INVU 8-K
Investview, Inc. (INVU)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
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ITEM 5.02—DEPARTURE OF DIRECTORS OR CERTAIN OFFICERS; ELECTION OF DIRECTORS; APPOINTMENT OF CERTAIN OFFICERS; COMPENSATORY ARRANGEMENTS OF CERTAIN OFFICERS
On February 23, 2022, Investview, Inc. (the “Company”) announced the restructuring of its executive leadership with the appointment of Victor M. Oviedo as the Company’s new Chief Executive Officer and as a director, the transition of James R. Bell from acting Chief Executive Officer to President and Acting Chief Operating Officer, and the appointment of Myles Gill as the Company’s Director of Operations.
Victor M. Oviedo, 45, has served for the past 4 years as co-founder and Managing Partner for StageLight Group, a strategic capital and advisory firm which provides strategic capital to early and growth-stage companies. Previously, he was a Partner at SkyBridge Capital and Global Head of Business Development & Strategy where he was directly responsible for the firm’s growth, international expansion, new business development and brand strategy initiatives. During his 12-year tenure, he was instrumental in growing the firm’s assets from $300M to $14B, acquiring their flagship fund-of-fund business and creating & launching the world-renowned SALT Conference. Prior to joining SkyBridge, Mr. Oviedo was a Senior Consultant within Oliver Wyman’s capital markets division where he focused on international acquisitions and growth strategies for major financial institutions. In addition, he was a Manager of Strategic Growth for Kozmo – a venture capital funded start-up. He began his career as an investment banker at Donaldson, Lufkin & Jenrette (DLJ) within the media & communications team.
Mr. Oviedo received an MBA in Finance & Entrepreneurship from the Wharton School at the University of Pennsylvania and a MA in Advance International Studies from the Paul H. Nitze School of Advanced International Studies (SAIS) at Johns Hopkins University. He also graduated with honors with a BSFS in International Economics from the Edmund A. Walsh School of Foreign Service at Georgetown University.
Under the terms of his employment agreement dated February 10, 2022, Mr. Oviedo will receive an annual salary of $415,000 with additional quarterly incentive cash and common stock bonuses to be paid if certain target key performance indicators are achieved. In addition, Mr. Oviedo shall be eligible to receive: (i) periodic cash and common stock “Market Capitalization” bonuses once the Company achieves certain pre-determined minimum levels of market capitalization, share price and trading volume; and (ii) a one-time cash “Up-Listing” bonus upon the Company listing it shares on the Nasdaq Stock Market, the New York Stock Exchange, the NYSE American or such other national stock exchange as approved by the Board (or committee thereof). The Company has also agreed to grant Mr. Oviedo 60,000,000 shares of restricted common stock for his service as an executive officer and an additional 20,000,000 shares of restricted common stock for his service as a director. All of those shares will vest over a five-year period. Those shares will be issued under the Company’s 2022 Incentive Plan following the filing and effectiveness of an S-8 registration statement and will be subject to the terms of a Lock-Up Agreement dated March 22, 2021, to which Mr. Oviedo has joined as a party pursuant to a Joinder Agreement. The Company and Mr. Oviedo have also entered into an indemnification agreement. The commencement of Mr. Oviedo’s service to the Company was deferred from February 10, 2022, until February 22, 2022, so as to be co-terminus with the commencement of service of Messrs. Bell and Gill, as the employment of each of the recent appointees was part of an overall reorganization of management.
With the completion of his service as Acting Chief Executive Officer, James R. Bell, 56, has agreed to serve in the Company’s newly created role as President and Acting Chief Operating Officer. Mr. Bell specializes in financial management with more than 30 years of experience in the capital markets. As co-founder and chief executive officer of MPower Trading Systems, a business that was acquired by the Company during September 2021, Mr. Bell was responsible for charting the Company’s business course and overseeing all principal functions of the firm, including corporate strategy and deployment of initiatives, product, and partnerships. Mr. Bell has been at the forefront of online trading since its infancy. Prior to co-founding MPower in 2004, Mr. Bell served as managing director of trading development of thinkorswim-TD Ameritrade, Inc. from 2002-2011, where he led the company’s product and technology team to develop client digital content. Mr. Bell is also co-founder and passive minority partner of ShadowTrader Technologies, which provides real-time digital financial research and education content to TD Ameritrade, Inc. (2004-present). Prior to MPower, Mr. Bell also co-founded B/C Interactive Trading Technologies in 2001, which was ultimately sold to MPower in 2004. Prior to B/C, Mr. Bell served as SVP of Janney Montgomery Scott, and before that position, with Morgan Stanley. Mr. Bell studied economics and business management at Frostburg State University. Mr. Bell has held multiple business accreditations and securities licenses, including FINRA Series 7, FINRA Series 55, and FINRA Series 63.
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Under the terms of his employment agreement dated February 22, 2022, Mr. Bell will receive an annual salary of $335,000 with additional quarterly incentive cash and common stock bonuses to be paid if certain target key performance indicators are achieved. In addition, Mr. Bell shall be eligible to receive: (i) periodic cash and common stock “Market Capitalization” bonuses once the Company achieves certain pre-determined minimum levels of market capitalization, share price and trading volume; and (ii) a one-time cash “Up-Listing” bonus upon the Company listing it shares on the Nasdaq Stock Market, the New York Stock Exchange, the NYSE American or such other national stock exchange as approved by the Board (or committee thereof). The Company has also agreed to grant Mr. Bell 60,000,000 shares of restricted common stock, vesting over five years, for his service as an executive officer. Those shares will be issued under the Company’s 2022 Incentive Plan following the filing and effectiveness of an S-8 registration statement.
The Company has also appointed Myles Gill, 48, as its new Director of Operations. From 2018 through 2021, Mr. Gill was the President and Chief Investment Officer for Manning Operations Group, a 23-entity family office with $2.0 billion in assets under management. Prior to that, Mr. Gill served as the co-CFO of D2 Equities, a family office where he was the co-lead of global finance, treasure, technology, and corporate development functions. Mr. Gill has a BS in mathematics from the United States Naval Academy.
Under the terms of his employment agreement dated February 22, 2022, Mr. Gill will receive an annual salary of $250,000 with additional quarterly incentive cash and common stock bonuses to be paid if certain target key performance indicators are achieved.. In addition, Mr. Gill shall be eligible to receive: (i) periodic cash and common stock “Market Capitalization” bonuses once the Company achieves certain pre-determined minimum levels of market capitalization, share price and trading volume; and (ii) a one-time cash “Up-Listing” bonus upon the Company listing it shares on the Nasdaq Stock Market, the New York Stock Exchange, the NYSE American or such other national stock exchange as approved by the Board (or committee thereof). The Company has also agreed to grant Mr. Gill 20,000,000 shares of restricted common stock, vesting over five years, for his service as an executive officer. Those shares will be issued under the Company’s 2022 Incentive Plan following the filing and effectiveness of an S-8 registration statement and will be subject to the terms of a Lock-Up Agreement dated March 22, 2021, to which Mr. Gill has joined as a party pursuant to a Joinder Agreement.
In connection with the executive leadership transition, the Company has agreed to pay David B. Rothrock, its Chairman, an annual retainer of $96,000, payable monthly. The Company has also agreed to grant Mr. Rothrock 35,000,000 shares of restricted common stock, vesting over five years, for his service as a director. Those shares will be issued under the Company’s 2022 Incentive Plan following the filing and effectiveness of an S-8 registration statement.
Additionally, the Company has entered into indemnification agreements with David B. Rothrock, James R. Bell, Ralph Valvano, Company Chief Financial Officer, and Myles Gill, in substantially the form attached hereto as Exhibit 10.106.
The foregoing information is intended as a summary of the reported transaction and is qualified in its entirety by reference to the complete text of the agreements filed hereto as Exhibits 10.100 through 10.107 to this Report and incorporated herein by reference.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
All statements in this report on Form 8-K that are not based on historical fact are “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. Forward-looking statements, which are based on certain assumptions and describe our future plans, strategies, and expectations, can generally be identified by the use of forward-looking terms such as “believe,” “expect,” “may,” “should,” “could,” “seek,” “intend,” “plan,” “goal,” “estimate,” “anticipate” or other comparable terms. These forward-looking statements, including the Company’s current expectations concerning a planned future up-listing to a major market exchange and the ability to fill certain executive officer vacancies with highly experienced personnel, are based on the Company’s current beliefs and assumptions and information currently available to the Company and involve known and unknown risks, uncertainties and other factors which may cause the actual results, performance, or achievements of the company to be materially different from any future results, performance or achievements expressed or implied by these forward-looking statements; particularly as the Company is currently responding to a previously announced SEC inquiry. The forward-looking statements made in this report speak only as of the date of this report, and the Company assumes no obligation to update any such forward-looking statements to reflect actual results or changes in expectations, except as otherwise required by law.
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ITEM 9.01—FINANCIAL STATEMENTS AND EXHIBITS
The following are filed as exhibits to this report:
| * | All exhibits are numbered with the number preceding the decimal indicating the applicable SEC reference number in Item 601 and the number following the decimal indicating the sequence of the particular document. Omitted numbers in the sequence refer to documents previously filed as an exhibit. |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| INVESTVIEW, INC. | ||
| Dated: February 23, 2022 | By: | /s/ Ralph Valvano |
| Ralph Valvano | ||
| Chief Financial Officer | ||
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Exhibit 10.100
Execution Version
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this “Agreement”) is entered into as of February 10, 2022 (the “Effective Date”), by and between Investview, Inc. a Nevada corporation (the “Employer”), and Victor M. Oviedo (the “Executive”); Employer and Executive individually a “party” and collectively the “parties”.
FOR AND IN CONSIDERATION of the mutual promises, agreements and covenants herein contained, the parties hereto agree as follows:
ARTICLE
I
ASSOCIATION AND RELATIONSHIP
1.1 Nature of Employment. Commencing on the Effective Date, the Employer agrees to employ the Executive, and the Executive hereby accepts employment from the Employer, upon the terms and conditions set forth herein. The Executive hereby covenants and agrees that, during the Term, Executive shall devote his full-time efforts towards Employer’s business and activities, and that Executive shall not be employed by, or perform consulting or other services for, any other business entity or party without the prior express written consent of the Employer. Subject to the provisions of Articles III and IV of this Agreement, the Executive may, however, engage in the following activities: (a) serving on the Board of Directors of community or other non-profit ventures in an unpaid capacity, (b) serving on the Board of Directors of other non-competitive ventures or businesses that are pre-approved in writing by the Employer’s Board of Directors (the “Board”); (c) managing his personal or his family’s passive investments; and (d) engaging in those outside business interests identified on a supplemental schedule to this agreement; provided that such activities set forth in (a) through (d) (individually or collectively) do not: (X) conflict with or breach the terms of Section 4.2 hereafter; and (Y) materially and adversely interfere or conflict with the performance of the Executive’s duties or responsibilities under this Agreement.
1.2 Services. During the Term (as defined in Section 6.1), the Executive shall devote his full time, attention, and services to the business and affairs of the Employer.
1.3 Duties. During the Term, the Executive shall be employed by the Employer and shall serve as Chief Executive Officer of the Employer. The Executive shall serve in such offices or positions with the Employer or any subsidiary of the Employer, and in such substitute or further offices or positions of substantially consistent rank and authority, or as otherwise mutually agreed to in writing by Executive and Employer. The Executive shall perform appropriate duties and responsibilities as may be assigned to him from time to time by the Board, including, but not limited to, having the primary responsibility for developing, implementing and overseeing the strategic direction of the Employer, developing and implementing policies and procedures designed to help the Employer meet the strategic direction and goals determined by its Board, and oversight over material corporate level budgetary and financial activities and key personnel decisions. The Executive shall report to the Board and the Board shall direct, control, and supervise the duties, responsibilities and work of the Executive. During the Term, the Executive shall be subject to, and shall act in accordance with, all instructions and directions of the Board and all applicable policies, procedures and rules of the Employer.
1.4 Board Member. Employer will nominate Executive as a member of its Board as soon as possible after execution of this Agreement. Upon such appointment, the Executive shall receive additional compensation in consideration for his service as a Board member as described in Section 2.7 of this Agreement.
ARTICLE
II
COMPENSATION
2.1 Base Salary. During the Term, the Executive shall be paid, in accordance with the normal payroll practice of the Employer, annual base salary compensation in an initial amount of $415,000 for all hours worked and shall be exempt from overtime (such amount, as it changes from time to time, the “Base Salary”). During the Term, the Base Salary shall be increased each year in an amount as determined by the Board; provided, however, that such increase shall be at least three percent (3%) each year; and provided, further, that the Base Salary shall be automatically increased by fifteen percent (15%) of the then Base Salary upon the one-time successful up-listing of the Employer’s common stock (the “INVU Common Stock”) to the Nasdaq Stock Market, the New York Stock Exchange, the NYSE American or such other national stock exchange as approved by the Board (or committee thereof) (the “Up-Listing Event”). The Board (or a committee thereof) will determine in its sole discretion whether the Employer will engage in an Up-Listing Event.
2.2 Quarterly Incentive Bonuses. During the Term, the Executive shall be eligible to receive a quarterly incentive bonus, payable in cash, with $50,000 payable assuming the achievement of a set of pre-established target Key Performance Indicators (the “Target KPIs”), as determined by the Board (in collaboration with the Executive (such opportunity, the “Quarterly Cash Incentive Opportunity”); which Quarterly Cash Incentive Opportunity shall be increased to $75,000 per quarter (also assuming achievement of the Target KPIs) upon the completion of an Up-Listing Event. The determination of the achievement of such Target KPIs by the Executive and the amount of such quarterly cash incentive bonus (the “Quarterly Cash Bonus”) shall be determined by the Board (or a committee thereof) as soon as reasonably practicable after completion of each quarter and paid within forty-five (45) calendar days thereafter conditioned upon, at the time of payment, (i) the Executive remaining a full-time employee of the Employer (subject to Section 6.3(b), Section 6.3(c) and Section 6.3(d)); and (ii) there not having occurred a “For Cause Event” (as the term is defined in Section 8.1). In addition, during the Term, the Executive shall also be eligible to receive a quarterly incentive bonus, payable in shares of INVU Common Stock, with 250,000 shares of INVU Common Stock issued assuming the achievement of 100% of Target KPIs, as approved by the Board (or a committee thereof), (such opportunity, the “Quarterly Stock Incentive Opportunity”); which Quarterly Stock Incentive Opportunity shall be reduced to 25,000 shares of INVU Common Stock upon the completion of an Up-Listing Event (also assuming achievement of the Target KPIs). The determination of the achievement of Target KPIs by the Executive and the amount of such Quarterly Stock Incentive Opportunity (the “Quarterly Stock Bonus”) shall be determined by the Board (or a committee thereof) as soon as reasonably practicable after completion of each quarter and paid out in shares of INVU Common Stock within forty-five (45) calendar days thereafter conditioned upon, at the time of such issuance, (i) the Executive remaining a full-time employee of the Employer (subject to Section 6.3(b), Section 6.3(c) and Section 6.3(d)); and (ii) there not having occurred a For Cause Event.
2.3 Market Capitalization Bonuses. During the Term, the Executive shall be eligible to receive cash and common stock bonuses, collectively hereafter known as a “Market Capitalization Bonus Amount” (as defined in Section 2.3(c) below), upon the achievement of certain pre-determined minimum levels of “Market Capitalization” (as the term is defined below in Section 2.3(e)), each pre-determined Market Capitalization level hereafter to be known as a “Market Capitalization Bonus Level”.
(a) Each of the applicable Market Capitalization Bonus Levels under Sections 2.3(e), and the associated Minimum Average Daily Volume under Section 2.3(f), the Minimum Average Daily Market Liquidity under Section 2.3(g) and the Minimum Average Daily Stock Price under Section 2.3(h), must be maintained for at least ninety (90) consecutive trading days;
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(b) Upon payment by Employer to Executive of a Market Capitalization Bonus Amount for achievement of a specific Market Capitalization Bonus Level, thereafter, the Executive shall not be entitled to receive payment of a Market Capitalization Bonus Amount for that same specific Market Capitalization Bonus Level ever again, regardless if the Employer’s Market Capitalization drops below such specific Market Capitalization Bonus Level and Employer regains or achieves that same specific Market Capitalization Bonus Level again at a future date in time. For the avoidance of doubt, payment of a Market Capitalization Bonus Amount for the associated Market Capitalization Bonus Level is a one-time payment event upon its achievement for the first time.
(c) The “Market Capitalization Bonus Amount” is the amount of cash and shares of common stock of Employer which is to be paid to Executive upon the achievement of a Market Capitalization Bonus Level in accordance with this Section 2.3 and this Agreement.
i. The cash portion of the Market Capitalization Bonus Amount will be paid in cash in an amount equal to 0.00025 (the “Market Capitalization Bonus Rate”), times the applicable Market Capitalization Bonus Level achieved in accordance with this Section 2.3 of this Agreement, as set forth in the table in Section 2.3(d) below, minus any amount previously paid to the Executive as a Market Capitalization Bonus Amount under this Section 2.3; and
ii. The stock portion of the Market Capitalization Bonus Amount will be distributed in the form of shares of INVU Common Stock in an amount equal to Market Capitalization Bonus Rate times the applicable Market Capitalization Bonus Level achieved in accordance with this Section 2.3 of this Agreement, as set forth in the table in Section 2.3(d) below, minus the number of shares of INVU Common Stock previously issued to the Executive as a Market Capitalization Bonus Amount under this Section 2.3.
(d) Each Market Capitalization Bonus Amount shall be paid within forty-five (45) calendar days of the achievement of the applicable Market Capitalization Bonus Level, as determined by the Board (or a committee thereof), and payment of each Market Capitalization Bonus Amount is conditioned upon, at the time of payment: (i) the Executive remaining a full-time employee of the Employer (subject to Section 6.3(b), Section 6.3(c) and Section 6.3(d)), and (ii) there not having occurred a For Cause Event.
Market Capitalization Bonus Levels |
Minimum Average Daily Volume |
Minimum Average Daily Market Liquidity |
Minimum Average Daily Stock Price | Market Capitalization Bonus Rate | Market Capitalization Bonus Amount (Cash & Shares) | |||||
| $1.0 billion | 4 million | $1.0 million | $0.34 | 0.00025 | $250,000 cash and 250,000 shares | |||||
| $1.5 billion | 4 million | $1.5 million | $0.51 | 0.00025 | $375,000 cash and 375,000 shares | |||||
| $2.0 billion | 4 million | $2.0 million | $0.68 | 0.00025 | $500,000 cash and 500,000 shares | |||||
| $2.5 billion | 4 million | $2.5 million | $0.85 | 0.00025 | $625,000 cash and 625,000 shares | |||||
| $3.0 billion | 4 million | $3.0 million | $1.01 | 0.00025 | $750,000 cash and 750,000 shares | |||||
| $3.5 billion | 4 million | $3.5 million | $1.18 | 0.00025 | $875,000 cash and 875,000 shares | |||||
| $4.0 billion | 4 million | $4.0 million | $1.34 | 0.00025 | $1,000,000 cash and 1,000,000 shares |
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| $4.5 billion | 4 million | $4.5 million | $1.51 | 0.00025 | $1,125,000 cash and 1,125,000 shares | |||||
| $5.0 billion | 4 million | $5.0 million | $1.68 | 0.00025 | $1,250,000 cash and 1,250,000 shares | |||||
| $5.5 billion | 4 million | $5.5 million | $1.85 | 0.00025 | $1,375,000 cash and 1,375,000 shares | |||||
| $6.0 billion | 4 million | $6.0 million | $2.02 | 0.00025 | $1,500,000 cash and 1,500,000 shares | |||||
| $7.0 billion | 4 million | $7.0 million | $2.35 | 0.00025 | $1,750,000 cash and 1,750,000 shares | |||||
| $8.0 billion | 4 million | $8.0 million | $2.69 | 0.00025 | $2,000,000 cash and 2,000,000 shares | |||||
| $9.0 billion | 4 million | $9.0 million | $3.03 | 0.00025 | $2,250,000 cash and 2,250,000 shares | |||||
| $10.0 billion | 4 million | $10.0 million | $3.36 | 0.00025 | $2,500,000 cash and 2,500,000 shares | |||||
| $11.0 billion | 4 million | $11.0 million | $3.70 | 0.00025 | $2,750,000 cash and 2,750,000 shares | |||||
| $12.0 billion | 4 million | $12.0 million | $4.03 | 0.00025 | $3,000,000 and 3,000,000 shares |
(e) “Market Capitalization” means, with respect to any trading day during the concurrent measurement period of ninety (90) consecutive trading days, the number of shares of INVU Common Stock outstanding on a primary basis multiplied by the closing sale price of a share of INVU Common Stock on such trading day, as reported by the national securities exchange or market on which the INVU Common stock is then listed or quoted (the “Applicable Stock Exchange”).
(f) “Average Daily Volume” means the average daily number of shares of INVU Common Stock traded on the Applicable Stock Exchange during the concurrent measurement period of ninety (90) consecutive trading days.
(g) “Average Daily Market Liquidity” means the average daily liquidity of the shares of INVU Common Stock, as measured at the end of each trading day during the concurrent measurement period of ninety (90) consecutive trading days, based on the number of shares of INVU Common Stock traded on the Applicable Stock Exchange on such trading day multiplied by the Average Daily Stock Price (as defined below), during the concurrent measurement period of ninety (90) consecutive trading days.
(h) “Average Daily Stock Price” means, with respect to any trading day during the concurrent measurement period of ninety (90) consecutive trading days, the average of the high sale price and low sale price of INVU Common Stock for each such trading day, as reported by the Applicable Stock Exchange.
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2.4 Up-Listing Cash Bonus. During the Term, the Executive shall be eligible to receive a one-time cash incentive bonus upon the achievement of an Up-Listing Event pursuant to Section 2.1 in an amount equal to 0.00015 times the Employer’s market capitalization, which for purposes of this Section 2.4 shall be determined based on the number of shares of INVU Common Stock outstanding multiplied by the average closing sale price of a share of INVU Common Stock on the first ten (10) calendar days of trading after the Up-Listing Event, as reported by the national securities exchange or market on which the INVU Common Stock is then listed or quoted (the “Up-Listing Bonus”). The Up-Listing Bonus shall be paid within forty-five (45) calendar days of the achievement of the Up-Listing Event, and payment of the Up-Listing Bonus is conditioned upon, at the time of payment, (i) the Executive remaining a full-time employee of the Employer (subject to Section 6.3(b), Section 6.3(c) and Section 6.3(d)), and (ii) there not having occurred a For Cause Event.
2.5 Grant of Restricted Shares. The Employer hereby agrees, as of the effectiveness of a Registration Statement on Form S-8 covering Company shares issuable under the “Plan” (as hereafter defined), to award and grant to the Executive Sixty Million (60,000,000) shares of restricted INVU Common Stock (collectively, the “Restricted Shares”) under the Investview, Inc. 2022 Incentive Plan or a similar equity plan approved by the Board (such plan as it may be amended from time to time, the “Plan”), such Restricted Shares to be subject to forfeiture and the restrictions as contained below and in the Plan and award agreement evidencing such Restricted Shares to be executed between the Employer and the Executive (the “Award Agreement”). To the extent authorized in the Plan and Award Agreement, the Award Agreement shall be subject to the terms as provided below, notwithstanding any terms to the contrary in the Plan or the Award Agreement itself.
(a) Vesting of Restricted Shares. Subject to the terms of this Agreement, the Plan and the Award Agreement, the Restricted Shares shall vest and become non-forfeitable, on a cumulative basis, in accordance with the following schedule, subject to at the time of each vesting date: (i) the Executive remaining a full-time employee of the Employer, and (ii) there not having occurred a For Cause Event (each, a “Scheduled Vesting Date”):
| Vesting Date | Restricted Shares Vesting | |
| February 3, 2023 | 20% | |
| February 3, 2024 | 20% | |
| February 3, 2025 | 20% | |
| February 3, 2026 | 20% | |
| February 3, 2027 | 20% |
(b) Treatment of Restricted Shares Upon a Change in Control. Upon the occurrence of a “Change in Control” (as defined in the Plan), vesting of the Restricted Shares shall remain subject to the terms of Sections 2.5(a) above and 2.5(c) below; however, should the Executive’s employment with the Employer be terminated by the Employer without Cause or by the Executive with Good Reason, within twelve (12) months of the Change in Control, all of the Restricted Shares that have not yet vested as of such date shall immediately and automatically vest and become non-forfeitable.
(c) Treatment of Restricted Shares Upon a Termination of Employment. The following provisions governing the treatment of the Restricted Shares shall apply in the event the Executive’s employment with the Employer is terminated.
i. Termination by Employer for Cause or by Executive Without Good Reason. If the Executive’s employment and this Agreement is terminated by the Employer for Cause pursuant to Section 6.2(a), or by the Executive without Good Reason pursuant to Section 6.2(d), the vesting of the Restricted Shares shall cease as of the date of such termination, and any unvested Restricted Shares shall be forfeited by the Executive and revert to the Employer.
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ii. Termination Due to Executive’s Death or Disability. If the Executive’s employment and this Agreement is terminated due to the Executive’s death or Disability (within the meaning of Section 6.2(b)), and at the time no circumstance, event or occurrence constituting a For Cause Event existed, then any Restricted Shares that are scheduled to vest during the period from the date of termination through the next Scheduled Vesting Date, as applicable, pursuant to Section 2.5(a) above (but in no event longer than a six-month period following the date of Executive’s date of termination) shall immediately and automatically vest and become non-forfeitable and the remaining unvested Restricted Shares shall terminate and be forfeited by the Executive and revert to the Employer.
iii. Termination by Employer without Cause or by Executive with Good Reason. If the Executive’s employment and this Agreement is terminated by the Employer without Cause pursuant to Section 6.2(e) or by the Executive with Good Reason pursuant to Section 6.2(c), then any Restricted Shares that are scheduled to vest during the period from the date of termination through the next Scheduled Vesting Date, as applicable, pursuant to Section 2.5(a) above (but in no event longer than a six-month period following the date of Executive’s date of termination) shall immediately and automatically vest and become non-forfeitable and the remaining unvested Restricted Shares shall terminate and be forfeited by the Executive and revert to the Employer.
(d) Prohibition Against Transfer of Restricted Shares. Prior to the vesting of the Restricted Shares, the Executive shall not transfer, assign, sell, barter, pledge or hypothecate in any way (whether by operation of law or otherwise) (collectively or singularly, a “Transfer”) any of the Restricted Shares. Any such transfer in violation of this Section 2.5(d) shall be void and of no further effect.
(e) Required Tax Withholding Obligations. The Employer may require payment by the Executive or withhold any income or employment tax which the Employer believes is payable as a result of the grant or vesting of the Restricted Shares or any payments thereon or in connection therewith, and the Employer may defer releasing the Restricted Shares into the custody of the Executive until arrangements satisfactory to the Employer have been made with regard to any such withholding obligation. The Employer may withhold or repurchase a portion of the Restricted Shares to satisfy such withholding obligations.
2.6 Benefits.
(a) The Executive will, during the Term, be permitted to participate in such pension, profit sharing, life insurance, disability insurance, major medical (as applicable, 100% paid by the Company) and other employee benefit plans of the Company that may be in effect from time to time, as may be offered to other senior employees at comparable levels and rank of employment, to the extent Executive is eligible under the terms of those plans. The Company may alter, modify, add to or delete its executive benefit plans as they apply to such comparable levels and rank of employees at such times and in such manner as the Company determines appropriate, without recourse by Executive so long as such changes are applied in a substantially uniform manner to such comparable levels and rank of employees.
(b) Executive shall be entitled to receive annual vacation in accordance with the Company’s policies applicable to its senior employees at comparable levels and rank of employment, which in any event shall not be less than eighteen (18) business days per calendar year (with such amount prorated on a monthly basis for the balance of 2022). The Executive shall also be entitled to the paid holidays and other paid leave set forth in the Company’s written policies.
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2.7 Board Member Compensation. When appointed to Employer’s Board, the Executive will be entitled to the additional compensation as provided in this Section 2.7.
(a) Initial Board Member Compensation. Upon Executive’s appointment as a member of the Board, the Employer hereby agrees, as of the effectiveness of a Registration Statement on Form S-8 covering Company shares issuable under the Plan, to award and grant to the Executive Twenty Million (20,000,000) shares of restricted INVU Common Stock (collectively, the “Director Restricted Shares”) under the Plan, such Director Restricted Shares to be subject to forfeiture and the restrictions as contained below and in the Plan and award agreement evidencing such Director Restricted Shares to be executed between the Employer and the Executive (the “Director Award Agreement”). To the extent authorized in the Plan and Director Award Agreement, the Director Award Agreement shall be subject to the terms as provided below, notwithstanding any terms to the contrary in the Plan or the Director Award Agreement itself.
(b) Vesting of Director Restricted Shares. Subject to the terms of this Section 2.7, the Plan and the Award Agreement, the Director Restricted Shares shall vest and become non-forfeitable, on a cumulative basis, in accordance with the following schedule, subject to at the time of each vesting date (each, a “Scheduled Vesting Date”): (i) the Executive remaining a Member of the Board of Directors; and (ii) there not having occurred a For Cause Event:
| Vesting Date | Restricted Shares Vesting | |
| February 3, 2023 | 20% | |
| February 3, 2024 | 20% | |
| February 3, 2025 | 20% | |
| February 3, 2026 | 20% | |
| February 3, 2027 | 20% |
(c) Treatment of Restricted Shares Upon a Change in Control. Upon the occurrence of a Change in Control (as defined in the Plan), vesting of the Director Restricted Shares shall remain subject to the terms of Sections 2.7(b) above and 2.7(d) below; however, if the Executive ceases to be a Member of the Board of Directors as a result of the Executive’s employment with the Employer being terminated by the Employer without Cause or by the Executive with Good Reason within twelve (12) months of the Change in Control, all of the Director Restricted Shares that have not yet vested as of such date shall immediately and automatically vest and become non-forfeitable.
(d) Treatment of Director Restricted Shares Upon Ceasing to be a Member of the Board of Directors. The following provisions governing the treatment of the Director Restricted Shares shall apply in the event the Executive ceases to be a Member of the Board of Directors.
i. Termination by Employer for Cause or by Executive Without Good Reason. If the Executive ceases to be a Member of the Board of Directors by reason of the Executive’s employment and this Agreement being terminated by the Employer for Cause pursuant to Section 6.2(a), or by the Executive without Good Reason pursuant to Section 6.2(d), the vesting of the Director Restricted Shares shall cease as of the date of such termination, and any unvested Director Restricted Shares shall be forfeited by the Executive and revert to the Employer.
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ii. Termination Due to Executive’s Death or Disability. If the Executive ceases to be a Member of the Board of Directors by reason of the Executive’s employment and this Agreement being terminated due to the Executive’s death or Disability (within the meaning of Section 6.2(b)), and at the time no circumstance, event or occurrence constituting a For Cause Event existed, then any Director Restricted Shares that are scheduled to vest during the period from the date of termination through the next Scheduled Vesting Date, as applicable, pursuant to Section 2.7(a) above (but in no event longer than a six-month period following the date of Executive’s date of termination) shall immediately and automatically vest and become non-forfeitable and the remaining unvested Director Restricted Shares shall terminate and be forfeited by the Executive and revert to the Employer.
iii. Termination by Employer without Cause or by Executive with Good Reason. If the Executive ceases to be a Member of the Board of Directors by reason of Executive’s employment and this Agreement being terminated by the Employer without Cause pursuant to Section 6.2(e) or by the Executive with Good Reason pursuant to Section 6.2(c), then any Director Restricted Shares that are scheduled to vest during the period from the date of termination through the next Scheduled Vesting Date, as applicable, pursuant to Section 2.7(a) above (but in no event longer than a six-month period following the date of Executive’s date of termination) shall immediately and automatically vest and become non-forfeitable and the remaining unvested Director Restricted Shares shall terminate and be forfeited by the Executive and revert to the Employer.
2.8 Indemnification; D&O Insurance. Employer hereby agrees to hold harmless and indemnify Executive to the fullest extent authorized or permitted by the provisions of the Nevada Revised Statutes, or any successor statute or amendment thereof, or any other statutory provisions authorizing or permitting such indemnification that is adopted after the date of this Agreement. Employer agrees to further supplement Executive’s indemnification coverage under the terms of a customary and standard indemnification agreement, a form of which shall be agreed to by the Parties on or before the Effective Date. During the Term, the Employer shall use its reasonable best efforts to obtain and maintain (a) a directors’ and officers’ liability insurance policy, or an equivalent errors and omissions liability insurance policy on commercially reasonable terms, including fiduciary coverage, and (b) an employment practices liability insurance policy. Notwithstanding the forgoing, Executive acknowledges that the Employer currently has no such policies in place, and cannot assure that market conditions will enable the Employer to obtain either or both of such policies, set forth in subsection (a) and (b) herein, on commercially reasonable terms, if at all.
2.9 Business Expense Reimbursement. During the Term, the Employer shall reimburse the Executive for all reasonable out-of-pocket expenses incurred by the Executive in connection with the business of the Employer and in performance of his duties under this Agreement, in accordance with Employer’s expense reimbursement policy, as in affect from time to time. Executive agrees to comply with Employer’s expense reimbursement policy and or guidelines, as in affect from time to time, and with such compliance, expenses shall be reimbursed upon the Executive’s presentation to the Employer of an itemized accounting of such expenses with reasonable supporting data and otherwise in accordance with the Employer’s expense reimbursement policy and or guidelines, as in effect from time to time.
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ARTICLE
III
COVENANT TO NOT DISCLOSE CONFIDENTIAL INFORMATION
3.1 Confidential and Proprietary Information. Executive acknowledges that he is in a relationship of confidence and trust with the Employer and will come into possession of information which could constitute a major asset of the Employer and be of significant commercial value, the use, misappropriation or disclosure of which would cause a breach of trust and could cause irreparable injury to the Employer (all of the aforementioned information is hereinafter collectively referred to as “Proprietary Information”). Proprietary Information shall include, but not be limited to, any and all: (i) confidential information and trade secrets concerning the business(es) and affairs of the Employer, including, but not limited to, any agreements, licenses, data, know-how, compositions, processes, designs, sketches, photographs, graphs, drawings, inventions and ideas, past, current, and planned research and development, customer lists, lists of any Persons participating in the Employer’s business, current and anticipated customer requirements, market studies, business plans, marketing plans, computer software and programs (including object code and source code), computer software and database technologies, systems, structures and architectures (and related processes, formulae, composition, improvements, devices, know-how, inventions, discoveries, concepts, ideas, designs, methods and information), and any other information, however documented, that is a trade secret within the meaning of applicable law; and (ii) information concerning the business and affairs of the Employer, which includes historical financial statements, financial projections and budgets, historical and projected sales, pricing information (margins, profits, costs), names, backgrounds and agreements with vendors, suppliers, distributors and or manufacturers, capital spending budgets and plans, the names, backgrounds and compensation information of key personnel, including any Persons participating as a distributor within the Employer’s multi-level sales and marketing network, personnel training techniques, and materials, however documented, that have been or may hereafter be provided or shown to you by the Employer, or by the directors, officers, employees, agents, consultants, advisors, or other representatives including legal counsel, accountants and financial advisors of the Employer or is otherwise obtained from review of the Employer’s documents or property or discussions with such party or its representatives, irrespective of the form of the communication, and also includes all notes, analyses, compilations, studies, summaries, and other material prepared by the Executive based, in whole or in part, on any information included in the foregoing.
3.2 Non-Disclosure. The Executive acknowledges that in the course of carrying out, performing, and fulfilling his responsibilities to the Employer, the Executive will be given access to and be entrusted with Confidential Information relating to the Employer’s business. Executive acknowledges that all Proprietary Information shall be the sole property of the Employer and its successors and assigns. Executive further acknowledges that it is essential for the proper protection of the business and the goodwill of the Employer that such Proprietary Information be kept confidential and not disclosed or communicated, in any manner or form, to third parties or used for the benefit of any third party and or Executive. Accordingly, Executive agrees that during the Term and thereafter for so long as the information remains Proprietary Information, to keep in confidence and trust all Proprietary Information, and not to use, disclose, disseminate, publish, copy, communicate or otherwise make available, directly or indirectly, except in the ordinary course of the performance of Executive’s duties under this Agreement, any Proprietary Information except as expressly authorized in writing by the Employer; provided, however, that Executive shall be relieved of his obligation of nondisclosure hereunder as to information that (a) at the time of disclosure to Executive is known to, or readily ascertainable by, the public; (b) or becomes known to the public through no fault of Executive or other violation of this Agreement. In addition, Executive shall be relieved of his obligation of nondisclosure hereunder as to Proprietary Information that is required to be disclosed by any applicable judgment, order or decree of any court or governmental body or agency having competent jurisdiction or by any law, rule or regulation, provided that prior to and in connection with any such disclosure, Executive shall give the Employer reasonable prior written notice of the disclosure of such information pursuant to this exception (to the extent permitted by applicable law) and shall cooperate with the Employer to permit the Employer to seek confidential treatment for such information from any authority requiring delivery of such information; provided further, however, that if the Employer has not obtained such confidential treatment by the date Executive is required by such authority to disclose the Proprietary Information, Executive shall be free to provide such disclosure and there shall be no violation of or damages determined under this Agreement or otherwise for Executive’s disclosure action and compliance with or pursuant to such authority. Nothing herein prohibits or restricts the Executive (or the Executive’s attorney) from responding to an inquiry from, providing testimony before, or upon the written advice of counsel that concludes such action is required to comply with applicable securities laws, initiating communications directly with, the Securities and Exchange Commission, the Financial Industry Regulatory Authority, any other self-regulatory organization, or any other federal or state regulatory body regarding a possible securities law violation. Executive acknowledges having been notified that, notwithstanding any obligations in this Agreement, pursuant to the Defend Trade Secrets Act of 2016 (“DTSA”), the Employer shall not hold Executive criminally or civilly liable under any federal or state trade secret law for the disclosure of Proprietary Information that is made in confidence: (i) to a federal, state, or local government official, either directly or indirectly, and or (ii) to an attorney solely for the purpose of reporting or investigating a suspected violation of law. The Employer shall also not hold Executive liable for such disclosures made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Executive also acknowledges having been notified that individuals who file a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to court order.
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3.3 Return of Proprietary Information. Executive agrees that when he ceases to be employed by the Employer, whether such cessation of employment shall be for any reason or for no reason, with or without Cause, voluntary or involuntary, or by termination, resignation, disability, death, retirement or otherwise, Executive (and in the case of death, Executive’s estate and or Executive’s successors, assigns, executors, heirs, administrators or other legal representatives) shall not retain, copy or otherwise store any Proprietary Information and shall deliver to the Employer all Proprietary Information, in whatever form whatsoever the Proprietary Information is then existing (written hard copy, graphic, voice recording, telephonic, digital, electronic, encryption or decryption keys or information, commentary on code or any other form), documents, and property, including without limitation, computers, telephones, and mobile devices, and data of any nature owned by the Employer pertaining to the Proprietary Information; and specifically, Executive agrees to provide Employer any and all user names, passwords, keys, security codes and any other authorizations for any and all digital wallets, brokerage accounts, financial institution accounts, bank accounts, exchange accounts and or any other accounts where the Company’s assets are held which are in Executive’s exclusive possession or solely known by Executive.
3.4 Works made for Hire. Executive further recognizes and understands that Executive’s duties at the Employer may include the preparation of materials or discovery of Proprietary Information, including without limitation written or graphic representation of materials or Proprietary Information, and that any such materials and Proprietary Information conceived, developed, prepared, made or written by Executive in the course of Executive’s employment with Employer shall be done as “work made for hire” as defined and used in the Copyright Act of 1976, 17 U.S.C. §§ 1 et seq. In the event of publication of such materials, Executive understands that since the work is a “work made for hire”, the Employer will solely retain and own all rights in said materials, including right of copyright and any profits to be made from such “work made for hire”.
3.5 Disclosure of Works and Inventions. In consideration of the promises set forth herein, Executive agrees to disclose promptly to the Employer, any and all works, “Inventions” (as defined at Section 4.10 hereafter), discoveries and or improvements authored, conceived or made by Executive during the period of employment and related to the business or activities of the Employer, and Executive hereby assigns and agrees to assign all of Executive’s rights and interest in the foregoing to the Employer. Executive agrees that, whenever he is requested to do so by the Employer, Executive shall sign any and all applications, assignments or other instruments which the Employer shall deem necessary to enable the Employer to apply for and obtain patents or copyrights of the United States or any foreign country or to otherwise protect the Employer’s rights and interest therein. Executive hereby appoints an authorized officer of the Employer as Executive’s attorney in fact to sign documents on his behalf for this purpose in any case in which Executive has refused a written request to sign documents in accordance with this Section 3.5. Such obligations shall continue beyond the termination or nonrenewal of Executive’s employment with respect to any works, Inventions, discoveries and/or improvements that are authored, conceived of, or made by Executive during the period of Executive’s employment, and shall be binding upon Executive’s successors, assigns, executors, heirs, administrators or other legal representatives.
