Exhibit 10.1


 


EMPLOYMENT AGREEMENT


 


In consideration of the mutual covenants set forth
herein and other good and valuable consideration, the receipt and sufficiency
of which the parties acknowledge, INVESTools Inc., a corporation having an
address of 13947 S. Minuteman Drive, Draper, UT, 84020, (the “Company”) and
Ainslie Simmonds, of 36 Glen Avenue, Norwalk, CT, 06850, (“Employee”) intending
to be legally bound, hereby agree as follows:


 


1.             EMPLOYMENT.  The Company agrees to employ Employee and
Employee hereby accepts such employment on an at-will basis pursuant to the
terms and conditions of this Agreement on December 8, 2005.  Employee’s employment with the Company will
continue hereunder until such time as it is terminated pursuant to Section 5 (“Employment
Period”).  Employee represents that she
shall not disclose to the Company any confidential information obtained from a
third party or otherwise violate any confidentiality obligations Employee may
have incurred with a third party.


 


2.             SERVICES. 
During the Employment Period, Employee shall be employed as “Chief
Marketing/Product Development Officer and Senior Vice President” with job
responsibilities related thereto. Employee 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. 
Employee 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 Employee. 
Employee’s principal place of performance of her duties during the term
of this Agreement shall be the corporate offices located in 45 Rockefeller
Center, New York City.  Employee shall
not engage in additional gainful employment of any kind or undertake any role
or position which would affect her ability to perform her responsibilities,
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.  Employee, 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 Employee and are now in effect, or as
subsequently adopted or modified by the Company and provided to Employee 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.  Employee shall receive an annual base salary
of $200,000. payable in bi-weekly gross amounts of $7,692.31  Employee’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.  Employee’s salary may be increased or
decreased by the Company at any time, in its sole discretion, upon providing
Employee thirty (30) days notice of such change.


 


b.             Sign-on
Bonus.  Upon signing this Agreement,
Employee shall be entitled to receive a one time sign-on bonus of $35,000.


 


c.             Benefits.  During the Employment Period, Employee 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, Employee
shall be entitled to additional travel insurance (Accidental Life &
Dismemberment).  Benefits will commence
on the first day of the month following Employee’s first day of employment
(January 1, 2006), except that the 401(k) plan benefits will be available 90
days after Employee’s employment begins. 
The Company shall be entitled to change, amend or terminate such plans
from time to time in its sole discretion.


 


d.             Paid Time Off.  During the Employment Period,
Employee 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.  Employee shall take her PTO time
in accordance with Company policies and procedures.


 


d.             Expenses.  Employee 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, Employee shall
be entitled to an annual bonus up to maximum of 35% of Employee’s base salary
as determined in the sole discretion of the Company, provided that Employee
and/or the Company meet performance goals as established by the Company in its
sole discretion.


 


f.              Stock Options.  Upon
Employee’s employment under this Agreement, the Company shall grant Employee
100,000 options to purchase common stock of the Company at a strike price equal
to the closing price of the stock on December 8, 2005.  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 Employee’s
options, except as described under section 5 (Termination).


 


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


 


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


 


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


 


(ii)                                  any
act by Employee 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 Employee to follow the lawful instructions or directions from the Chief
Executive Officer of the Company;


 


(iv)                              failure
by Employee to perform in any manner under this Agreement after being given reasonable
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 Employee 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
Employee 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;


 


(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 Employee;


 


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


 


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(x)                                   conduct
on the part of Employee, 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 Employee fails to cease such conduct immediately upon
receipt of notice to cease such conduct;


 


(xi)                                acceptance
by Employee 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 Employee’s employment for any of the reasons set forth
above, the Company shall have no further obligations to Employee 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 Employee receives nothing else.


