorswim’ business has been presented to the Directors solely by Thinkorswim
or its agents and until such time as Thinkorswim 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
Thinkorswim’ property, information, or position for personal gain; or (c) personally
competing with Thinkorswim, directly or indirectly, for business opportunities.
However, if it has been determined that Thinkorswim will not pursue an
opportunity that relates to Thinkorswim’ business, a non-management Director
may do so.


 


3.
CONFIDENTIALITY.


 


Directors and Executive Officers must maintain the
confidentiality of information entrusted to them by Thinkorswim or its
customers, and any other confidential information about Thinkorswim 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 Thinkorswim or its customers, if
disclosed.


 


4.
PROTECTION AND PROPER USE OF COMPANY ASSETS.


 


Theft, carelessness and waste of assets have a direct
impact on Thinkorswim’ profitability. Directors and Executive Officers shall
protect Thinkorswim’ 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 Thinkorswim’ 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 Thinkorswim.


 


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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.


 


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 Thinkorswim 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 Thinkorswim’ Code
of Ethics to appropriate personnel; and (c) fosters the understanding
among employees that Thinkorswim 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 Thinkorswim’ 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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EXHIBIT B


 


OptionsXpress, Inc.


TradeStation
Securities, Inc.


Interactive
Brokers LLC


TD
Ameritrade, Inc.


E*TRADE
Securities LLC


The
Charles Schwab Corporation


 


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