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ARTICLE
IV
OTHER COVENANTS
4.1 Non-Solicitation. In recognition of the consideration received by Executive under this Agreement, the sufficiency of which is acknowledged by Executive, Executive covenants and agrees with the Employer that during the “Non-Solicitation Term” (as defined below), he will not, without the prior written consent of the Employer which may be withheld or given in its sole discretion, act in any manner, including but not limited to, as an individual, owner, sole proprietor, founder, associate, promoter, partner, joint venturer, shareholder (other than as the record or beneficial owner of less than five percent (5%) of the outstanding shares of a publicly traded corporation), officer, director, trustee, manager, employer, employee, licensor, licensee, principal, agent, salesman, broker, representative, consultant, advisor, investor or otherwise, directly or indirectly: (i) solicit, counsel or attempt to induce any Person who is then, or was within the last year, an employee, consultant or independent contractor of the Employer, to leave the employ of or cease providing services, as applicable, to the Employer, or employ or attempt to employ any such person or persons who at any time during the preceding one (1) year was in the employ of, or provided services to, the Employer; or (ii) solicit, bid for or perform for any of the then current customers of the Employer (defined as a customer who has done business with the Employer within one (1) year), any services of the type the Employer performed for such customer at any time during the preceding one (1) year period; (iii) solicit, bid for or perform for any potential customer (defined as a potential customer who was actively involved in discussions with the Employer and received a written proposal from the Employer within the preceding six (6) month period) any services of the type covered by any such proposal; or (iv) solicit any Person who is currently, or has within the last year, participated in the Employer’s business as a distributor/salesperson of the Employer’s multi-level sales and marketing network, to join any competitive business or organization. Notwithstanding the above, nothing in this Section 4.1 shall restrict any post-termination relationship Executive may have with: (i) Kelly O’Connor; or (ii) any provider of services to Employer’s business that was sourced by Executive through relationships that existed prior to the Effective Date; provided, however, that neither of these relationships or the activities that arise therefrom, shall otherwise violate the Non-Compete restrictions applicable to Executive in Section 4.2 below.
4.2 Non-Compete. In recognition of the consideration received by Executive under this Agreement, the sufficiency of which is acknowledged by Executive, Executive covenants and agrees with the Employer that during the “Non-Compete Term” (as defined below) he will not, without the prior written consent of the Employer, which may be withheld or given in its sole discretion, directly or indirectly, or individually or collectively within the continental United States of America, and or any country outside of the United States of America in which the Company engages/conducts business, engage in any activity or act in any manner, including but not limited to, as an individual, owner, sole proprietor, founder, associate, promoter, partner, joint venturer, shareholder (other than as the record or beneficial owner of less than five percent (5%) of the outstanding shares of a publicly traded corporation), officer, director, trustee, manager, employer, employee, licensor, licensee, principal, agent, salesman, broker, representative, consultant, advisor, investor or otherwise, for the purpose of establishing, operating, consulting, assisting or managing any business or entity that is engaged in activities competitive with the then “business of the Employer”. For the purposes hereof, the term “business of the Employer” shall have that meaning ascribed hereto in Schedule A to this Agreement. For the purposes hereof, sponsorship of an industry conference or similar affinity gathering, regardless of the industry covered thereby, shall not be deemed to be an activity competitive with the Employer.
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4.3 Non-Solicitation Term. The “Non-Solicitation Term” shall mean the period commencing on the Effective Date and ending twenty-four (24) months following the termination of Executive’s employment with the Employer. The Non-Solicitation Term shall also be deemed to be extended for any period in which Executive is in violation of any covenant contained in Articles III, IV or V of this Agreement, so that the Employer shall have the full benefit of the proscriptive period.
4.4 Non-Compete Term. The “Non-Compete Term” shall mean the period commencing on the Effective Date and ending twenty-four (24) months following the termination of Executive’s employment with the Employer. The Non-Compete Term shall also be deemed to be extended for any period in which Executive is in violation of any covenant contained in Articles III, IV or V of this Agreement, so that the Employer shall have the full benefit of the proscriptive period.
4.5 Definition of the Employer. For the purposes of Sections 3 and 4, the term “Employer” shall include the Employer and each of it’s subsidiaries and Affiliates.
4.6 Non-Disparagement. Executive covenants and agrees, not to act in any manner, including but not limited to, individually or through any other Person, as an owner, sole proprietor, founder, associate, promoter, partner, joint venturer, shareholder (other than as the record or beneficial owner of less than five percent (5%) of the outstanding shares of a publicly traded corporation), officer, director, trustee, manager, employer, employee, licensor, licensee, principal, agent, salesman, broker, representative, Affiliate, recruiter, consultant, advisor, investor or otherwise, directly or indirectly, defame or disparage the Employer or any of its business(es), products, services, policies, procedures, practices, finances, financial conditions, performance, capabilities, it’s employees, officers, directors, owners, board members, investors, shareholders, advisors, consultants, agents, affiliates, representatives, professionals, experts, any subsidiary or other aspect of any of Employer’s businesses, in any form or medium whatsoever (including but not limited to hard copy, electronic, verbal or digital form), in any publication (including but not limited to a newspaper, magazine, billboard, email, newsletter, text, social media platform, blog, radio program, podcast, etc.) (for purposes of this Section 4.6, collectively the “Mediums”) to any Person without limitation in time. Executive further covenants and agrees not to authorize or specifically instruct, assist, consult to, advise, teach, support or fund any Person or any of their Affiliates, agents, advisors, consultants, representatives, partners, investors, owners or employees to defame or disparage the Employer’s businesses, in any Mediums to any Person without limitation in time. Executive shall not make or otherwise issue any public statement or press release regarding the termination, separation, departure, and/or resignation of Executive from the Employer, absent the Employer’s express prior written approval of any such public statement or press release. This Section 4.6 does not, in any way, restrict or impede the Executive from exercising protected rights to the extent that such rights cannot be waived by agreement or from complying with any applicable law or regulation or a valid order of a court of competent jurisdiction or an authorized government agency, provided that such compliance does not exceed that required by the law, regulation or order. Employer agrees and covenants that it shall direct its officers and directors and all Affiliates to refrain from making any defamatory or disparaging remarks, comments, or statements concerning the Executive in any Medium to any Person without limitation in time. Employer shall not make or otherwise issue any public statement or press release regarding the termination, separation, departure, and/or resignation of Executive from the Employer, absent the Executive’s express prior written approval of any such public statement or press release, unless such statement or press release is required in the reasonable judgment of Employer to comply with applicable securities laws.
4.7 Blue Pencil Rule. Executive and the Employer desire that the provisions of this Section 4 be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. The parties agree that Executive is a key executive of the Employer. If a court of competent jurisdiction, however, determines that any restrictions imposed on Executive in this Section 4 are unreasonable or unenforceable because of duration, geographic area or otherwise, Executive and Employer agree and intend that the court shall enforce this Section 4 to the maximum extent the court deems reasonable and that the court shall have the right to strike or change any provisions of this Section 4 and substitute therefor different provisions to effect the intent of this Section 4 to the maximum extent possible.
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4.8 Tolling. The term of any of the restrictive covenants set forth in Sections 4 shall be deemed to be tolled or extended by the length of any period of time during which Executive is in violation of any restrictive covenant so that the Employer shall have the full benefit of the proscriptive period. Additionally, the parties agree not to take or allow to be taken any action during the term of this Agreement that has the effect of circumventing the terms of this Agreement, it being the intent of the parties that each abide by both the letter and the spirit of the terms of this Agreement.
4.9 No Conflicts of Interest. The Executive agrees not to engage in any conduct which might result in or create the appearance of using the Executive’s position for private gain, create a conflict of interest or the appearance of a conflict of interest with the Employer, or otherwise circumvent any business opportunity of Employer during the Term. Such conduct includes without limitation having an undisclosed financial interest in any vendor or supplier of the Employer, accepting payments of any kind or gifts other than of a nominal value from vendors, customers or suppliers, or having an undisclosed relationship with a family member or other individual who is employed by any entity in active or potential competition with the Employer, and which creates a conflict of interest. While still employed at the Employer, the Executive must not establish, operate, participate in advise or assist to establish in any manner whatsoever any business, which could or would be in competition with the Employer’s business, and the Executive must not take any preliminary or preparatory steps toward establishing or operating such a business.
4.10 Ownership of Works. The Executive agrees to promptly disclose in writing to the Employer all Inventions, discoveries, developments, improvements and or innovations (collectively referred to as “Inventions”) that the Executive has been exposed to, conceived or made during his employment with the Employer; provided, however, that in this context “Inventions” are limited to those which (a) relate in any manner to the existing or contemplated business or research activities of the Employer and its affiliates; (b) are suggested by or result from the Executive’s work at the Employer; or (iii) result from the use of the time, materials or facilities of the Employer, its subsidiaries and or its affiliates. All Inventions will be the Employer’s proprietary property rather than the Executive’s. Should the Employer request it, the Executive agrees to sign any document that the Employer may require to establish ownership in any Inventions.
4.11 No Conflicting Agreements or Improper Use of Third-Party Information. During his employment with the Employer, the Executive shall not improperly use or disclose any confidential information or trade secrets of any former employer or other person or entity, and the Executive shall not bring on to the premises of the Employer any unpublished document or confidential information belonging to any such former employer, person or entity, unless consented to in writing by the former employer, person or entity. The Executive represents that he has not improperly used or disclosed any confidential information or trade secrets of any other person or entity during the application process or while employed or affiliated with the Employer. The Executive also acknowledges and agrees that he is not subject to any contract, agreement, or understanding that would prevent the Executive from performing his duties for the Employer or otherwise complying with this Agreement. Notwithstanding the generality of the foregoing, the Executive represents and warrants to the Employer that the Executive is not currently subject to a non-competition, non-solicitation, non-disclosure, confidentiality, or other such agreement which prohibits the Executive from working for the Employer and its subsidiaries. To the extent the Executive violates this provision, or his employment with the Employer constitutes a breach or threatened breach of any contract, agreement, or obligation to any third party, the Executive shall indemnify and hold the Employer harmless from all damages, expenses, costs (including reasonable attorneys’ fees, professional fees and or expert witness fees) and liabilities incurred in connection with, or resulting from, any such violation or threatened violation.
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4.12 Joinder to Lock-Up Agreement. Executive acknowledges and agrees to, on or before the Effective Date, execute a joinder to, and become bound by, the terms of that certain Lock-Up Agreement dated March 22, 2021 (the “Lock-Up Agreement”), as amended, by and between certain shareholders of the Employer and DBR Capital, LLC, a copy of which has been provided to Executive for his review and consent.
ARTICLE
V
ENFORCEMENT OF COVENANTS
5.1 Injunctive Relief. The Executive agrees that a breach or threatened breach by Executive of any covenant contained in this Agreement will cause such damage to the Employer as will be irreparable, and for that reason, the Executive further agrees that the Employer shall be entitled as a matter of right to an injunction from any court of competent jurisdiction restraining any further violation of such covenants by the Executive, his employers, officers, partners, or agents, without proof of damages or posting of a bond. The right to injunction shall be cumulative and in addition to whatever other equitable or legal remedies the Employer may have, including, specifically, recovery of damages.
5.2 Survival of Covenants. Subject to Article VI below, in the event the Executive’s employment relationship with the Employer is terminated, the covenants contained in Articles III and IV above and the remedies provided under this Article V shall survive for the period of time specified herein Articles III and IV for such covenants, and where a specific period of time is not specified, then for a period of one (1) year after such termination.
ARTICLE
VI
TERM AND TERMINATION
6.1 Term. Except as provided herein, the initial term of this Agreement shall be for a period of five (5) years commencing on the Effective Date and shall end on the five (5) year anniversary of the Effective Date (the “Initial Term”). At the expiration of the Initial Term, this Agreement will automatically renew for successive additional terms of one (1) year if agreed by the Parties at the time of such renewal (each a “Renewal Term”, and together with the Initial Term, the “Term”), unless the Agreement is otherwise terminated during such Renewal Term in accordance with the terms of this Agreement. Notwithstanding the foregoing and for the avoidance of doubt, the Executive’s employment shall be on an at-will basis, meaning that, subject to the terms and conditions of this Agreement, including without limitation Section 6.2 and 6.3, either the Employer or the Executive may terminate the Executive’s employment at any time, with or without notice, for any reason not prohibited by law.
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6.2 Termination. The Executive’s employment hereunder and this Agreement may be terminated under the following circumstances:
(a) Termination by Employer for Cause. The Employer shall have the right to terminate this Agreement and the Executive’s employment with the Employer immediately for cause (“Cause”) (as defined below) at any time if, during the Term, the Executive: (i) has materially breached the terms of this Agreement; (ii) exhibits repeated willful, reckless, intentional, grossly negligent or wanton failure or refusal to perform his duties under this Agreement in furtherance of the Employer’s business interest or otherwise in accordance with this Agreement (which shall be cause for termination if Employer provides Executive notice of such failure or refusal more than one time in any 12 month period); (iii) commits an intentional tort against the Employer, which materially adversely affects the business or reputation of the Employer; (iv) commits any act of fraud, dishonesty or disloyalty or any act involving gross moral turpitude, which materially adversely affects the business or reputation of the Employer; (v) has engaged in violations of federal or state securities laws, or has caused the Employer to engage in violations of federal or state securities laws; (vi) has been charged with criminal conduct involving a felony or misdemeanor under any federal or state laws against the Employer, which in the good-faith discretion of Employer’s Board, could have the effect of materially adversely affecting the business or reputation of the Employer or Executive’s ability to execute and perform his duties under this Agreement; (vii) has been the subject of a final non-appealable conviction of or a plea of guilty or nolo contendere by the Executive to a felony or misdemeanor involving fraud, embezzlement, theft, or dishonesty, moral turpitude or other criminal conduct against the Employer or otherwise;(viii) exhibits immoderate use of alcohol or drugs that, in the discretion of the Board, impairs, or is likely to impair, the Executive’s ability to perform his duties under this Agreement; or (ix) has become subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act (a “Disqualification Event”), (each and all of the foregoing clauses (i) through (ix) constituting reasons for termination for “Cause”), provided that unsatisfactory business performance of the Employer, or mere inefficiency, or good faith errors in judgment or discretion by the Executive shall not constitute grounds for termination for Cause hereunder. Notwithstanding the foregoing, this Agreement and the Executive’s employment with the Employer shall not be deemed to have been terminated for Cause, without at least fifteen (15) calendar days’ prior written notice to the Executive setting forth the reason(s) for the Employer’s intention to terminate for Cause. Except for a failure, breach, or refusal which, by its nature, cannot reasonably be expected to be cured, the Executive shall have thirty (30) calendar days from the delivery of written notice by the Employer within which to cure any acts constituting Cause.
(b) Termination upon Death or Disability of the Executive. This Agreement and the Executive’s employment with the Employer shall terminate immediately upon the Executive’s death or Disability (as defined below). For the purposes of this Agreement, the term “Disability” shall mean the Executive’s inability to perform his duties with or without a reasonable accommodation under this Agreement for a period of one hundred twenty (120) consecutive days due to illness, accident or any other physical or mental incapacity, as determined in the sole discretion of the Employer.
(c) Termination by Executive with Good Reason. The Executive may terminate this Agreement and his employment with the Employer with “Good Reason”. “Good Reason” means the Employer’s material breach of its representations and/or obligations under this Agreement or any other agreement with the Executive, which breach has continued unremedied for a period of thirty (30) calendar days after the Employer’s receipt of written notice from the Executive.
(d) Termination by Executive without Good Reason. The Executive may terminate this Agreement and his employment with the Employer at any time without Good Reason upon thirty (30) calendar days’ prior written notice from the Executive to the Employer.
(e) Termination by Employer without Cause. The Employer may terminate this Agreement and the Executive’s employment with the Employer at any time without Cause upon thirty (30) calendar days’ prior written notice from the Employer to the Executive; however, if Executive provided Employer notice of his termination of employment with the Employer without good reason, then Employer may terminate Executive’s employment effective immediately.
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6.3 Payments Upon Termination.
(a) Termination by Employer for Cause or by the Executive without Good Reason. In the event that this Agreement and the Executive’s employment is terminated by the Employer for Cause pursuant to Section 6.2(a) or by the Executive without Good Reason pursuant to Section 6.2(d):
i. The Employer shall pay to the Executive all amounts and benefits accrued through the date of termination (which for the purposes of clarity shall exclude unused accrued vacation days) and any unreimbursed expenses incurred pursuant to Section 2.9.
ii. Any remaining unvested Restricted Shares and Director Restricted Shares shall be forfeited in full and any other unvested equity awards granted to the Executive shall be terminated and forfeited in full.
iii. The Executive shall not be entitled to any additional payment in the form of severance or otherwise.
(b) Termination upon Death of the Executive. If the Executive dies during the Term and his employment and this Agreement terminates pursuant to Section 6.2(b):
i. The Employer shall pay to the estate of the Executive within thirty (30) calendar days after the date on which the Executive dies, all amounts and benefits accrued through the date of termination (including unused accrued vacation days) and any unreimbursed expenses incurred pursuant to Section 2.9.
ii. The Employer shall pay to the estate of the Executive any Quarterly Cash Bonus(es), Quarterly Stock Bonus(es), Market Capitalization Bonus(es) and any Up-Listing Cash Bonus(es) that the Executive earned for any fiscal quarter(s) prior to the fiscal quarter in which the Executive’s employment terminated pursuant to Section 2.2 to the extent that such Quarterly Cash Bonus(es), Quarterly Stock Bonus(es), Market Capitalization Bonus(es) and any Up-Listing Cash Bonus) had not yet been paid before the date of termination, with payment to be made within ninety (90) calendar days following the Executive’s termination of employment.
iii. The Employer shall pay to the estate of the Executive a lump sum amount payable in cash equal to six (6) months of the Executive’s Base Salary within ninety (90) calendar days following the Executive’s termination of employment.
iv. Any Restricted Shares and Director Restricted Shares that are scheduled to vest during the period from the date of termination through the next Scheduled Vesting Date, as applicable, pursuant to Section 2.5(a) and Section 2.7(b), as the case may be (but in no event longer than a six-month period following the date of Executive’s date of termination), shall immediately and automatically vest and become non-forfeitable and the remaining unvested Restricted Shares and Director Restricted Shares shall terminate and be forfeited by the Executive and revert to the Employer.
v. The treatment of any and all other equity awards granted to the Executive by the Employer shall be governed by the terms of the award agreements governing such awards.
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(c) Termination upon Disability of the Executive. In the event that the Executive’s employment and this Agreement is terminated upon the Disability of the Executive pursuant to Section 6.2(b):
i. The Employer shall pay to the Executive within thirty (30) calendar days following the Executive’s termination (including unused accrued vacation days) of employment all amounts and benefits accrued through the date of termination and any unreimbursed expenses incurred pursuant to Section 2.9.
ii. The Employer shall pay to the Executive any Quarterly Cash Bonus(es), Quarterly Stock Bonus(es), Market Capitalization Bonus(es) and any Up-Listing Cash Bonus(es) that the Executive earned for any fiscal quarter(s) prior to the fiscal quarter in which the Executive’s employment terminated pursuant to Section 2.2 to the extent that such Quarterly Cash Bonus(es), Quarterly Stock Bonus(es), Market Capitalization Bonus(es) and any Up-Listing Cash Bonus(es) had not yet been paid before the date of termination, with payment to be made within ninety (90) calendar days following the Executive’s termination of employment.
iii. If the Executive’s Disability is a “disability” within the meaning of Section 409A of the Code, the Employer shall pay to the Executive a lump sum amount payable in cash equal to six (6) months of the Executive’s Base Salary within ninety (90) calendar days following the Executive’s termination of employment, otherwise, such six (6) months of Executive’s Base Salary shall be payable as salary continuation payments in accordance with the Employer’s normal and customary payroll procedures over six (6) months.
iv. Any Restricted Shares and Director Restricted Shares that are scheduled to vest during the period from the date of termination through the next Scheduled Vesting Date, as applicable, pursuant to Section 2.5(a) and Section 2.7(b), as the case may be (but in no event longer than a six-month period following the date of Executive’s date of termination), shall immediately and automatically vest and become non-forfeitable and the remaining unvested Restricted Shares and Director Restricted Shares shall terminate and be forfeited by the Executive and revert to the Employer.
v. The treatment of any and all other equity awards granted to the Executive by the Employer shall be governed by the terms of the award agreements governing such awards.
(d) Termination by Employer without Cause or by Executive with Good Reason. In the event that the Executive’s employment and this Agreement is terminated by the Employer pursuant to Section 6.2(e) or in the event that the Executive’s employment and this Agreement is terminated by Executive with Good Reason pursuant to Section 6.2(c):
i. The Employer shall pay to the Executive all amounts and benefits accrued through the date of termination (including unused accrued vacation days) and any unreimbursed expenses incurred pursuant to Section 2.9.
ii. The Employer shall pay to the Executive any Quarterly Cash Bonus(es), Quarterly Stock Bonus(es), Market Capitalization Bonus(es) and any Up-Listing Cash Bonus(es) that the Executive earned for any fiscal quarter(s) prior to the fiscal quarter in which the Executive’s employment terminated pursuant to Section 2.2 to the extent that such Quarterly Cash Bonus(es), Quarterly Stock Bonus(es), Market Capitalization Bonus(es) and any Up-Listing Cash Bonus(es) had not yet been paid before the date of termination, with payment to be made within ninety (90) calendar days following the Executive’s termination of employment.
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iii. The Employer shall pay to the Executive severance (“Severance”) in an amount equal to the Executive’s Base Salary, payable as salary continuation payments in accordance with the Employer’s normal and customary payroll procedures over a severance period (the “Severance Period”) of: (i) six (6) months, provided such termination occurs on or before the first annual anniversary of Executive’s employment by the Employer; or (ii) twelve (12) months, provided such termination occurs after the first annual anniversary of Executive’s employment by the Employer.
iv. If the Executive timely elects continuation coverage under the Employer’s group medical, dental and health plans for the Executive and his covered dependents pursuant to Section 4980B of the Internal Revenue Code of 1986, as amended (the “Code”) (which provisions are commonly known as “COBRA”), in accordance with ordinary plan practices, the Employer shall pay, or reimburse Executive, during the Severance Period, for the COBRA premium payable by the Executive as if he had continued in active employment with the Employer, for the level of coverage the Employer and his covered dependents are enrolled in the Employer’s group medical, dental and health plans at the date of termination, to the extent permitted under the terms of the Employer’s medical, dental and health plans; provided, however, that if the Executive and his covered dependents become eligible to receive comparable medical benefits under another employer provided plan during the Severance Period, the Employer’s obligation to make, or reimburse COBRA payments described herein shall be terminated. Unless direct payment by the Employer of such COBRA payments is permitted by applicable law, the Executive shall pay the full cost of the premiums for such coverage, as determined and set under the then current practices of the Employer, on the first day of each month such coverage is provided and the Employer shall reimburse the Executive for COBRA continuation coverage (the “Reimbursement Amounts”). Any Reimbursement Amounts to be paid by the Employer to the Executive under this Section 6.3(d)(iv) shall be made on the tenth (10th) day of each month the Executive pays the amount required by this Section 6.3(d)(iv) for COBRA continuation coverage. The Executive shall promptly notify the Employer of any changes in his eligibility for medical benefits coverage.
v. Any Restricted Shares and Director Restricted Shares that are scheduled to vest during the Severance Period, shall immediately and automatically vest and become non-forfeitable and the remaining unvested Restricted Shares and Director Restricted Shares shall terminate and be forfeited by the Executive and revert to the Employer.
vi. The treatment of any and all other equity awards granted to the Executive by the Employer shall be governed by the terms of the award agreements governing such awards.
6.4 Release of Claims. Notwithstanding any of the foregoing, the payments and benefits provided under Section 6.3(d)(ii) through (v) are subject to and conditioned upon (a) the Executive executing a timely and valid release of claims (“Release”) in the form as provided to the Executive from the Employer waiving all claims the Executive may have against the Employer, its subsidiaries, successors, assigns, Affiliates, executives, officers and directors; (b) the Executive delivering the executed Release to the Employer within twenty-one (21) calendar days following the date of termination (the “Release Period”); (c) such Release and the waiver contained therein becoming effective; and (d) the Executive’s compliance with the covenants contained in Articles III and IV of this Agreement. In the event that the Release Period spans two of the Executive’s taxable years, the payments and benefits provided under Section 6.3(d)(ii) through (iv) must be made in the second of the two taxable years.
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6.5 Resignation as Director and Officer. Immediately upon termination of the Executive’s employment with the Employer for any reason, the Executive will resign from any and all positions then held as a director or officer of the Employer and of any subsidiary, parent or affiliated entity of the Employer. Executive hereby agrees to sign such undated resignation letters in advance, on the Effective Date, and such resignation letters to be held in escrow by Employer’s counsel. Further, Executive hereby authorized the Employer and or Employer’s counsel to date the resignation letters upon the occurrence of Executives termination of employment from Employer in accordance with this Section 6 hereunder.
6.6 Mitigation. In no event shall the Executive be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to the Executive under any of the provisions of this Agreement and except as provided in Section 6.3(d)(iv), any amounts payable pursuant to this Section 6 shall not be reduced by compensation the Executive earns on account of employment with another employer.
ARTICLE
VII
REPRESENTATIONS AND WARRANTIES
7.1 Representations and Warranties of the Employer. The Employer represents and warrants to the Executive that (a) the Employer is an entity duly organized and validly existing in good standing under the laws of the State of Nevada, and has the requisite power and authorization to own its properties and to carry on its business as now being conducted; and (b) this Agreement has been duly executed and delivered by the Employer, and constitutes the legal, valid and binding obligations of the Employer, enforceable against the Employer in accordance with its terms.
7.2 Representations and Warranties of the Executive. The Executive represents and warrants to the Employer as follows:
(a) The Executive has had the opportunity to consult legal counsel of his or her own selection about this Agreement and understands and voluntarily agrees to the provisions of this Agreement.
(b) The Executive is not aware of any existing medical condition which might cause him to be or become unable to fulfill his duties under this Agreement.
(c) The Executive is free to enter into this Agreement and has no commitment, arrangement or understanding to or with any third party that restrains or is in conflict with this Agreement or that would operate to prevent the Executive from performing the services to the Employer that the Executive has agreed to provide hereunder.
(d) This Agreement has been duly executed and delivered by the Executive, and constitutes the legal, valid and binding obligations of the Executive, enforceable against the Executive in accordance with its terms.
(e) Executive is an “accredited investor” as that term is defined in Rule 501(a) of Regulation D under the Securities Act.
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(f) The Executive hereby acknowledges that Executive: (i) has had such opportunity as the Executive has deemed adequate to obtain from representatives of the Employer such information as is necessary to permit the Executive to evaluate the merits and risks of the Executive’s acquisition of shares of INVU Common Stock hereunder; (ii) has sufficient experience in business, financial and investment matters to be able to evaluate the risks involved in the acquisition of such shares of INVU Common Stock and to make an informed investment decision with respect thereto; (iii) has had access to and has reviewed all publicly available documents and records relating to the Employer, including, but not limited to, the Employer’s Annual Report on SEC Form 10-K for the year ended December 31, 2020, and any Quarterly Report on SEC Form 10-Q, or Current Report on SEC Form 8-K, filed with the SEC after December 31, 2020 and before the Effective Date (collectively, the “Employer SEC Documents”), that it has deemed necessary in order to make an informed investment decision with respect to an investment in the Shares; and (iv) can afford the complete loss of the value of the shares of INVU Common Stock and is able to bear the economic risk of holding the shares of INVU Common Stock for an indefinite period.
(g) The Executive is acquiring the shares of INVU Common Stock for investment for the Executive’s own account only and not with a view to, or for resale in connection with, any “distribution” thereof within the meaning of the Securities Act of 1933, as amended (the “Securities Act”) or under any applicable provision of state law. The Executive does not have any present intention to transfer the shares of INVU Common Stock to any third party.
(h) The Executive understands that the shares of INVU Common Stock have not been registered under the Securities Act by reason of a specific exemption therefrom, which exemption depends upon, among other things, the bona fide nature of the Executive’s investment intent as expressed herein.
(i) The Executive further acknowledges and understands that the shares of INVU Common Stock are being issued as restricted securities and must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Executive further acknowledges and understands that the Employer is under no obligation to register shares of INVU Common Stock under the Securities Act.
(j) The Executive understands that the certificate(s) or book entry notation(s) evidencing the shares of INVU Common Stock will be imprinted with a legend which prohibits the transfer thereof unless they are registered or such registration is not required in the opinion of counsel for the Employer.
(k) As of the Effective Date, Executive is not subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act (a “Disqualification Event”).
7.3 Restrictive Legends and Stop-Transfer Orders.
(a) Legends. The certificate or certificates representing the INVU shares of Common Stock issued pursuant to this Agreement shall bear the following legends (as well as any legends required by applicable state and federal corporate and securities laws):
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT, OR ANY STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE PLEDGED, HYPOTHECATED, SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO THE EMPLOYER THAT SUCH PLEDGE, HYPOTHECATION, SALE OR TRANSFER IS EXEMPT THEREFROM UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS.”
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“FURTHERMORE, THE OFFER, PLEDGE, SALE, TRANSFER, HYPOTHECATION, OR OTHER DISPOSITION OF THE SECURITIES REPRESENTED HEREBY (INCLUDING, AMONG OTHERS, THE GRANT OF ANY OPTION ON, OR A CONTRACT FOR THE SALE OF ANY SECURITIES REPRESENTED HEREBY, IS SUBJECT TO, AND IN CERTAIN CASES PROHIBITED BY, THE TERMS AND CONDITIONS OF A CERTAIN LOCK-UP AGREEMENT BY AND AMONG THE STOCKHOLDER, THE CORPORATION AND CERTAIN OTHER HOLDERS OF STOCK OF THE CORPORATION. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE CORPORATION.”
ARTICLE
VIII
MISCELLANEOUS
8.1 Definitions: For the purposes of this Agreement, the following terms have the meanings specified or referred to in this Section 8.1:
“Affiliate” means a Person who directly or indirectly through one or more intermediaries, controls (whether by owning more than 51% of a company’s voting equity, through a voting or other agreement, or otherwise), or is controlled by, or is under common control with, the Person specified. Persons who have acted or are acting on behalf or for the benefit of a Person include, but are not necessarily limited to, directors, officers, employees, agents, consultants and sales representatives.
“For Cause Event” shall mean any event, circumstance or occurrence that would constitute the basis for a termination of the Executive for Cause under Section 6.2(a) hereunder, regardless of whether the Employer elects to invoke the right to terminate Executive or provide notice to the Executive under Section 6.2(a) hereunder, on the basis of such event, circumstance or occurrence.
“Person” shall mean an individual, or any type of corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.
8.2 Exit Interview . To insure a clear understanding of this Agreement, including the protection of the Employer’s business interests, the Executive agrees, at no additional expense to the Employer, to engage after the Term in an exit interview with the Employer at a time and place designated by the Employer.
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8.3 Severability. If any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect the validity and enforceability of any other provisions hereof. Further, should any provisions within this Agreement ever be reformed or rewritten by a judicial body, those provisions as rewritten shall be binding upon the Employer and the Executive.
8.4 Right of Setoff. The Employer and the Executive shall each be entitled, at its option and not in lieu of any other remedies to which it may be entitled, to set off any amounts due from the other or any affiliate of the other against any amount due and payable by such person or any affiliate of such person pursuant to this Agreement or otherwise.
8.5 Taxes.
(a) Compliance with Code Section 409A. This Agreement and the payments hereunder are intended to be exempt, to the greatest extent possible, from the requirements of Section 409A of the Code, and to the extent not so exempt, to comply with the requirements of Section 409A of the Code, and shall be construed and administered consistent with such intent. In the event the terms of this Agreement would subject the Executive to taxes or penalties under Section 409A of the Code (“409A Penalties”), the Employer and the Executive shall cooperate diligently to amend the terms of the Agreement to avoid such 409A Penalties, to the extent possible; provided that such amendment shall not increase or reduce (in the aggregate) the amounts payable to the Executive hereunder. Any taxable reimbursement payable to the Executive pursuant to this Agreement shall be paid to the Executive no later than the last day of the calendar year following the calendar year in which the Executive incurred the reimbursable expense. Any amount of expenses eligible for taxable reimbursement, or such in-kind benefit provided, during a calendar year shall not affect the amount of such expenses eligible for reimbursement, or such in-kind benefit to be provided, during any other calendar year. The right to such reimbursement or such in-kind benefits pursuant to this Agreement shall not be subject to liquidation or exchange for any other benefit. Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. A termination of employment shall not be deemed to have occurred for purposes of the Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code. If on the date of termination of employment the Executive is a “specified employee” within the meaning of that term under Section 409A of the Code, then, notwithstanding any other provision herein, with regard to any payment or benefit that is properly treated as nonqualified deferred compensation under Section 409A of the Code (after taking into account all exclusions applicable to such payment or benefit) and is payable on account of such separation from service, such payment or benefit shall not be made or provided prior to the expiration of the earlier of the six-month period measured from the date of such separation from service, or the Executive’s death. All payments and benefits delayed pursuant to the preceding provisions of this Section 8.5(a) shall be paid to the Executive on the first payroll date following the end of the delay period.
(b) Code Section 280G. Notwithstanding any other provisions of this Agreement or any other agreement, contract or understanding heretofore or hereafter entered into between the Executive and the Employer, if any “payments” (including, without limitation, any benefits or transfers of property or the acceleration of the vesting of any benefits) in the nature of compensation under any arrangement that is considered contingent on a Change in Control for purposes of Code Section 280G, together with any other payments that the Executive has the right to receive from the Employer or any corporation that is a member of an “affiliated group” (as defined in Code Section 1504(a) without regard to Code Section 1504(b)) of which the Employer is a member, would constitute a “parachute payment” (as defined in Code Section 280G(b)(2)), such “payments” will be reduced to the largest amount as will result in no portion of such “payments” being subject to the excise tax imposed by Code Section 4999; provided, however, that such reduction will be made only if the aggregate amount of the payments after such reduction (net of all federal, state, local, foreign income and employment taxes) exceeds the difference between (i) the amount of such payments absent such reduction (net of all federal state, local, foreign income and employment taxes) minus (ii) the aggregate amount of the excise tax imposed under Code Section 4999 attributable to any such excess parachute payments. The parachute payments to be reduced under this Section 8.5(b) will be reduced in the following order: lump sum cash severance, health plan benefits, and equity award acceleration.
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8.6 Succession. This Agreement and the rights and obligations hereunder shall be binding upon and inure to the benefit of the parties hereto and their respective legal representatives, and shall also bind and inure to the benefit of any successor of the Employer by merger or consolidation or any assignee of all or substantially all of Employer’s property and assets.
8.7 Assignment. Except to any successor or assignee of the Employer as provided in Section 8.8 above, neither this Agreement nor any rights or benefits hereunder may be assigned by either party hereto without the prior written consent of the other party. Neither the Executive, the Executive’s spouse, the Executive’s designated contingent beneficiary, nor their estates shall have any right to anticipate, encumber, or dispose of any payment due under this Agreement. Such payments and other rights are expressly declared non-assignable and non-transferable, except as specifically provided herein.
8.8 Expenses. In the event that it shall be necessary or desirable for the Executive to retain legal counsel and/or incur other costs and expenses in connection with the interpretation or enforcement of any and all of the Executive’s rights under this Agreement, the Executive shall bear the sole legal expense associated with this legal review and interpretation.
8.9 Adjustments. For purposes of this Agreement, the term “INVU Common Stock” shall mean the common stock, par value $0.001 per share, of the Employer, and any kind of shares of stock or other securities into which such INVU Common Stock may be changed in the event of any reorganization, merger, consolidation, recapitalization, liquidation, reclassification, stock dividend, stock split, reverse stock split, combination of shares, rights offering, divestiture or extraordinary dividend (including a spin off) or any other similar change in the corporate structure or shares of INVU Common Stock, and all references to a number of shares of INVU Common Stock, Restricted Shares or Director Restricted Shares and any purchase price therefor or stock prices thereof in this Agreement, shall be appropriately adjusted to reflect any stock split, reverse stock split or stock dividend or other similar change in such securities which may be made by the Employer after the date of this Agreement.
8.10 Clawback. Notwithstanding anything herein to the contrary, payment of amounts to the Executive under this Agreement will be subject to Employer policies adopted applicable to all effected Company prsonnel to address applicable mandatory forfeiture or repayment provisions under the Sarbanes-Oxley Act of 2002 or any other applicable law, rule or regulation or stock exchange requirement, and if the Executive is required to forfeit or to make any repayment of any compensation or benefit(s) to the Employer under the Employer’s clawback or forfeiture policy, such forfeiture or repayment shall not constitute Good Reason under this Agreement.
8.11 Unfunded Obligations. The obligations under this Agreement shall be unfunded. Payments and benefits payable under this Agreement shall be paid from the general assets of the Employer. The Employer shall have no obligation to establish any fund or to set aside any assets to provide benefits under this Agreement.
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8.12 Withholding. The Employer may withhold from any amounts payable to the Executive hereunder all federal, state, city or other taxes that the Employer may reasonably determine are required to be withheld pursuant to any applicable law or regulation (it being understood that the Executive shall be responsible for payment of all taxes in respect of the payments and benefits provided herein).
8.13 Notices. All notices, requests, consents, approvals, claims, demands, waivers, and other communications required, necessary or permitted hereunder shall be in writing and shall be delivered (a) in hand by person with written receipt of the Person to whom such notice is intended; (b) by registered or certified mail, postage prepaid, return receipt requested; or (c) by a generally recognized commercial courier service or overnight delivery service, (Federal Express or UPS), for next Business Day delivery, postage prepaid, with delivery receipt requested. All notices sent in accordance with this Section 8.13 shall be deemed “Delivered” unless otherwise specified herein, the same day if delivered by hand in person with receipt and signature of the intended recipient or by an authorized officer of the intended recipient; three (3) Business Days after the same is deposited in the U.S. Mail if sent by registered or certified mail; or one (1) Business Day after payment and receipt of mailing if sent by a commercial courier service or overnight delivery service for next Business Day delivery. Such communications must be sent to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 8.13).
| To Employer: | Investview, Inc. | |
| c/o James R. Bell, President | ||
| 521 W. Lancaster Avenue; Fl. 2 | ||
| Haverford, PA 19041-1413 | ||
| Email: [email protected] | ||
| Phone: 267.738.7074 | ||
| With Copies to: | Investview, Inc. | |
| c/o David B. Rothrock, Chairman | ||
| 1648 Plaza Ln. | ||
| Allentown, PA 18104 | ||
| Email: [email protected] | ||
| Phone: 484.223.0502 | ||
| Fox Rothschild LLP | ||
| c/o Stephen M. Cohen, Partner | ||
| 2000 Market Street | ||
| Philadelphia, PA 19103 | ||
| Email: [email protected] | ||
| Phone: 215.299.2744 | ||
| To Executive: | Victor M. Oviedo | |
| 848 Brickell Key Drive | ||
| Apt. 2205 | ||
| Miami, FL 33131 | ||
| Email: [email protected] | ||
| Phone: 646.325.4259 |
8.14 Entire Agreement; Amendments. This Agreement, together with the Exhibits hereto, contains the entire agreement between the parties hereto with respect to the subject matter contained herein, and supersedes and is in full substitution for any and all prior understandings or with respect to the Executive’s employment. No change, addition, or amendment shall be made except by written agreement signed by the parties hereto.
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8.15 Waiver of Breach. The failure by any party to insist upon the strict performance of any covenant, duty, agreement, or condition of this Agreement or the failure to exercise any right or remedy consequent upon a breach hereof shall not constitute a waiver of any such breach or of any covenant, agreement, term, or condition and the waiver by either party hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by any party.
8.16 Multiple Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement and electronic, digital or facsimile signatures shall be deemed original signatures. In making proof of this Agreement, it shall not be necessary to produce or account for more than one such counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, or by DocuSign, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.
8.17 Descriptive Headings and Interpretation. In the event of a conflict between titles to articles, sections and paragraphs and the text, the text shall control. For purposes of this Agreement, whenever the context requires, the singular number shall include the plural, and vice versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include the masculine and feminine genders.