 


b.             Termination
by the Company Without Cause.  The
Company shall have the right to terminate Employee without Cause for any reason
by providing thirty (30) days’ written notice to Employee.  If the Company terminates Employee without
Cause by providing thirty (30) days’ notice and Employee 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 Employee through the date of termination
and, subject to the limitations set forth below, the Company shall provide
Employee with severance compensation in an amount equal to the greater of (i)
six (6) month’s base salary (based on Employee’s annual salary on the date of
termination), less applicable taxes or (ii) the severance pay to which Employee
would be entitled under a severance pay plan, if any, in effect at the time of
Employee’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.  Employee shall also be
entitled to the full vesting of all options granted to the termination date,
subject to the terms and conditions of the applicable plan and agreement.  All other provisions of the Stock Options
Agreement will remain in force.   In the
event Employee 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 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.


 


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c.             Voluntary
Termination by Employee.  In the
event that Employee’s employment
with the Company is voluntarily terminated by Employee 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 Employee shall die during her employment by the
Company, the Company shall pay to Employee’s estate any compensation due that
would otherwise have been payable through the date of death.


 


e.             Termination
Upon Disability.  In the event that
Employee shall become disabled during her employment by the Company, Employee’s
employment hereunder shall terminate and the Company shall provide Employee
with severance payments equal to three (3) months’ salary (based on Employee’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, Employee
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 one hundred and
eighty (180) days during the Employment Period. 
In addition, she shall be conclusively deemed to be disabled if she is
determined eligible to receive disability benefits from:


 


(i)                                     any
policy of disability insurance issued by a commercial insurer; or


 


(ii)                                  a
waiver of premium benefit forming a part of any policy of life insurance; or


 


(iii)                               Social
Security.


 


If
there is a dispute regarding the existence or continuation of a disability, the
Company may require the Employee to submit to an examination by a medical
doctor licensed to practice medicine at such reasonable times as it may require
but not more frequently than once in any 120 day period.  The Company shall pay for such examinations.


 


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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 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 Employee’s employment pursuant to this Agreement, and
Employee is terminated as a result of the Change of Control event, Employee
shall be entitled to receive a cash severance benefit in an amount equal to nine
(9) month’s base salary (based on Employee’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.  Employee shall also be entitled to the full
vesting of all options granted to the termination date, subject to the terms
and conditions of the applicable plan and agreement.  All other provisions of the Stock Options
Agreement will remain in force. Provided however, the Company shall have no
obligation to provide Employee with any severance compensation or options
vesting under this Section 6 if Employee 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.


 


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7.         NONDISCLOSURE.  During the Employment Period, the Company
agrees and promises to provide, and Employee 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. 
Employee agrees that Employee 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 Employee’s duties on behalf of the Company, or use,
except on behalf of the Company, any Confidential Information acquired by
Employee during her employment.  Employee
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. 
Employee further agrees that Employee 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 any subsequent employment or business of any nature; provided however that Employee shall not be
liable for disclosure or use of any Confidential Information:


 


(i)                                     if it was disclosed after written approval of
the Company; or


 


(ii)                                  the Confidential Information is required to
be disclosed under applicable law or regulation.


 


  If Employee is
subpoenaed, or is otherwise required by law to testify concerning Confidential
Information, Employee agrees to immediately notify Company upon receipt of a
subpoena, or upon belief that such testimony shall be required.  Employee 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.  Employee agrees
that during the Employment Period, and for a period of six (6) months following
the termination of her employment (for whatever reason), that Employee 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 Employee, except for the


 


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benefit
of the Company, or any business organization in which Employee 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), Employee 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 Employee 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 Employee 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
Employee, 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, Employee 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.


 


Employee 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 Employee’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.  Employee 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.


 


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The Company and Employee 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 Employee and the Company; however, Employee 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 Employee 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 Employee’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 Employee 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 Employee’s work.  In addition, all rights in any preexisting
programming, design, documentation, technology, or other Work Product provided
to the Company during Employee’s employment shall automatically become part of
the Work Product hereunder, whether or not it arises specifically out of
Employee’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
Employee’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 Employee for
hire for the Company (or if ownership of all rights therein do not otherwise
vest exclusively in the Company immediately), Employee agrees to assign, and
upon creation thereof does hereby automatically assign, without further
consideration, the ownership thereof to the Company.  Employee 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.


