Exhibit 10.1
TRANSITION
AGREEMENT
THIS TRANSITION AGREEMENT (this “
Agreement ”) dated May 2, 2005, is by and between
INVESTools Inc., a Delaware corporation (“ INVESTools
”), and CNBC, Inc., a Delaware corporation (“
CNBC ”). Each of INVESTools and CNBC is a
“ Party ” and, collectively, they are the
“ Parties .”
WHEREAS, the Parties entered into that certain
binding Letter of Intent dated as of February 20, 2002 and an
addendum dated March 21, 2002 (collectively, the “
Original Contract ”), pursuant to which INVESTools
conducted CNBC-branded investor education programs;
WHEREAS, the Original Contract expired under
its terms in May 2004, and since then the Parties have been
negotiating an extension in good faith and have continued to
operate under the terms of the Original Contract; and
WHEREAS, in light of their diverging business
interests, the Parties now desire to mutually terminate the
Original Contract and terminate negotiations for an extension, so
that they can be released and forever discharged from further
performance thereunder.
NOW, THEREFORE, in consideration of the
premises contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
Section 1.
Termination . Each Party acknowledges and agrees that
the Original Contract will be terminated effective as of the date
five (5) business days after the date hereof (the “
Termination Date ”) and that all negotiations for an
extension shall cease and that no Party shall thereafter have any
liabilities, rights, duties or obligations to any other Party (or
its successors or assigns) under or in connection with the Original
Contract, other than those provided in Sections 11, 16, 17 and 20
of the Original Contract, which shall survive in perpetuity.
Section 2.
Transition . Each Party acknowledges and agrees that
INVESTools, at its sole cost and expense, is entitled
(a)
to continue to use the “Education Products” and other
CNBC-branded or CNBC University-branded materials (collectively,
“ CNBC-branded Materials ”) that have been
approved by CNBC, only until the Termination Date;
(b)
to make efforts to transition, transfer, and/or retain, and to
solicit, “prospects,” “leads” and
“customers” to other INVESTools’ products
(regardless of brand) and/or the Education Products, including
(without limitation) by using any “prospect,”
“lead” and/or “customer” lists;
(c)
to provide notice to “prospects,” “leads”
and/or “customers” of the Parties’ mutual
agreement to terminate their business relationship pursuant to this
Agreement;
provided that such
notices are approved by CNBC in advance (such approval not to be
unreasonably withheld or delayed); and
(d)
to provide any public disclosure required by the federal securities
laws;
provided , however , that all
such activities shall be conducted in a good faith, professional
manner, and shall not involve any form of harassment of
“prospects,” “leads” or
“customers” and provided further, however , that
INVESTools agrees that upon the Termination Date, it will cease
using all CNBC-branded Materials, and all of CNBC’s marks,
trademarks, “CNBC Content,” talent, and User
Data. For purposes of this Section 2 ,
“Education Products,” “prospects,”
“leads,” “customers,” “CNBC
Content” and “User Data” shall be as defined in
the Original Contract. This Section&n