8.18 Governing Law, and Consent to Personal Jurisdiction. This Agreement and the rights and obligations of the parties hereto under this Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the state of New Jersey, without regard to its principles of conflicts of law thereof. Executive and Employer each hereby consent to the personal jurisdiction of the state courts located in Mercer County, State of New Jersey, and The United States District Court for the District of New Jersey, if that federal court has jurisdiction, over any and all claims or disputes in any way related to the Executive’s Employment with Employer, separation from employment with the Employer, or compliance with the terms of this Agreement.
8.19 Cumulative Remedies. All rights, powers and remedies specified in this Agreement are cumulative and are in addition to, and not in limitation of, such other rights, powers and remedies as may be available to the Employer under applicable law, by agreement among the parties or otherwise.
8.24 Advice of Counsel. Executive acknowledges that Fox Rothschild LLP represents the Employer as its legal counsel. Executive represents that Executive has had the opportunity to avail himself of the advice of counsel prior to signing this Agreement and has elected to forego advice from counsel or is satisfied with Executive’s counsel’s advice and that Executive is executing the Agreement voluntarily and fully intending to be legally bound because, among other things, the Agreement provides valuable benefits to Executive which Executive otherwise would not be entitled to receive. Each of the parties hereto has participated and cooperated in the drafting and preparation of this Agreement. Hence, this Agreement shall not be construed against any party.
[Remainder of page intentionally left blank; signature page follows]
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SIGNED AND DELIVERED to be effective as of the Effective Date set forth above.
| EMPLOYER: | ||
| Investview Inc. | ||
| By: | /s/ James R. Bell | |
| Name: | James R. Bell | |
| Title: | Acting Chief Executive Officer | |
| By: | /s/ David B. Rothrock | |
| Name: | David B. Rothrock | |
| Title: | Chairman of the Board | |
| EXECUTIVE: | ||
| By: | /s/ Victor Oviedo | |
| Name: | Victor M. Oviedo | |
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SCHEDULE A
Business of the Employer
The “business of the Employer” for the purpose of Section 4.2 of the Agreement will be defined as the actual nature of the Company’s business as defined by sector, industry, business segment, products, services and key elements of the business conducted by the Company at the time of Executive’s termination of employment with the Employer. However, to help clarify the scope in which Employer’s business may be considered, were Executive to have been terminated as of the Effective Date, purely on a hypothetical basis, the scope of the business of the Employer as of the Effective Date would be as follows:
“Investview, Inc. operates multiple lines of business, including: (i) the distribution, marketing and sale of products and/or services through a multi-level network of distributors; (ii) the marketing, sale and distribution of digital assets with a focus on crypto currencies, mining and Central Bank Digital Currencies; and (iii) the development, licensing and operation of the Company’s SMART electronic trading platform technology; and (iv) assuming the completion of a pending acquisition (or a replacement acquisition if the pending transaction does not receive FINRA approval), the operation of a financial technology business incorporating the services of a registered broker-dealer and investment adviser.”
For the avoidance of doubt, the “business of Employer’’ for the purpose of Section 4.2 of the Agreement will be defined now and in the future as the actual nature of the Company’s business as defined by sector, industry, business segment, products, services and key elements of the business conducted by the Company at the time of Executive’s termination of employment with the Employer.
Exhibit 10.101
Execution Version
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this “Agreement”) is made this 10th day of February, 2022, between Investview, Inc. a Nevada corporation (the “Company”), and Victor M. Oviedo, an individual (“Indemnitee”).
RECITALS
WHEREAS, the Board of Directors (the “Board”) has determined that the increased difficulty in attracting and retaining directors is detrimental to the best interests of the Company’s stockholders and that the Company should act to assure such persons that there will be increased certainty of such protection in the future;
WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify, and to advance expenses on behalf of, directors to the fullest extent permitted by applicable law so that they will serve or continue to serve the Company free from undue concern that they will not be so indemnified; and
WHEREAS, this Agreement is intended to clarify Indemnitee’s entitlement to the maximum indemnity afforded directors under the Nevada Revised Statutes (the “Nevada Revised Statutes”) and is a supplement to and in furtherance of the provisions calling for indemnification of directors contained in the bylaws or articles of incorporation of the Company (collectively, the “Charter Documents”) and any resolutions adopted pursuant thereto, and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.
NOW, THEREFORE, in consideration of Indemnitee’s agreement to serve, and to continue his service, as a director after the date hereof, the parties hereto, intending to be legally bound, agree as follows.
1. Indemnity of Indemnitee. The Company hereby agrees to hold harmless and indemnify Indemnitee to the fullest extent permitted by Nevada law, as such may be amended from time to time, and the Charter Documents, as may be amended from time to time. In furtherance of the foregoing indemnification, and without limiting the generality thereof:
(a) Proceedings Other Than Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of indemnification provided in this Section l (a) if, by reason of his or her Corporate Status (as hereinafter defined), Indemnitee is, or is threatened to be made, a party to or participant (as a witness or otherwise) in any Proceeding (as hereinafter defined) other than a Proceeding by or in the right of the Company. Pursuant to this Section 1(a), Indemnitee shall be indemnified against all Expenses (as hereinafter defined), judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by the Indemnitee, or on his or her behalf, in connection with such Proceeding or any claim, issue or matter therein, if the Indemnitee (i) acted in good faith and in a manner the Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, and with respect to any criminal Proceeding, had no reasonable cause to believe the Indemnitee’s conduct was unlawful; or (ii) is not liable under Nevada Revised Statutes Section 78.138.
(b) Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of indemnification provided in this Section 1(b) if, by reason of his or her Corporate Status, the Indemnitee is, or is threatened to be made, a party to or participant (as a witness or otherwise) in any Proceeding brought by or in the right of the Company. Pursuant to this Section 1(b), Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by the Indemnitee, or on the Indemnitee’s behalf, in connection with such Proceeding if the Indemnitee (i) acted in good faith and in a manner the Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, or (ii) is not liable under Nevada Revised Statutes Section 78.138; provided, however, if applicable law so provides, no indemnification against such Expenses shall be made in respect of any claim, issue or matter in such Proceeding as to which Indemnitee shall have been adjudged to be liable to the Company unless and to the extent that the court in which the action or suit was brought or other court of competent jurisdiction determines upon application that such indemnification may be made.
(c) Indemnification for Expenses of a Party Who is Wholly or Partly Successful. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of his or her Corporate Status, a party to and is successful, on the merits or otherwise, in any Proceeding, Indemnitee shall be indemnified to the maximum extent permitted by law, as such may be amended from time to time, against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection therewith. If Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with each successfully resolved claim, issue or matter. For purposes of this Section and without limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.
2. Additional Indemnity. In addition to, and without regard to any limitations on, the indemnification provided for in Section 1 of this Agreement, the Company shall and hereby does indemnify and hold harmless Indemnitee against all Expenses, judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by Indemnitee or on his or her behalf if, by reason of his or her Corporate Status, Indemnitee is, or is threatened to be made, a party to or participant in any Proceeding (including a Proceeding by or in the right of the Company), including, without limitation, all liability arising out of the negligence or active or passive wrongdoing of Indemnitee. The only limitation that shall exist upon the Company’s obligations pursuant to this Agreement shall be that the Company shall not be obligated to make any payment to Indemnitee that is finally determined (under the procedures, and subject to the presumptions, set forth in Sections 6 and 7 hereof) to be unlawful under Nevada law.
3. Contribution.
(a) Whether or not the indemnification provided in Sections 1 and 2 hereof is available, in respect of any Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding), the Company shall pay the entire amount of any judgment or settlement of such Proceeding without requiring Indemnitee to contribute to such payment, and the Company hereby waives and relinquishes any right of contribution it may have against Indemnitee. The Company shall not enter into any settlement of any action, suit or proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding) unless such settlement provides for a full and final release of all claims asserted against Indemnitee without any injunctive or other equitable relief being imposed against Indemnitee.
(b) Without diminishing or impairing the obligations of the Company set forth in the preceding subparagraph, if, for any reason, Indemnitee shall elect or be required to pay all or any portion of any judgment or settlement in any Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding), the Company shall contribute to the amount of Expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred and paid or payable by Indemnitee in proportion to the relative benefits received by the Company and all officers, directors or employees of the Company, other than Indemnitee, who are jointly liable with Indemnitee (or would be if joined in such Proceeding), on the one hand, and Indemnitee, on the other hand, from the transaction from which such Proceeding arose; provided, however, that the proportion determined on the basis of relative benefit may, to the extent necessary to conform to law, be further adjusted by reference to the relative fault of the Company and all officers, directors or employees of the Company other than Indemnitee who are jointly liable with Indemnitee (or would be if joined in such Proceeding), on the one hand, and Indemnitee, on the other hand, in connection with the events that resulted in such Expenses, judgments, fines or settlement amounts, as well as any other equitable considerations that applicable law may require to be considered. The relative fault of the Company and all officers, directors or employees of the Company, other than Indemnitee, who are jointly liable with Indemnitee (or would be if joined in such Proceeding), on the one hand, and Indemnitee, on the other hand, shall be determined by reference to, among other things, the degree to which their actions were motivated by the sole intent to gain Company profit or advantage, the degree to which their actions were motivated by intent to gain personal profit or advantage, the degree to which their actions were knowingly, intentionally and willfully illegal or tortious, the degree to which their liability is primary or secondary and the degree to which their conduct is active or passive.
(c) The Company hereby agrees to fully indemnify and hold Indemnitee harmless from any claims of contribution that may be brought by officers, directors or employees of the Company, other than Indemnitee, who may be jointly liable with Indemnitee.
(d) To the fullest extent permissible under applicable law, if the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee, whether for judgments, fines, penalties, excise taxes, amounts paid or to be paid in settlement and/or for Expenses, in connection with any claim relating to an indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and Indemnitee as a result of the event(s) and/or transaction(s) giving cause to such Proceeding; and/or (ii) the relative fault of the Company (and its directors, officers, employees and agents) and Indemnitee in connection with such event(s) and/or transaction(s).
4. Indemnification for Expenses of a Witness. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of his or her Corporate Status, a witness, or is made (or asked to) respond to discovery requests, in any Proceeding to which Indemnitee is not a party, Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection therewith.
5. Advancement of Expenses. Notwithstanding any other provision of this Agreement, the Company shall advance all Expenses incurred by or on behalf of Indemnitee in connection with any Proceeding by reason of Indemnitee’s Corporate Status within thirty (30) days after the receipt by the Company of a statement or statements from Indemnitee requesting such advance or advances from time to time, whether prior to or after final disposition of such Proceeding. Such statement or statements shall reasonably evidence the Expenses incurred by Indemnitee and shall include or be preceded or accompanied by a written undertaking executed by or on behalf of Indemnitee to repay any Expenses advanced if it shall ultimately be determined that Indemnitee is not entitled to be indemnified against such Expenses. Any advances and undertakings to repay pursuant to this Section 5 shall be unsecured and interest free.
6. Procedures and Presumptions for Determination of Entitlement to Indemnification. It is the intent of this Agreement to secure for Indemnitee rights of indemnity that are as favorable as may be permitted under the Nevada Revised Statutes and public policy of the State of Nevada. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event of any question as to whether Indemnitee is entitled to indemnification under this Agreement:
(a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The President or Secretary of the Company shall, promptly upon receipt of such a request for indemnification, advise the Board of Directors in writing that Indemnitee has requested indemnification. Notwithstanding the foregoing, any failure of Indemnitee to provide such a request to the Company, or to provide such a request in a timely fashion, shall not relieve the Company of any liability that it may have to Indemnitee unless and only to the extent such failure actually and materially prejudices the interests of the Company.
(b) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 6(a) hereof, a determination with respect to Indemnitee’s entitlement thereto shall be made in the specific case by one of the following four methods, which shall be at the election of the Board of Directors of the Company: (i) by a majority vote of the Disinterested Directors (as defined in Section 12 below), even though less than a quorum; (ii) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum; (iii) by Independent Counsel (as defined in Section 12 below) in a written opinion to the Board of Directors, a copy of which shall be delivered to the Indemnitee, if (A) there are no Disinterested Directors or if the Disinterested Directors so direct, or (B) a Change of Control (as hereinafter defined) shall have occurred and Indemnitee so requests; or (iv) if so directed by the Board of Directors, by the stockholders of the Company.
(c) If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 6(b) hereof, the Independent Counsel shall be selected as provided in this Section 6(c). The Independent Counsel shall be selected by the Board of Directors, but shall only be an Independent Counsel to which Indemnitee does not properly object in accordance with the subsequent provisions of this Section 6(c); provided, however, that if a Change of Control shall have occurred, Indemnitee shall select such Independent Counsel, but only an Independent Counsel to which the Board of Directors does not properly object in accordance with the subsequent provisions of this Section 6(c). Within ten (10) days after such written notice of selection shall have been given, the non-selecting party shall deliver to the selecting party, as the case may be, a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 12 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected shall act as Independent Counsel. If a written objection is made and substantiated, the Independent Counsel selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such objection is without merit. If, within twenty (20) days after submission by Indemnitee of a written request for indemnification pursuant to Section 6(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition the court in which the action or suit was brought or other court of competent jurisdiction for resolution of any objection that shall have been made to the selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the court or by such other person as the court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 6(b) hereof. The Company shall pay any and all reasonable fees and expenses of Independent Counsel incurred by such Independent Counsel in connection with acting pursuant to Section 6(b) hereof, and the Company shall pay all reasonable fees and expenses incident to the procedures of this Section 6(c), regardless of the manner in which such Independent Counsel was selected or appointed.
(d) For purposes of this Section 6, “Change of Control” means a change in control of the Company of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), whether or not the corporation is then subject to such reporting requirement; provided that, without limitation, such a change in control shall be deemed to have occurred if (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the “beneficial owner” (as defined in Rule l3d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 25% or more of the combined voting power of the Company’s then outstanding securities without the prior approval of at least a majority of the members of the Board of Directors in office immediately prior to such acquisition; or (ii) the Company is a party to a merger, consolidation, sale of assets or other reorganization, or a proxy contest, as a consequence of which members of the Board of Directors in office immediately prior to such transaction or event constitute less than a majority of the Board of Directors thereafter.
(e) In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct.
(f) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise (as defined in Section 12 below), including financial statements, or on information supplied to Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 6(f) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(g) If the person, persons or entity empowered or selected under Section 6 to determine whether Indemnitee is entitled to indemnification shall not have made a determination within sixty (60) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional thirty (30) days, if the person, persons or entity making such determination with respect to entitlement to indemnification in good faith requires such additional time to obtain or evaluate documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 6(g) shall not apply if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 6(b) of this Agreement and if (A) within fifteen (15) days after receipt by the Company of the request for such determination, the Board of Directors or the Disinterested Directors, if appropriate, resolve to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within seventy-five (75) days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within sixty (60) days after having been so called and such determination is made thereat.
(h) Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board of Directors or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any Expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(i) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding to which Indemnitee is a party is resolved in any manner other than by adverse judgment against Indemnitee (including, without limitation, settlement of such Proceeding with or without payment of money or other consideration) it shall be presumed that Indemnitee has been successful on the merits or otherwise in such Proceeding. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(j) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner that Indemnitee reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
7. Remedies of Indemnitee.
(a) In the event that (i) a determination is made pursuant to Section 6 of this Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 5 of this Agreement, (iii) no determination of entitlement to indemnification is made pursuant to Section 6(b) of this Agreement within ninety (90) days after receipt by the Company of the request for indemnification, (iv) payment of indemnification is not made pursuant to this Agreement within ten (10) days after receipt by the Company of a written request therefor or (v) payment of indemnification is not made within ten (10) days after a determination has been made that Indemnitee is entitled to indemnification or such determination is deemed to have been made pursuant to Section 6 of this Agreement, Indemnitee shall be entitled to an adjudication in an appropriate court of competent jurisdiction of Indemnitee’s entitlement to such indemnification. Indemnitee shall commence such proceeding seeking an adjudication within 180 days following the date on which Indemnitee first has the right to commence such proceeding pursuant to this Section 7(a). The Company shall not oppose Indemnitee’s right to seek any such adjudication.
(b) In the event that a determination shall have been made pursuant to Section 6(b) of this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding commenced pursuant to this Section 7 shall be conducted in all respects as a de novo trial on the merits and Indemnitee shall not be prejudiced by reason of the adverse determination under Section 6(b).
(c) If a determination shall have been made pursuant to Section 6(b) of this Agreement that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding commenced pursuant to this Section 7, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s misstatement not materially misleading in connection with the application for indemnification, or (ii) a prohibition of such indemnification under applicable Nevada law.
(d) In the event that Indemnitee, pursuant to this Section 7, seeks a judicial adjudication of Indemnitee’s rights under, or to recover damages for breach of, this Agreement, or to recover under any directors’ and officers’ liability insurance policies maintained by the Company, the Company shall pay on Indemnitee’s behalf, in advance, any and all expenses (of the types described in the definition of Expenses in Section 12 of this Agreement) actually and reasonably incurred by Indemnitee in such judicial adjudication, regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification, advancement of expenses or insurance recovery.
(e) The Company shall be precluded from asserting in any judicial proceeding commenced pursuant to this Section 7 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court that the Company is bound by all the provisions of this Agreement. The Company shall indemnify Indemnitee against any and all Expenses and, if requested by Indemnitee, shall (within ten (10) days after receipt by the Company of a written request therefore) advance, to the extent not prohibited by Nevada law, such expenses to Indemnitee that are incurred by Indemnitee in connection with any action brought by Indemnitee for indemnification or advance of Expenses from the Company under this Agreement or under any directors’ and officers’ liability insurance policies maintained by the Company, regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification, advancement of Expenses or insurance recovery, as the case may be.
(f) Notwithstanding anything in this Agreement to the contrary, no determination as to entitlement to indemnification under this Agreement shall be required to be made prior to the final disposition of the Proceeding.
8. Non-Exclusivity; Survival of Rights; Insurance; Primacy of Indemnification; Subrogation.
(a) The rights of indemnification as provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled under applicable Nevada law, the Charter Documents, any agreement, a vote of stockholders, a resolution of directors or otherwise, of the Company. No amendment, alteration or repeal of this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of any action taken or omitted by such Indemnitee in his or her Corporate Status prior to such amendment, alteration or repeal. To the extent that a change in the Nevada Revised Statutes, whether by statute or judicial decision, permits greater indemnification than would be afforded currently under the Charter Documents and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy.
(b) To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, or agents or fiduciaries of the Company or of any other Enterprise that such person serves at the request of the Company, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any director, officer, employee, agent or fiduciary under such policy or policies. If, at the time of the receipt of a notice of a claim pursuant to the terms hereof, the Company has director and officer liability insurance in effect, the Company shall give prompt notice of the commencement of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies.
(c) The Company hereby acknowledges that Indemnitee may have certain rights to indemnification, advancement of expenses and/or insurance provided by third parties (collectively, the “Secondary Indemnitors”). The Company hereby agrees (i) that it is the indemnitor of first resort with respect to matters for which indemnification is provided under this Agreement (i.e., its obligations to Indemnitee are primary and any obligation of the Secondary Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by Indemnitee are secondary), (ii) that it shall be required to advance the full amount of expenses incurred by Indemnitee and shall be liable for the full amount of all Expenses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted and as required by the terms of this Agreement and the Charter and/or Bylaws (or any other agreement between the Company and Indemnitee), without regard to any rights Indemnitee may have against the Secondary Indemnitors, and (iii) that it waives, relinquishes and releases the Secondary Indemnitors from any and all claims against the Secondary Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. The Company further agrees that no advancement or payment by the Secondary Indemnitors on behalf of Indemnitee with respect to any claim for which the Indemnitee has sought indemnification from the Company shall affect the foregoing and the Secondary Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of Indemnitee against the Company.
(d) Except as provided in paragraph (c) above, in the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee (other than against the Secondary Indemnitors), and the Indemnitee shall execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.
(e) Except as provided in paragraph (c) above, the Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if and to the extent that Indemnitee has otherwise actually received such payment under any insurance policy, contract, agreement or otherwise.
(f) Except as provided in paragraph (c) above, the Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is or was serving at the request of the Company as a director, officer, employee or agent of any other Enterprise shall be reduced by any amount Indemnitee has actually received as indemnification or advancement of expenses from such other Enterprise.
9. Exception to Right of Indemnification. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee:
(a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; provided that the foregoing shall not affect the rights of Indemnitee or the Secondary Indemnitors as set forth in Section 8(c);
(b) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act, or similar provisions of state statutory law or common law;
(c) to the extent that judgment is rendered against Indemnitee for the payment of dividends or other distributions to stockholders of the Company in violation of the provisions of Nevada Revised Statutes § 78.300, as amended;
(d) to the extent that judgment is rendered against Indemnitee for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934, as amended, or other similar provisions of any federal, state or local statutory law; or
(e) except with respect to a Proceeding relating to enforcement of, or to indemnity under, this Agreement, the Charter Documents, the Nevada Revised Statutes or any insurance policy relating to Indemnitee’s Corporate Status, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board of Directors of the Company authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; provided that this prohibition shall not apply to a counterclaim, cross-claim or third party claim brought in any Proceeding.
10. Duration of Agreement. All agreements and obligations of the Company contained in this Agreement shall continue during the period Indemnitee is a director, officer, employee or agent of the Company (or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including, without limitation, any direct or indirect subsidiary of the Company) and for a period of ten years thereafter, and shall continue thereafter so long as Indemnitee may be subject to any possible claim or threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that Indemnitee was a director or officer of the Company, or both, or serving in any other capacity referred to in this Agreement.
11. Enforcement.
(a) The Company expressly confirms and agrees that it has entered into this Agreement and assumes the obligations imposed on it hereby in order to induce Indemnitee to serve as a director of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving as a director of the Company.
(b) This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject matter hereof, except for the Employment Agreement between Indemnitor and Indemnitee of even date herewith.
(c) The Company shall not seek from a court, or agree to, a “bar order” which would have the effect of prohibiting or limiting the Indemnitee’s rights to receive advancement of expenses under this Agreement.
12. Definitions. For purposes of this Agreement:
(a) “Corporate Status” describes the status of a person who is serving or has served (i) as a director or officer of the Company, (ii) in any capacity or service with respect to any employee benefit plan of the Company or any one or more of its subsidiary Enterprise, or (iii) as a director, officer, member, manager, partner, trustee, employee, or agent of any other Enterprise at the request of the Company.
(b) “Disinterested Director” means a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification is sought by Indemnitee.
(c) “Enterprise” shall mean the Company and any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that Indemnitee is or was serving at the express written request of the Company as a director, officer, employee, agent or fiduciary.
(d) “Expenses” shall include all reasonable attorneys’ fees, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees and all other disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, participating, or being or preparing to be a witness in a Proceeding, or responding to, or objecting to, a request to provide discovery in any Proceeding. Expenses also shall include Expenses incurred in connection with any appeal resulting from any Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including without limitation the premium, security for, and other costs relating to any cost bond, supersede as bond, or other appeal bond or its equivalent. Expenses, however, shall not include amounts paid in settlement by Indemnitee or the amount of judgments or fines against Indemnitee.
(e) “Independent Counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presently is, nor in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either such party (other than with respect to matters concerning Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements), or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement. The Company agrees to pay the reasonable fees of the Independent Counsel referred to above and to fully indemnify such counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
(f) “Proceeding” includes any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened or completed proceeding, whether brought by or in the right of the Company or otherwise and whether civil, criminal, administrative or investigative, in which Indemnitee was, is or will be involved as a party or otherwise, by reason of the fact that Indemnitee is or was a director of the Company, by reason of any action taken by Indemnitee or of any inaction on Indemnitee’s part while acting as a director of the Company, or by reason of the fact that Indemnitee is or was serving at the request of the Company as a director, officer, employee, agent or fiduciary of another corporation, partnership, joint venture, trust or other Enterprise; in each case whether or not Indemnitee is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement, but excluding one initiated by an Indemnitee pursuant to Section 7 of this Agreement to enforce his rights under this Agreement.
13. Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision. The Company expressly confirms and agrees that it has entered into this Agreement and assumes the obligations imposed on it hereby in order to induce Indemnitee to serve as a director of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving as a director of the Company and that Indemnitee is entitled to enforce the provisions hereof as a direct beneficiary thereof. Without limiting the generality of the foregoing, this Agreement is intended to confer upon Indemnitee indemnification rights to the fullest extent permitted by applicable laws and to ensure that indemnification rights that may be provided by any other entities or organizations are secondary to the primary obligation of the Company to indemnify Indemnitee as provided in this Agreement. In the event any provision hereof conflicts with any applicable law, such provision shall be deemed modified, consistent with the aforementioned intent, to the extent necessary to resolve such conflict.
14. Modification and Waiver. No supplement, modification, termination or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. The failure by any party to insist upon the strict performance of any covenant, duty, agreement, or condition of this Agreement or the failure to exercise any right or remedy consequent upon a breach hereof shall not constitute a waiver of any such breach or of any covenant, agreement, term, or condition and the waiver by either party hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by any party.
15. Notice By Indemnitee. Indemnitee agrees promptly to notify the Company in writing upon being served with or otherwise receiving any summons, citation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to indemnification covered hereunder. The failure to so notify the Company shall not relieve the Company of any obligation that it may have to Indemnitee under this Agreement or otherwise unless and only to the extent that such failure or delay actually materially prejudices the Company.
16. Notices. All notices, requests, consents, approvals, claims, demands, waivers, and other communications required, necessary or permitted hereunder shall be in writing and shall be delivered (a) in hand by person with written receipt of the Person to whom such notice is intended; (b) by registered or certified mail, postage prepaid, return receipt requested; or (c) by a generally recognized commercial courier service or overnight delivery service, (Federal Express or UPS), for next business day delivery, postage prepaid, with delivery receipt requested. All notices sent in accordance with this Section 16 shall be deemed “Delivered” unless otherwise specified herein, the same day if delivered by hand in person with receipt and signature of the intended recipient or by an authorized officer of the intended recipient; three (3) business days after the same is deposited in the U.S. Mail if sent by registered or certified mail; or one (1) business day after payment and receipt of mailing if sent by a commercial courier service or overnight delivery service for next business day delivery. Such communications must be sent to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 16.
(a) to Indemnitee at the address set forth below Indemnitee signature hereto; or
(b) to the Company at:
Investview, Inc.
c/o James R. Bell, President
521 W. Lancaster Avenue; Fl. 2
Haverford, PA 19041-1413
Email: [email protected]
Phone: 267.738.7074
With Copies to:
Investview, Inc.
c/o David B. Rothrock, Chairman
1648 Plaza Ln.
Allentown, PA 18104
Email: [email protected]
Phone: 484.357.4315
Fox Rothschild LLP
c/o Stephen M. Cohen, Partner
2000 Market Street
Philadelphia, PA 19103
Email: [email protected]
Phone: 215.299.2744
17. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors (including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business or assets of the Company), assigns, spouses, heirs, executors and personal and legal representatives.
18. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement and electronic, digital or facsimile signatures shall be deemed original signatures. In making proof of this Agreement, it shall not be necessary to produce or account for more than one such counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, or by DocuSign, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.
19. Headings. The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction or interpretation thereof.
20. Governing Law and Consent to Jurisdiction. This Agreement and the legal relations among the parties shall be governed by, and construed and enforced in accordance with, the laws of the State of Nevada, without regard to its conflict of laws rules. The parties each hereby consent to the personal jurisdiction of the state courts located in Mercer County, State of New Jersey, and The United States District Court for the District of New Jersey, if that federal court has jurisdiction, over any and all claims or disputes in any way related to the terms of this Agreement.
[The next page is the signature page.]
IN WITNESS WHEREOF, the parties hereto have executed this Indemnification Agreement on and as of the day and year first above written.
| Indemnitee | INVESTVIEW, INC. | |||
| /s/ Victor M. Oviedo | By: | /s/ James R. Bell | ||
| Victor M. Oviedo | Name: | James R. Bell | ||
| Title: | Acting Chief Executive Officer | |||
| Address: | ||||
| 848 Brickell Key Drive | By: | /s/ David B. Rothrock | ||
| Apt. 2205 | Name: | David B. Rothrock | ||
| Miami, FL 33131 | Title: | Chairman of the Board | ||
| Email: [email protected] | ||||
Exhibit 10.102
INVESTVIEW, INC.
JOINDER TO LOCK-UP AGREEMENT
The undersigned has executed this Joinder as of the date set forth below, in order to join as a party to that certain Lock-Up Agreement dated as of March 22, 2021 (the “Agreement”), a copy of which is attached hereto, by and among Investview, Inc. (the “Company”), Investview Financial Group Holdings, LLC, and the “Purchasers” (as such term is defined in the Agreement) of the Company. Intending to be legally bound hereby, the undersigned agrees that the undersigned, shall become a party to, and be bound in all respects by, the Agreement, with respect to all shares of common stock of the Company beneficially held by such undersigned.
| Date: February 10, 2022 | /s/ Victor M. Oviedo |
| Victor M. Oviedo |
ACKNOWLEDGED, ACCEPTED
AND AGREED:
| Investview, Inc. | ||
| By: | /s/ James R. Bell | |
| Name: | James R. Bell | |
| Title: | Acting Chief Executive Officer | |
Exhibit 10.103
Final Execution Version
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this “Agreement”) is entered into as of February 22, 2022 (the “Effective Date”), by and between Investview, Inc. a Nevada corporation (the “Employer”), and James R. Bell (the “Executive”); Employer and Executive individually a “party” and collectively the “parties”.
FOR AND IN CONSIDERATION of the mutual promises, agreements and covenants herein contained, the parties hereto agree as follows:
ARTICLE
I
ASSOCIATION AND RELATIONSHIP
1.1 Nature of Employment. Commencing on the Effective Date, the Employer agrees to employ the Executive, and the Executive hereby accepts employment from the Employer, upon the terms and conditions set forth herein. The Executive hereby covenants and agrees that, during the Term, it is expected that Executive shall devote 100% of his time and efforts to managing, growing and expanding Employer’s business and activities, and that Executive shall not be employed by, or perform consulting or other services for, any other business entity or party without the prior express written consent of the Employer. Subject to the provisions of Articles III and IV of this Agreement, the Executive may, however, engage in the following activities: (a) serving on the Board of Directors of community or other non-profit ventures in an unpaid capacity, (b) serving on the Board of Directors of other non-competitive ventures or businesses that are pre-approved in writing by the Employer’s Board of Directors; (c) managing his personal investments, and (d) owning a passive (non-management position) minority equity interests in any outside business interest; provided that such activities set forth in (a) through (d) (individually or collectively) do not at any time during the Term of this Agreement: (U) conflict with or breach the terms of Section 4.2 hereafter; (V) involve more than a diminimus amount of Executive’s business time; (W) constitute a conflict of interest with any business unit of the Employer in the sole discretion of the Employer; (X) involve ownership of an interest in a business, whether competitive or not, that engages in a business similar to or in the same industry as that of any other business unit of the Employer; (Y) subjects the Employer to the review of the Securities and Exchange Commission, FINRA or any other regulatory body or agency; or (Z) materially and adversely interfere or conflict with the performance of the Executive’s duties or responsibilities under this Agreement.
1.2 Services. During the Term (as defined in Section 6.1), the Executive shall devote his full time, attention, and services to the business and affairs of the Employer.
1.3 Duties. During the Term, the Executive shall be employed by the Employer and shall serve as President of the Employer. The Executive shall serve in such offices or positions as he has been appointed and continues to hold with the Employer or any subsidiary of the Employer, and in such substitute or further offices or positions of substantially consistent rank and authority, or as otherwise mutually agreed to in writing by Executive and Employer, including such positions identified on Schedule A attached hereto. The Executive shall perform duties appropriate as may be assigned to him from time to time by the Board of Directors of the Employer (the “Board”) and as described in the Executive Duties and Responsibilities as itemized on Schedule A attached hereto (the ‘‘Executive Duties and Responsibilities”), which Schedule A is incorporated herein by reference and is expressly made a part of this Agreement. The Executive shall report to the Chief Executive Officer of the Employer, who shall direct, control, and supervise the duties, responsibilities and work of the Executive, subject to the oversight, supervision and direction of the Board. During the Term, the Executive shall be subject to, and shall act in accordance with, all applicable policies, procedures and rules of the Employer.
ARTICLE
II
COMPENSATION
2.1 Base Salary. During the Term, the Executive shall be paid, in accordance with the normal payroll practice of the Employer, annual base salary compensation in an initial amount of $335,000 for all hours worked and shall be exempt from overtime (such amount, as it changes from time to time, the “Base Salary”). During the Term, the Base Salary shall be increased each year in an amount as determined by the Board; provided, however, that such increase shall be at least two and one-half percent (2.5%) each year; and provided, further, that the Base Salary shall be automatically increased by fifteen percent (15%) of the then Base Salary upon the one-time successful up-listing of the Employer’s common stock (the “INVU Common Stock”) to the Nasdaq Stock Market, the New York Stock Exchange, the NYSE American or such other national stock exchange as approved by the Board (or committee thereof) (the “Up-Listing Event”). The Board (or a committee thereof) will determine in its sole discretion whether the Employer will engage in an Up-Listing Event.
2.2 Quarterly Incentive Bonuses. During the Term, the Executive shall be eligible to receive a quarterly incentive bonus, payable in cash, with $35,000 payable assuming the achievement of a set of pre-established target Key Performance Indicators (the “Target KPIs”), as determined by the Board (in collaboration with the Executive (such opportunity, the “Quarterly Cash Incentive Opportunity”); which Quarterly Cash Incentive Opportunity shall be increased to $60,000 per quarter (also assuming achievement of the Target KPIs) upon the completion of an Up-Listing Event. The determination of the achievement of such Target KPIs by the Executive and the amount of such quarterly cash incentive bonus (the “Quarterly Cash Bonus”) shall be determined by the Board (or a committee thereof) as soon as reasonably practicable after completion of each quarter and paid within forty-five (45) calendar days thereafter conditioned upon, at the time of payment, (i) the Executive remaining a full-time employee of the Employer (subject to Section 6.3(b), Section 6.3(c) and Section 6.3(d)); and (ii) there not having occurred a “For Cause Event” (as the term is defined in Section 8.1). In addition, during the Term, the Executive shall also be eligible to receive a quarterly incentive bonus, payable in shares of INVU Common Stock, with 100,000 shares of INVU Common Stock issued assuming the achievement of 100% of Target KPIs, as approved by the Board (or a committee thereof), (such opportunity, the “Quarterly Stock Incentive Opportunity”); which Quarterly Stock Incentive Opportunity shall be reduced to 10,000 shares of INVU Common Stock upon the completion of an Up-Listing Event (also assuming achievement of the Target KPIs). The determination of the achievement of Target KPIs by the Executive and the amount of such Quarterly Stock Incentive Opportunity (the “Quarterly Stock Bonus”) shall be determined by the Board (or a committee thereof) as soon as reasonably practicable after completion of each quarter and paid out in shares of INVU Common Stock within forty-five (45) calendar days thereafter conditioned upon, at the time of such issuance, (i) the Executive remaining a full-time employee of the Employer (subject to Section 6.3(b), Section 6.3(c) and Section 6.3(d)); and (ii) there not having occurred a For Cause Event.
2.3 Market Capitalization Bonuses. During the Term, the Executive shall be eligible to receive cash and common stock bonuses, collectively hereafter known as a “Market Capitalization Bonus Amount” (as defined in Section 2.3(c) below), upon the achievement of certain pre-determined minimum levels of “Market Capitalization” (as the term is defined below in Section 2.3(e)), each pre-determined Market Capitalization level hereafter to be known as a “Market Capitalization Bonus Level”.
(a) Each of the applicable Market Capitalization Bonus Levels under Sections 2.3(e), and the associated Minimum Average Daily Volume under Section 2.3(f), the Minimum Average Daily Market Liquidity under Section 2.3(g) and the Minimum Average Daily Stock Price under Section 2.3(h), must be maintained for at least ninety (90) consecutive trading days;
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(b) Upon payment by Employer to Executive of a Market Capitalization Bonus Amount for achievement of a specific Market Capitalization Bonus Level, thereafter, the Executive shall not be entitled to receive payment of a Market Capitalization Bonus Amount for that same specific Market Capitalization Bonus Level ever again, regardless if the Employer’s Market Capitalization drops below such specific Market Capitalization Bonus Level and Employer regains or achieves that same specific Market Capitalization Bonus Level again at a future date in time. For the avoidance of doubt, payment of a Market Capitalization Bonus Amount for the associated Market Capitalization Bonus Level is a one-time payment event upon its achievement for the first time.
(c) The “Market Capitalization Bonus Amount” is the amount of cash and shares of common stock of Employer which is to be paid to Executive upon the achievement of a Market Capitalization Bonus Level in accordance with this Section 2.3 and this Agreement.
i. The cash portion of the Market Capitalization Bonus Amount will be paid in cash in an amount equal to 0.000185 (the “Market Capitalization Bonus Rate”), times the applicable Market Capitalization Bonus Level achieved in accordance with this Section 2.3 of this Agreement, as set forth in the table in Section 2.3(d) below, minus any amount previously paid to the Executive as a Market Capitalization Bonus Amount under this Section 2.3; and
ii. The stock portion of the Market Capitalization Bonus Amount will be distributed in the form of shares of INVU Common Stock in an amount equal to Market Capitalization Bonus Rate times the applicable Market Capitalization Bonus Level achieved in accordance with this Section 2.3 of this Agreement, as set forth in the table in Section 2.3(d) below, minus the number of shares of INVU Common Stock previously issued to the Executive as a Market Capitalization Bonus Amount under this Section 2.3.
(d) Each Market Capitalization Bonus Amount shall be paid within forty-five (45) calendar days of the achievement of the applicable Market Capitalization Bonus Level, as determined by the Board (or a committee thereof), and payment of each Market Capitalization Bonus Amount is conditioned upon, at the time of payment: (i) the Executive remaining a full-time employee of the Employer (subject to Section 6.3(b), Section 6.3(c) and Section 6.3(d)), and (ii) there not having occurred a For Cause Event.
Market Capitalization Bonus Levels | Minimum Average Daily Volume | Minimum Average Daily Market Liquidity | Minimum Average Daily Stock Price | Market Capitalization Bonus Rate | Market Capitalization Bonus Amount (Cash & Shares) | |||||||||||||||||
| $ | 1.0 billion | 4 million | $ | 1.0 million | $ | 0.34 | 0.000185 | $ | 185,000 cash and 185,000 shares | |||||||||||||
| $ | 1.5 billion | 4 million | $ | 1.5 million | $ | 0.51 | 0.000185 | $ | 277,500 cash and 277,500 shares | |||||||||||||
| $ | 2.0 billion | 4 million | $ | 2.0 million | $ | 0.68 | 0.000185 | $ | 370,000 cash and 370,000 shares | |||||||||||||
| $ | 2.5 billion | 4 million | $ | 2.5 million | $ | 0.85 | 0.000185 | $ | 555,000 cash and 555,000 shares | |||||||||||||
| $ | 3.0 billion | 4 million | $ | 3.0 million | $ | 1.01 | 0.000185 | $ | 647,500 cash and 647,500 shares | |||||||||||||
| $ | 3.5 billion | 4 million | $ | 3.5 million | $ | 1.18 | 0.000185 | $ | 740,000 cash and 740,000 shares | |||||||||||||
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Market Capitalization Bonus Levels | Minimum Average Daily Volume | Minimum Average Daily Market Liquidity | Minimum Average Daily Stock Price | Market Capitalization Bonus Rate | Market Capitalization Bonus Amount (Cash & Shares) | |||||||||||||||||
| $ | 4.0 billion | 4 million | $ | 4.0 million | $ | 1.34 | 0.000185 | $ | 832,500 cash and 832,500 shares | |||||||||||||
| $ | 4.5 billion | 4 million | $ | 4.5 million | $ | 1.51 | 0.000185 | $ | 382,500 cash and 382,500 shares | |||||||||||||
| $ | 5.0 billion | 4 million | $ | 5.0 million | $ | 1.68 | 0.000185 | $ | 925,000 cash and 925,000 shares | |||||||||||||
| $ | 5.5 billion | 4 million | $ | 5.5 million | $ | 1.85 | 0.000185 | $ | 1,017,500 cash and 1,017,500 shares | |||||||||||||
| $ | 6.0 billion | 4 million | $ | 6.0 million | $ | 2.02 | 0.000185 | $ | 1,110,000 cash and 1,110,000 shares | |||||||||||||
| $ | 7.0 billion | 4 million | $ | 7.0 million | $ | 2.35 | 0.000185 | $ | 1,295,000 cash and 1,295,000 shares | |||||||||||||
| $ | 8.0 billion | 4 million | $ | 8.0 million | $ | 2.69 | 0.000185 | $ | 1,480,000 cash and 1,480,000 shares | |||||||||||||
| $ | 9.0 billion | 4 million | $ | 9.0 million | $ | 3.03 | 0.000185 | $ | 1,665,000 cash and 1,665,000 shares | |||||||||||||
| $ | 10.0 billion | 4 million | $ | 10.0 million | $ | 3.36 | 0.000185 | $ | 1,850,000 cash and 1,850,000 shares | |||||||||||||
| $ | 11.0 billion | 4 million | $ | 11.0 million | $ | 3.70 | 0.000185 | $ | 2,035,000 cash and 2,035,000 shares | |||||||||||||
| $ | 12.0 billion | 4 million | $ | 12.0 million | $ | 4.03 | 0.000185 | $ | 2,220,000 and 2,220,000 shares | |||||||||||||
(e) “Market Capitalization” means, with respect to any trading day during the concurrent measurement period of ninety (90) consecutive trading days, the number of shares of INVU Common Stock outstanding on a primary basis multiplied by the closing sale price of a share of INVU Common Stock on such trading day, as reported by the national securities exchange or market on which the INVU Common stock is then listed or quoted (the “Applicable Stock Exchange”).