 


Employee agrees to perform upon the request of the
Company, during or after Employee’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


 


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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.


 


Employee 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. 
Employee hereby represents that Employee has not heretofore created any
Work Product or prepared any work, which is the subject of any Work Product,
that Employee wishes to exclude from the provisions of Section 10 above.


 


12.          RETURN OF
DOCUMENTS.  Employee agrees that if
Employee’s relationship with the Company is terminated (for whatever reason),
Employee shall not take with Employee, 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,
Employee agrees to return such items immediately upon Employee’s
termination.  Employee acknowledges that
all such items are and remain the property of the Company.


 


13.          INJUNCTIVE RELIEF. 
Employee 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, Employee 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.  Employee further acknowledges
and agrees that the enforcement of a remedy hereunder by way of injunction
shall not prevent Employee from earning a reasonable livelihood.  Employee 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 Employee 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


 


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and
Employee 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 “NEW YORK” WITHOUT
GIVING EFFECT TO ANY PRINCIPLE OF CONFLICT OF LAWS THAT WOULD REQUIRE THE
APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.


 


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


 


18.          SURVIVAL.  Employee’s termination from employment and/or
the termination of this Agreement, for whatever reason, shall not reduce or
terminate Employee’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

  
	
   

  	
   

  	
  13947 S. Minuteman Dr.

  
	
   

  	
   

  	
  Draper, Utah 84020

  
	
   

  	
   

  	
   

  
	
  If to Employee:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


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20.          ENTIRE AGREEMENT. 
This Agreement contains the entire understanding and agreement between
the parties, and supersedes any other agreement between Employee 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 Employee and may not be assigned in any
way by Employee 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 Employee and upon the successors, representatives and assigns of the
Company.


 


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.


 


26.          INDEMNIFICATION
In the event that Employee is made a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, other than an action
by or in the right of the Company, by reason of the fact that the Executive is
or was an officer, employee, or agent of the Company, Employee shall be
indemnified by the Company against expenses, including attorneys’ fees,
judgments, fines and amounts paid in settlement actually and reasonably
incurred by Employee in connection with such action, suit or proceeding if
Employee acted in good faith and in a manner Employee reasonably believed to be
in or not opposed to the best interests of the Company, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe her
conduct was unlawful;  provided, that funds
paid or required to be paid to Employee as a result of the provisions of this
Section shall be returned to the Company or reduced, as the case may be, to the
extent that Employee receives funds pursuant to an indemnification from any
other corporation or organization. 
Expenses incurred in defending a civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the Company in


 


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advance
of the final disposition of such action, suit or proceeding as authorized by
the Board of Directors in the specific case upon receipt of an undertaking by
the Executive to repay such amount if it shall ultimately be determined that
Employee is not entitled to be indemnified by the Company.  The indemnification hereby provided shall not
be deemed exclusive of any other rights to which Employee may be entitled under
any law, bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise, both as to action in an official capacity and as to action in
another capacity while holding such office, and shall continue as to Employee
once she has ceased to provide services to the Company.


 


27.          EMPLOYEE ACKNOWLEDGEMENT.    Employee acknowledges that she has had the
opportunity to consult legal counsel in regard to this Agreement, that she has
read and understands this Agreement, that she is fully aware of its legal
effect, and that she has entered into it freely and voluntarily and based on
her own judgment and not on any representations or promises other than those
contained in this Agreement.


 


 


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


 


 


	
   

  	
   

  	
   

  
	
  AINSLIE SIMMONDS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
  December 8, 2005

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  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


 


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INVESTools.


•                  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 Executives,
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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