(f) “Average Daily Volume” means the average daily number of shares of INVU Common Stock traded on the Applicable Stock Exchange during the concurrent measurement period of ninety (90) consecutive trading days.
(g) “Average Daily Market Liquidity” means the average daily liquidity of the shares of INVU Common Stock, as measured at the end of each trading day during the concurrent measurement period of ninety (90) consecutive trading days, based on the number of shares of INVU Common Stock traded on the Applicable Stock Exchange on such trading day multiplied by the Average Daily Stock Price (as defined below), during the concurrent measurement period of ninety (90) consecutive trading days.
(h) “Average Daily Stock Price” means, with respect to any trading day during the concurrent measurement period of ninety (90) consecutive trading days, the average of the high sale price and low sale price of INVU Common Stock for each such trading day, as reported by the Applicable Stock Exchange.
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2.4 Up-Listing Cash Bonus. During the Term, the Executive shall be eligible to receive a one-time cash incentive bonus upon the achievement of an Up-Listing Event pursuant to Section 2.1 in an amount equal to 0.000125 times the Employer’s market capitalization, which for purposes of this Section 2.4 shall be determined based on the number of shares of INVU Common Stock outstanding multiplied by the average closing sale price of a share of INVU Common Stock on the first ten (10) days of trading after the Up-Listing Event, as reported by the national securities exchange or market on which the INVU Common Stock is then listed or quoted (the “Up-Listing Bonus”). The Up-Listing Bonus shall be paid within forty-five (45) calendar days of the achievement of the Up-Listing Event, and payment of the Up-Listing Bonus is conditioned upon, at the time of payment, (i) the Executive remaining a full-time employee of the Employer (subject to Section 6.3(b), Section 6.3(c) and Section 6.3(d)), and (ii) there not having occurred a For Cause Event.
2.5 Grant of Restricted Shares. The Employer hereby agrees, as of the effectiveness of a Registration Statement on Form S-8 covering Company shares issuable under the “Plan” (as hereafter defined), to award and grant to the Executive Sixty Million (60,000,000) shares of restricted INVU Common Stock (collectively, the “Restricted Shares”) under the Investview, Inc. 2022 Incentive Plan or a similar equity plan approved by the Board (such plan as it may be amended from time to time, the “Plan”), such Restricted Shares to be subject to forfeiture and the restrictions as contained below and in the Plan and award agreement evidencing such Restricted Shares to be executed between the Employer and the Executive (the “Award Agreement”). To the extent authorized in the Plan and Award Agreement, the Award Agreement shall be subject to the terms as provided below, notwithstanding any terms to the contrary in the Plan or the Award Agreement itself.
(a) Vesting of Restricted Shares. Subject to the terms of this Agreement, the Plan and the Award Agreement, the Restricted Shares shall vest and become non-forfeitable, on a cumulative basis, in accordance with the following schedule, subject to at the time of each vesting date: (i) the Executive remaining a full-time employee of the Employer, and (ii) there not having occurred a For Cause Event (each, a “Scheduled Vesting Date”):
| Vesting Date | Restricted Shares Vesting | |||
| February 21, 2023 | 20 | % | ||
| February 21, 2024 | 20 | % | ||
| February 21, 2025 | 20 | % | ||
| February 21, 2026 | 20 | % | ||
| February 21, 2027 | 20 | % | ||
(b) Treatment of Restricted Shares Upon a Change in Control. Upon the occurrence of a “Change in Control” (as defined in the Plan), vesting of the Restricted Shares shall remain subject to the terms of Sections 2.5(a) above and 2.5(c) below; however, should the Executive’s employment with the Employer be terminated by the Employer without Cause or by the Executive with Good Reason, within twelve (12) months of the Change in Control, all of the Restricted Shares that have not yet vested as of such date shall immediately and automatically vest and become non-forfeitable.
(c) Treatment of Restricted Shares Upon a Termination of Employment. The following provisions governing the treatment of the Restricted Shares shall apply in the event the Executive’s employment with the Employer is terminated.
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i. Termination by Employer for Cause or by Executive Without Good Reason. If the Executive’s employment and this Agreement is terminated by the Employer for Cause pursuant to Section 6.2(a), or by the Executive without Good Reason pursuant to Section 6.2(d), the vesting of the Restricted Shares shall cease as of the date of such termination, and any unvested Restricted Shares shall be forfeited by the Executive and revert to the Employer.
ii. Termination Due to Executive’s Death or Disability. If the Executive’s employment and this Agreement is terminated due to the Executive’s death or Disability (within the meaning of Section 6.2(b)), and at the time no circumstance, event or occurrence constituting a For Cause Event existed, then any Restricted Shares that are scheduled to vest during the period from the date of termination through the next Scheduled Vesting Date, as applicable, pursuant to Section 2.5(a) above (but in no event longer than a six-month period following the date of Executive’s date of termination) shall immediately and automatically vest and become non-forfeitable and the remaining unvested Restricted Shares shall terminate and be forfeited by the Executive and revert to the Employer.
iii. Termination by Employer without Cause or by Executive with Good Reason. If the Executive’s employment and this Agreement is terminated by the Employer without Cause pursuant to Section 6.2(e) or by the Executive with Good Reason pursuant to Section 6.2(c), then any Restricted Shares that are scheduled to vest during the period from the date of termination through the next Scheduled Vesting Date, as applicable, pursuant to Section 2.5(a) above (but in no event longer than a six-month period following the date of Executive’s date of termination) shall immediately and automatically vest and become non-forfeitable and the remaining unvested Restricted Shares shall terminate and be forfeited by the Executive and revert to the Employer.
(d) Prohibition Against Transfer of Restricted Shares. Prior to the vesting of the Restricted Shares, the Executive shall not transfer, assign, sell, barter, pledge or hypothecate in any way (whether by operation of law or otherwise) (collectively or singularly, a “Transfer”) any of the Restricted Shares. Any such transfer in violation of this Section 2.5(d) shall be void and of no further effect.
(e) Required Tax Withholding Obligations. The Employer may require payment by the Executive or withhold any income or employment tax which the Employer believes is payable as a result of the grant or vesting of the Restricted Shares or any payments thereon or in connection therewith, and the Employer may defer releasing the Restricted Shares into the custody of the Executive until arrangements satisfactory to the Employer have been made with regard to any such withholding obligation. The Employer may withhold or repurchase a portion of the Restricted Shares to satisfy such withholding obligations.
2.6 Benefits.
(a) The Executive will, during the Term, be permitted to participate in such pension, profit sharing, life insurance, disability insurance, major medical (as applicable, 100% paid by the Company) and other employee benefit plans of the Company that may be in effect from time to time, as may be offered to other senior employees at comparable levels and rank of employment, to the extent Executive is eligible under the terms of those plans. The Company may alter, modify, add to or delete its executive benefit plans as they apply to such comparable levels and rank of employees at such times and in such manner as the Company determines appropriate, without recourse by Executive so long as such changes are applied in a substantially uniform manner to such comparable levels and rank of employees.
(b) Executive shall be entitled to receive annual vacation in accordance with the Company’s policies applicable to its senior employees at comparable levels and rank of employment, which in any event shall not be less than eighteen (18) business days per calendar year (with such amount prorated on a monthly basis for the balance of 2022). The Executive shall also be entitled to the paid holidays and other paid leave set forth in the Company’s written policies.
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2.7 Indemnification; D&O Insurance. Employer hereby agrees to hold harmless and indemnify Executive to the fullest extent authorized or permitted by the provisions of the Nevada Revised Statutes, or any successor statute or amendment thereof, or any other statutory provisions authorizing or permitting such indemnification that is adopted after the date of this Agreement. Employer agrees to further supplement Executive’s indemnification coverage under the terms of a customary and standard indemnification agreement, a form of which shall be agreed to by the Parties on or before the Effective Date. During the Term, the Employer shall use its reasonable best efforts to obtain and maintain (a) a directors’ and officers’ liability insurance policy, or an equivalent errors and omissions liability insurance policy on commercially reasonable terms, including fiduciary coverage, and (b) an employment practices liability insurance policy. Notwithstanding the forgoing, Executive acknowledges that the Employer currently has no such policies in place, and cannot assure that market conditions will enable the Employer to obtain either or both of such policies, set forth in subsection (a) and (b) herein, on commercially reasonable terms, if at all.
2.8 Business Expense Reimbursement. During the Term, the Employer shall reimburse the Executive for all reasonable out-of-pocket expenses incurred by the Executive in connection with the business of the Employer and in performance of his duties under this Agreement, in accordance with Employer’s expense reimbursement policy, as in affect from time to time. Executive agrees to comply with Employer’s expense reimbursement policy and or guidelines, as in affect from time to time, and with such compliance, expenses shall be reimbursed upon the Executive’s presentation to the Employer of an itemized accounting of such expenses with reasonable supporting data and otherwise in accordance with the Employer’s expense reimbursement policy and or guidelines, as in effect from time to time.
ARTICLE
III
COVENANT TO NOT DISCLOSE CONFIDENTIAL INFORMATION
3.1 Confidential and Proprietary Information. Executive acknowledges that he is in a relationship of confidence and trust with the Employer and will come into possession of information which could constitute a major asset of the Employer and be of significant commercial value, the use, misappropriation or disclosure of which would cause a breach of trust and could cause irreparable injury to the Employer (all of the aforementioned information is hereinafter collectively referred to as “Proprietary Information”). Proprietary Information shall include, but not be limited to, any and all: (i) confidential information and trade secrets concerning the business(es) and affairs of the Employer, including, but not limited to, any agreements, licenses, data, know-how, compositions, processes, designs, sketches, photographs, graphs, drawings, inventions and ideas, past, current, and planned research and development, customer lists, lists of any Persons participating in the Employer’s business, current and anticipated customer requirements, market studies, business plans, marketing plans, computer software and programs (including object code and source code), computer software and database technologies, systems, structures and architectures (and related processes, formulae, composition, improvements, devices, know-how, inventions, discoveries, concepts, ideas, designs, methods and information), and any other information, however documented, that is a trade secret within the meaning of applicable law; and (ii) information concerning the business and affairs of the Employer, which includes historical financial statements, financial projections and budgets, historical and projected sales, pricing information (margins, profits, costs), names, backgrounds and agreements with vendors, suppliers, distributors and or manufacturers, capital spending budgets and plans, the names, backgrounds and compensation information of key personnel, including any Persons participating as a distributor within the Employer’s multi-level sales and marketing network, personnel training techniques, and materials, however documented, that have been or may hereafter be provided or shown to you by the Employer, or by the directors, officers, employees, agents, consultants, advisors, or other representatives including legal counsel, accountants and financial advisors of the Employer or is otherwise obtained from review of the Employer’s documents or property or discussions with such party or its representatives, irrespective of the form of the communication, and also includes all notes, analyses, compilations, studies, summaries, and other material prepared by the Executive based, in whole or in part, on any information included in the foregoing.
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3.2 Non-Disclosure. The Executive acknowledges that in the course of carrying out, performing, and fulfilling his responsibilities to the Employer, the Executive will be given access to and be entrusted with Confidential Information relating to the Employer’s business. Executive acknowledges that all Proprietary Information shall be the sole property of the Employer and its successors and assigns. Executive further acknowledges that it is essential for the proper protection of the business and the goodwill of the Employer that such Proprietary Information be kept confidential and not disclosed or communicated, in any manner or form, to third parties or used for the benefit of any third party and or Executive. Accordingly, Executive agrees that during the Term and thereafter for so long as the information remains Proprietary Information, to keep in confidence and trust all Proprietary Information, and not to use, disclose, disseminate, publish, copy, communicate or otherwise make available, directly or indirectly, except in the ordinary course of the performance of Executive’s duties under this Agreement, any Proprietary Information except as expressly authorized in writing by the Employer; provided, however, that Executive shall be relieved of his obligation of nondisclosure hereunder as to information that (a) at the time of disclosure to Executive is known to, or readily ascertainable by, the public; (b) or becomes known to the public through no fault of Executive or other violation of this Agreement. In addition, Executive shall be relieved of his obligation of nondisclosure hereunder: (X) as to Proprietary Information that is required to be disclosed by any applicable judgment, order or decree of any court or governmental body or agency having competent jurisdiction or by any law, rule or regulation; or (Y)with respect to responding to an inquiry from, providing testimony before, or upon the written advice of counsel that concludes such action is required to comply with applicable securities laws, initiating communications directly with, the Securities and Exchange Commission, the Financial Industry Regulatory Authority, any other self-regulatory organization, or any other federal or state regulatory body regarding a possible securities law violation; provided, in either case, that prior to and in connection with any such disclosure, Executive shall give the Employer reasonable prior written notice of the disclosure of such information pursuant to this exception (to the extent permitted by applicable law) and shall cooperate with the Employer to permit the Employer to seek confidential treatment for any such information that the Employer deems to be Proprietary Information, from any authority requiring delivery of such information; provided further, however, that if the Employer has not obtained such confidential treatment by the date Executive is required by such authority to disclose the Proprietary Information, Executive shall be free to provide such disclosure and there shall be no violation of or damages determined under this Agreement or otherwise for Executive’s disclosure action and compliance with or pursuant to such authority. Executive acknowledges having been notified that, notwithstanding any obligations in this Agreement, pursuant to the Defend Trade Secrets Act of 2016 (“DTSA”), the Employer shall not hold Executive criminally or civilly liable under any federal or state trade secret law for the disclosure of Proprietary Information that is made in confidence: (i) to a federal, state, or local government official, either directly or indirectly, and or (ii) to an attorney solely for the purpose of reporting or investigating a suspected violation of law. The Employer shall also not hold Executive liable for such disclosures made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Executive also acknowledges having been notified that individuals who file a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to court order.
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3.3 Return of Proprietary Information. Executive agrees that when he ceases to be employed by the Employer, whether such cessation of employment shall be for any reason or for no reason, with or without Cause, voluntary or involuntary, or by termination, resignation, disability, death, retirement or otherwise, Executive (and in the case of death, Executive’s estate and or Executive’s successors, assigns, executors, heirs, administrators or other legal representatives) shall not retain, copy or otherwise store any Proprietary Information and shall deliver to the Employer all Proprietary Information, in whatever form whatsoever the Proprietary Information is then existing (written hard copy, graphic, voice recording, telephonic, digital, electronic, encryption or decryption keys or information, commentary on code or any other form), documents, and property, including without limitation, computers, telephones, and mobile devices, and data of any nature owned by the Employer pertaining to the Proprietary Information; and specifically, Executive agrees to provide Employer any and all user names, passwords, keys, security codes and any other authorizations for any and all digital wallets, brokerage accounts, financial institution accounts, bank accounts, exchange accounts and or any other accounts where the Company’s assets are held which are in Executive’s exclusive possession or solely known by Executive.
3.4 Works made for Hire. Executive further recognizes and understands that Executive’s duties at the Employer may include the preparation of materials or discovery of Proprietary Information, including without limitation written or graphic representation of materials or Proprietary Information, and that any such materials and Proprietary Information conceived, developed, prepared, made or written by Executive in the course of Executive’s employment with Employer shall be done as “work made for hire” as defined and used in the Copyright Act of 1976, 17 U.S.C. §§ 1 et seq. In the event of publication of such materials, Executive understands that since the work is a “work made for hire”, the Employer will solely retain and own all rights in said materials, including right of copyright and any profits to be made from such “work made for hire”.
3.5 Disclosure of Works and Inventions. In consideration of the promises set forth herein, Executive agrees to disclose promptly to the Employer, any and all works, “Inventions” (as defined at Section 4.10 hereafter), discoveries and or improvements authored, conceived or made by Executive during the period of employment and related to the business or activities of the Employer, and Executive hereby assigns and agrees to assign all of Executive’s rights and interest in the foregoing to the Employer. Executive agrees that, whenever he is requested to do so by the Employer, Executive shall sign any and all applications, assignments or other instruments which the Employer shall deem necessary to enable the Employer to apply for and obtain patents or copyrights of the United States or any foreign country or to otherwise protect the Employer’s rights and interest therein. Executive hereby appoints an authorized officer of the Employer as Executive’s attorney in fact to sign documents on his behalf for this purpose in any case in which Executive has refused a written request to sign documents in accordance with this Section 3.5. Such obligations shall continue beyond the termination or nonrenewal of Executive’s employment with respect to any works, Inventions, discoveries and/or improvements that are authored, conceived of, or made by Executive during the period of Executive’s employment, and shall be binding upon Executive’s successors, assigns, executors, heirs, administrators or other legal representatives.
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ARTICLE
IV
OTHER COVENANTS
4.1 Non-Solicitation. In recognition of the consideration received by Executive under this Agreement, the sufficiency of which is acknowledged by Executive, Executive covenants and agrees with the Employer that during the “Non-Solicitation Term” (as defined below), he will not, without the prior written consent of the Employer which may be withheld or given in its sole discretion, act in any manner, including but not limited to, as an individual, owner, sole proprietor, founder, associate, promoter, partner, joint venturer, shareholder (other than as the record or beneficial owner of less than five percent (5%) of the outstanding shares of a publicly traded corporation), officer, director, trustee, manager, employer, employee, licensor, licensee, principal, agent, salesman, broker, representative, consultant, advisor, investor or otherwise, directly or indirectly: (i) solicit, counsel or attempt to induce any Person who is then, or was within the last year, an employee, consultant or independent contractor of the Employer, to leave the employ of or cease providing services, as applicable, to the Employer, or employ or attempt to employ any such person or persons who at any time during the preceding one (1) year was in the employ of, or provided services to, the Employer; or (ii) solicit, bid for or perform for any of the then current customers of the Employer (defined as a customer who has done business with the Employer within one (1) year), any services of the type the Employer performed for such customer at any time during the preceding one (1) year period; (iii) solicit, bid for or perform for any potential customer (defined as a potential customer who was actively involved in discussions with the Employer and received a written proposal from the Employer within the preceding six (6) month period) any services of the type covered by any such proposal; or (iv) solicit any Person who is currently, or has within the last year, participated in the Employer’s business as a distributor/salesperson of the Employer’s multi-level sales and marketing network, to join any competitive business or organization.
4.2 Non-Compete. In recognition of the consideration received by Executive under this Agreement, the sufficiency of which is acknowledged by Executive, Executive covenants and agrees with the Employer that during the “Non-Compete Term” (as defined below) he will not, without the prior written consent of the Employer, which may be withheld or given in its sole discretion, directly or indirectly, or individually or collectively within the continental United States of America, and or any country outside of the United States of America in which the Company engages/conducts business, engage in any activity or act in any manner, including but not limited to, as an individual, owner, sole proprietor, founder, associate, promoter, partner, joint venturer, shareholder (other than as the record or beneficial owner of less than five percent (5%) of the outstanding shares of a publicly traded corporation), officer, director, trustee, manager, employer, employee, licensor, licensee, principal, agent, salesman, broker, representative, consultant, advisor, investor or otherwise, for the purpose of establishing, operating, consulting, assisting or managing any business or entity that is engaged in activities competitive with the then “business of the Employer”. For the purposes hereof, the term “business of the Employer” shall have that meaning ascribed hereto in Schedule B to this Agreement.
4.3 Non-Solicitation Term. The “Non-Solicitation Term” shall mean the period commencing on the Effective Date and ending twenty-four (24) months following the termination of Executive’s employment with the Employer. The Non-Solicitation Term shall also be deemed to be extended for any period in which Executive is in violation of any covenant contained in Articles III, IV or V of this Agreement, so that the Employer shall have the full benefit of the proscriptive period.
4.4 Non-Compete Term.The “Non-Compete Term” shall mean the period commencing on the Effective Date and ending eighteen (18) months following the termination of Executive’s employment with the Employer. The Non-Compete Term shall also be deemed to be extended for any period in which Executive is in violation of any covenant contained in Articles III, IV or V of this Agreement, so that the Employer shall have the full benefit of the proscriptive period.
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4.5 Definition of the Employer. For the purposes of Sections 3 and 4, the term “Employer” shall include the Employer and each of its subsidiaries and Affiliates.
4.6 Non-Disparagement. Executive covenants and agrees, not to act in any manner, including but not limited to, individually or through any other Person, as an owner, sole proprietor, founder, associate, promoter, partner, joint venturer, shareholder (other than as the record or beneficial owner of less than five percent (5%) of the outstanding shares of a publicly traded corporation), officer, director, trustee, manager, employer, employee, licensor, licensee, principal, agent, salesman, broker, representative, Affiliate, recruiter, consultant, advisor, investor or otherwise, directly or indirectly, defame or disparage the Employer or any of its business(es), products, services, policies, procedures, practices, finances, financial conditions, performance, capabilities, it’s employees, officers, directors, owners, board members, investors, shareholders, advisors, consultants, agents, affiliates, representatives, professionals, experts, any subsidiary or other aspect of any of Employer’s businesses, in any form or medium whatsoever (including but not limited to hard copy, electronic, verbal or digital form), in any publication (including but not limited to a newspaper, magazine, billboard, email, newsletter, text, social media platform, blog, radio program, podcast, etc.) (for purposes of this Section 4.6, collectively the “Mediums”) to any Person without limitation in time. Executive further covenants and agrees not to authorize or specifically instruct, assist, consult to, advise, teach, support or fund any Person or any of their Affiliates, agents, advisors, consultants, representatives, partners, investors, owners or employees to defame or disparage the Employer’s businesses, in any Mediums to any Person without limitation in time. Executive shall not make or otherwise issue any public statement or press release regarding the termination, separation, departure, and/or resignation of Executive from the Employer, absent the Employer’s express prior written approval of any such public statement or press release. This Section 4.6 does not, in any way, restrict or impede the Executive from exercising protected rights to the extent that such rights cannot be waived by agreement or from complying with any applicable law or regulation or a valid order of a court of competent jurisdiction or an authorized government agency, provided that such compliance does not exceed that required by the law, regulation or order. Employer agrees and covenants that it shall direct its officers and directors and all Affiliates to refrain from making any defamatory or disparaging remarks, comments, or statements concerning the Executive in any Medium to any Person without limitation in time. Employer shall not make or otherwise issue any public statement or press release regarding the termination, separation, departure, and/or resignation of Executive from the Employer, absent the Executive’s express prior written approval of any such public statement or press release, unless such statement or press release is required in the reasonable judgment of Employer to comply with applicable securities laws.
4.7 Blue Pencil Rule. Executive and the Employer desire that the provisions of this Section 4 be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. The parties agree that Executive is a key executive of the Employer. If a court of competent jurisdiction, however, determines that any restrictions imposed on Executive in this Section 4 are unreasonable or unenforceable because of duration, geographic area or otherwise, Executive and Employer agree and intend that the court shall enforce this Section 4 to the maximum extent the court deems reasonable and that the court shall have the right to strike or change any provisions of this Section 4 and substitute therefor different provisions to effect the intent of this Section 4 to the maximum extent possible.
4.8 Tolling. The term of any of the restrictive covenants set forth in Sections 4 shall be deemed to be tolled or extended by the length of any period of time during which Executive is in violation of any restrictive covenant so that the Employer shall have the full benefit of the proscriptive period. Additionally, the parties agree not to take or allow to be taken any action during the term of this Agreement that has the effect of circumventing the terms of this Agreement, it being the intent of the parties that each abide by both the letter and the spirit of the terms of this Agreement.
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4.9 No Conflicts of Interest. The Executive agrees not to engage in any conduct which might result in or create the appearance of using the Executive’s position for private gain, create a conflict of interest or the appearance of a conflict of interest with the Employer, or otherwise circumvent any business opportunity of Employer during the Term. Such conduct includes without limitation having an undisclosed financial interest in any vendor or supplier of the Employer, accepting payments of any kind or gifts other than of a nominal value from vendors, customers or suppliers, or having an undisclosed relationship with a family member or other individual who is employed by any entity in active or potential competition with the Employer, and which creates a conflict of interest. While still employed at the Employer, the Executive must not establish, operate, participate in advise or assist to establish in any manner whatsoever any business, which could or would be in competition with the Employer’s business, and the Executive must not take any preliminary or preparatory steps toward establishing or operating such a business.
4.10 Ownership of Works. The Executive agrees to promptly disclose in writing to the Employer all Inventions, discoveries, developments, improvements and or innovations (collectively referred to as “Inventions”) that the Executive has been exposed to, conceived or made during his employment with the Employer; provided, however, that in this context “Inventions” are limited to those which (a) relate in any manner to the existing or contemplated business or research activities of the Employer and its affiliates; (b) are suggested by or result from the Executive’s work at the Employer; or (iii) result from the use of the time, materials or facilities of the Employer, its subsidiaries and or its affiliates. All Inventions will be the Employer’s proprietary property rather than the Executive’s. Should the Employer request it, the Executive agrees to sign any document that the Employer may require to establish ownership in any Inventions.
4.11 No Conflicting Agreements or Improper Use of Third-Party Information. During his employment with the Employer, the Executive shall not improperly use or disclose any confidential information or trade secrets of any former employer or other person or entity, and the Executive shall not bring on to the premises of the Employer any unpublished document or confidential information belonging to any such former employer, person or entity, unless consented to in writing by the former employer, person or entity. The Executive represents that he has not improperly used or disclosed any confidential information or trade secrets of any other person or entity during the application process or while employed or affiliated with the Employer. The Executive also acknowledges and agrees that he is not subject to any contract, agreement, or understanding that would prevent the Executive from performing his duties for the Employer or otherwise complying with this Agreement. Notwithstanding the generality of the foregoing, the Executive represents and warrants to the Employer that the Executive is not currently subject to a non-competition, non-solicitation, non-disclosure, confidentiality, or other such agreement which prohibits the Executive from working for the Employer and its subsidiaries. To the extent the Executive violates this provision, or his employment with the Employer constitutes a breach or threatened breach of any contract, agreement, or obligation to any third party, the Executive shall indemnify and hold the Employer harmless from all damages, expenses, costs (including reasonable attorneys’ fees, professional fees and or expert witness fees) and liabilities incurred in connection with, or resulting from, any such violation or threatened violation.
4.12 Joinder to Lock-Up Agreement. Executive acknowledges and agrees to, on or before the Effective Date, execute a joinder to, and become bound by, the terms of that certain Lock-Up Agreement dated March 22, 2021 (the “Lock-Up Agreement”), as amended, by and between certain shareholders of the Employer and DBR Capital, LLC, a copy of which has been provided to Executive for his review and consent.
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ARTICLE
V
ENFORCEMENT OF COVENANTS
5.1 Injunctive Relief. The Executive agrees that a breach or threatened breach by Executive of any covenant contained in this Agreement will cause such damage to the Employer as will be irreparable, and for that reason, the Executive further agrees that the Employer shall be entitled as a matter of right to an injunction from any court of competent jurisdiction restraining any further violation of such covenants by the Executive, his employers, officers, partners, or agents, without proof of damages or posting of a bond. The right to injunction shall be cumulative and in addition to whatever other equitable or legal remedies the Employer may have, including, specifically, recovery of damages.
5.2 Survival of Covenants. Subject to Article VI below, in the event the Executive’s employment relationship with the Employer is terminated, the covenants contained in Articles III and IV above and the remedies provided under this Article V shall survive for the period of time specified herein Articles III and IV for such covenants, and where a specific period of time is not specified, then for a period of one (1) year after such termination.
ARTICLE
VI
TERM AND TERMINATION
6.1 Term. Except as provided herein, the initial term of this Agreement shall be for a period of five (5) years commencing on the Effective Date and shall end on the five (5) year anniversary of the Effective Date (the “Initial Term”). At the expiration of the Initial Term, this Agreement will automatically renew for successive additional terms of one (1) year (each a “Renewal Term”, and together with the Initial Term, the “Term”), unless notice of nonrenewal is given in writing by either Party hereto to the other Party at least sixty (60) calendar days prior to the expiration of the Initial Term or any successive Renewal Term. Notwithstanding the foregoing and for the avoidance of doubt, the Executive’s employment shall be on an at-will basis, meaning that, subject to the terms and conditions of this Agreement, including without limitation Section 6.2 and 6.3, either the Employer or the Executive may terminate the Executive’s employment at any time, with or without notice, for any reason not prohibited by law.
6.2 Termination. The Executive’s employment hereunder and this Agreement may be terminated under the following circumstances:
(a) Termination by Employer for Cause. The Employer shall have the right to terminate this Agreement and the Executive’s employment with the Employer immediately for cause (“Cause”) (as defined below) at any time if, during the Term, the Executive: (i) has materially breached the terms of this Agreement; (ii) violates any of the covenants of Articles III and IV of this Agreement; (iii) exhibits repeated willful, reckless, intentional, grossly negligent or wanton failure or refusal to perform his Executive Duties and Responsibilities in furtherance of the Employer’s business interest or in accordance with this Agreement (which shall be cause for termination if Employer provides Executive notice of such failure or refusal more than one time in any 12 month period); (iv) commits an intentional tort against the Employer, which materially adversely affects the business or reputation of the Employer; (v) commits any act of fraud, dishonesty or disloyalty or any act involving gross moral turpitude, which adversely affects the business or reputation of the Employer; (vi) has engaged in violations of federal or state securities laws, or has caused the Employer to engage in violations of federal or state securities laws; (vii) has been charged with criminal conduct under any federal or state laws against the Employer, which in the good-faith discretion of Employer’s Board, could have the effect of materially adversely affecting the business or reputation of the Employer or Executive’s ability to execute and perform his Executive Duties and Responsibilities under this Agreement; (viii) has been the subject of a final non-appealable conviction of or a plea of guilty or nolo contendere by the Executive to a felony or misdemeanor involving fraud, embezzlement, theft, or dishonesty, moral turpitude or other criminal conduct against the Employer or otherwise; (ix) exhibits immoderate use of alcohol or drugs that, in the discretion of the Board, impairs, or is likely to impair, the Executive’s ability to perform his duties hereunder; or (x) has become subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act (a “Disqualification Event”), (each and all of the foregoing clauses (i) through (x) constituting reasons for termination for “Cause”), provided that unsatisfactory business performance of the Employer, or mere inefficiency, or good faith errors in judgment or discretion by the Executive shall not constitute grounds for termination for Cause hereunder. Notwithstanding the foregoing, this Agreement and the Executive’s employment with the Employer shall not be deemed to have been terminated for Cause, without at least fifteen (15) calendar days’ prior written notice to the Executive setting forth the reason(s) for the Employer’s intention to terminate for Cause. Except for a failure, breach, or refusal which, by its nature, cannot reasonably be expected to be cured, the Executive shall have fifteen (15) calendar days from the delivery of written notice by the Employer within which to cure any acts constituting Cause.
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(b) Termination upon Death or Disability of the Executive. This Agreement and the Executive’s employment with the Employer shall terminate immediately upon the Executive’s death or Disability (as defined below). For the purposes of this Agreement, the term “Disability” shall mean the Executive’s inability to perform his duties with or without a reasonable accommodation under this Agreement for a period of ninety (90) consecutive days due to illness, accident or any other physical or mental incapacity, as determined in the sole discretion of the Employer.
(c) Termination by Executive with Good Reason. The Executive may terminate this Agreement and his employment with the Employer with “Good Reason”. “Good Reason” means the Employer’s material breach of its representations and/or obligations under this Agreement or any other agreement with the Executive, which breach has continued unremedied for a period of thirty (30) calendar days after the Employer’s receipt of written notice from the Executive.
(d) Termination by Executive without Good Reason. The Executive may terminate this Agreement and his employment with the Employer at any time without Good Reason upon thirty (30) calendar days’ prior written notice from the Executive to the Employer.
(e) Termination by Employer without Cause. The Employer may terminate this Agreement and the Executive’s employment with the Employer at any time without Cause upon thirty (30) calendar days’ prior written notice from the Employer to the Executive; however, if Executive provided Employer notice of his termination of employment with the Employer without good reason, then Employer may terminate Executive’s employment effective immediately.
6.3 Payments Upon Termination.
(a) Termination by Employer for Cause or by the Executive without Good Reason. In the event that this Agreement and the Executive’s employment is terminated by the Employer for Cause pursuant to Section 6.2(a) or by the Executive without Good Reason pursuant to Section 6.2(d):
i. The Employer shall pay to the Executive all amounts and benefits accrued through the date of termination (which for the purposes of clarity shall exclude unused accrued vacation days) and any unreimbursed expenses incurred pursuant to Section 2.8.
ii. Any remaining unvested Restricted Shares shall be forfeited in full and any other unvested equity awards granted to the Executive shall be terminated and forfeited in full.
iii. The Executive shall not be entitled to any additional payment in the form of severance or otherwise.
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(b) Termination upon Death of the Executive. If the Executive dies during the Term and his employment and this Agreement terminates pursuant to Section 6.2(b):
i. The Employer shall pay to the estate of the Executive within thirty (30) calendar days after the date on which the Executive dies, all amounts and benefits accrued through the date of termination (including unused accrued vacation days) and any unreimbursed expenses incurred pursuant to Section 2.8.
ii. The Employer shall pay to the estate of the Executive any Quarterly Cash Bonus(es), Quarterly Stock Bonus(es), Market Capitalization Bonus(es) and any Up-Listing Cash Bonus(es) that the Executive earned for any fiscal quarter(s) prior to the fiscal quarter in which the Executive’s employment terminated pursuant to Section 2.2 to the extent that such Quarterly Cash Bonus(es), Quarterly Stock Bonus(es), Market Capitalization Bonus(es) and any Up-Listing Cash Bonus) had not yet been paid before the date of termination, within ninety (90) calendar days following the Executive’s termination of employment.
iii. The Employer shall pay to the estate of the Executive a lump sum amount payable in cash equal to six (6) months of the Executive’s Base Salary within ninety (90) calendar days following the Executive’s termination of employment.
iv. Any Restricted Shares that are scheduled to vest during the period from the date of termination through the next Scheduled Vesting Date, as applicable, pursuant to Section 2.5(a) (but in no event longer than a six-month period following the date of Executive’s date of termination), shall immediately and automatically vest and become non-forfeitable and the remaining unvested Restricted Shares shall terminate and be forfeited by the Executive and revert to the Employer.
v. The treatment of any and all other equity awards granted to the Executive by the Employer shall be governed by the terms of the award agreements governing such awards.
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(c) Termination upon Disability of the Executive. In the event that the Executive’s employment and this Agreement is terminated upon the Disability of the Executive pursuant to Section 6.2(b):
i. The Employer shall pay to the Executive within thirty (30) calendar days following the Executive’s termination (including unused accrued vacation days) of employment all amounts and benefits accrued through the date of termination and any unreimbursed expenses incurred pursuant to Section 2.8.
ii. The Employer shall pay to the Executive any Quarterly Cash Bonus(es), Quarterly Stock Bonus(es), Market Capitalization Bonus(es) and any Up-Listing Cash Bonus(es) that the Executive earned for any fiscal quarter(s) prior to the fiscal quarter in which the Executive’s employment terminated pursuant to Section 2.2 to the extent that such Quarterly Cash Bonus(es), Quarterly Stock Bonus(es), Market Capitalization Bonus(es) and any Up-Listing Cash Bonus(es) had not yet been paid before the date of termination within ninety (90) calendar days following the Executive’s termination of employment.
iii. If the Executive’s Disability is a “disability” within the meaning of Section 409A of the Code, the Employer shall pay to the Executive a lump sum amount payable in cash equal to six (6) months of the Executive’s Base Salary within ninety (90) calendar days following the Executive’s termination of employment, otherwise, such six (6) months of Executive’s Base Salary shall be payable as salary continuation payments in accordance with the Employer’s normal and customary payroll procedures over six (6) months.
iv. Any Restricted Shares that are scheduled to vest during the period from the date of termination through the next Scheduled Vesting Date, as applicable, pursuant to Section 2.5(a) (but in no event longer than a six-month period following the date of Executive’s date of termination), shall immediately and automatically vest and become non-forfeitable and the remaining unvested Restricted Shares shall terminate and be forfeited by the Executive and revert to the Employer.
v. The treatment of any and all other equity awards granted to the Executive by the Employer shall be governed by the terms of the award agreements governing such awards.
(d) Termination by Employer without Cause or by Executive with Good Reason. In the event that the Executive’s employment and this Agreement is terminated by the Employer pursuant to Section 6.2(e) or in the event that the Executive’s employment and this Agreement is terminated by Executive with Good Reason pursuant to Section 6.2(c):
i. The Employer shall pay to the Executive all amounts and benefits accrued through the date of termination (including unused accrued vacation days) and any unreimbursed expenses incurred pursuant to Section 2.8.
ii. The Employer shall pay to the Executive any Quarterly Cash Bonus(es), Quarterly Stock Bonus(es), Market Capitalization Bonus(es) and any Up-Listing Cash Bonus(es) that the Executive earned for any fiscal quarter(s) prior to the fiscal quarter in which the Executive’s employment terminated pursuant to Section 2.2 to the extent that such Quarterly Cash Bonus(es), Quarterly Stock Bonus(es), Market Capitalization Bonus(es) and any Up-Listing Cash Bonus(es) had not yet been paid before the date of termination within ninety (90) calendar days following the Executive’s termination of employment.
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iii. The Employer shall pay to the Executive severance (“Severance”) in an amount equal to the Executive’s Base Salary, payable as salary continuation payments in accordance with the Employer’s normal and customary payroll procedures over a severance period (the “Severance Period”) of six (6) months following Executive’s termination.
iv. If the Executive timely elects continuation coverage under the Employer’s group medical, dental and health plans for the Executive and his covered dependents pursuant to Section 4980B of the Internal Revenue Code of 1986, as amended (the “Code”) (which provisions are commonly known as “COBRA”), in accordance with ordinary plan practices, the Employer shall pay, or reimburse Executive, during the Severance Period, for the COBRA premium payable by the Executive as if he had continued in active employment with the Employer, for the level of coverage the Employer and his covered dependents are enrolled in the Employer’s group medical, dental and health plans at the date of termination, to the extent permitted under the terms of the Employer’s medical, dental and health plans; provided, however, that if the Executive and his covered dependents become eligible to receive comparable medical benefits under another employer provided plan during the Severance Period, the Employer’s obligation to make, or reimburse COBRA payments described herein shall be terminated. Unless direct payment by the Employer of such COBRA payments is permitted by applicable law, the Executive shall pay the full cost of the premiums for such coverage, as determined and set under the then current practices of the Employer, on the first day of each month such coverage is provided and the Employer shall reimburse the Executive for COBRA continuation coverage (the “Reimbursement Amounts”). Any Reimbursement Amounts to be paid by the Employer to the Executive under this Section 6.3(d)(iv) shall be made on the tenth (10th) day of each month the Executive pays the amount required by this Section 6.3(d)(iv) for COBRA continuation coverage. The Executive shall promptly notify the Employer of any changes in his eligibility for medical benefits coverage.
v. Any Restricted Shares that are scheduled to vest during the Severance Period, shall immediately and automatically vest and become non-forfeitable and the remaining unvested Restricted Shares shall terminate and be forfeited by the Executive and revert to the Employer.
vi. The treatment of any and all other equity awards granted to the Executive by the Employer shall be governed by the terms of the award agreements governing such awards.
6.4 Release of Claims. Notwithstanding any of the foregoing, the payments and benefits provided under Section 6.3(d)(ii) through (v) are subject to and conditioned upon (a) the Executive executing a timely and valid release of claims (“Release”) in the form as provided to the Executive from the Employer waiving all claims the Executive may have against the Employer, its subsidiaries, successors, assigns, Affiliates, executives, officers and directors; (b) the Executive delivering the executed Release to the Employer within twenty-one (21) calendar days following the date of termination (the “Release Period”); (c) such Release and the waiver contained therein becoming effective; and (d) the Executive’s compliance with the covenants contained in Articles III and IV of this Agreement. In the event that the Release Period spans two of the Executive’s taxable years, the payments and benefits provided under Section 6.3(d)(ii) through (iv) must be made in the second of the two taxable years.
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6.5 Resignation as Director and Officer. Immediately upon termination of the Executive’s employment with the Employer for any reason, the Executive will resign from any and all positions then held as a director or officer of the Employer and of any subsidiary, parent or affiliated entity of the Employer. Executive hereby agrees to sign such undated resignation letters in advance, on the Effective Date, and such resignation letters to be held in escrow by Employer’s counsel. Further, Executive hereby authorized the Employer and or Employer’s counsel to date the resignation letters upon the occurrence of Executives termination of employment from Employer in accordance with this Section 6 hereunder.
ARTICLE
VII
REPRESENTATIONS AND WARRANTIES
7.1 Representations and Warranties of the Employer. The Employer represents and warrants to the Executive that (a) the Employer is an entity duly organized and validly existing in good standing under the laws of the State of Nevada, and has the requisite power and authorization to own its properties and to carry on its business as now being conducted; and (b) this Agreement has been duly executed and delivered by the Employer, and constitutes the legal, valid and binding obligations of the Employer, enforceable against the Employer in accordance with its terms.
7.2 Representations and Warranties of the Executive. The Executive represents and warrants to the Employer as follows:
(a) The Executive has had the opportunity to consult legal counsel of his or her own selection about this Agreement and understands and voluntarily agrees to the provisions of this Agreement.
(b) The Executive is not aware of any existing medical condition which might cause him to be or become unable to fulfill his duties under this Agreement.
(c) The Executive is free to enter into this Agreement and has no commitment, arrangement or understanding to or with any third party that restrains or is in conflict with this Agreement or that would operate to prevent the Executive from performing the services to the Employer that the Executive has agreed to provide hereunder.
(d) This Agreement has been duly executed and delivered by the Executive, and constitutes the legal, valid and binding obligations of the Executive, enforceable against the Executive in accordance with its terms.
(e) Executive is an “accredited investor” as that term is defined in Rule 501(a) of Regulation D under the Securities Act.
(f) The Executive hereby acknowledges that Executive: (i) has had such opportunity as the Executive has deemed adequate to obtain from representatives of the Employer such information as is necessary to permit the Executive to evaluate the merits and risks of the Executive’s acquisition of shares of INVU Common Stock hereunder; (ii) has sufficient experience in business, financial and investment matters to be able to evaluate the risks involved in the acquisition of such shares of INVU Common Stock and to make an informed investment decision with respect thereto; (iii) has had access to and has reviewed all publicly available documents and records relating to the Employer, including, but not limited to, the Employer’s Annual Report on SEC Form 10-K for the year ended December 31, 2020, and any Quarterly Report on SEC Form 10-Q, or Current Report on SEC Form 8-K, filed with the SEC after December 31, 2020 and before the Effective Date (collectively, the “Employer SEC Documents”), that it has deemed necessary in order to make an informed investment decision with respect to an investment in the Shares; and (iv) can afford the complete loss of the value of the shares of INVU Common Stock and is able to bear the economic risk of holding the shares of INVU Common Stock for an indefinite period.
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(g) The Executive is acquiring the shares of INVU Common Stock for investment for the Executive’s own account only and not with a view to, or for resale in connection with, any “distribution” thereof within the meaning of the Securities Act of 1933, as amended (the “Securities Act”) or under any applicable provision of state law. The Executive does not have any present intention to transfer the shares of INVU Common Stock to any third party.
(h) The Executive understands that the shares of INVU Common Stock have not been registered under the Securities Act by reason of a specific exemption therefrom, which exemption depends upon, among other things, the bona fide nature of the Executive’s investment intent as expressed herein.
(i) The Executive further acknowledges and understands that the shares of INVU Common Stock are being issued as restricted securities and must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Executive further acknowledges and understands that the Employer is under no obligation to register shares of INVU Common Stock under the Securities Act.
(j) The Executive understands that the certificate(s) or book entry notation(s) evidencing the shares of INVU Common Stock will be imprinted with a legend which prohibits the transfer thereof unless they are registered or such registration is not required in the opinion of counsel for the Employer.
(k) As of the Effective Date, Executive is not subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act (a “Disqualification Event”).
7.3 Restrictive Legends and Stop-Transfer Orders.
(a) Legends. The certificate or certificates representing the INVU shares of Common Stock issued pursuant to this Agreement shall bear the following legends (as well as any legends required by applicable state and federal corporate and securities laws):
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT, OR ANY STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE PLEDGED, HYPOTHECATED, SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO THE EMPLOYER THAT SUCH PLEDGE, HYPOTHECATION, SALE OR TRANSFER IS EXEMPT THEREFROM UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS.”
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“FURTHERMORE, THE OFFER, PLEDGE, SALE, TRANSFER, HYPOTHECATION, OR OTHER DISPOSITION OF THE SECURITIES REPRESENTED HEREBY (INCLUDING, AMONG OTHERS, THE GRANT OF ANY OPTION ON, OR A CONTRACT FOR THE SALE OF ANY SECURITIES REPRESENTED HEREBY, IS SUBJECT TO, AND IN CERTAIN CASES PROHIBITED BY, THE TERMS AND CONDITIONS OF A CERTAIN LOCK-UP AGREEMENT BY AND AMONG THE STOCKHOLDER, THE CORPORATION AND CERTAIN OTHER HOLDERS OF STOCK OF THE CORPORATION. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE CORPORATION.”
ARTICLE
VIII
MISCELLANEOUS
8.1 Definitions: For the purposes of this Agreement, the following terms have the meanings specified or referred to in this Section 8.1:
“Affiliate” means a Person who directly or indirectly through one or more intermediaries, controls (whether by owning more than 51% of a company’s voting equity, through a voting or other agreement, or otherwise), or is controlled by, or is under common control with, the Person specified. Persons who have acted or are acting on behalf or for the benefit of a Person include, but are not necessarily limited to, directors, officers, employees, agents, consultants and sales representatives.
“For Cause Event” shall mean any event, circumstance or occurrence that would constitute the basis for a termination of the Executive for Cause under Section 6.2(a) hereunder, regardless of whether the Employer elects to invoke the right to terminate Executive or provide notice to the Executive under Section 6.2(a) hereunder, on the basis of such event, circumstance or occurrence.
“Person” shall mean an individual, or any type of corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.
8.2 Exit Interview. To insure a clear understanding of this Agreement, including the protection of the Employer’s business interests, the Executive agrees, at no additional expense to the Employer, to engage after the Term in an exit interview with the Employer at a time and place designated by the Employer.
8.3 Severability. If any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect the validity and enforceability of any other provisions hereof. Further, should any provisions within this Agreement ever be reformed or rewritten by a judicial body, those provisions as rewritten shall be binding upon the Employer and the Executive.
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8.4 Right of Setoff. The Employer and the Executive shall each be entitled, at its option and not in lieu of any other remedies to which it may be entitled, to set off any amounts due from the other or any affiliate of the other against any amount due and payable by such person or any affiliate of such person pursuant to this Agreement or otherwise.
8.5 Taxes.
(a) Compliance with Code Section 409A. This Agreement and the payments hereunder are intended to be exempt, to the greatest extent possible, from the requirements of Section 409A of the Code, and to the extent not so exempt, to comply with the requirements of Section 409A of the Code, and shall be construed and administered consistent with such intent. In the event the terms of this Agreement would subject the Executive to taxes or penalties under Section 409A of the Code (“409A Penalties”), the Employer and the Executive shall cooperate diligently to amend the terms of the Agreement to avoid such 409A Penalties, to the extent possible; provided that such amendment shall not increase or reduce (in the aggregate) the amounts payable to the Executive hereunder. Any taxable reimbursement payable to the Executive pursuant to this Agreement shall be paid to the Executive no later than the last day of the calendar year following the calendar year in which the Executive incurred the reimbursable expense. Any amount of expenses eligible for taxable reimbursement, or such in-kind benefit provided, during a calendar year shall not affect the amount of such expenses eligible for reimbursement, or such in-kind benefit to be provided, during any other calendar year. The right to such reimbursement or such in-kind benefits pursuant to this Agreement shall not be subject to liquidation or exchange for any other benefit. Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. A termination of employment shall not be deemed to have occurred for purposes of the Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code. If on the date of termination of employment the Executive is a “specified employee” within the meaning of that term under Section 409A of the Code, then, notwithstanding any other provision herein, with regard to any payment or benefit that is properly treated as nonqualified deferred compensation under Section 409A of the Code (after taking into account all exclusions applicable to such payment or benefit) and is payable on account of such separation from service, such payment or benefit shall not be made or provided prior to the expiration of the earlier of the six-month period measured from the date of such separation from service, or the Executive’s death. All payments and benefits delayed pursuant to the preceding provisions of this Section 8.5(a) shall be paid to the Executive on the first payroll date following the end of the delay period.
(b) Code Section 280G. Notwithstanding any other provisions of this Agreement or any other agreement, contract or understanding heretofore or hereafter entered into between the Executive and the Employer, if any “payments” (including, without limitation, any benefits or transfers of property or the acceleration of the vesting of any benefits) in the nature of compensation under any arrangement that is considered contingent on a Change in Control for purposes of Code Section 280G, together with any other payments that the Executive has the right to receive from the Employer or any corporation that is a member of an “affiliated group” (as defined in Code Section 1504(a) without regard to Code Section 1504(b)) of which the Employer is a member, would constitute a “parachute payment” (as defined in Code Section 280G(b)(2)), such “payments” will be reduced to the largest amount as will result in no portion of such “payments” being subject to the excise tax imposed by Code Section 4999; provided, however, that such reduction will be made only if the aggregate amount of the payments after such reduction (net of all federal, state, local, foreign income and employment taxes) exceeds the difference between (i) the amount of such payments absent such reduction (net of all federal state, local, foreign income and employment taxes) minus (ii) the aggregate amount of the excise tax imposed under Code Section 4999 attributable to any such excess parachute payments. The parachute payments to be reduced under this Section 8.5(b) will be reduced in the following order: lump sum cash severance, health plan benefits, and equity award acceleration.
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8.6 Succession. This Agreement and the rights and obligations hereunder shall be binding upon and inure to the benefit of the parties hereto and their respective legal representatives, and shall also bind and inure to the benefit of any successor of the Employer by merger or consolidation or any assignee of all or substantially all of Employer’s property and assets.
8.7 Assignment. Except to any successor or assignee of the Employer as provided in Section 8.8 above, neither this Agreement nor any rights or benefits hereunder may be assigned by either party hereto without the prior written consent of the other party. Neither the Executive, the Executive’s spouse, the Executive’s designated contingent beneficiary, nor their estates shall have any right to anticipate, encumber, or dispose of any payment due under this Agreement. Such payments and other rights are expressly declared non-assignable and non-transferable, except as specifically provided herein.
8.8 Expenses. In the event that it shall be necessary or desirable for the Executive to retain legal counsel and/or incur other costs and expenses in connection with the interpretation or enforcement of any and all of the Executive’s rights under this Agreement, the Executive shall bear the sole legal expense associated with this legal review and interpretation.
8.9 Adjustments. For purposes of this Agreement, the term “INVU Common Stock” shall mean the common stock, par value $0.001 per share, of the Employer, and any kind of shares of stock or other securities into which such INVU Common Stock may be changed in the event of any reorganization, merger, consolidation, recapitalization, liquidation, reclassification, stock dividend, stock split, reverse stock split, combination of shares, rights offering, divestiture or extraordinary dividend (including a spin off) or any other similar change in the corporate structure or shares of INVU Common Stock, and all references to a number of shares of INVU Common Stock or Restricted Shares and any purchase price therefor or stock prices thereof in this Agreement, shall be appropriately adjusted to reflect any stock split, reverse stock split or stock dividend or other similar change in such securities which may be made by the Employer after the date of this Agreement.
8.10 Clawback. Notwithstanding anything herein to the contrary, payment of amounts to the Executive under this Agreement will be subject to applicable mandatory forfeiture or repayment provisions under the Sarbanes-Oxley Act of 2002 or any other applicable law, rule or regulation or stock exchange requirement, and any clawback or forfeiture policy of the Employer, and if the Executive is required to forfeit or to make any repayment of any compensation or benefit(s) to the Employer under the Sarbanes-Oxley Act of 2002, any other law, rule or regulation or any stock exchange requirement, or under the Employer’s clawback or forfeiture policy, in each case which is applicable to the Employer and the Executive, such forfeiture or repayment shall not constitute Good Reason under this Agreement.
8.11 Unfunded Obligations. The obligations under this Agreement shall be unfunded. Payments and benefits payable under this Agreement shall be paid from the general assets of the Employer. The Employer shall have no obligation to establish any fund or to set aside any assets to provide benefits under this Agreement.
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8.12 Withholding. The Employer may withhold from any amounts payable to the Executive hereunder all federal, state, city or other taxes that the Employer may reasonably determine are required to be withheld pursuant to any applicable law or regulation (it being understood that the Executive shall be responsible for payment of all taxes in respect of the payments and benefits provided herein).
8.13 Notices. All notices, requests, consents, approvals, claims, demands, waivers, and other communications required, necessary or permitted hereunder shall be in writing and shall be delivered (a) in hand by person with written receipt of the Person to whom such notice is intended; (b) by registered or certified mail, postage prepaid, return receipt requested; or (c) by a generally recognized commercial courier service or overnight delivery service, (Federal Express or UPS), for next Business Day delivery, postage prepaid, with delivery receipt requested. All notices sent in accordance with this Section 8.13 shall be deemed “Delivered” unless otherwise specified herein, the same day if delivered by hand in person with receipt and signature of the intended recipient or by an authorized officer of the intended recipient; three (3) Business Days after the same is deposited in the U.S. Mail if sent by registered or certified mail; or one (1) Business Day after payment and receipt of mailing if sent by a commercial courier service or overnight delivery service for next Business Day delivery. Such communications must be sent to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 8.13).
| To Employer: | Investview, Inc. | |
| c/o David B. Rothrock, Chairman | ||
| 1648 Plaza Ln. | ||
| Allentown, PA 18104 | ||
| Email: [email protected] | ||
| Phone: 484.223.0502 | ||
| With Copies to: | Fox Rothschild LLP | |
| c/o Stephen M. Cohen, Partner | ||
| 2000 Market Street | ||
| Philadelphia, PA 19103 | ||
| Email: [email protected] | ||
| Phone: 215.299.2744 | ||
| To Executive: | James R. Bell | |
| 124 Camelot Lane | ||
| Newtown Square, PA 19073 | ||
| Email:[email protected] | ||
| Phone: (267) 738-7074 |
8.14 Entire Agreement; Amendments. This Agreement, together with the Exhibits hereto, contains the entire agreement between the parties hereto with respect to the subject matter contained herein, and supersedes and is in full substitution for any and all prior understandings or with respect to the Executive’s employment. No change, addition, or amendment shall be made except by written agreement signed by the parties hereto.
8.15 Waiver of Breach. The failure by any party to insist upon the strict performance of any covenant, duty, agreement, or condition of this Agreement or the failure to exercise any right or remedy consequent upon a breach hereof shall not constitute a waiver of any such breach or of any covenant, agreement, term, or condition and the waiver by either party hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by any party.
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8.16 Multiple Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement and electronic, digital or facsimile signatures shall be deemed original signatures. In making proof of this Agreement, it shall not be necessary to produce or account for more than one such counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, or by DocuSign, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.
8.17 Descriptive Headings and Interpretation. In the event of a conflict between titles to articles, sections and paragraphs and the text, the text shall control. For purposes of this Agreement, whenever the context requires, the singular number shall include the plural, and vice versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include the masculine and feminine genders.
8.18 Governing Law, and Consent to Personal Jurisdiction. This Agreement and the rights and obligations of the parties hereto under this Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the state of New Jersey, without regard to its principles of conflicts of law thereof. Executive and Employer each hereby consent to the personal jurisdiction of the state courts located in Mercer County, State of New Jersey, and The United States District Court for the District of New Jersey, if that federal court has jurisdiction, over any and all claims or disputes in any way related to the Executive’s Employment with Employer, separation from employment with the Employer, or compliance with the terms of this Agreement.
8.19 Cumulative Remedies. All rights, powers and remedies specified in this Agreement are cumulative and are in addition to, and not in limitation of, such other rights, powers and remedies as may be available to the Employer under applicable law, by agreement among the parties or otherwise.
8.24 Advice of Counsel. Executive acknowledges that Fox Rothschild LLP represents the Employer as its legal counsel. Executive represents that Executive has had the opportunity to avail himself of the advice of counsel prior to signing this Agreement and has elected to forego advice from counsel or is satisfied with Executive’s counsel’s advice and that Executive is executing the Agreement voluntarily and fully intending to be legally bound because, among other things, the Agreement provides valuable benefits to Executive which Executive otherwise would not be entitled to receive. Each of the parties hereto has participated and cooperated in the drafting and preparation of this Agreement. Hence, this Agreement shall not be construed against any party.
[Remainder of page intentionally left blank; signature page follows]
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SIGNED AND DELIVERED to be effective as of the Effective Date set forth above.
| EMPLOYER: | ||
| Investview, Inc. | ||
| By: | /s/ David B. Rothrock | |
| Name: | David B. Rothrock | |
| Title: | Chairman | |
| EXECUTIVE: | ||
| By: | /s/ James R. Bell | |
| Name: | James R. Bell | |
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Final Execution Version
SCHEDULE A
OTHER POSITIONS
The Executive shall also be employed by the Employer as its Chief Operating Officer; however, Executive acknowledges and confirms that his role as Chief Operating Officer may be on an interim basis as it is Employer’s expectation to appoint a separate individual as Chief Operating Officer and Executive agrees upon such appointment to resign from the position of Chief Operating Officer, and such appointment and change of Executive’s role and associated duties shall not constitute a breach of this Agreement by Employer nor a “Good Reason” for Executive to terminate his employment with the Employer.
DUTIES AND RESPONSIBILITIES
| ● | Meet regularly with board members, CEO and other officers or managers of the company to assess the direction of the company, develop short and long-term goals, plans, and strategies, and ensure the company’s compliance with the stated mission. |
| ● | Implement the Board’s business strategy and goals to structure day-to-day operations. |
| ● | Providing recommendations to the board of directors and CEO on how to implement the CEO’s and board of directors business strategy and accomplish the company’s vision |
| ● | Guiding and leading managers to reflect the CEO and board of directors’ vision. |
| ● | Oversee budgets, staff, and executives and evaluate the success of the company. |
| ● | Oversee the complete operation of the company and ensuring all goals are met based on the company’s strategic plans. |
| ● | Obtain the viewpoints and reports of the company’s officers and managers on behalf of the CEO and board of directors to ensure the direction of the company, develop short and long-term goals, plans, and strategies, and ensure the company’s compliance with the stated mission. |
| ● | Maintain awareness and knowledge of the company’s daily finances. |
| ● | Meet regularly with CFO to analyze budgets and financial reports. |
| ● | Hold business operations accountable to stakeholders and company policies |
| ● | Prepare, update and revise plans to increase the company’s profitability and progress. |
| ● | Continually plan ways to increase the company’s profitability and stay on top of progress |
| ● | Create and maintain relationships with bankers and industry leaders and encourage strategic business opportunities. |
| ● | Search for opportunities, alliances, mergers, partnerships, and investment opportunities and review and advise on contracts. |
| ● | Maintain knowledge of compliance matter, tax liabilities, implications, and exemptions, as well as finances and operations. |
| ● | Performs other related duties as assigned. |
SCHEDULE B
Business of the Employer
The “business of the Employer” for the purpose of Section 4.2 of the Agreement will be defined as the actual nature of the Company’s business as defined by sector, industry, business segment, products, services and key elements of the business conducted by the Company at the time of Executive’s termination of employment with the Employer. However, to help clarify the scope in which Employer’s business may be considered, were Executive to have been terminated as of the Effective Date, purely on a hypothetical basis, the scope of the business of the Employer as of the Effective Date would be as follows:
“Investview, Inc. operates multiple lines of business, including: (i) the distribution, marketing and sale of products and/or services through a multi-level network of distributors; (ii) the marketing, sale and distribution of digital assets with a focus on crypto currencies, mining and Central Bank Digital Currencies; (iii) the development, licensing and operation of the Company’s SMART electronic trading platform technology; and (iv) assuming the completion of a pending acquisition (or a replacement acquisition if the pending transaction does not receive FINRA approval), the operation of a financial technology business incorporating the services of a registered broker-dealer and investment adviser.”
For the avoidance of doubt, the “business of Employer’’ for the purpose of Section 4.2 of the Agreement will be defined now and in the future as the actual nature of the Company’s business as defined by sector, industry, business segment, products, services and key elements of the business conducted by the Company at the time of Executive’s termination of employment with the Employer.
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Exhibit 10.104
Final Execution Version
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this “Agreement”) is entered into as of February 21, 2022 (the “Effective Date”), by and between Investview, Inc. a Nevada corporation (the “Employer”), and Myles P. Gill (the “Executive”); Employer and Executive individually a “party” and collectively the “parties”.
FOR AND IN CONSIDERATION of the mutual promises, agreements and covenants herein contained, the parties hereto agree as follows:
ARTICLE I
ASSOCIATION AND RELATIONSHIP
1.1 Nature of Employment. Commencing on the Effective Date, the Employer agrees to employ the Executive, and the Executive hereby accepts employment from the Employer, upon the terms and conditions set forth herein. The Executive hereby covenants and agrees that, during the Term, it is expected that Executive shall devote 100% of his time and efforts to managing, growing and expanding Employer’s business and activities, and that Executive shall not be employed by, or perform consulting or other services for, any other business entity or party without the prior express written consent of the Employer. Subject to the provisions of Articles III and IV of this Agreement, the Executive may, however, engage in the following activities: (a) serving on the Board of Directors of community or other non-profit ventures in an unpaid capacity, (b) serving on the Board of Directors of other non-competitive ventures or businesses that are pre-approved in writing by the Employer’s Board of Directors; and (c) managing his personal investments, provided that such activities set forth in (a) through (c) (individually or collectively) do not materially and adversely interfere or conflict with the performance of the Executive’s duties or responsibilities under this Agreement.
1.2 Services. During the Term (as defined in Section 6.1), the Executive shall devote his full time, attention, and services to the business and affairs of the Employer.
1.3 Duties. During the Term, the Executive shall be employed by the Employer and shall serve as Director of Operations of the Employer. The Executive shall serve in such offices or positions with the Employer or any subsidiary of the Employer, and in such substitute or further offices or positions of substantially consistent rank and authority, or as otherwise mutually agreed to in writing by Executive and Employer. The Executive shall perform duties appropriate as may be assigned to him from time to time by the Board of Directors of the Employer (the “Board”) and as described in the Executive Duties and Responsibilities as itemized on Schedule A attached hereto (the ‘‘Executive Duties and Responsibilities”), which Schedule A is incorporated herein by reference and is expressly made a part of this Agreement. The Executive shall report to the Chief Executive Officer, who shall have the right to direct and control the duties, responsibilities and work of the Executive, subject to the oversight, supervision and direction of the Board. During the Term, the Executive shall be subject to, and shall act in accordance with, all applicable policies, procedures and rules of the Employer.
ARTICLE II
COMPENSATION
2.1 Base Salary. During the Term, the Executive shall be paid, in accordance with the normal payroll practice of the Employer, annual base salary compensation in an initial amount of $250,000 for all hours worked and shall be exempt from overtime (such amount, as it changes from time to time, the “Base Salary”). During the Term, the Base Salary shall be increased each year in an amount as determined by the Board; provided, however, that such increase shall be at least two and one-half percent (2.5%) each year; and provided, further, that the Base Salary shall be automatically increased by fifteen percent (15%) of the then Base Salary upon the one-time successful up-listing of the Employer’s common stock (the “INVU Common Stock”) to the Nasdaq Stock Market, the New York Stock Exchange, the NYSE American or such other national stock exchange as approved by the Board (or committee thereof) (the “Up-Listing Event”). The Board (or a committee thereof) will determine in its sole discretion whether the Employer will engage in an Up-Listing Event.
2.2 Quarterly Incentive Bonuses. During the Term, the Executive shall be eligible to receive a quarterly incentive bonus, payable in cash, with $20,000 payable assuming the achievement of a set of pre-established target Key Performance Indicators (the “Target KPIs”), as determined by the Board (in collaboration with the Executive (such opportunity, the “Quarterly Cash Incentive Opportunity”); which Quarterly Cash Incentive Opportunity shall be increased to $40,000 per quarter (also assuming achievement of the Target KPIs) upon the completion of an Up-Listing Event. The determination of the achievement of such Target KPIs by the Executive and the amount of such quarterly cash incentive bonus (the “Quarterly Cash Bonus”) shall be determined by the Board (or a committee thereof) as soon as reasonably practicable after completion of each quarter and paid within forty-five (45) calendar days thereafter conditioned upon, at the time of payment, (i) the Executive remaining a full-time employee of the Employer (subject to Section 6.3(b), Section 6.3(c) and Section 6.3(d)); and (ii) there not having occurred a “For Cause Event” (as the term is defined in Section 8.1). In addition, during the Term, the Executive shall also be eligible to receive a quarterly incentive bonus, payable in shares of INVU Common Stock, with 75,000 shares of INVU Common Stock issued assuming the achievement of 100% of Target KPIs, as approved by the Board (or a committee thereof), (such opportunity, the “Quarterly Stock Incentive Opportunity”); which Quarterly Stock Incentive Opportunity shall be reduced to 7,500 shares of INVU Common Stock upon the completion of an Up-Listing Event (also assuming achievement of the Target KPIs). The determination of the achievement of Target KPIs by the Executive and the amount of such Quarterly Stock Incentive Opportunity (the “Quarterly Stock Bonus”) shall be determined by the Board (or a committee thereof) as soon as reasonably practicable after completion of each quarter and paid out in shares of INVU Common Stock within forty-five (45) calendar days thereafter conditioned upon, at the time of such issuance, (i) the Executive remaining a full-time employee of the Employer (subject to Section 6.3(b), Section 6.3(c) and Section 6.3(d)); and (ii) there not having occurred a For Cause Event.
2.3 Market Capitalization Bonuses. During the Term, the Executive shall be eligible to receive cash and common stock bonuses, collectively hereafter known as a “Market Capitalization Bonus Amount” (as defined in Section 2.3(c) below), upon the achievement of certain pre-determined minimum levels of “Market Capitalization” (as the term is defined below in Section 2.3(e)), each pre-determined Market Capitalization level hereafter to be known as a “Market Capitalization Bonus Level”.
(a) Each of the applicable Market Capitalization Bonus Levels under Sections 2.3(e), and the associated Minimum Average Daily Volume under Section 2.3(f), the Minimum Average Daily Market Liquidity under Section 2.3(g) and the Minimum Average Daily Stock Price under Section 2.3(h), must be maintained for at least ninety (90) consecutive trading days;
(b) Upon payment by Employer to Executive of a Market Capitalization Bonus Amount for achievement of a specific Market Capitalization Bonus Level, thereafter, the Executive shall not be entitled to receive payment of a Market Capitalization Bonus Amount for that same specific Market Capitalization Bonus Level ever again, regardless if the Employer’s Market Capitalization drops below such specific Market Capitalization Bonus Level and Employer regains or achieves that same specific Market Capitalization Bonus Level again at a future date in time. For the avoidance of doubt, payment of a Market Capitalization Bonus Amount for the associated Market Capitalization Bonus Level is a one-time payment event upon its achievement for the first time.
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(c) The “Market Capitalization Bonus Amount” is the amount of cash and shares of common stock of Employer which is to be paid to Executive upon the achievement of a Market Capitalization Bonus Level in accordance with this Section 2.3 and this Agreement.
i. The cash portion of the Market Capitalization Bonus Amount will be paid in cash in an amount equal to 0.000085 (the “Market Capitalization Bonus Rate”), times the applicable Market Capitalization Bonus Level achieved in accordance with this Section 2.3 of this Agreement, as set forth in the table in Section 2.3(d) below, minus any amount previously paid to the Executive as a Market Capitalization Bonus Amount under this Section 2.3; and
ii. The stock portion of the Market Capitalization Bonus Amount will be distributed in the form of shares of INVU Common Stock in an amount equal to Market Capitalization Bonus Rate times the applicable Market Capitalization Bonus Level achieved in accordance with this Section 2.3 of this Agreement, as set forth in the table in Section 2.3(d) below, minus the number of shares of INVU Common Stock previously issued to the Executive as a Market Capitalization Bonus Amount under this Section 2.3.
(d) Each Market Capitalization Bonus Amount shall be paid within forty-five (45) calendar days of the achievement of the applicable Market Capitalization Bonus Level, as determined by the Board (or a committee thereof), and payment of each Market Capitalization Bonus Amount is conditioned upon, at the time of payment: (i) the Executive remaining a full-time employee of the Employer (subject to Section 6.3(b), Section 6.3(c) and Section 6.3(d)), and (ii) there not having occurred a For Cause Event.
Market Capitalization Bonus Levels | Minimum Average Daily Volume | Minimum Average Daily Market Liquidity | Minimum Average Daily Stock Price | Market Capitalization Bonus Rate | Market Capitalization Bonus Amount (Cash & Shares) | |||||||||||||||||
| $ | 1.0 billion | 4 million | $ | 1.0 million | $ | 0.34 | 0.000085 | $ | 85,000 cash and 85,000 shares | |||||||||||||
| $ | 1.5 billion | 4 million | $ | 1.5 million | $ | 0.51 | 0.000085 | $ | 127,500 cash and 127,500 shares | |||||||||||||
| $ | 2.0 billion | 4 million | $ | 2.0 million | $ | 0.68 | 0.000085 | $ | 170,000 cash and 170,000 shares | |||||||||||||
| $ | 2.5 billion | 4 million | $ | 2.5 million | $ | 0.85 | 0.000085 | $ | 212,500 cash and 212,500 shares | |||||||||||||
| $ | 3.0 billion | 4 million | $ | 3.0 million | $ | 1.01 | 0.000085 | $ | 255,000 cash and 255,000 shares | |||||||||||||
| $ | 3.5 billion | 4 million | $ | 3.5 million | $ | 1.18 | 0.000085 | $ | 297,500 cash and 297,500 shares | |||||||||||||
| $ | 4.0 billion | 4 million | $ | 4.0 million | $ | 1.34 | 0.000085 | $ | 340,000 cash and 340,000 shares | |||||||||||||
| $ | 4.5 billion | 4 million | $ | 4.5 million | $ | 1.51 | 0.000085 | $ | 382,500 cash and 382,500 shares | |||||||||||||
| $ | 5.0 billion | 4 million | $ | 5.0 million | $ | 1.68 | 0.000085 | $ | 425,000 cash and 425,000 shares | |||||||||||||
| $ | 5.5 billion | 4 million | $ | 5.5 million | $ | 1.85 | 0.000085 | $ | 467,500 cash and 467,500 shares | |||||||||||||
| $ | 6.0 billion | 4 million | $ | 6.0 million | $ | 2.02 | 0.000085 | $ | 510,000 cash and 510,000 shares | |||||||||||||
| $ | 7.0 billion | 4 million | $ | 7.0 million | $ | 2.35 | 0.000085 | $ | 595,000 cash and 595,000 shares | |||||||||||||
| $ | 8.0 billion | 4 million | $ | 8.0 million | $ | 2.69 | 0.000085 | $ | 680,000 cash and 680,000 shares | |||||||||||||
| $ | 9.0 billion | 4 million | $ | 9.0 million | $ | 3.03 | 0.000085 | $ | 765,000 cash and 765,000 shares | |||||||||||||
| $ | 10.0 billion | 4 million | $ | 10.0 million | $ | 3.36 | 0.000085 | $ | 850,000 cash and 850,000 shares | |||||||||||||
| $ | 11.0 billion | 4 million | $ | 11.0 million | $ | 3.70 | 0.000085 | $ | 935,000 cash and 935,000 shares | |||||||||||||
| $ | 12.0 billion | 4 million | $ | 12.0 million | $ | 4.03 | 0.000085 | $ | 1,020,000 and 1,020,000 shares | |||||||||||||
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(e) “Market Capitalization” means, with respect to any trading day during the concurrent measurement period of ninety (90) consecutive trading days, the number of shares of INVU Common Stock outstanding on a primary basis multiplied by the closing sale price of a share of INVU Common Stock on such trading day, as reported by the national securities exchange or market on which the INVU Common stock is then listed or quoted (the “Applicable Stock Exchange”).
(f) “Average Daily Volume” means the average daily number of shares of INVU Common Stock traded on the Applicable Stock Exchange during the concurrent measurement period of ninety (90) consecutive trading days.
(g) “Average Daily Market Liquidity” means the average daily liquidity of the shares of INVU Common Stock, as measured at the end of each trading day during the concurrent measurement period of ninety (90) consecutive trading days, based on the number of shares of INVU Common Stock traded on the Applicable Stock Exchange on such trading day multiplied by the Average Daily Stock Price (as defined below), during the concurrent measurement period of ninety (90) consecutive trading days.
(h) “Average Daily Stock Price” means, with respect to any trading day during the concurrent measurement period of ninety (90) consecutive trading days, the average of the high sale price and low sale price of INVU Common Stock for each such trading day, as reported by the Applicable Stock Exchange.
2.4 Up-Listing Cash Bonus. During the Term, the Executive shall be eligible to receive a one-time cash incentive bonus upon the achievement of an Up-Listing Event pursuant to Section 2.1 in an amount equal to 0.0001 times the Employer’s market capitalization, which for purposes of this Section 2.4 shall be determined based on the number of shares of INVU Common Stock outstanding multiplied by the average closing sale price of a share of INVU Common Stock on the first ten (10) days of trading after the Up-Listing Event, as reported by the national securities exchange or market on which the INVU Common Stock is then listed or quoted (the “Up-Listing Bonus”). The Up-Listing Bonus shall be paid within forty-five (45) calendar days of the achievement of the Up-Listing Event, and payment of the Up-Listing Bonus is conditioned upon, at the time of payment, (i) the Executive remaining a full-time employee of the Employer (subject to Section 6.3(b), Section 6.3(c) and Section 6.3(d)), and (ii) there not having occurred a For Cause Event.
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2.5 Grant of Restricted Shares. The Employer hereby agrees, as of the effectiveness of a Registration Statement on Form S-8 covering Company shares issuable under the “Plan” (as hereafter defined), to award and grant to the Executive Twenty Million (20,000,000) shares of restricted INVU Common Stock (collectively, the “Restricted Shares”) under the Investview, Inc. 2022 Incentive Plan or a similar equity plan approved by the Board (such plan as it may be amended from time to time, the “Plan”), such Restricted Shares to be subject to forfeiture and the restrictions as contained below and in the Plan and award agreement evidencing such Restricted Shares to be executed between the Employer and the Executive (the “Award Agreement”). To the extent authorized in the Plan and Award Agreement, the Award Agreement shall be subject to the terms as provided below, notwithstanding any terms to the contrary in the Plan or the Award Agreement itself.
(a) Vesting of Restricted Shares. Subject to the terms of this Agreement, the Plan and the Award Agreement, the Restricted Shares shall vest and become non-forfeitable, on a cumulative basis, in accordance with the following schedule, subject to at the time of each vesting date: (i) the Executive remaining a full-time employee of the Employer, and (ii) there not having occurred a For Cause Event (each, a “Scheduled Vesting Date”):
| Vesting Date | Restricted Shares Vesting | |||
| February 21, 2023 | 20 | % | ||
| February 21, 2024 | 20 | % | ||
| February 21, 2025 | 20 | % | ||
| February 21, 2026 | 20 | % | ||
| February 21, 2027 | 20 | % | ||
(b) Treatment of Restricted Shares Upon a Change in Control. Upon the occurrence of a “Change in Control” (as defined in the Plan), vesting of the Restricted Shares shall remain subject to the terms of Sections 2.5(a) above and 2.5(c) below; however, should the Executive’s employment with the Employer be terminated by the Employer without Cause or by the Executive with Good Reason, within twelve (12) months of the Change in Control, all of the Restricted Shares that have not yet vested as of such date shall immediately and automatically vest and become non-forfeitable.
(c) Treatment of Restricted Shares Upon a Termination of Employment. The following provisions governing the treatment of the Restricted Shares shall apply in the event the Executive’s employment with the Employer is terminated.
i. Termination by Employer for Cause or by Executive Without Good Reason. If the Executive’s employment and this Agreement is terminated by the Employer for Cause pursuant to Section 6.2(a), or by the Executive without Good Reason pursuant to Section 6.2(d), the vesting of the Restricted Shares shall cease as of the date of such termination, and any unvested Restricted Shares shall be forfeited by the Executive and revert to the Employer.
ii. Termination Due to Executive’s Death or Disability. If the Executive’s employment and this Agreement is terminated due to the Executive’s death or Disability (within the meaning of Section 6.2(b)), and at the time no circumstance, event or occurrence constituting a For Cause Event existed, then any Restricted Shares that are scheduled to vest during the period from the date of termination through the next Scheduled Vesting Date, as applicable, pursuant to Section 2.5(a) above (but in no event longer than a six-month period following the date of Executive’s date of termination) shall immediately and automatically vest and become non-forfeitable and the remaining unvested Restricted Shares shall terminate and be forfeited by the Executive and revert to the Employer.
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iii. Termination by Employer without Cause or by Executive with Good Reason. If the Executive’s employment and this Agreement is terminated by the Employer without Cause pursuant to Section 6.2(e) or by the Executive with Good Reason pursuant to Section 6.2(c), then any Restricted Shares that are scheduled to vest during the period from the date of termination through the next Scheduled Vesting Date, as applicable, pursuant to Section 2.5(a) above (but in no event longer than a six-month period following the date of Executive’s date of termination) shall immediately and automatically vest and become non-forfeitable and the remaining unvested Restricted Shares shall terminate and be forfeited by the Executive and revert to the Employer.
(d) Prohibition Against Transfer of Restricted Shares. Prior to the vesting of the Restricted Shares, the Executive shall not transfer, assign, sell, barter, pledge or hypothecate in any way (whether by operation of law or otherwise) (collectively or singularly, a “Transfer”) any of the Restricted Shares. Any such transfer in violation of this Section 2.5(d) shall be void and of no further effect.
(e) Required Tax Withholding Obligations. The Employer may require payment by the Executive or withhold any income or employment tax which the Employer believes is payable as a result of the grant or vesting of the Restricted Shares or any payments thereon or in connection therewith, and the Employer may defer releasing the Restricted Shares into the custody of the Executive until arrangements satisfactory to the Employer have been made with regard to any such withholding obligation. The Employer may withhold or repurchase a portion of the Restricted Shares to satisfy such withholding obligations.
2.6 Benefits.
(a) The Executive will, during the Term, be permitted to participate in such pension, profit sharing, life insurance, disability insurance, major medical (as applicable, 100% paid by the Company) and other employee benefit plans of the Company that may be in effect from time to time, as may be offered to other senior employees at comparable levels and rank of employment, to the extent Executive is eligible under the terms of those plans. The Company may alter, modify, add to or delete its executive benefit plans as they apply to such comparable levels and rank of employees at such times and in such manner as the Company determines appropriate, without recourse by Executive so long as such changes are applied in a substantially uniform manner to such comparable levels and rank of employees.
(b) Executive shall be entitled to receive annual vacation in accordance with the Company’s policies applicable to its senior employees at comparable levels and rank of employment, which in any event shall not be less than eighteen (18) business days per calendar year (with such amount prorated on a monthly basis for the balance of 2022). The Executive shall also be entitled to the paid holidays and other paid leave set forth in the Company’s written policies.
2.7 Indemnification; D&O Insurance. Employer hereby agrees to hold harmless and indemnify Executive to the fullest extent authorized or permitted by the provisions of the Nevada Revised Statutes, or any successor statute or amendment thereof, or any other statutory provisions authorizing or permitting such indemnification that is adopted after the date of this Agreement. Employer agrees to further supplement Executive’s indemnification coverage under the terms of a customary and standard indemnification agreement, a form of which shall be agreed to by the Parties on or before the Effective Date. During the Term, the Employer shall use its reasonable best efforts to obtain and maintain (a) a directors’ and officers’ liability insurance policy, or an equivalent errors and omissions liability insurance policy on commercially reasonable terms, including fiduciary coverage, and (b) an employment practices liability insurance policy. Notwithstanding the forgoing, Executive acknowledges that the Employer currently has no such policies in place, and cannot assure that market conditions will enable the Employer to obtain either or both of such policies, set forth in subsection (a) and (b) herein, on commercially reasonable terms, if at all.
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2.8 Business Expense Reimbursement. During the Term, the Employer shall reimburse the Executive for all reasonable out-of-pocket expenses incurred by the Executive in connection with the business of the Employer and in performance of his duties under this Agreement, in accordance with Employer’s expense reimbursement policy, as in affect from time to time. Executive agrees to comply with Employer’s expense reimbursement policy and or guidelines, as in affect from time to time, and with such compliance, expenses shall be reimbursed upon the Executive’s presentation to the Employer of an itemized accounting of such expenses with reasonable supporting data and otherwise in accordance with the Employer’s expense reimbursement policy and or guidelines, as in effect from time to time.
ARTICLE III
COVENANT TO NOT DISCLOSE CONFIDENTIAL INFORMATION
3.1 Confidential and Proprietary Information. Executive acknowledges that he is in a relationship of confidence and trust with the Employer and will come into possession of information which could constitute a major asset of the Employer and be of significant commercial value, the use, misappropriation or disclosure of which would cause a breach of trust and could cause irreparable injury to the Employer (all of the aforementioned information is hereinafter collectively referred to as “Proprietary Information”). Proprietary Information shall include, but not be limited to, any and all: (i) confidential information and trade secrets concerning the business(es) and affairs of the Employer, including, but not limited to, any agreements, licenses, data, know-how, compositions, processes, designs, sketches, photographs, graphs, drawings, inventions and ideas, past, current, and planned research and development, customer lists, lists of any Persons participating in the Employer’s business, current and anticipated customer requirements, market studies, business plans, marketing plans, computer software and programs (including object code and source code), computer software and database technologies, systems, structures and architectures (and related processes, formulae, composition, improvements, devices, know-how, inventions, discoveries, concepts, ideas, designs, methods and information), and any other information, however documented, that is a trade secret within the meaning of applicable law; and (ii) information concerning the business and affairs of the Employer, which includes historical financial statements, financial projections and budgets, historical and projected sales, pricing information (margins, profits, costs), names, backgrounds and agreements with vendors, suppliers, distributors and or manufacturers, capital spending budgets and plans, the names, backgrounds and compensation information of key personnel, including any Persons participating as a distributor within the Employer’s multi-level sales and marketing network, personnel training techniques, and materials, however documented, that have been or may hereafter be provided or shown to you by the Employer, or by the directors, officers, employees, agents, consultants, advisors, or other representatives including legal counsel, accountants and financial advisors of the Employer or is otherwise obtained from review of the Employer’s documents or property or discussions with such party or its representatives, irrespective of the form of the communication, and also includes all notes, analyses, compilations, studies, summaries, and other material prepared by the Executive based, in whole or in part, on any information included in the foregoing.
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3.2 Non-Disclosure. The Executive acknowledges that in the course of carrying out, performing, and fulfilling his responsibilities to the Employer, the Executive will be given access to and be entrusted with Confidential Information relating to the Employer’s business. Executive acknowledges that all Proprietary Information shall be the sole property of the Employer and its successors and assigns. Executive further acknowledges that it is essential for the proper protection of the business and the goodwill of the Employer that such Proprietary Information be kept confidential and not disclosed or communicated, in any manner or form, to third parties or used for the benefit of any third party and or Executive. Accordingly, Executive agrees that during the Term and thereafter for so long as the information remains Proprietary Information, to keep in confidence and trust all Proprietary Information, and not to use, disclose, disseminate, publish, copy, communicate or otherwise make available, directly or indirectly, except in the ordinary course of the performance of Executive’s duties under this Agreement, any Proprietary Information except as expressly authorized in writing by the Employer; provided, however, that Executive shall be relieved of his obligation of nondisclosure hereunder as to information that (a) at the time of disclosure to Executive is known to, or readily ascertainable by, the public; (b) or becomes known to the public through no fault of Executive or other violation of this Agreement. In addition, Executive shall be relieved of his obligation of nondisclosure hereunder: (X) as to Proprietary Information that is required to be disclosed by any applicable judgment, order or decree of any court or governmental body or agency having competent jurisdiction or by any law, rule or regulation; or (Y) with respect to responding to an inquiry from, providing testimony before, or upon the written advice of counsel that concludes such action is required to comply with applicable securities laws, initiating communications directly with, the Securities and Exchange Commission, the Financial Industry Regulatory Authority, any other self-regulatory organization, or any other federal or state regulatory body regarding a possible securities law violation; provided, in either case, that prior to and in connection with any such disclosure, Executive shall give the Employer reasonable prior written notice of the disclosure of such information pursuant to this exception (to the extent permitted by applicable law) and shall cooperate with the Employer to permit the Employer to seek confidential treatment for any such information that the Employer deems to be Proprietary Information, from any authority requiring delivery of such information; provided further, however, that if the Employer has not obtained such confidential treatment by the date Executive is required by such authority to disclose the Proprietary Information, Executive shall be free to provide such disclosure and there shall be no violation of or damages determined under this Agreement or otherwise for Executive’s disclosure action and compliance with or pursuant to such authority. Executive acknowledges having been notified that, notwithstanding any obligations in this Agreement, pursuant to the Defend Trade Secrets Act of 2016 (“DTSA”), the Employer shall not hold Executive criminally or civilly liable under any federal or state trade secret law for the disclosure of Proprietary Information that is made in confidence: (i) to a federal, state, or local government official, either directly or indirectly, and or (ii) to an attorney solely for the purpose of reporting or investigating a suspected violation of law. The Employer shall also not hold Executive liable for such disclosures made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Executive also acknowledges having been notified that individuals who file a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to court order.
3.3 Return of Proprietary Information. Executive agrees that when he ceases to be employed by the Employer, whether such cessation of employment shall be for any reason or for no reason, with or without Cause, voluntary or involuntary, or by termination, resignation, disability, death, retirement or otherwise, Executive (and in the case of death, Executive’s estate and or Executive’s successors, assigns, executors, heirs, administrators or other legal representatives) shall not retain, copy or otherwise store any Proprietary Information and shall deliver to the Employer all Proprietary Information, in whatever form whatsoever the Proprietary Information is then existing (written hard copy, graphic, voice recording, telephonic, digital, electronic, encryption or decryption keys or information, commentary on code or any other form), documents, and property, including without limitation, computers, telephones, and mobile devices, and data of any nature owned by the Employer pertaining to the Proprietary Information; and specifically, Executive agrees to provide Employer any and all user names, passwords, keys, security codes and any other authorizations for any and all digital wallets, brokerage accounts, financial institution accounts, bank accounts, exchange accounts and or any other accounts where the Company’s assets are held which are in Executive’s exclusive possession or solely known by Executive.
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3.4 Works made for Hire. Executive further recognizes and understands that Executive’s duties at the Employer may include the preparation of materials or discovery of Proprietary Information, including without limitation written or graphic representation of materials or Proprietary Information, and that any such materials and Proprietary Information conceived, developed, prepared, made or written by Executive in the course of Executive’s employment with Employer shall be done as “work made for hire” as defined and used in the Copyright Act of 1976, 17 U.S.C. §§ 1 et seq. In the event of publication of such materials, Executive understands that since the work is a “work made for hire”, the Employer will solely retain and own all rights in said materials, including right of copyright and any profits to be made from such “work made for hire”.
3.5 Disclosure of Works and Inventions. In consideration of the promises set forth herein, Executive agrees to disclose promptly to the Employer, any and all works, “Inventions” (as defined at Section 4.10 hereafter), discoveries and or improvements authored, conceived or made by Executive during the period of employment and related to the business or activities of the Employer, and Executive hereby assigns and agrees to assign all of Executive’s rights and interest in the foregoing to the Employer. Executive agrees that, whenever he is requested to do so by the Employer, Executive shall sign any and all applications, assignments or other instruments which the Employer shall deem necessary to enable the Employer to apply for and obtain patents or copyrights of the United States or any foreign country or to otherwise protect the Employer’s rights and interest therein. Executive hereby appoints an authorized officer of the Employer as Executive’s attorney in fact to sign documents on his behalf for this purpose in any case in which Executive has refused a written request to sign documents in accordance with this Section 3.5. Such obligations shall continue beyond the termination or nonrenewal of Executive’s employment with respect to any works, Inventions, discoveries and/or improvements that are authored, conceived of, or made by Executive during the period of Executive’s employment, and shall be binding upon Executive’s successors, assigns, executors, heirs, administrators or other legal representatives.
ARTICLE IV
OTHER COVENANTS
4.1 Non-Solicitation. In recognition of the consideration received by Executive under this Agreement, the sufficiency of which is acknowledged by Executive, Executive covenants and agrees with the Employer that during the “Non-Solicitation Term” (as defined below), he will not, without the prior written consent of the Employer which may be withheld or given in its sole discretion, act in any manner, including but not limited to, as an individual, owner, sole proprietor, founder, associate, promoter, partner, joint venturer, shareholder (other than as the record or beneficial owner of less than five percent (5%) of the outstanding shares of a publicly traded corporation), officer, director, trustee, manager, employer, employee, licensor, licensee, principal, agent, salesman, broker, representative, consultant, advisor, investor or otherwise, directly or indirectly: (i) solicit, counsel or attempt to induce any Person who is then, or was within the last year, an employee, consultant or independent contractor of the Employer, to leave the employ of or cease providing services, as applicable, to the Employer, or employ or attempt to employ any such person or persons who at any time during the preceding one (1) year was in the employ of, or provided services to, the Employer; or (ii) solicit, bid for or perform for any of the then current customers of the Employer (defined as a customer who has done business with the Employer within one (1) year), any services of the type the Employer performed for such customer at any time during the preceding one (1) year period; (iii) solicit, bid for or perform for any potential customer (defined as a potential customer who was actively involved in discussions with the Employer and received a written proposal from the Employer within the preceding six (6) month period) any services of the type covered by any such proposal; or (iv) solicit any Person who is currently, or has within the last year, participated in the Employer’s business as a distributor/salesperson of the Employer’s multi-level sales and marketing network, to join any competitive business or organization.
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4.2 Non-Compete. In recognition of the consideration received by Executive under this Agreement, the sufficiency of which is acknowledged by Executive, Executive covenants and agrees with the Employer that during the “Non-Compete Term” (as defined below) he will not, without the prior written consent of the Employer, which may be withheld or given in its sole discretion, directly or indirectly, or individually or collectively within the continental United States of America, and or any country outside of the United States of America in which the Company engages/conducts business, engage in any activity or act in any manner, including but not limited to, as an individual, owner, sole proprietor, founder, associate, promoter, partner, joint venturer, shareholder (other than as the record or beneficial owner of less than five percent (5%) of the outstanding shares of a publicly traded corporation), officer, director, trustee, manager, employer, employee, licensor, licensee, principal, agent, salesman, broker, representative, consultant, advisor, investor or otherwise, for the purpose of establishing, operating, consulting, assisting or managing any business or entity that is engaged in activities competitive with the then “business of the Employer”. For the purposes hereof, the term “business of the Employer” shall have that meaning ascribed hereto in Schedule B to this Agreement.
4.3 Non-Solicitation Term. The “Non-Solicitation Term” shall mean the period commencing on the Effective Date and ending twenty-four (24) months following the termination of Executive’s employment with the Employer. The Non-Solicitation Term shall also be deemed to be extended for any period in which Executive is in violation of any covenant contained in Articles III, IV or V of this Agreement, so that the Employer shall have the full benefit of the proscriptive period.
4.4 Non-Compete Term. The “Non-Compete Term” shall mean the period commencing on the Effective Date and ending eighteen (18) months following the termination of Executive’s employment with the Employer. The Non-Compete Term shall also be deemed to be extended for any period in which Executive is in violation of any covenant contained in Articles III, IV or V of this Agreement, so that the Employer shall have the full benefit of the proscriptive period.
4.5 Definition of the Employer. For the purposes of Sections 3 and 4, the term “Employer” shall include the Employer and each of its subsidiaries and Affiliates.
4.6 Non-Disparagement. Executive covenants and agrees, not to act in any manner, including but not limited to, individually or through any other Person, as an owner, sole proprietor, founder, associate, promoter, partner, joint venturer, shareholder (other than as the record or beneficial owner of less than five percent (5%) of the outstanding shares of a publicly traded corporation), officer, director, trustee, manager, employer, employee, licensor, licensee, principal, agent, salesman, broker, representative, Affiliate, recruiter, consultant, advisor, investor or otherwise, directly or indirectly, defame or disparage the Employer or any of its business(es), products, services, policies, procedures, practices, finances, financial conditions, performance, capabilities, it’s employees, officers, directors, owners, board members, investors, shareholders, advisors, consultants, agents, affiliates, representatives, professionals, experts, any subsidiary or other aspect of any of Employer’s businesses, in any form or medium whatsoever (including but not limited to hard copy, electronic, verbal or digital form), in any publication (including but not limited to a newspaper, magazine, billboard, email, newsletter, text, social media platform, blog, radio program, podcast, etc.) (for purposes of this Section 4.6, collectively the “Mediums”) to any Person without limitation in time. Executive further covenants and agrees not to authorize or specifically instruct, assist, consult to, advise, teach, support or fund any Person or any of their Affiliates, agents, advisors, consultants, representatives, partners, investors, owners or employees to defame or disparage the Employer’s businesses, in any Mediums to any Person without limitation in time. Executive shall not make or otherwise issue any public statement or press release regarding the termination, separation, departure, and/or resignation of Executive from the Employer, absent the Employer’s express prior written approval of any such public statement or press release. This Section 4.6 does not, in any way, restrict or impede the Executive from exercising protected rights to the extent that such rights cannot be waived by agreement or from complying with any applicable law or regulation or a valid order of a court of competent jurisdiction or an authorized government agency, provided that such compliance does not exceed that required by the law, regulation or order. Employer agrees and covenants that it shall direct its officers and directors and all Affiliates to refrain from making any defamatory or disparaging remarks, comments, or statements concerning the Executive in any Medium to any Person without limitation in time. Employer shall not make or otherwise issue any public statement or press release regarding the termination, separation, departure, and/or resignation of Executive from the Employer, absent the Executive’s express prior written approval of any such public statement or press release, unless such statement or press release is required in the reasonable judgment of Employer to comply with applicable securities laws.
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4.7 Blue Pencil Rule. Executive and the Employer desire that the provisions of this Section 4 be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. The parties agree that Executive is a key executive of the Employer. If a court of competent jurisdiction, however, determines that any restrictions imposed on Executive in this Section 4 are unreasonable or unenforceable because of duration, geographic area or otherwise, Executive and Employer agree and intend that the court shall enforce this Section 4 to the maximum extent the court deems reasonable and that the court shall have the right to strike or change any provisions of this Section 4 and substitute therefor different provisions to effect the intent of this Section 4 to the maximum extent possible.
4.8 Tolling. The term of any of the restrictive covenants set forth in Sections 4 shall be deemed to be tolled or extended by the length of any period of time during which Executive is in violation of any restrictive covenant so that the Employer shall have the full benefit of the proscriptive period. Additionally, the parties agree not to take or allow to be taken any action during the term of this Agreement that has the effect of circumventing the terms of this Agreement, it being the intent of the parties that each abide by both the letter and the spirit of the terms of this Agreement.
4.9 No Conflicts of Interest. The Executive agrees not to engage in any conduct which might result in or create the appearance of using the Executive’s position for private gain, create a conflict of interest or the appearance of a conflict of interest with the Employer, or otherwise circumvent any business opportunity of Employer during the Term. Such conduct includes without limitation having an undisclosed financial interest in any vendor or supplier of the Employer, accepting payments of any kind or gifts other than of a nominal value from vendors, customers or suppliers, or having an undisclosed relationship with a family member or other individual who is employed by any entity in active or potential competition with the Employer, and which creates a conflict of interest. While still employed at the Employer, the Executive must not establish, operate, participate in advise or assist to establish in any manner whatsoever any business, which could or would be in competition with the Employer’s business, and the Executive must not take any preliminary or preparatory steps toward establishing or operating such a business.
4.10 Ownership of Works. The Executive agrees to promptly disclose in writing to the Employer all Inventions, discoveries, developments, improvements and or innovations (collectively referred to as “Inventions”) that the Executive has been exposed to, conceived or made during his employment with the Employer; provided, however, that in this context “Inventions” are limited to those which (a) relate in any manner to the existing or contemplated business or research activities of the Employer and its affiliates; (b) are suggested by or result from the Executive’s work at the Employer; or (iii) result from the use of the time, materials or facilities of the Employer, its subsidiaries and or its affiliates. All Inventions will be the Employer’s proprietary property rather than the Executive’s. Should the Employer request it, the Executive agrees to sign any document that the Employer may require to establish ownership in any Inventions.
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4.11 No Conflicting Agreements or Improper Use of Third-Party Information. During his employment with the Employer, the Executive shall not improperly use or disclose any confidential information or trade secrets of any former employer or other person or entity, and the Executive shall not bring on to the premises of the Employer any unpublished document or confidential information belonging to any such former employer, person or entity, unless consented to in writing by the former employer, person or entity. The Executive represents that he has not improperly used or disclosed any confidential information or trade secrets of any other person or entity during the application process or while employed or affiliated with the Employer. The Executive also acknowledges and agrees that he is not subject to any contract, agreement, or understanding that would prevent the Executive from performing his duties for the Employer or otherwise complying with this Agreement. Notwithstanding the generality of the foregoing, the Executive represents and warrants to the Employer that the Executive is not currently subject to a non-competition, non-solicitation, non-disclosure, confidentiality, or other such agreement which prohibits the Executive from working for the Employer and its subsidiaries. To the extent the Executive violates this provision, or his employment with the Employer constitutes a breach or threatened breach of any contract, agreement, or obligation to any third party, the Executive shall indemnify and hold the Employer harmless from all damages, expenses, costs (including reasonable attorneys’ fees, professional fees and or expert witness fees) and liabilities incurred in connection with, or resulting from, any such violation or threatened violation.
4.12 Joinder to Lock-Up Agreement. Executive acknowledges and agrees to, on or before the Effective Date, execute a joinder to, and become bound by, the terms of that certain Lock-Up Agreement dated March 22, 2021 (the “Lock-Up Agreement”), as amended, by and between certain shareholders of the Employer and DBR Capital, LLC, a copy of which has been provided to Executive for his review and consent.
ARTICLE V
ENFORCEMENT OF COVENANTS
5.1 Injunctive Relief. The Executive agrees that a breach or threatened breach by Executive of any covenant contained in this Agreement will cause such damage to the Employer as will be irreparable, and for that reason, the Executive further agrees that the Employer shall be entitled as a matter of right to an injunction from any court of competent jurisdiction restraining any further violation of such covenants by the Executive, his employers, officers, partners, or agents, without proof of damages or posting of a bond. The right to injunction shall be cumulative and in addition to whatever other equitable or legal remedies the Employer may have, including, specifically, recovery of damages.
5.2 Survival of Covenants. Subject to Article VI below, in the event the Executive’s employment relationship with the Employer is terminated, the covenants contained in Articles III and IV above and the remedies provided under this Article V shall survive for the period of time specified herein Articles III and IV for such covenants, and where a specific period of time is not specified, then for a period of one (1) year after such termination.
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ARTICLE VI
TERM AND TERMINATION
6.1 Term. Except as provided herein, the initial term of this Agreement shall be for a period of five (5) years commencing on the Effective Date and shall end on the five (5) year anniversary of the Effective Date (the “Initial Term”). At the expiration of the Initial Term, this Agreement will automatically renew for successive additional terms of one (1) year (each a “Renewal Term”, and together with the Initial Term, the “Term”), unless notice of nonrenewal is given in writing by either Party hereto to the other Party at least sixty (60) calendar days prior to the expiration of the Initial Term or any successive Renewal Term. Notwithstanding the foregoing and for the avoidance of doubt, the Executive’s employment shall be on an at-will basis, meaning that, subject to the terms and conditions of this Agreement, including without limitation Section 6.2 and 6.3, either the Employer or the Executive may terminate the Executive’s employment at any time, with or without notice, for any reason not prohibited by law.
6.2 Termination. The Executive’s employment hereunder and this Agreement may be terminated under the following circumstances:
(a) Termination by Employer for Cause. The Employer shall have the right to terminate this Agreement and the Executive’s employment with the Employer immediately for cause (“Cause”) (as defined below) at any time if, during the Term, the Executive: (i) has materially breached the terms of this Agreement; (ii) violates any of the covenants of Articles III and IV of this Agreement; (iii) exhibits repeated willful, reckless, intentional, grossly negligent or wanton failure or refusal to perform his Executive Duties and Responsibilities in furtherance of the Employer’s business interest or in accordance with this Agreement (which shall be cause for termination if Employer provides Executive notice of such failure or refusal more than one time in any 12 month period); (iv) commits an intentional tort against the Employer, which materially adversely affects the business or reputation of the Employer; (v) commits any act of fraud, dishonesty or disloyalty or any act involving gross moral turpitude, which adversely affects the business or reputation of the Employer; (vi) has engaged in violations of federal or state securities laws, or has caused the Employer to engage in violations of federal or state securities laws; (vii) has been charged with criminal conduct under any federal or state laws against the Employer, which in the good-faith discretion of Employer’s Board, could have the effect of materially adversely affecting the business or reputation of the Employer or Executive’s ability to execute and perform his Executive Duties and Responsibilities under this Agreement; (viii) has been the subject of a final non-appealable conviction of or a plea of guilty or nolo contendere by the Executive to a felony or misdemeanor involving fraud, embezzlement, theft, or dishonesty, moral turpitude or other criminal conduct against the Employer or otherwise; (ix) exhibits immoderate use of alcohol or drugs that, in the discretion of the Board, impairs, or is likely to impair, the Executive’s ability to perform his duties hereunder; or (x) has become subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act (a “Disqualification Event”), (each and all of the foregoing clauses (i) through (x) constituting reasons for termination for “Cause”), provided that unsatisfactory business performance of the Employer, or mere inefficiency, or good faith errors in judgment or discretion by the Executive shall not constitute grounds for termination for Cause hereunder. Notwithstanding the foregoing, this Agreement and the Executive’s employment with the Employer shall not be deemed to have been terminated for Cause, without at least fifteen (15) calendar days’ prior written notice to the Executive setting forth the reason(s) for the Employer’s intention to terminate for Cause. Except for a failure, breach, or refusal which, by its nature, cannot reasonably be expected to be cured, the Executive shall have fifteen (15) calendar days from the delivery of written notice by the Employer within which to cure any acts constituting Cause.
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(b) Termination upon Death or Disability of the Executive. This Agreement and the Executive’s employment with the Employer shall terminate immediately upon the Executive’s death or Disability (as defined below). For the purposes of this Agreement, the term “Disability” shall mean the Executive’s inability to perform his duties with or without a reasonable accommodation under this Agreement for a period of sixty (60) consecutive days due to illness, accident or any other physical or mental incapacity, as determined in the sole discretion of the Employer.
(c) Termination by Executive with Good Reason. The Executive may terminate this Agreement and his employment with the Employer with “Good Reason”. “Good Reason” means the Employer’s material breach of its representations and/or obligations under this Agreement or any other agreement with the Executive, which breach has continued unremedied for a period of thirty (30) calendar days after the Employer’s receipt of written notice from the Executive.
(d) Termination by Executive without Good Reason. The Executive may terminate this Agreement and his employment with the Employer at any time without Good Reason upon thirty (30) calendar days’ prior written notice from the Executive to the Employer.
(e) Termination by Employer without Cause. The Employer may terminate this Agreement and the Executive’s employment with the Employer at any time without Cause upon thirty (30) calendar days’ prior written notice from the Employer to the Executive; however, if Executive provided Employer notice of his termination of employment with the Employer without good reason, then Employer may terminate Executive’s employment effective immediately.
6.3 Payments Upon Termination.
(a) Termination by Employer for Cause or by the Executive without Good Reason. In the event that this Agreement and the Executive’s employment is terminated by the Employer for Cause pursuant to Section 6.2(a) or by the Executive without Good Reason pursuant to Section 6.2(d):
i. The Employer shall pay to the Executive all amounts and benefits accrued through the date of termination (which for the purposes of clarity shall exclude unused accrued vacation days) and any unreimbursed expenses incurred pursuant to Section 2.8.
ii. Any remaining unvested Restricted Shares shall be forfeited in full and any other unvested equity awards granted to the Executive shall be terminated and forfeited in full.
iii. The Executive shall not be entitled to any additional payment in the form of severance or otherwise.
(b) Termination upon Death of the Executive. If the Executive dies during the Term and his employment and this Agreement terminates pursuant to Section 6.2(b):
i. The Employer shall pay to the estate of the Executive within thirty (30) calendar days after the date on which the Executive dies, all amounts and benefits accrued through the date of termination (including unused accrued vacation days) and any unreimbursed expenses incurred pursuant to Section 2.8.
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ii. The Employer shall pay to the estate of the Executive any Quarterly Cash Bonus(es), Quarterly Stock Bonus(es), Market Capitalization Bonus(es) and any Up-Listing Cash Bonus(es) that the Executive earned for any fiscal quarter(s) prior to the fiscal quarter in which the Executive’s employment terminated pursuant to Section 2.2 to the extent that such Quarterly Cash Bonus(es), Quarterly Stock Bonus(es), Market Capitalization Bonus(es) and any Up-Listing Cash Bonus) had not yet been paid before the date of termination within ninety (90) calendar days following the Executive’s termination of employment.
iii. The Employer shall pay to the estate of the Executive a lump sum amount payable in cash equal to six (6) months of the Executive’s Base Salary within ninety (90) calendar days following the Executive’s termination of employment.
iv. Any Restricted Shares that are scheduled to vest during the period from the date of termination through the next Scheduled Vesting Date, as applicable, pursuant to Section 2.5(a) (but in no event longer than a six-month period following the date of Executive’s date of termination), shall immediately and automatically vest and become non-forfeitable and the remaining unvested Restricted Shares shall terminate and be forfeited by the Executive and revert to the Employer.
v. The treatment of any and all other equity awards granted to the Executive by the Employer shall be governed by the terms of the award agreements governing such awards.
(c) Termination upon Disability of the Executive. In the event that the Executive’s employment and this Agreement is terminated upon the Disability of the Executive pursuant to Section 6.2(b):
i. The Employer shall pay to the Executive within thirty (30) calendar days following the Executive’s termination (including unused accrued vacation days) of employment all amounts and benefits accrued through the date of termination and any unreimbursed expenses incurred pursuant to Section 2.8.
ii. The Employer shall pay to the Executive any Quarterly Cash Bonus(es), Quarterly Stock Bonus(es), Market Capitalization Bonus(es) and any Up-Listing Cash Bonus(es) that the Executive earned for any fiscal quarter(s) prior to the fiscal quarter in which the Executive’s employment terminated pursuant to Section 2.2 to the extent that such Quarterly Cash Bonus(es), Quarterly Stock Bonus(es), Market Capitalization Bonus(es) and any Up-Listing Cash Bonus(es) had not yet been paid before the date of termination within ninety (90) calendar days following the Executive’s termination of employment.
iii. If the Executive’s Disability is a “disability” within the meaning of Section 409A of the Code, the Employer shall pay to the Executive a lump sum amount payable in cash equal to six (6) months of the Executive’s Base Salary within ninety (90) calendar days following the Executive’s termination of employment, otherwise, such six (6) months of Executive’s Base Salary shall be payable as salary continuation payments in accordance with the Employer’s normal and customary payroll procedures over six (6) months.
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iv. Any Restricted Shares that are scheduled to vest during the period from the date of termination through the next Scheduled Vesting Date, as applicable, pursuant to Section 2.5(a) (but in no event longer than a six-month period following the date of Executive’s date of termination), shall immediately and automatically vest and become non-forfeitable and the remaining unvested Restricted Shares shall terminate and be forfeited by the Executive and revert to the Employer.
v. The treatment of any and all other equity awards granted to the Executive by the Employer shall be governed by the terms of the award agreements governing such awards.
(d) Termination by Employer without Cause or by Executive with Good Reason. In the event that the Executive’s employment and this Agreement is terminated by the Employer pursuant to Section 6.2(e) or in the event that the Executive’s employment and this Agreement is terminated by Executive with Good Reason pursuant to Section 6.2(c):
i. The Employer shall pay to the Executive all amounts and benefits accrued through the date of termination (including unused accrued vacation days) and any unreimbursed expenses incurred pursuant to Section 2.8.
ii. The Employer shall pay to the Executive any Quarterly Cash Bonus(es), Quarterly Stock Bonus(es), Market Capitalization Bonus(es) and any Up-Listing Cash Bonus(es) that the Executive earned for any fiscal quarter(s) prior to the fiscal quarter in which the Executive’s employment terminated pursuant to Section 2.2 to the extent that such Quarterly Cash Bonus(es), Quarterly Stock Bonus(es), Market Capitalization Bonus(es) and any Up-Listing Cash Bonus(es) had not yet been paid before the date of termination within ninety (90) calendar days following the Executive’s termination of employment.
iii. The Employer shall pay to the Executive severance (“Severance”) in an amount equal to the Executive’s Base Salary, payable as salary continuation payments in accordance with the Employer’s normal and customary payroll procedures over a severance period (the “Severance Period”) of six (6) months following Executive’s termination.
iv. If the Executive timely elects continuation coverage under the Employer’s group medical, dental and health plans for the Executive and his covered dependents pursuant to Section 4980B of the Internal Revenue Code of 1986, as amended (the “Code”) (which provisions are commonly known as “COBRA”), in accordance with ordinary plan practices, the Employer shall pay, or reimburse Executive, during the Severance Period, for the COBRA premium payable by the Executive as if he had continued in active employment with the Employer, for the level of coverage the Employer and his covered dependents are enrolled in the Employer’s group medical, dental and health plans at the date of termination, to the extent permitted under the terms of the Employer’s medical, dental and health plans; provided, however, that if the Executive and his covered dependents become eligible to receive comparable medical benefits under another employer provided plan during the Severance Period, the Employer’s obligation to make, or reimburse COBRA payments described herein shall be terminated. Unless direct payment by the Employer of such COBRA payments is permitted by applicable law, the Executive shall pay the full cost of the premiums for such coverage, as determined and set under the then current practices of the Employer, on the first day of each month such coverage is provided and the Employer shall reimburse the Executive for COBRA continuation coverage (the “Reimbursement Amounts”). Any Reimbursement Amounts to be paid by the Employer to the Executive under this Section 6.3(d)(iv) shall be made on the tenth (10th) day of each month the Executive pays the amount required by this Section 6.3(d)(iv) for COBRA continuation coverage. The Executive shall promptly notify the Employer of any changes in his eligibility for medical benefits coverage.
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v. Any Restricted Shares that are scheduled to vest during the Severance Period, shall immediately and automatically vest and become non-forfeitable and the remaining unvested Restricted Shares shall terminate and be forfeited by the Executive and revert to the Employer.
vi. The treatment of any and all other equity awards granted to the Executive by the Employer shall be governed by the terms of the award agreements governing such awards.
6.4 Release of Claims. Notwithstanding any of the foregoing, the payments and benefits provided under Section 6.3(d)(ii) through (v) are subject to and conditioned upon (a) the Executive executing a timely and valid release of claims (“Release”) in the form as provided to the Executive from the Employer waiving all claims the Executive may have against the Employer, its subsidiaries, successors, assigns, Affiliates, executives, officers and directors; (b) the Executive delivering the executed Release to the Employer within twenty-one (21) calendar days following the date of termination (the “Release Period”); (c) such Release and the waiver contained therein becoming effective; and (d) the Executive’s compliance with the covenants contained in Articles III and IV of this Agreement. In the event that the Release Period spans two of the Executive’s taxable years, the payments and benefits provided under Section 6.3(d)(ii) through (iv) must be made in the second of the two taxable years.
6.5 Resignation as Director and Officer. Immediately upon termination of the Executive’s employment with the Employer for any reason, the Executive will resign from any and all positions then held as a director or officer of the Employer and of any subsidiary, parent or affiliated entity of the Employer. Executive hereby agrees to sign such undated resignation letters in advance, on the Effective Date, and such resignation letters to be held in escrow by Employer’s counsel. Further, Executive hereby authorized the Employer and or Employer’s counsel to date the resignation letters upon the occurrence of Executives termination of employment from Employer in accordance with this Section 6 hereunder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.1 Representations and Warranties of the Employer. The Employer represents and warrants to the Executive that (a) the Employer is an entity duly organized and validly existing in good standing under the laws of the State of Nevada, and has the requisite power and authorization to own its properties and to carry on its business as now being conducted; and (b) this Agreement has been duly executed and delivered by the Employer, and constitutes the legal, valid and binding obligations of the Employer, enforceable against the Employer in accordance with its terms.
7.2 Representations and Warranties of the Executive. The Executive represents and warrants to the Employer as follows:
(a) The Executive has had the opportunity to consult legal counsel of his or her own selection about this Agreement and understands and voluntarily agrees to the provisions of this Agreement.
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(b) The Executive is not aware of any existing medical condition which might cause him to be or become unable to fulfill his duties under this Agreement.
(c) The Executive is free to enter into this Agreement and has no commitment, arrangement or understanding to or with any third party that restrains or is in conflict with this Agreement or that would operate to prevent the Executive from performing the services to the Employer that the Executive has agreed to provide hereunder.
(d) This Agreement has been duly executed and delivered by the Executive, and constitutes the legal, valid and binding obligations of the Executive, enforceable against the Executive in accordance with its terms.
(e) Executive is an “accredited investor” as that term is defined in Rule 501(a) of Regulation D under the Securities Act.
(f) The Executive hereby acknowledges that Executive: (i) has had such opportunity as the Executive has deemed adequate to obtain from representatives of the Employer such information as is necessary to permit the Executive to evaluate the merits and risks of the Executive’s acquisition of shares of INVU Common Stock hereunder; (ii) has sufficient experience in business, financial and investment matters to be able to evaluate the risks involved in the acquisition of such shares of INVU Common Stock and to make an informed investment decision with respect thereto; (iii) has had access to and has reviewed all publicly available documents and records relating to the Employer, including, but not limited to, the Employer’s Annual Report on SEC Form 10-K for the year ended December 31, 2020, and any Quarterly Report on SEC Form 10-Q, or Current Report on SEC Form 8-K, filed with the SEC after December 31, 2020 and before the Effective Date (collectively, the “Employer SEC Documents”), that it has deemed necessary in order to make an informed investment decision with respect to an investment in the Shares; and (iv) can afford the complete loss of the value of the shares of INVU Common Stock and is able to bear the economic risk of holding the shares of INVU Common Stock for an indefinite period.
(g) The Executive is acquiring the shares of INVU Common Stock for investment for the Executive’s own account only and not with a view to, or for resale in connection with, any “distribution” thereof within the meaning of the Securities Act of 1933, as amended (the “Securities Act”) or under any applicable provision of state law. The Executive does not have any present intention to transfer the shares of INVU Common Stock to any third party.
(h) The Executive understands that the shares of INVU Common Stock have not been registered under the Securities Act by reason of a specific exemption therefrom, which exemption depends upon, among other things, the bona fide nature of the Executive’s investment intent as expressed herein.
(i) The Executive further acknowledges and understands that the shares of INVU Common Stock are being issued as restricted securities and must be held indefinitely unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The Executive further acknowledges and understands that the Employer is under no obligation to register shares of INVU Common Stock under the Securities Act.
(j) The Executive understands that the certificate(s) or book entry notation(s) evidencing the shares of INVU Common Stock will be imprinted with a legend which prohibits the transfer thereof unless they are registered or such registration is not required in the opinion of counsel for the Employer.
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(k) As of the Effective Date, Executive is not subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act (a “Disqualification Event”).
7.3 Restrictive Legends and Stop-Transfer Orders.
(a) Legends. The certificate or certificates representing the INVU shares of Common Stock issued pursuant to this Agreement shall bear the following legends (as well as any legends required by applicable state and federal corporate and securities laws):
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT, OR ANY STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE PLEDGED, HYPOTHECATED, SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO THE EMPLOYER THAT SUCH PLEDGE, HYPOTHECATION, SALE OR TRANSFER IS EXEMPT THEREFROM UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS.”
“FURTHERMORE, THE OFFER, PLEDGE, SALE, TRANSFER, HYPOTHECATION, OR OTHER DISPOSITION OF THE SECURITIES REPRESENTED HEREBY (INCLUDING, AMONG OTHERS, THE GRANT OF ANY OPTION ON, OR A CONTRACT FOR THE SALE OF ANY SECURITIES REPRESENTED HEREBY, IS SUBJECT TO, AND IN CERTAIN CASES PROHIBITED BY, THE TERMS AND CONDITIONS OF A CERTAIN LOCK-UP AGREEMENT BY AND AMONG THE STOCKHOLDER, THE CORPORATION AND CERTAIN OTHER HOLDERS OF STOCK OF THE CORPORATION. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE CORPORATION.”
ARTICLE VIII
MISCELLANEOUS
8.1 Definitions: For the purposes of this Agreement, the following terms have the meanings specified or referred to in this Section 8.1:
“Affiliate” means a Person who directly or indirectly through one or more intermediaries, controls (whether by owning more than 51% of a company’s voting equity, through a voting or other agreement, or otherwise), or is controlled by, or is under common control with, the Person specified. Persons who have acted or are acting on behalf or for the benefit of a Person include, but are not necessarily limited to, directors, officers, employees, agents, consultants and sales representatives.
“For Cause Event” shall mean any event, circumstance or occurrence that would constitute the basis for a termination of the Executive for Cause under Section 6.2(a) hereunder, regardless of whether the Employer elects to invoke the right to terminate Executive or provide notice to the Executive under Section 6.2(a) hereunder, on the basis of such event, circumstance or occurrence.
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“Person” shall mean an individual, or any type of corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.
8.2 Exit Interview. To insure a clear understanding of this Agreement, including the protection of the Employer’s business interests, the Executive agrees, at no additional expense to the Employer, to engage after the Term in an exit interview with the Employer at a time and place designated by the Employer.
8.3 Severability. If any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect the validity and enforceability of any other provisions hereof. Further, should any provisions within this Agreement ever be reformed or rewritten by a judicial body, those provisions as rewritten shall be binding upon the Employer and the Executive.
8.4 Right of Setoff. The Employer and the Executive shall each be entitled, at its option and not in lieu of any other remedies to which it may be entitled, to set off any amounts due from the other or any affiliate of the other against any amount due and payable by such person or any affiliate of such person pursuant to this Agreement or otherwise.
8.5 Taxes.
(a) Compliance with Code Section 409A. This Agreement and the payments hereunder are intended to be exempt, to the greatest extent possible, from the requirements of Section 409A of the Code, and to the extent not so exempt, to comply with the requirements of Section 409A of the Code, and shall be construed and administered consistent with such intent. In the event the terms of this Agreement would subject the Executive to taxes or penalties under Section 409A of the Code (“409A Penalties”), the Employer and the Executive shall cooperate diligently to amend the terms of the Agreement to avoid such 409A Penalties, to the extent possible; provided that such amendment shall not increase or reduce (in the aggregate) the amounts payable to the Executive hereunder. Any taxable reimbursement payable to the Executive pursuant to this Agreement shall be paid to the Executive no later than the last day of the calendar year following the calendar year in which the Executive incurred the reimbursable expense. Any amount of expenses eligible for taxable reimbursement, or such in-kind benefit provided, during a calendar year shall not affect the amount of such expenses eligible for reimbursement, or such in-kind benefit to be provided, during any other calendar year. The right to such reimbursement or such in-kind benefits pursuant to this Agreement shall not be subject to liquidation or exchange for any other benefit. Any right to a series of installment payments pursuant to this Agreement is to be treated as a right to a series of separate payments. A termination of employment shall not be deemed to have occurred for purposes of the Agreement providing for the payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” within the meaning of Section 409A of the Code. If on the date of termination of employment the Executive is a “specified employee” within the meaning of that term under Section 409A of the Code, then, notwithstanding any other provision herein, with regard to any payment or benefit that is properly treated as nonqualified deferred compensation under Section 409A of the Code (after taking into account all exclusions applicable to such payment or benefit) and is payable on account of such separation from service, such payment or benefit shall not be made or provided prior to the expiration of the earlier of the six-month period measured from the date of such separation from service, or the Executive’s death. All payments and benefits delayed pursuant to the preceding provisions of this Section 8.5(a) shall be paid to the Executive on the first payroll date following the end of the delay period.
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(b) Code Section 280G. Notwithstanding any other provisions of this Agreement or any other agreement, contract or understanding heretofore or hereafter entered into between the Executive and the Employer, if any “payments” (including, without limitation, any benefits or transfers of property or the acceleration of the vesting of any benefits) in the nature of compensation under any arrangement that is considered contingent on a Change in Control for purposes of Code Section 280G, together with any other payments that the Executive has the right to receive from the Employer or any corporation that is a member of an “affiliated group” (as defined in Code Section 1504(a) without regard to Code Section 1504(b)) of which the Employer is a member, would constitute a “parachute payment” (as defined in Code Section 280G(b)(2)), such “payments” will be reduced to the largest amount as will result in no portion of such “payments” being subject to the excise tax imposed by Code Section 4999; provided, however, that such reduction will be made only if the aggregate amount of the payments after such reduction (net of all federal, state, local, foreign income and employment taxes) exceeds the difference between (i) the amount of such payments absent such reduction (net of all federal state, local, foreign income and employment taxes) minus (ii) the aggregate amount of the excise tax imposed under Code Section 4999 attributable to any such excess parachute payments. The parachute payments to be reduced under this Section 8.5(b) will be reduced in the following order: lump sum cash severance, health plan benefits, and equity award acceleration.
8.6 Succession. This Agreement and the rights and obligations hereunder shall be binding upon and inure to the benefit of the parties hereto and their respective legal representatives, and shall also bind and inure to the benefit of any successor of the Employer by merger or consolidation or any assignee of all or substantially all of Employer’s property and assets.
8.7 Assignment. Except to any successor or assignee of the Employer as provided in Section 8.8 above, neither this Agreement nor any rights or benefits hereunder may be assigned by either party hereto without the prior written consent of the other party. Neither the Executive, the Executive’s spouse, the Executive’s designated contingent beneficiary, nor their estates shall have any right to anticipate, encumber, or dispose of any payment due under this Agreement. Such payments and other rights are expressly declared non-assignable and non-transferable, except as specifically provided herein.
8.8 Expenses. In the event that it shall be necessary or desirable for the Executive to retain legal counsel and/or incur other costs and expenses in connection with the interpretation or enforcement of any and all of the Executive’s rights under this Agreement, the Executive shall bear the sole legal expense associated with this legal review and interpretation.
8.9 Adjustments. For purposes of this Agreement, the term “INVU Common Stock” shall mean the common stock, par value $0.001 per share, of the Employer, and any kind of shares of stock or other securities into which such INVU Common Stock may be changed in the event of any reorganization, merger, consolidation, recapitalization, liquidation, reclassification, stock dividend, stock split, reverse stock split, combination of shares, rights offering, divestiture or extraordinary dividend (including a spin off) or any other similar change in the corporate structure or shares of INVU Common Stock, and all references to a number of shares of INVU Common Stock or Restricted Shares and any purchase price therefor or stock prices thereof in this Agreement, shall be appropriately adjusted to reflect any stock split, reverse stock split or stock dividend or other similar change in such securities which may be made by the Employer after the date of this Agreement.
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8.10 Clawback. Notwithstanding anything herein to the contrary, payment of amounts to the Executive under this Agreement will be subject to applicable mandatory forfeiture or repayment provisions under the Sarbanes-Oxley Act of 2002 or any other applicable law, rule or regulation or stock exchange requirement, and any clawback or forfeiture policy of the Employer, and if the Executive is required to forfeit or to make any repayment of any compensation or benefit(s) to the Employer under the Sarbanes-Oxley Act of 2002, any other law, rule or regulation or any stock exchange requirement, or under the Employer’s clawback or forfeiture policy, in each case which is applicable to the Employer and the Executive, such forfeiture or repayment shall not constitute Good Reason under this Agreement.
8.11 Unfunded Obligations. The obligations under this Agreement shall be unfunded. Payments and benefits payable under this Agreement shall be paid from the general assets of the Employer. The Employer shall have no obligation to establish any fund or to set aside any assets to provide benefits under this Agreement.
8.12 Withholding. The Employer may withhold from any amounts payable to the Executive hereunder all federal, state, city or other taxes that the Employer may reasonably determine are required to be withheld pursuant to any applicable law or regulation (it being understood that the Executive shall be responsible for payment of all taxes in respect of the payments and benefits provided herein).
8.13 Notices. All notices, requests, consents, approvals, claims, demands, waivers, and other communications required, necessary or permitted hereunder shall be in writing and shall be delivered (a) in hand by person with written receipt of the Person to whom such notice is intended; (b) by registered or certified mail, postage prepaid, return receipt requested; or (c) by a generally recognized commercial courier service or overnight delivery service, (Federal Express or UPS), for next Business Day delivery, postage prepaid, with delivery receipt requested. All notices sent in accordance with this Section 8.13 shall be deemed “Delivered” unless otherwise specified herein, the same day if delivered by hand in person with receipt and signature of the intended recipient or by an authorized officer of the intended recipient; three (3) Business Days after the same is deposited in the U.S. Mail if sent by registered or certified mail; or one (1) Business Day after payment and receipt of mailing if sent by a commercial courier service or overnight delivery service for next Business Day delivery. Such communications must be sent to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 8.13).
| To Employer: | Investview, Inc. |
| c/o James R. Bell, President | |
| 521 W. Lancaster Avenue; Fl. 2 | |
| Haverford, PA 19041-1413 | |
| Email: [email protected] | |
| Phone: 267.738.7074 |
| With Copies to: | Investview, Inc. |
| c/o David B. Rothrock, Chairman | |
| 1648 Plaza Ln. | |
| Allentown, PA 18104 | |
| Email: [email protected] | |
| Phone: 484.223.0502 | |
| Fox Rothschild LLP | |
| c/o Stephen M. Cohen, Partner | |
| 2000 Market Street | |
| Philadelphia, PA 19103 | |
| Email: [email protected] | |
| Phone: 215.299.2744 |
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| To Executive: | Myles P. Gill |
| 4827 Bethel Creek Drive | |
| Vero Beach, Florida 32963 | |
| Email: [email protected] | |
| Phone: (772) 713-5555 |
8.14 Entire Agreement; Amendments. This Agreement, together with the Exhibits hereto, contains the entire agreement between the parties hereto with respect to the subject matter contained herein, and supersedes and is in full substitution for any and all prior understandings or with respect to the Executive’s employment. No change, addition, or amendment shall be made except by written agreement signed by the parties hereto.
8.15 Waiver of Breach. The failure by any party to insist upon the strict performance of any covenant, duty, agreement, or condition of this Agreement or the failure to exercise any right or remedy consequent upon a breach hereof shall not constitute a waiver of any such breach or of any covenant, agreement, term, or condition and the waiver by either party hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by any party.
8.16 Multiple Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement and electronic, digital or facsimile signatures shall be deemed original signatures. In making proof of this Agreement, it shall not be necessary to produce or account for more than one such counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, or by DocuSign, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.
8.17 Descriptive Headings and Interpretation. In the event of a conflict between titles to articles, sections and paragraphs and the text, the text shall control. For purposes of this Agreement, whenever the context requires, the singular number shall include the plural, and vice versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include the masculine and feminine genders.
8.18 Governing Law, and Consent to Personal Jurisdiction. This Agreement and the rights and obligations of the parties hereto under this Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the state of New Jersey, without regard to its principles of conflicts of law thereof. Executive and Employer each hereby consent to the personal jurisdiction of the state courts located in Mercer County, State of New Jersey, and The United States District Court for the District of New Jersey, if that federal court has jurisdiction, over any and all claims or disputes in any way related to the Executive’s Employment with Employer, separation from employment with the Employer, or compliance with the terms of this Agreement.
8.19 Cumulative Remedies. All rights, powers and remedies specified in this Agreement are cumulative and are in addition to, and not in limitation of, such other rights, powers and remedies as may be available to the Employer under applicable law, by agreement among the parties or otherwise.
8.24 Advice of Counsel. Executive acknowledges that Fox Rothschild LLP represents the Employer as its legal counsel. Executive represents that Executive has had the opportunity to avail himself of the advice of counsel prior to signing this Agreement and has elected to forego advice from counsel or is satisfied with Executive’s counsel’s advice and that Executive is executing the Agreement voluntarily and fully intending to be legally bound because, among other things, the Agreement provides valuable benefits to Executive which Executive otherwise would not be entitled to receive. Each of the parties hereto has participated and cooperated in the drafting and preparation of this Agreement. Hence, this Agreement shall not be construed against any party.
[Remainder of page intentionally left blank; signature page follows]
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SIGNED AND DELIVERED to be effective as of the Effective Date set forth above.
| EMPLOYER: | ||
| Investview, Inc. | ||
| By: | /s/ James R. Bell | |
| Name: | James R. Bell | |
| Title: | President | |
| By: | /s/ David B. Rothrock | |
| Name: | David B. Rothrock | |
| Title: | Chairman | |
| EXECUTIVE: | ||
| By: | /s/ Myles P. Gill | |
| Name: | Myles P. Gill | |
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Final Execution Version
SCHEDULE A
DUTIES AND RESPONSIBILITIES
| ● | Director of Operations shall oversee all operational aspects of company strategy, help set strategic goals and provide accurate and timely flow of operations information to the CFO, COO, CEO and Board. |
| ● | Collaborate with Company Executive-level Officers in the development of Company operational and performance goals in alignment with the Company Mission. |
| ● | Direct and oversee the day to day operations staff and activities of (manufacturing; purchasing; distribution; sales; etc.) for each Subsidiary Company ensuring each Subsidiary and staff members are motivated and trained to carry out their responsibilities and to achieve the Company’s operational and performance goals as established. |
| ● | Participate in the hiring & training of Departmental Executives & Managers across all Subsidiary Companies. |
| ● | Plan, monitor, and analyze key metrics for the day-to-day performance of the operations to ensure efficient and timely completion of tasks, recommending solutions for improvement when necessary. |
| ● | Lead in the coordination and integration of the operations, engineering, technology and retail & wholesale efforts across all Subsidiary Companies to produce and improve work-flow and cost-effective processes. |
| ● | Work in collaboration with Senior Executive-level officers and senior managers to: plan, implement, direct, control, evaluate and monitor Subsidiary Departmental Forecasted Budgets for revenues, expenses and net profit to achieve Company goals. |
| ● | Develop strategies to ensure growth of each business unit and their programs and implement process improvements across all Subsidiary Companies to maximize output and minimize costs. |
| ● | Monitor and analyze key performance metrics (KPI’s) for the daily operations to ensure: (i) achievement of Company goals and Mission; (ii) efficiency and timeliness in completing identified tasks to achieve Company & Departmental goals; (iii) developing and implementing needed changes to processes and systems to achieve Company goals and well as in collaboration with D-Suite Executives, setting strategic goals for operational efficiency and productivity; (iv) review, analyze, evaluate, and optimize current operational workflow performance, processes, systems and procedures to maximize operational efficiencies and productivity, while making recommending solutions for improvement when & where necessary; and (iv) developing reports to provide visibility to the progress toward achievement of Company & Departmental goals and obstacles to our key initiatives. |
| ● | Build and maintain key strategic relationships with all Department Executives/Managers, external partners, suppliers, manufacturers and vendors to make decisions regarding operational activity and strategic goals. |
| ● | Set team and individual goals. |
| ● | Establish quantitative and qualitative metrics, guidelines, and standards by which the Company’s efficiency and effectiveness can be evaluated; identify opportunities for improvement. |
| ● | Regularly conduct performance evaluations with senior departmental managers no less frequently that annually with a goal of bi-annual to evaluate performance and provide constructive feedback on measurement to senior managers and Company Executive-level Officers. |
| ● | Direct and oversee supply chain operations. Oversee purchasing to ensure that the company has the goods and services required for production purposes within agreed costs and quality standards and at the right times. |
| ● | Analyze Company’s supply chain, identify risks and provide recommendations for creating sustainable supply chain flows. |
| ● | Serve as the Company’s main advisor and uphold all company policies, standards, ethics and conduct, ensuring compliance to federal, state governmental, regulatory, administrative agency, or commission including the Federal Trade Commission. |
| ● | Securities and Exchange Commission, or FINRA regulations are followed. |
| ● | Oversee to ensure work environments are adequate and safe. |
| ● | Organize and oversee the work and schedules of departmental managers. Monitor employee production and satisfaction. Handle discipline and termination of employees as needed and in accordance with company policy. |
| ● | Communicate and explain new directives, policies, or procedures to Senior Executive-level officers, senior managers and managers; for major Company changes. DOO to meet with entire operations staff to explain changes, answer questions, and maintain employee morale. |
| ● | Improve customer service and satisfaction through policy and procedural changes . |
| ● | Performs other related duties as assigned. |
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SCHEDULE B
Business of the Employer
The “business of the Employer” for the purpose of Section 4.2 of the Agreement will be defined as the actual nature of the Company’s business as defined by sector, industry, business segment, products, services and key elements of the business conducted by the Company at the time of Executive’s termination of employment with the Employer. However, to help clarify the scope in which Employer’s business may be considered, were Executive to have been terminated as of the Effective Date, purely on a hypothetical basis, the scope of the business of the Employer as of the Effective Date would be as follows:
“Investview, Inc. operates multiple lines of business, including: (i) the distribution, marketing and sale of products and/or services through a multi-level network of distributors; (ii) the marketing, sale and distribution of digital assets with a focus on crypto currencies, mining and Central Bank Digital Currencies; (iii) the development, licensing and operation of the Company’s SMART electronic trading platform technology; and (iv) assuming the completion of a pending acquisition (or a replacement acquisition if the pending transaction does not receive FINRA approval), the operation of a financial technology business incorporating the services of a registered broker-dealer and investment adviser.”
For the avoidance of doubt, the “business of Employer’’ for the purpose of Section 4.2 of the Agreement will be defined now and in the future as the actual nature of the Company’s business as defined by sector, industry, business segment, products, services and key elements of the business conducted by the Company at the time of Executive’s termination of employment with the Employer.
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Exhibit 10.105
INVESTVIEW, INC.
JOINDER TO LOCK-UP AGREEMENT
The undersigned has executed this Joinder as of the date set forth below, in order to join as a party to that certain Lock-Up Agreement dated as of March 22, 2021 (the “Agreement”), a copy of which is attached hereto, by and among Investview, Inc. (the “Company”), Investview Financial Group Holdings, LLC, and the “Purchasers” (as such term is defined in the Agreement) of the Company. Intending to be legally bound hereby, the undersigned agrees that the undersigned, shall become a party to, and be bound in all respects by, the Agreement, with respect to all shares of common stock of the Company beneficially held by such undersigned.
| Date: | February 21, 2022 | /s/ Myles P. Gill |
| Myles P. Gill |
ACKNOWLEDGED, ACCEPTED
AND AGREED:
| Investview, Inc. | ||
| By: | /s/ James R. Bell | |
| Name: | James R. Bell | |
| Title: | President | |
Exhibit 10.106
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this “Agreement”) is made this __ day of _____________, between Investview, Inc. a Nevada corporation (the “Company”), and _____________, an individual (“Indemnitee”).
RECITALS
WHEREAS, the Board of Directors (the “Board”) has determined that the increased difficulty in attracting and retaining officers and directors is detrimental to the best interests of the Company’s stockholders and that the Company should act to assure such persons that there will be increased certainty of such protection in the future;
WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify, and to advance expenses on behalf of, officers and directors to the fullest extent permitted by applicable law so that they will serve or continue to serve the Company free from undue concern that they will not be so indemnified; and
WHEREAS, this Agreement is intended to clarify Indemnitee’s entitlement to the maximum indemnity afforded officers and directors under the Nevada Revised Statutes (the “Nevada Revised Statutes”) and is a supplement to and in furtherance of the provisions calling for indemnification of officers and directors contained in the bylaws or articles of incorporation of the Company (collectively, the “Charter Documents”) and any resolutions adopted pursuant thereto, and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.
NOW, THEREFORE, in consideration of Indemnitee’s agreement to serve, and to continue his service, as an officer and/or director after the date hereof, the parties hereto, intending to be legally bound, agree as follows.
1. Indemnity of Indemnitee. The Company hereby agrees to hold harmless and indemnify Indemnitee to the fullest extent permitted by Nevada law, as such may be amended from time to time, and the Charter Documents, as may be amended from time to time. In furtherance of the foregoing indemnification, and without limiting the generality thereof:
(a) Proceedings Other Than Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of indemnification provided in this Section l (a) if, by reason of his or her Corporate Status (as hereinafter defined), Indemnitee is, or is threatened to be made, a party to or participant (as a witness or otherwise) in any Proceeding (as hereinafter defined) other than a Proceeding by or in the right of the Company. Pursuant to this Section 1(a), Indemnitee shall be indemnified against all Expenses (as hereinafter defined), judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by the Indemnitee, or on his or her behalf, in connection with such Proceeding or any claim, issue or matter therein, if the Indemnitee (i) acted in good faith and in a manner the Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, and with respect to any criminal Proceeding, had no reasonable cause to believe the Indemnitee’s conduct was unlawful; or (ii) is not liable under Nevada Revised Statutes Section 78.138.
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(b) Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of indemnification provided in this Section 1(b) if, by reason of his or her Corporate Status, the Indemnitee is, or is threatened to be made, a party to or participant (as a witness or otherwise) in any Proceeding brought by or in the right of the Company. Pursuant to this Section 1(b), Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by the Indemnitee, or on the Indemnitee’s behalf, in connection with such Proceeding if the Indemnitee (i) acted in good faith and in a manner the Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, or (ii) is not liable under Nevada Revised Statutes Section 78.138; provided, however, if applicable law so provides, no indemnification against such Expenses shall be made in respect of any claim, issue or matter in such Proceeding as to which Indemnitee shall have been adjudged to be liable to the Company unless and to the extent that the court in which the action or suit was brought or other court of competent jurisdiction determines upon application that such indemnification may be made.
(c) Indemnification for Expenses of a Party Who is Wholly or Partly Successful. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of his or her Corporate Status, a party to and is successful, on the merits or otherwise, in any Proceeding, Indemnitee shall be indemnified to the maximum extent permitted by law, as such may be amended from time to time, against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection therewith. If Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with each successfully resolved claim, issue or matter. For purposes of this Section and without limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.
2. Additional Indemnity. In addition to, and without regard to any limitations on, the indemnification provided for in Section 1 of this Agreement, the Company shall and hereby does indemnify and hold harmless Indemnitee against all Expenses, judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by Indemnitee or on his or her behalf if, by reason of his or her Corporate Status, Indemnitee is, or is threatened to be made, a party to or participant in any Proceeding (including a Proceeding by or in the right of the Company), including, without limitation, all liability arising out of the negligence or active or passive wrongdoing of Indemnitee. The only limitation that shall exist upon the Company’s obligations pursuant to this Agreement shall be that the Company shall not be obligated to make any payment to Indemnitee that is finally determined (under the procedures, and subject to the presumptions, set forth in Sections 6 and 7 hereof) to be unlawful under Nevada law.
3. Contribution.
(a) Whether or not the indemnification provided in Sections 1 and 2 hereof is available, in respect of any Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding), the Company shall pay the entire amount of any judgment or settlement of such Proceeding without requiring Indemnitee to contribute to such payment, and the Company hereby waives and relinquishes any right of contribution it may have against Indemnitee. The Company shall not enter into any settlement of any action, suit or proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding) unless such settlement provides for a full and final release of all claims asserted against Indemnitee without any injunctive or other equitable relief being imposed against Indemnitee.
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(b) Without diminishing or impairing the obligations of the Company set forth in the preceding subparagraph, if, for any reason, Indemnitee shall elect or be required to pay all or any portion of any judgment or settlement in any Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding), the Company shall contribute to the amount of Expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred and paid or payable by Indemnitee in proportion to the relative benefits received by the Company and all officers, directors or employees of the Company, other than Indemnitee, who are jointly liable with Indemnitee (or would be if joined in such Proceeding), on the one hand, and Indemnitee, on the other hand, from the transaction from which such Proceeding arose; provided, however, that the proportion determined on the basis of relative benefit may, to the extent necessary to conform to law, be further adjusted by reference to the relative fault of the Company and all officers, directors or employees of the Company other than Indemnitee who are jointly liable with Indemnitee (or would be if joined in such Proceeding), on the one hand, and Indemnitee, on the other hand, in connection with the events that resulted in such Expenses, judgments, fines or settlement amounts, as well as any other equitable considerations that applicable law may require to be considered. The relative fault of the Company and all officers, directors or employees of the Company, other than Indemnitee, who are jointly liable with Indemnitee (or would be if joined in such Proceeding), on the one hand, and Indemnitee, on the other hand, shall be determined by reference to, among other things, the degree to which their actions were motivated by the sole intent to gain Company profit or advantage, the degree to which their actions were motivated by intent to gain personal profit or advantage, the degree to which their actions were knowingly, intentionally and willfully illegal or tortious, the degree to which their liability is primary or secondary and the degree to which their conduct is active or passive.
(c) The Company hereby agrees to fully indemnify and hold Indemnitee harmless from any claims of contribution that may be brought by officers, directors or employees of the Company, other than Indemnitee, who may be jointly liable with Indemnitee.
(d) To the fullest extent permissible under applicable law, if the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee, whether for judgments, fines, penalties, excise taxes, amounts paid or to be paid in settlement and/or for Expenses, in connection with any claim relating to an indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and Indemnitee as a result of the event(s) and/or transaction(s) giving cause to such Proceeding; and/or (ii) the relative fault of the Company (and its directors, officers, employees and agents) and Indemnitee in connection with such event(s) and/or transaction(s).
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4. Indemnification for Expenses of a Witness. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of his or her Corporate Status, a witness, or is made (or asked to) respond to discovery requests, in any Proceeding to which Indemnitee is not a party, Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection therewith.
5. Advancement of Expenses. Notwithstanding any other provision of this Agreement, the Company shall advance all Expenses incurred by or on behalf of Indemnitee in connection with any Proceeding by reason of Indemnitee’s Corporate Status within thirty (30) days after the receipt by the Company of a statement or statements from Indemnitee requesting such advance or advances from time to time, whether prior to or after final disposition of such Proceeding. Such statement or statements shall reasonably evidence the Expenses incurred by Indemnitee and shall include or be preceded or accompanied by a written undertaking executed by or on behalf of Indemnitee to repay any Expenses advanced if it shall ultimately be determined that Indemnitee is not entitled to be indemnified against such Expenses. Any advances and undertakings to repay pursuant to this Section 5 shall be unsecured and interest free.
6. Procedures and Presumptions for Determination of Entitlement to Indemnification. It is the intent of this Agreement to secure for Indemnitee rights of indemnity that are as favorable as may be permitted under the Nevada Revised Statutes and public policy of the State of Nevada. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event of any question as to whether Indemnitee is entitled to indemnification under this Agreement:
(a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The President or Secretary of the Company shall, promptly upon receipt of such a request for indemnification, advise the Board of Directors in writing that Indemnitee has requested indemnification. Notwithstanding the foregoing, any failure of Indemnitee to provide such a request to the Company, or to provide such a request in a timely fashion, shall not relieve the Company of any liability that it may have to Indemnitee unless and only to the extent such failure actually and materially prejudices the interests of the Company.
(b) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 6(a) hereof, a determination with respect to Indemnitee’s entitlement thereto shall be made in the specific case by one of the following four methods, which shall be at the election of the Board of Directors of the Company: (i) by a majority vote of the Disinterested Directors (as defined in Section 12 below), even though less than a quorum; (ii) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum; (iii) by Independent Counsel (as defined in Section 12 below) in a written opinion to the Board of Directors, a copy of which shall be delivered to the Indemnitee, if (A) there are no Disinterested Directors or if the Disinterested Directors so direct, or (B) a Change of Control (as hereinafter defined) shall have occurred and Indemnitee so requests; or (iv) if so directed by the Board of Directors, by the stockholders of the Company.
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(c) If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 6(b) hereof, the Independent Counsel shall be selected as provided in this Section 6(c). The Independent Counsel shall be selected by the Board of Directors, but shall only be an Independent Counsel to which Indemnitee does not properly object in accordance with the subsequent provisions of this Section 6(c); provided, however, that if a Change of Control shall have occurred, Indemnitee shall select such Independent Counsel, but only an Independent Counsel to which the Board of Directors does not properly object in accordance with the subsequent provisions of this Section 6(c). Within ten (10) days after such written notice of selection shall have been given, the non-selecting party shall deliver to the selecting party, as the case may be, a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 12 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected shall act as Independent Counsel. If a written objection is made and substantiated, the Independent Counsel selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such objection is without merit. If, within twenty (20) days after submission by Indemnitee of a written request for indemnification pursuant to Section 6(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition the court in which the action or suit was brought or other court of competent jurisdiction for resolution of any objection that shall have been made to the selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the court or by such other person as the court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 6(b) hereof. The Company shall pay any and all reasonable fees and expenses of Independent Counsel incurred by such Independent Counsel in connection with acting pursuant to Section 6(b) hereof, and the Company shall pay all reasonable fees and expenses incident to the procedures of this Section 6(c), regardless of the manner in which such Independent Counsel was selected or appointed.
(d) For purposes of this Section 6, “Change of Control” means a change in control of the Company of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), whether or not the corporation is then subject to such reporting requirement; provided that, without limitation, such a change in control shall be deemed to have occurred if (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the “beneficial owner” (as defined in Rule l3d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 25% or more of the combined voting power of the Company’s then outstanding securities without the prior approval of at least a majority of the members of the Board of Directors in office immediately prior to such acquisition; or (ii) the Company is a party to a merger, consolidation, sale of assets or other reorganization, or a proxy contest, as a consequence of which members of the Board of Directors in office immediately prior to such transaction or event constitute less than a majority of the Board of Directors thereafter.
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(e) In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct.
(f) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise (as defined in Section 12 below), including financial statements, or on information supplied to Indemnitee by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 6(f) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(g) If the person, persons or entity empowered or selected under Section 6 to determine whether Indemnitee is entitled to indemnification shall not have made a determination within sixty (60) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional thirty (30) days, if the person, persons or entity making such determination with respect to entitlement to indemnification in good faith requires such additional time to obtain or evaluate documentation and/or information relating thereto; and provided, further, that the foregoing provisions of this Section 6(g) shall not apply if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 6(b) of this Agreement and if (A) within fifteen (15) days after receipt by the Company of the request for such determination, the Board of Directors or the Disinterested Directors, if appropriate, resolve to submit such determination to the stockholders for their consideration at an annual meeting thereof to be held within seventy-five (75) days after such receipt and such determination is made thereat, or (B) a special meeting of stockholders is called within fifteen (15) days after such receipt for the purpose of making such determination, such meeting is held for such purpose within sixty (60) days after having been so called and such determination is made thereat.
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(h) Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board of Directors or stockholder of the Company shall act reasonably and in good faith in making a determination regarding the Indemnitee’s entitlement to indemnification under this Agreement. Any Expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(i) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any Proceeding to which Indemnitee is a party is resolved in any manner other than by adverse judgment against Indemnitee (including, without limitation, settlement of such Proceeding with or without payment of money or other consideration) it shall be presumed that Indemnitee has been successful on the merits or otherwise in such Proceeding. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
(j) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner that Indemnitee reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.
7. Remedies of Indemnitee.
(a) In the event that (i) a determination is made pursuant to Section 6 of this Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 5 of this Agreement, (iii) no determination of entitlement to indemnification is made pursuant to Section 6(b) of this Agreement within ninety (90) days after receipt by the Company of the request for indemnification, (iv) payment of indemnification is not made pursuant to this Agreement within ten (10) days after receipt by the Company of a written request therefor or (v) payment of indemnification is not made within ten (10) days after a determination has been made that Indemnitee is entitled to indemnification or such determination is deemed to have been made pursuant to Section 6 of this Agreement, Indemnitee shall be entitled to an adjudication in an appropriate court of competent jurisdiction of Indemnitee’s entitlement to such indemnification. Indemnitee shall commence such proceeding seeking an adjudication within 180 days following the date on which Indemnitee first has the right to commence such proceeding pursuant to this Section 7(a). The Company shall not oppose Indemnitee’s right to seek any such adjudication.
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(b) In the event that a determination shall have been made pursuant to Section 6(b) of this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding commenced pursuant to this Section 7 shall be conducted in all respects as a de novo trial on the merits and Indemnitee shall not be prejudiced by reason of the adverse determination under Section 6(b).
(c) If a determination shall have been made pursuant to Section 6(b) of this Agreement that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding commenced pursuant to this Section 7, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s misstatement not materially misleading in connection with the application for indemnification, or (ii) a prohibition of such indemnification under applicable Nevada law.
(d) In the event that Indemnitee, pursuant to this Section 7, seeks a judicial adjudication of Indemnitee’s rights under, or to recover damages for breach of, this Agreement, or to recover under any directors’ and officers’ liability insurance policies maintained by the Company, the Company shall pay on Indemnitee’s behalf, in advance, any and all expenses (of the types described in the definition of Expenses in Section 12 of this Agreement) actually and reasonably incurred by Indemnitee in such judicial adjudication, regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification, advancement of expenses or insurance recovery.
(e) The Company shall be precluded from asserting in any judicial proceeding commenced pursuant to this Section 7 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court that the Company is bound by all the provisions of this Agreement. The Company shall indemnify Indemnitee against any and all Expenses and, if requested by Indemnitee, shall (within ten (10) days after receipt by the Company of a written request therefore) advance, to the extent not prohibited by Nevada law, such expenses to Indemnitee that are incurred by Indemnitee in connection with any action brought by Indemnitee for indemnification or advance of Expenses from the Company under this Agreement or under any directors’ and officers’ liability insurance policies maintained by the Company, regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification, advancement of Expenses or insurance recovery, as the case may be.
(f) Notwithstanding anything in this Agreement to the contrary, no determination as to entitlement to indemnification under this Agreement shall be required to be made prior to the final disposition of the Proceeding.
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8. Non-Exclusivity; Survival of Rights; Insurance; Primacy of Indemnification; Subrogation.
(a) The rights of indemnification as provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled under applicable Nevada law, the Charter Documents, any agreement, a vote of stockholders, a resolution of directors or otherwise, of the Company. No amendment, alteration or repeal of this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of any action taken or omitted by such Indemnitee in his or her Corporate Status prior to such amendment, alteration or repeal. To the extent that a change in the Nevada Revised Statutes, whether by statute or judicial decision, permits greater indemnification than would be afforded currently under the Charter Documents and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy.
(b) To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, or agents or fiduciaries of the Company or of any other Enterprise that such person serves at the request of the Company, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any director, officer, employee, agent or fiduciary under such policy or policies. If, at the time of the receipt of a notice of a claim pursuant to the terms hereof, the Company has director and officer liability insurance in effect, the Company shall give prompt notice of the commencement of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies.
(c) The Company hereby acknowledges that Indemnitee may have certain rights to indemnification, advancement of expenses and/or insurance provided by third parties (collectively, the “Secondary Indemnitors”). The Company hereby agrees (i) that it is the indemnitor of first resort with respect to matters for which indemnification is provided under this Agreement (i.e., its obligations to Indemnitee are primary and any obligation of the Secondary Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by Indemnitee are secondary), (ii) that it shall be required to advance the full amount of expenses incurred by Indemnitee and shall be liable for the full amount of all Expenses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted and as required by the terms of this Agreement and the Charter and/or Bylaws (or any other agreement between the Company and Indemnitee), without regard to any rights Indemnitee may have against the Secondary Indemnitors, and (iii) that it waives, relinquishes and releases the Secondary Indemnitors from any and all claims against the Secondary Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. The Company further agrees that no advancement or payment by the Secondary Indemnitors on behalf of Indemnitee with respect to any claim for which the Indemnitee has sought indemnification from the Company shall affect the foregoing and the Secondary Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of Indemnitee against the Company.
(d) Except as provided in paragraph (c) above, in the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee (other than against the Secondary Indemnitors), and the Indemnitee shall execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.
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(e) Except as provided in paragraph (c) above, the Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if and to the extent that Indemnitee has otherwise actually received such payment under any insurance policy, contract, agreement or otherwise.
(f) Except as provided in paragraph (c) above, the Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is or was serving at the request of the Company as a director, officer, employee or agent of any other Enterprise shall be reduced by any amount Indemnitee has actually received as indemnification or advancement of expenses from such other Enterprise.
9. Exception to Right of Indemnification. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee:
(a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; provided that the foregoing shall not affect the rights of Indemnitee or the Secondary Indemnitors as set forth in Section 8(c);
(b) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act, or similar provisions of state statutory law or common law;
(c) to the extent that judgment is rendered against Indemnitee for the payment of dividends or other distributions to stockholders of the Company in violation of the provisions of Nevada Revised Statutes § 78.300, as amended;
(d) to the extent that judgment is rendered against Indemnitee for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934, as amended, or other similar provisions of any federal, state or local statutory law; or
(e) except with respect to a Proceeding relating to enforcement of, or to indemnity under, this Agreement, the Charter Documents, the Nevada Revised Statutes or any insurance policy relating to Indemnitee’s Corporate Status, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board of Directors of the Company authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; provided that this prohibition shall not apply to a counterclaim, cross-claim or third party claim brought in any Proceeding.
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10. Duration of Agreement. All agreements and obligations of the Company contained in this Agreement shall continue during the period Indemnitee is a director, officer, employee or agent of the Company (or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including, without limitation, any direct or indirect subsidiary of the Company) and for a period of ten years thereafter, and shall continue thereafter so long as Indemnitee may be subject to any possible claim or threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that Indemnitee was a director or officer of the Company, or both, or serving in any other capacity referred to in this Agreement.
11. Enforcement.
(a) The Company expressly confirms and agrees that it has entered into this Agreement and assumes the obligations imposed on it hereby in order to induce Indemnitee to serve as a director of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving as a director of the Company.
(b) This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject matter hereof, except for the Employment Agreement between Indemnitor and Indemnitee of even date herewith.
(c) The Company shall not seek from a court, or agree to, a “bar order” which would have the effect of prohibiting or limiting the Indemnitee’s rights to receive advancement of expenses under this Agreement.
12. Definitions. For purposes of this Agreement:
(a) “Corporate Status” describes the status of a person who is serving or has served (i) as a director or officer of the Company, (ii) in any capacity or service with respect to any employee benefit plan of the Company or any one or more of its subsidiary Enterprise, or (iii) as a director, officer, member, manager, partner, trustee, employee, or agent of any other Enterprise at the request of the Company.
(b) “Disinterested Director” means a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification is sought by Indemnitee.
(c) “Enterprise” shall mean the Company and any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that Indemnitee is or was serving at the express written request of the Company as a director, officer, employee, agent or fiduciary.
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(d) “Expenses” shall include all reasonable attorneys’ fees, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees and all other disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, participating, or being or preparing to be a witness in a Proceeding, or responding to, or objecting to, a request to provide discovery in any Proceeding. Expenses also shall include Expenses incurred in connection with any appeal resulting from any Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including without limitation the premium, security for, and other costs relating to any cost bond, supersede as bond, or other appeal bond or its equivalent. Expenses, however, shall not include amounts paid in settlement by Indemnitee or the amount of judgments or fines against Indemnitee.
(e) “Independent Counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presently is, nor in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either such party (other than with respect to matters concerning Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements), or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement. The Company agrees to pay the reasonable fees of the Independent Counsel referred to above and to fully indemnify such counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
(f) “Proceeding” includes any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened or completed proceeding, whether brought by or in the right of the Company or otherwise and whether civil, criminal, administrative or investigative, in which Indemnitee was, is or will be involved as a party or otherwise, by reason of the fact that Indemnitee is or was a director or officer of the Company, by reason of any action taken by Indemnitee or of any inaction on Indemnitee’s part while acting as a director or officer of the Company, or by reason of the fact that Indemnitee is or was serving at the request of the Company as a director, officer, employee, agent or fiduciary of another corporation, partnership, joint venture, trust or other Enterprise; in each case whether or not Indemnitee is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement, but excluding one initiated by an Indemnitee pursuant to Section 7 of this Agreement to enforce his rights under this Agreement.
13. Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision. The Company expressly confirms and agrees that it has entered into this Agreement and assumes the obligations imposed on it hereby in order to induce Indemnitee to serve as an officer and/or director of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving as an officer and/or director of the Company and that Indemnitee is entitled to enforce the provisions hereof as a direct beneficiary thereof. Without limiting the generality of the foregoing, this Agreement is intended to confer upon Indemnitee indemnification rights to the fullest extent permitted by applicable laws and to ensure that indemnification rights that may be provided by any other entities or organizations are secondary to the primary obligation of the Company to indemnify Indemnitee as provided in this Agreement. In the event any provision hereof conflicts with any applicable law, such provision shall be deemed modified, consistent with the aforementioned intent, to the extent necessary to resolve such conflict.
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14. Modification and Waiver. No supplement, modification, termination or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. The failure by any party to insist upon the strict performance of any covenant, duty, agreement, or condition of this Agreement or the failure to exercise any right or remedy consequent upon a breach hereof shall not constitute a waiver of any such breach or of any covenant, agreement, term, or condition and the waiver by either party hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by any party.
15. Notice By Indemnitee. Indemnitee agrees promptly to notify the Company in writing upon being served with or otherwise receiving any summons, citation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to indemnification covered hereunder. The failure to so notify the Company shall not relieve the Company of any obligation that it may have to Indemnitee under this Agreement or otherwise unless and only to the extent that such failure or delay actually materially prejudices the Company.
16. Notices. All notices, requests, consents, approvals, claims, demands, waivers, and other communications required, necessary or permitted hereunder shall be in writing and shall be delivered (a) in hand by person with written receipt of the Person to whom such notice is intended; (b) by registered or certified mail, postage prepaid, return receipt requested; or (c) by a generally recognized commercial courier service or overnight delivery service, (Federal Express or UPS), for next business day delivery, postage prepaid, with delivery receipt requested. All notices sent in accordance with this Section 16 shall be deemed “Delivered” unless otherwise specified herein, the same day if delivered by hand in person with receipt and signature of the intended recipient or by an authorized officer of the intended recipient; three (3) business days after the same is deposited in the U.S. Mail if sent by registered or certified mail; or one (1) business day after payment and receipt of mailing if sent by a commercial courier service or overnight delivery service for next business day delivery. Such communications must be sent to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 16.
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(a) to Indemnitee at the address set forth below Indemnitee signature hereto; or
(b) to the Company at:
Investview, Inc.
c/o James R. Bell, President
521 W. Lancaster Avenue; Fl. 2
Haverford, PA 19041-1413
Email: [email protected]
Phone: 267.738.7074
With Copies to:
Investview, Inc.
c/o David B. Rothrock, Chairman
1648 Plaza Ln.
Allentown, PA 18104
Email: [email protected]
Phone: 484.357.4315
Fox Rothschild LLP
c/o Stephen M. Cohen, Partner
2000 Market Street
Philadelphia, PA 19103
Email: [email protected]
Phone: 215.299.2744
17. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors (including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business or assets of the Company), assigns, spouses, heirs, executors and personal and legal representatives.
18. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement and electronic, digital or facsimile signatures shall be deemed original signatures. In making proof of this Agreement, it shall not be necessary to produce or account for more than one such counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, or by DocuSign, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.
19. Headings. The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction or interpretation thereof.
20. Governing Law and Consent to Jurisdiction. This Agreement and the legal relations among the parties shall be governed by, and construed and enforced in accordance with, the laws of the State of Nevada, without regard to its conflict of laws rules. The parties each hereby consent to the personal jurisdiction of the state courts located in Mercer County, State of New Jersey, and The United States District Court for the District of New Jersey, if that federal court has jurisdiction, over any and all claims or disputes in any way related to the terms of this Agreement.
[The next page is the signature page.]
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IN WITNESS WHEREOF, the parties hereto have executed this Indemnification Agreement on and as of the day and year first above written.
| Indemnitee | INVESTVIEW, INC. | |||
| By: | ||||
| [Name] | Name: | |||
| Title: | ||||
| Address: | ||||
| Email: | ||||
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Exhibit 10.107
INVESTVIEW, INC.
2022 INCENTIVE PLAN
TABLE OF CONTENTS
| 1. | Purpose of Plan. | 1 |
| 2. | Definitions. | 1 |
| 3. | Plan Administration. | 7 |
| 4. | Shares Available for Issuance. | 8 |
| 5. | Participation. | 10 |
| 6. | Options. | 10 |
| 7. | Stock Appreciation Rights. | 12 |
| 8. | Restricted Stock Awards, Restricted Stock Units and Deferred Stock Units. | 13 |
| 9. | Performance Awards. | 15 |
| 10. | Non-Employee Director Awards. | 17 |
| 11. | Other Stock-Based Awards. | 17 |
| 12. | Dividend Equivalents. | 18 |
| 13. | Effect of Termination of Employment or Other Service. | 18 |
| 14. | Payment of Withholding Taxes. | 21 |
| 15. | Change in Control. | 21 |
| 16. | Rights of Eligible Recipients and Participants; Transferability. | 24 |
| 17. | Securities Law and Other Restrictions. | 25 |
| 18. | Deferred Compensation; Compliance with Section 409A. | 26 |
| 19. | Amendment, Modification and Termination. | 26 |
| 20. | Substituted Awards. | 27 |
| 21. | Effective Date and Duration of this Plan. | 27 |
| 22. | Miscellaneous. | 28 |
INVESTVIEW, INC.
2022 INCENTIVE PLAN
1. Purpose of Plan.
The purpose of the Investview, Inc. 2022 Incentive Plan (this “Plan”) is to advance the interests of Investview, Inc., a Nevada corporation (the “Company”), and its stockholders by enabling the Company and its Subsidiaries to attract and retain qualified individuals to perform services for the Company and its Subsidiaries, providing incentive compensation for such individuals that is linked to the growth and profitability of the Company and increases in stockholder value and aligning the interests of such individuals with the interests of its stockholders through opportunities for equity participation in the Company. This Plan will become effective upon its approval by the Company’s Board of Directors (the “Effective Date”) and at that time will replace the Investview, Inc. 2020 Incentive Plan (the “Prior Plan”), although awards outstanding under the Prior Plan as of the Effective Date will remain outstanding in accordance with their terms. After the Effective Date, no more grants of awards will be made under the Prior Plan.
2. Definitions.
The following terms will have the meanings set forth below, unless the context clearly otherwise requires. Terms defined elsewhere in this Plan will have the same meaning throughout this Plan.
2.1 “Adverse Action” means any action or conduct by a Participant that the Committee, in its sole discretion, determines to be injurious, detrimental, prejudicial or adverse to the interests of the Company or any Subsidiary, including: (a) disclosing confidential information of the Company or any Subsidiary to any person not authorized by the Company or Subsidiary to receive it; (b) engaging, directly or indirectly, in any commercial activity that in the judgment of the Committee competes with the business of the Company or any Subsidiary; (c) interfering with the relationships of the Company or any Subsidiary and their respective employees, independent contractors, customers, prospective customers and vendors; (d) dishonesty, fraud, misrepresentation, embezzlement or deliberate injury or attempted injury, in each case related to the Company or any Subsidiary; (e) any material breach by a Participant of any employment, service, separation, confidentiality, non-compete, non-solicitation or similar agreement entered into with the Company or any Subsidiary; or (f) any material breach by a Participant of the Company’s Code of Business Conduct and Ethics.
2.2 “Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by or under common control with, such Person where “control” will have the meaning given such term under Rule 405 of the Securities Act.
2.3 “Applicable Law” means any applicable law, including without limitation, (a) provisions of the Code, the Securities Act, the Exchange Act and any rules or regulations thereunder; (b) corporate, securities, tax or other laws, statutes, rules, requirements or regulations, whether federal, state, local or foreign; and (c) rules of any securities exchange, national market system or automated quotation system on which the shares of Common Stock are listed, quoted or traded.
2.4 “Award” means, individually or collectively, an Option, Stock Appreciation Right, Restricted Stock Award, Restricted Stock Unit, Deferred Stock Unit, Performance Award, Non-Employee Director Award, or Other Stock-Based Award, in each case granted to an Eligible Recipient pursuant to this Plan.
2.5 “Award Agreement” means either: (a) a written or electronic (as provided in Section 22.7) agreement entered into by the Company and a Participant setting forth the terms and provisions applicable to an Award granted under this Plan, including any amendment or modification thereof, or (b) a written or electronic (as provided in Section 22.7) statement issued by the Company to a Participant describing the terms and provisions of such an Award, including any amendment or modification thereof.
2.6 “Board” means the Board of Directors of the Company.
2.7 “Broker Exercise Notice” means a written notice pursuant to which a Participant, upon exercise of an Option, irrevocably instructs a broker or dealer to sell a sufficient number of shares of Common Stock to pay all or a portion of the exercise price of the Option or any related withholding tax obligations and remit such sums to the Company and directs the Company to deliver shares of Common Stock to be issued upon such exercise directly to such broker or dealer or its nominee.
2.8 “Cause” is as defined in any employment, consulting, severance or similar agreement between the Participant and the Company or one of its Subsidiaries or Affiliates (an “Individual Agreement”) (whether defined as “cause”, “for cause”, “just cause” or words of like import), or if not so defined, as defined in the Participant’s Award Agreement, or if not so defined means (i) any violation of a law, rule or regulation other than minor traffic violations, including without limitation, any violation of the Foreign Corrupt Practices Act; (ii) a breach of fiduciary duty for personal profit; (iii) fraud, dishonesty or other acts of misconduct in the rendering of services on behalf of the Company or any Subsidiary or Affiliate or relating to the Participant’s service; (iv) misconduct by the Participant that would cause the Company or any Subsidiary or Affiliate to violate any state or federal law relating to sexual harassment or age, sex or other prohibited discrimination or any violation of written policy of the Company or any Subsidiary or Affiliate or any successor entity adopted in respect to such law; (v) failure to follow the Company’s, any Subsidiary’s or any Affiliate’s work rules or the lawful instructions (written or otherwise) of the Board of Directors of the Company or a responsible executive to whom the Participant directly or indirectly reports, provided compliance with such directive was reasonably within the scope of the Participant’s duties and the Participant was given notice that his or her conduct could give rise to termination and such conduct is not, or could not, be cured within ten (10) days thereafter; (vi) any violation of a confidentiality or non-competition agreement or patent assignment agreement or any agreement relating to the protection of intellectual property rights of the Company or any Subsidiary or Affiliate; (vii) dishonesty, fraud, misrepresentation, embezzlement or deliberate injury or attempted injury, in each case related to the Company or any Subsidiary or Affiliate; (viii) any material breach by a Participant of any employment, service, confidentiality, non-compete or non-solicitation agreement entered into with the Company or any Subsidiary or Affiliate; or (ix) before a Change in Control, such other events that the Committee, in its sole discretion, determines to be injurious, detrimental, prejudicial or adverse to the interests of the Company or any Subsidiary or Affiliate. Before a Change in Control, the Committee will, unless otherwise provided in an Individual Agreement, have the sole discretion to determine whether “Cause” exists with respect to subclauses (i) through (ix) above, and its determination will be final.
2.9 “Change in Control” means, unless otherwise provided in an Award Agreement or any Individual Agreement, and except as provided in Section 18, an event described in Section 15.1 of this Plan.
2.10 “Code” means the Internal Revenue Code of 1986, as amended. Any reference to a section of the Code herein will be deemed to include a reference to any applicable regulations thereunder and any successor or amended section of the Code.
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2.11 “Committee” means the Board or, if the Board so delegates, the Compensation Committee of the Board or a subcommittee thereof, or any other committee delegated authority by the Board to administer this Plan. If the Board determines appropriate, such committee may be comprised solely of directors designated by the Board to administer this Plan who are (a) “non-employee directors” within the meaning of Rule 16b-3 under the Exchange Act, and (b) “independent directors” within the meaning of the rules of the New York Stock Exchange, Nasdaq Stock Market or NYSE American (or other applicable exchange or market on which the Common Stock may be traded or quoted). The members of the Committee will be appointed from time to time by and will serve at the discretion of the Board. Any action duly taken by the Committee will be valid and effective, whether or not the members of the Committee at the time of such action are later determined not to have satisfied the requirements of membership provided herein.
2.12 “Common Stock” means the common stock of the Company, par value $0.001 per share, or the number and kind of shares of stock or other securities into which such Common Stock may be changed in accordance with Section 4.4 of this Plan.
2.13 “Company” means Investview, Inc., a Nevada corporation, and any successor thereto as provided in Section 22.5 of this Plan.
2.14 “Consultant” means a person engaged to provide consulting or advisory services (other than as an Employee or a Director) to the Company or any Subsidiary that: (a) are not in connection with the offer and sale of the Company’s securities in a capital raising transaction and (b) do not directly or indirectly promote or maintain a market for the Company’s securities.
2.15 “Deferred Stock Unit” means a right granted to an Eligible Recipient pursuant to Section 8 of this Plan to receive shares of Common Stock (or the equivalent value in cash or other property if the Committee so provides) at a future time as determined by the Committee, or as determined by the Participant within guidelines established by the Committee in the case of voluntary deferral elections.
2.16 “Director” means a member of the Board.
2.17 “Disability” means, unless otherwise provided in an Award Agreement, with respect to a Participant who is a party to an Individual Agreement, which agreement contains a definition of “disability” or “permanent disability” (or words of like import) for purposes of termination of employment thereunder by the Company, “disability” or “permanent disability” as defined in the most recent of such agreements; or in all other cases, means the disability of the Participant such as would entitle the Participant to receive disability income benefits pursuant to the long-term disability plan of the Company or Subsidiary then covering the Participant or, if no such plan exists or is applicable to the Participant, the permanent and total disability of the Participant within the meaning of Section 22(e)(3) of the Code.
2.18 “Dividend Equivalents” has the meaning set forth in Section 3.2(l) of this Plan.
2.19 “Effective Date” means February 2, 2022 or such later date as this Plan is approved by the Company’s Board of Directors.
2.20 “Eligible Recipients” means all Employees, all Non-Employee Directors and all Consultants.
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2.21 “Employee” means any individual performing services for the Company or a Subsidiary and designated as an employee of the Company or a Subsidiary on the payroll records thereof. An Employee will not include any individual during any period he or she is classified or treated by the Company or Subsidiary as an independent contractor, a consultant, or any employee of an employment, consulting or temporary agency or any other entity other than the Company or Subsidiary, without regard to whether such individual is subsequently determined to have been, or is subsequently retroactively reclassified as a common-law employee of the Company or Subsidiary during such period. An individual will not cease to be an Employee in the case of: (a) any leave of absence approved by the Company, or (b) transfers between locations of the Company or between the Company or any Subsidiaries. For purposes of Incentive Stock Options, no such leave may exceed ninety (90) days, unless reemployment upon expiration of such leave is guaranteed by statute or contract. If reemployment upon expiration of a leave of absence approved by the Company or a Subsidiary, as applicable, is not so guaranteed, then three (3) months following the ninety-first (91st) day of such leave, any Incentive Stock Option held by a Participant will cease to be treated as an Incentive Stock Option and will be treated for tax purposes as a Non-Statutory Stock Option. Neither service as a Director nor payment of a Director’s fee by the Company will be sufficient to constitute “employment” by the Company.
2.22 “Exchange Act” means the Securities Exchange Act of 1934, as amended. Any reference to a section of the Exchange Act herein will be deemed to include a reference to any applicable rules and regulations thereunder and any successor or amended section of the Exchange Act.
2.23 “Fair Market Value” means, with respect to the Common Stock, as of any date a price that is based on the opening, closing, actual, high, low, or average selling prices of a share of Common Stock as reported on the New York Stock Exchange, Nasdaq Stock Market or NYSE American or other established stock exchange (or exchanges) or if the Common Stock is not so listed, admitted to unlisted trading privileges or reported on any national exchange, then as reported by the OTC Bulletin Board, OTC Markets or other comparable quotation service, on the applicable date, the preceding trading day, the next succeeding trading day, or an average of trading days that is within thirty (30) days before or after the applicable valuation date, as determined by the Committee in its discretion, provided that with respect to establishing the exercise price of an Option or Stock Appreciation Right, the Committee shall irrevocably commit to grant such Award prior to the period during which the Fair Market Value is determined. Unless the Committee determines otherwise, Fair Market Value shall be deemed to be equal to the closing sale price of the Common Stock as of the end of the regular trading session, as reported by the New York Stock Exchange, Nasdaq Stock Market, NYSE American or any national securities exchange on which the Common Stock is then listed (or, if no shares were traded on such date, as of the next preceding date on which there was such a trade) or if the Common Stock is not so listed, admitted to unlisted trading privileges or reported on any national exchange, the closing sale price as of the end of the regular trading session, as reported by the OTC Bulletin Board, OTC Markets or other comparable quotation service (or, if no shares were traded or quoted on such date, as of the next preceding date on which there was such a trade or quote). In the event the Common Stock is not publicly traded at the time a determination of its value is required to be made hereunder, the determination of Fair Market Value shall be made by the Committee in such manner as it deems appropriate and in good faith in the exercise of its reasonable discretion, and consistent with the definition of “fair market value” under Section 409A of the Code. If determined by the Committee, such determination will be final, conclusive and binding for all purposes and on all persons, including the Company, the stockholders of the Company, the Participants and their respective successors-in-interest. No member of the Committee will be liable for any determination regarding the fair market value of the Common Stock that is made in good faith.
2.24 “Grant Date” means the date an Award is granted to a Participant pursuant to this Plan and as determined pursuant to Section 5 of this Plan.
2.25 “Incentive Stock Option” means a right to purchase Common Stock granted to an Employee pursuant to Section 6 of this Plan that is designated as and intended to meet the requirements of an “incentive stock option” within the meaning of Section 422 of the Code, as subject to the terms of Section 19.3 hereafter.
2.26 “Individual Agreement” has the meaning set forth in Section 2.8 of this Plan.
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2.27 “Non-Employee Director” means a Director who is not an Employee.
2.28 “Non-Employee Director Award” means any Award granted, whether singly, in combination, or in tandem, to an Eligible Recipient who is a Non-Employee Director, pursuant to such applicable terms, conditions and limitations as the Board or Committee may establish in accordance with this Plan, including any Non-Employee Director Option.
2.29 “Non-Employee Director Option” means a Non-Statutory Stock Option granted to a Non-Employee Director pursuant to Section 10 of this Plan.
2.30 “Non-Statutory Stock Option” means a right to purchase Common Stock granted to an Eligible Recipient pursuant to Section 6 of this Plan that is not intended to meet the requirements of or does not qualify as an Incentive Stock Option.
2.31 “Option” means an Incentive Stock Option or a Non-Statutory Stock Option, including a Non-Employee Director Option.
2.32 “Other Stock-Based Award” means an Award, denominated in Shares, not otherwise described by the terms of this Plan, granted pursuant to Section 11 of this Plan.
2.33 “Participant” means an Eligible Recipient who receives one or more Awards under this Plan.
2.34 “Performance Award” means a right granted to an Eligible Recipient pursuant to Section 9 of this Plan to receive an amount of cash, number of shares of Common Stock, or a combination of both, contingent upon and the value of which at the time it is payable is determined as a function of the extent of the achievement of one or more Performance Goals during a specified Performance Period or the achievement of other objectives during a specified period.
2.35 “Performance Goals” mean with respect to any applicable Award, one or more targets, goals or levels of attainment required to be achieved during the specified Performance Period, as set forth in the related Award Agreement.
2.36 “Performance Period” means the period of time, as determined by the Committee, during which the Performance Goals must be met in order to determine the degree of payout or vesting with respect to an Award.
2.37 “Period of Restriction” means the period when a Restricted Stock Award, Restricted Stock Units or Deferred Stock Units are subject to a substantial risk of forfeiture (based on the passage of time, the achievement of Performance Goals, or upon the occurrence of other events as determined by the Committee, in its discretion), as provided in Section 8 of this Plan.
2.38 “Person” means an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, governmental authority or any other entity of whatever nature.
2.39 “Plan” means the Investview, Inc. 2022 Incentive Plan, as may be amended from time to time.
2.40 “Plan Year” means the Company’s fiscal year.
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2.41 “Previously Acquired Shares” means shares of Common Stock that are already owned by the Participant or, with respect to any Award, that are to be issued to the Participant upon the grant, exercise, vesting or settlement of such Award.
2.42 “Prior Plan” means the Investview, Inc. 2020 Incentive Plan.
2.43 “Restricted Stock Award” means an award of Common Stock granted to an Eligible Recipient pursuant to Section 8 of this Plan that is subject to the restrictions on transferability and the risk of forfeiture imposed by the provisions of such Section 8.
2.44 “Restricted Stock Unit” means an award denominated in shares of Common Stock granted to an Eligible Recipient pursuant to Section 8 of this Plan.
2.45 “Retirement” means, unless otherwise defined in the Award Agreement or in an Individual Agreement between the Participant and the Company or one of its Subsidiaries or Affiliates, “retirement” as defined from time to time for purposes of this Plan by the Committee or by the Company’s chief human resources officer or other person performing that function or, if not so defined, means voluntary termination of employment or service by the Participant on or after the date the Participant reaches age sixty-five (65) with the present intention to leave the Company’s industry or to leave the general workforce and completing ten (10) years of service with the Company or any Subsidiary or Affiliate.
2.46 “Securities Act” means the Securities Act of 1933, as amended. Any reference to a section of the Securities Act herein will be deemed to include a reference to any applicable rules and regulations thereunder and any successor or amended section of the Securities Act.
2.47 “Stock Appreciation Right” means a right granted to an Eligible Recipient pursuant to Section 7 of this Plan to receive a payment from the Company upon exercise, in the form of shares of Common Stock, cash or a combination of both, equal to the difference between the Fair Market Value of one or more shares of Common Stock and the grant price of such shares under the terms of such Stock Appreciation Right.
2.48 “Stock-Based Award” means any Award, denominated in Shares, made pursuant to this Plan, including Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, Deferred Stock Units, Performance Awards or Other Stock-Based Awards.
2.49 “Subsidiary” means any corporation or other entity, whether domestic or foreign, in which the Company has or obtains, directly or indirectly, an interest of more than fifty percent (50%) by reason of stock ownership or otherwise.
2.50 “Tax Date” means the date any withholding or employment related tax obligation arises under the Code or any Applicable Law for a Participant with respect to an Award.
2.51 “Tax Laws” has the meaning set forth in Section 22.8 of this Plan.
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3. Plan Administration.
3.1 The Committee. The Plan will be administered by the Committee. Unless otherwise provided in its formal written charter, the Committee will act by majority approval of the members at a meeting or by unanimous written consent, and a majority of the members of the Committee will constitute a quorum. The Committee may exercise its duties, power and authority under this Plan in its sole discretion without the consent of any Participant or other party, unless this Plan specifically provides otherwise. The Committee will not be obligated to treat Participants or Eligible Recipients uniformly, and determinations made under this Plan may be made by the Committee selectively among Participants or Eligible Recipients, whether or not such Participants and Eligible Recipients are similarly situated. Each determination, interpretation or other action made or taken by the Committee pursuant to the provisions of this Plan will be final, conclusive and binding for all purposes and on all persons, and no member of the Committee will be liable for any action or determination made in good faith with respect to this Plan or any Award granted under this Plan.
3.2 Authority of the Committee. In accordance with and subject to the provisions of this Plan, the Committee will have full and exclusive discretionary power and authority to take such actions as it deems necessary and advisable with respect to the administration of this Plan, including the following:
(a) To designate the Eligible Recipients to be selected as Participants;
(b) To determine the nature, extent and terms of the Awards to be made to each Participant, including the amount of cash or number of shares of Common Stock to be subject to each Award, any exercise price or grant price, the manner in which Awards will vest, become exercisable, settled or paid out and whether Awards will be granted in tandem with other Awards, and the form of Award Agreement, if any, evidencing such Award;
(c) To determine the time or times when Awards will be granted;
(d) To determine the duration of each Award;
(e) To determine the terms, restrictions and other conditions to which the grant of an Award or the payment or vesting of Awards may be subject;
(f) To construe and interpret this Plan and Awards granted under it, and to establish, amend and revoke rules and regulations for its administration and in so doing, to correct any defect, omission, or inconsistency in this Plan or in an Award Agreement, in a manner and to the extent it will deem necessary or expedient to make this Plan fully effective;
(g) To determine Fair Market Value in accordance with Section 2.23 of this Plan;
(h) To amend this Plan or any Award Agreement, as provided in this Plan;
(i) To adopt sub-plans or special provisions applicable to Awards regulated by the laws of a jurisdiction other than, and outside of, the United States, which except as otherwise provided in this Plan, such sub-plans or special provisions may take precedence over other provisions of this Plan;
(j) To authorize any person to execute on behalf of the Company any Award Agreement or any other instrument required to effect the grant of an Award previously granted by the Committee;
(k) To determine whether Awards will be settled in shares of Common Stock, cash or in any combination thereof;
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(l) To determine whether Awards will be adjusted for dividend equivalents, with “Dividend Equivalents” meaning a credit, made at the discretion of the Committee, to the account of a Participant in an amount equal to the cash dividends paid on one share of Common Stock for each share of Common Stock represented by an Award held by such Participant, subject to Section 12 of this Plan and any other provision of this Plan, and which Dividend Equivalents may be subject to the same conditions and restrictions as the Awards to which they attach and may be settled in the form of cash, shares of Common Stock, or in any combination of both; and
(m) To impose such restrictions, conditions or limitations as it determines appropriate as to the timing and manner of any resales by a Participant or other subsequent transfers by the Participant of any shares of Common Stock, including restrictions under an insider trading policy, stock ownership guidelines, restrictions as to the use of a specified brokerage firm for such resales or other transfers and other restrictions designed to increase equity ownership by Participants or otherwise align the interests of Participants with the Company’s stockholders.
3.3 Delegation. To the extent permitted by Applicable Law, the Committee may delegate to one or more of its members or to one or more officers of the Company or any Subsidiary or to one or more agents or advisors such administrative duties or powers as it may deem advisable, and the Committee or any individuals to whom it has delegated duties or powers as aforesaid may employ one or more individuals to render advice with respect to any responsibility the Committee or such individuals may have under this Plan. The Committee may, by resolution, authorize one or more directors of the Company or one or more officers of the Company to do one or both of the following on the same basis as can the Committee: (a) designate Eligible Recipients to be recipients of Awards pursuant to this Plan; and (b) determine the size of any such Awards; provided, however, that (x) the Committee will not delegate such responsibilities to any such director(s) or officer(s) for any Awards granted to an Eligible Recipient: (i) who is a Non-Employee Director or who is subject to the reporting and liability provisions of Section 16 under the Exchange Act, or (ii) to whom authority to grant or amend Awards has been delegated hereunder; provided, further; that any delegation of administrative authority will only be permitted to the extent it is permissible under Applicable Law; (y) the resolution providing such authorization will set forth the type of Awards and total number of each type of Awards such director(s) or officer(s) may grant; and (z) such director(s) or officer(s) will report periodically to the Committee regarding the nature and scope of the Awards granted pursuant to the authority delegated. At all times, the delegate appointed under this Section 3.3 will serve in such capacity at the pleasure of the Committee.
3.4 Participants Based Outside of the United States. In addition to the authority of the Committee under Section 3.2(i) and notwithstanding any other provision of this Plan, the Committee may, in its sole discretion, amend the terms of this Plan or Awards with respect to Participants resident outside of the United States or employed by a non-U.S. Subsidiary in order to comply with local legal requirements, to otherwise protect the Company’s or Subsidiary’s interests or to meet objectives of this Plan, and may, where appropriate, establish one or more sub-plans (including the adoption of any required rules and regulations) for the purposes of qualifying for preferred tax treatment under foreign tax laws. The Committee will have no authority, however, to take action pursuant to this Section 3.4:(a) to reserve shares of Common Stock or grant Awards in excess of the limitations provided in Section 4.1 of this Plan; (b) to grant Options or Stock Appreciation Rights having an exercise price or grant price less than one hundred percent (100%) of the Fair Market Value of one share of Common Stock on the Grant Date in violation of Section 6.3 or Section 7.3 of this Plan; or (c) for which stockholder approval would then be required pursuant to Sections 19.2 or 19.3 of this Plan.
4. Shares Available for Issuance.
4.1 Maximum Number of Shares Available. Subject to adjustment as provided in Section 4.4 of this Plan, the maximum number of shares of Common Stock that will be available for issuance under this Plan will be the sum of:
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(a) Six hundred million (600,000,000) shares of Common Stock; plus
(b) the number of shares of Common Stock remaining available for issuance under the Prior Plan but not subject to outstanding awards as of the Effective Date; plus
(c) the number of additional shares of Common Stock subject to awards outstanding under the Prior Plan as of the Effective Date but only to the extent that such outstanding awards are forfeited, cancelled, expire or otherwise terminate without the issuance of such shares of Common Stock after the Effective Date.
4.2 Limits on Incentive Stock Options and Non-Employee Director Compensation. Notwithstanding any other provisions of this Plan to the contrary and subject to adjustment as provided in Section 4.4 of this Plan,
(a) the maximum aggregate number of shares of Common Stock that will be available for issuance pursuant to Incentive Stock Options under this Plan may not exceed 500,000,000 shares of Common Stock.
4.3 Accounting for Awards. Shares of Common Stock that are issued under this Plan or that are subject to outstanding Awards will be applied to reduce the maximum number of shares of Common Stock remaining available for issuance under this Plan only to the extent they are used; provided, however, that the full number of shares of Common Stock subject to a stock-settled Stock Appreciation Right or other Stock-Based Award will be counted against the shares authorized for issuance under this Plan, regardless of the number of shares actually issued upon settlement of such Stock Appreciation Right or other Stock-Based Award. Furthermore, any shares of Common Stock withheld to satisfy tax withholding obligations on Awards issued under this Plan, any shares of Common Stock withheld to pay the exercise price or grant price of Awards under this Plan and any shares of Common Stock not issued or delivered as a result of the “net exercise” of an outstanding Option pursuant to Section 6.5 or settlement of a Stock Appreciation Right in shares of Common Stock pursuant to Section 7.6 will be counted against the shares of Common Stock authorized for issuance under this Plan and will not be available again for grant under this Plan. Shares of Common Stock subject to Awards settled in cash will again be available for issuance pursuant to Awards granted under the Plan. Any shares of Common Stock repurchased by the Company on the open market using the proceeds from the exercise of an Award will not increase the number of shares of Common Stock available for future grant of Awards. Any shares of Common Stock related to Awards granted under this Plan or under the Prior Plan that terminate by expiration, forfeiture, cancellation or otherwise without the issuance of the shares of Common Stock, will be available again for grant under this Plan and correspondingly increase the total number of shares of Common Stock available for issuance under this Plan under Section 4.1. To the extent permitted by Applicable Law, shares of Common Stock issued in assumption of, or in substitution for, any outstanding awards of any entity acquired in any form of combination by the Company or a Subsidiary pursuant to Section 20 of this Plan or otherwise will not be counted against shares of Common Stock available for issuance pursuant to this Plan. The shares of Common Stock available for issuance under this Plan may be authorized and unissued shares or treasury shares.
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4.4 Adjustments to Shares and Awards.
(a) In the event of any reorganization, merger, consolidation, recapitalization, liquidation, reclassification, stock dividend, stock split, combination of shares, rights offering, divestiture or extraordinary dividend (including a spin off) or any other similar change in the corporate structure or shares of Common Stock of the Company, the Committee (or, if the Company is not the surviving corporation in any such transaction, the board of directors of the surviving corporation) will make appropriate adjustment or substitutions (which determination will be conclusive) as to: (i) the number and kind of securities or other property (including cash) available for issuance or payment under this Plan, including the sub-limits set forth in Section 4.2 of this Plan, and (ii) in order to prevent dilution or enlargement of the rights of Participants, the number and kind of securities or other property (including cash) subject to outstanding Awards and the exercise price or grant price of outstanding Awards; provided, however, that this Section 4.4 will not limit the authority of the Committee to take action pursuant to Section 15 of this Plan in the event of a Change in Control. The determination of the Committee as to the foregoing adjustments and/or substitutions, if any, will be final, conclusive and binding on Participants under this Plan.
(b) Notwithstanding anything else herein to the contrary, without affecting the number of shares of Common Stock reserved or available hereunder, the limits in Section 4.2 of this Plan, the Committee may authorize the issuance or assumption of benefits under this Plan in connection with any merger, consolidation, acquisition of property or stock or reorganization upon such terms and conditions as it may deem appropriate, subject to compliance with the rules under Sections 422, 424 and 409A of the Code, as and where applicable.
4.5 Limitations Applicable to Section 16 Persons. Notwithstanding any other provision of this Plan, if a Participant is subject to Section 16 of the Exchange Act, this Plan, the Award, and the Award Agreement will be subject to any additional limitations set forth in any applicable exemptive rule under Section 16 of the Exchange Act (including any amendment to Rule 16b-3 of the Exchange Act) that are requirements for the application of such exemptive rule, and such additional limitations will be deemed to be incorporated by reference into such Award to the extent permitted by Applicable Law.
5. Participation.
Participants in this Plan will be those Eligible Recipients who, in the judgment of the Committee, have contributed, are contributing or are expected to contribute to the achievement of the objectives of the Company or its Subsidiaries. Eligible Recipients may be granted from time to time one or more Awards, singly or in combination or in tandem with other Awards, as may be determined by the Committee in its sole discretion. Awards will be deemed to be granted as of the date specified in the grant resolution of the Committee, which date will be the Grant Date of any related Award Agreement with the Participant.
6. Options.
6.1 Grant. An Eligible Recipient may be granted one or more Options under this Plan, and such Options will be subject to such terms and conditions, consistent with the other provisions of this Plan, as may be determined by the Committee in its sole discretion. Incentive Stock Options may be granted solely to eligible Employees of the Company or a Subsidiary. The Committee may designate whether an Option is to be considered an Incentive Stock Option or a Non-Statutory Stock Option. To the extent that any Incentive Stock Option (or portion thereof) granted under this Plan ceases for any reason to qualify as an “incentive stock option” for purposes of Section 422 of the Code, such Incentive Stock Option (or portion thereof) will continue to be outstanding for purposes of this Plan but will thereafter be deemed to be a Non-Statutory Stock Option. Options may be granted to an Eligible Recipient for services provided to a Subsidiary only if, with respect to such Eligible Recipient, the underlying shares of Common Stock constitute “service recipient stock” within the meaning of Treas. Reg. Sec. 1.409A-1(b)(5)(iii) promulgated under the Code.
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6.2 Award Agreement. Each Option grant will be evidenced by an Award Agreement that will specify the exercise price of the Option, the maximum duration of the Option, the number of shares of Common Stock to which the Option pertains, the conditions upon which an Option will become vested and exercisable, and such other provisions as the Committee will determine which are not inconsistent with the terms of this Plan. The Award Agreement also will specify whether the Option is intended to be an Incentive Stock Option or a Non-Statutory Stock Option.
6.3 Exercise Price. The per share price to be paid by a Participant upon exercise of an Option granted pursuant to this Section 6 will be determined by the Committee in its sole discretion at the time of the Option grant; provided, however, that such price will not be less than one hundred percent (100%) of the Fair Market Value of one share of Common Stock on the Grant Date (one hundred and ten percent (110%) of the Fair Market Value if, at the time the Incentive Stock Option is granted, the Participant owns, directly or indirectly, more than ten percent (10%) of the total combined voting power of all classes of stock of the Company or any parent or subsidiary corporation of the Company).
6.4 Exercisability and Duration. An Option will become exercisable at such times and in such installments and upon such terms and conditions as may be determined by the Committee in its sole discretion at the time of grant, including (a) the achievement of one or more of the Performance Goals; or that (b) the Participant remain in the continuous employment or service with the Company or a Subsidiary for a certain period; provided, however, that no Option may be exercisable after ten (10) years from the Grant Date (five (5) years from the Grant Date in the case of an Incentive Stock Option that is granted to a Participant who owns, directly or indirectly, more than ten percent (10%) of the total combined voting power of all classes of stock of the Company or any parent or subsidiary corporation of the Company). Notwithstanding the foregoing, if the exercise of an Option that is exercisable in accordance with its terms is prevented by the provisions of Section 17 of this Plan, the Option will remain exercisable until thirty (30) days after the date such exercise first would no longer be prevented by such provisions, but in any event no later than the expiration date of such Option.
6.5 Payment of Exercise Price.
(a) The total purchase price of the shares of Common Stock to be purchased upon exercise of an Option will be paid entirely in cash (including check, bank draft or money order); provided, however, that the Committee, in its sole discretion and upon terms and conditions established by the Committee, may allow such payments to be made, in whole or in part, by (i) tender of a Broker Exercise Notice; (ii) by tender, either by actual delivery or attestation as to ownership, of Previously Acquired Shares; (iii) a “net exercise” of the Option (as further described in paragraph (b), below); (iv) by a combination of such methods; or (v) any other method approved or accepted by the Committee in its sole discretion. Notwithstanding any other provision of this Plan to the contrary, no Participant who is a Director or an “executive officer” of the Company within the meaning of Section 13(k) of the Exchange Act will be permitted to make payment with respect to any Awards granted under this Plan, or continue any extension of credit with respect to such payment with a loan from the Company or a loan arranged by the Company in violation of Section 13(k) of the Exchange Act.
(b) In the case of a “net exercise” of an Option, the Company will not require a payment of the exercise price of the Option from the Participant but will reduce the number of shares of Common Stock issued upon the exercise by the largest number of whole shares that has a Fair Market Value on the exercise date that does not exceed the aggregate exercise price for the shares exercised under this method. Shares of Common Stock will no longer be outstanding under an Option (and will therefore not thereafter be exercisable) following the exercise of such Option to the extent of (i) shares used to pay the exercise price of an Option under the “net exercise,” (ii) shares actually delivered to the Participant as a result of such exercise and (iii) any shares withheld for purposes of tax withholding pursuant to Section 14 of this Plan.
(c) For purposes of such payment, Previously Acquired Shares tendered or covered by an attestation will be valued at their Fair Market Value on the exercise date of the Option.
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6.6 Manner of Exercise. An Option may be exercised by a Participant in whole or in part from time to time, subject to the conditions contained in this Plan and in the Award Agreement evidencing such Option, by delivery in person, by facsimile or electronic transmission or through the mail of written notice of exercise to the Company at its principal executive office (or to the Company’s designee as may be established from time to time by the Company and communicated to Participants) and by paying in full the total exercise price for the shares of Common Stock to be purchased in accordance with Section 6.5 of this Plan.
7. Stock Appreciation Rights.
7.1 Grant. An Eligible Recipient may be granted one or more Stock Appreciation Rights under this Plan, and such Stock Appreciation Rights will be subject to such terms and conditions, consistent with the other provisions of this Plan, as may be determined by the Committee in its sole discretion. Stock Appreciation Rights may be granted to an Eligible Recipient for services provided to a Subsidiary only if, with respect to such Eligible Recipient, the underlying shares of Common Stock constitute “service recipient stock” within the meaning of Treas. Reg. Sec. 1.409A-1(b)(5)(iii) promulgated under the Code.
7.2 Award Agreement. Each Stock Appreciation Right will be evidenced by an Award Agreement that will specify the grant price of the Stock Appreciation Right, the term of the Stock Appreciation Right, and such other provisions as the Committee will determine which are not inconsistent with the terms of this Plan.
7.3 Grant Price. The grant price of a Stock Appreciation Right will be determined by the Committee, in its discretion, at the Grant Date; provided, however, that such price may not be less than one hundred percent (100%) of the Fair Market Value of one share of Common Stock on the Grant Date.
7.4 Exercisability and Duration. A Stock Appreciation Right will become exercisable at such times and in such installments as may be determined by the Committee in its sole discretion at the time of grant; provided, however, that no Stock Appreciation Right may be exercisable after ten (10) years from its Grant Date. Notwithstanding the foregoing, if the exercise of a Stock Appreciation Right that is exercisable in accordance with its terms is prevented by the provisions of Section 17 of this Plan, the Stock Appreciation Right will remain exercisable until thirty (30) days after the date such exercise first would no longer be prevented by such provisions, but in any event no later than the expiration date of such Stock Appreciation Right.
7.5 Manner of Exercise. A Stock Appreciation Right will be exercised by giving notice in the same manner as for Options, as set forth in Section 6.6 of this Plan, subject to any other terms and conditions consistent with the other provisions of this Plan as may be determined by the Committee in its sole discretion.
7.6 Settlement. Upon the exercise of a Stock Appreciation Right, a Participant will be entitled to receive payment from the Company in an amount determined by multiplying:
(a) The excess of the Fair Market Value of a share of Common Stock on the date of exercise over the per share grant price; by
(b) The number of shares of Common Stock with respect to which the Stock Appreciation Right is exercised.
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7.7 Form of Payment. Payment, if any, with respect to a Stock Appreciation Right settled in accordance with Section 7.6 of this Plan will be made in accordance with the terms of the applicable Award Agreement, in cash, shares of Common Stock or a combination thereof, as the Committee determines.
8. Restricted Stock Awards, Restricted Stock Units and Deferred Stock Units.
8.1 Grant. An Eligible Recipient may be granted one or more Restricted Stock Awards, Restricted Stock Units or Deferred Stock Units under this Plan, and such Awards will be subject to such terms and conditions, consistent with the other provisions of this Plan, as may be determined by the Committee in its sole discretion. Restricted Stock Units and Deferred Stock Units will be similar to Restricted Stock Awards except that no shares of Common Stock are actually awarded to the Participant on the Grant Date of the Restricted Stock Units. Restricted Stock Units and Deferred Stock Units will be denominated in shares of Common Stock but paid in cash, shares of Common Stock or a combination of cash and shares of Common Stock as the Committee, in its sole discretion, will determine, and as provided in the Award Agreement.
8.2 Award Agreement. Each Restricted Stock Award, Restricted Stock Unit or Deferred Stock Unit grant will be evidenced by an Award Agreement that will specify the type of Award, the period(s) of restriction, the number of shares of restricted Common Stock, or the number of Restricted Stock Units or Deferred Stock Units granted, and such other provisions as the Committee will determine that are not inconsistent with the terms of this Plan.
8.3 Conditions and Restrictions. Subject to the terms and conditions of this Plan, the Committee will impose such conditions or restrictions on a Restricted Stock Award, Restricted Stock Units or Deferred Stock Units granted pursuant to this Plan as it may deem advisable including a requirement that Participants pay a stipulated purchase price for each share of Common Stock underlying a Restricted Stock Award, Restricted Stock Unit or Deferred Stock Unit, restrictions based upon the achievement of specific Performance Goals, time-based restrictions on vesting following the attainment of the Performance Goals, time-based restrictions, restrictions under Applicable Laws or holding requirements or sale restrictions placed on the shares of Common Stock by the Company upon vesting of such Restricted Stock Award or upon vesting and settlement of such Restricted Stock Units or Deferred Stock Units.
8.4 Voting Rights. Unless otherwise determined by the Committee and set forth in a Participant’s Award Agreement, to the extent permitted or required by Applicable Law, as determined by the Committee, Participants holding a Restricted Stock Award granted hereunder will be granted the right to exercise full voting rights with respect to the shares of Common Stock underlying such Restricted Stock Award during the Period of Restriction. A Participant will have no voting rights with respect to any Restricted Stock Units or Deferred Stock Units granted hereunder.
8.5 Dividend Rights.
(a) Unless otherwise determined by the Committee and set forth in a Participant’s Award Agreement, to the extent permitted or required by Applicable Law, as determined by the Committee, Participants holding a Restricted Stock Award granted hereunder will have the same dividend rights as the Company’s other stockholders. Notwithstanding the foregoing any such dividends as to a Restricted Stock Award that is subject to vesting requirements will be subject to forfeiture and termination to the same extent as the Restricted Stock Award to which such dividends relate and the Award Agreement may require that any cash dividends be reinvested in additional shares of Common Stock subject to the Restricted Stock Award and subject to the same conditions and restrictions as the Restricted Stock Award with respect to which the dividends were paid. In no event will dividends with respect to Restricted Stock Awards that are subject to vesting be paid or distributed until the vesting provisions of such Restricted Stock Award lapse.
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(b) Restricted Stock Units and/or Deferred Stock Unit awarded under this Plan may, at the Committee’s discretion, carry with it a right to Dividend Equivalents, which right will be set forth in a Participant’s Award Agreement. If applicable, such right will entitle the Participant to be credited with any amount equal to all cash dividends paid on one share of Common Stock while the Restricted Stock Unit or Deferred Stock Unit is outstanding. Dividend Equivalents may be converted into additional Restricted Stock Units or Deferred Stock Units and may (and will, to the extent required below) be made subject to the same conditions and restrictions as the Restricted Stock Units or Deferred Stock Units to which they attach. Settlement of Dividend Equivalents may be made in the form of cash, in the form of shares of Common Stock, or in a combination of both. Dividend Equivalents as to Restricted Stock Units or Deferred Stock Units will be subject to forfeiture and termination to the same extent as the corresponding Restricted Stock Units or Deferred Stock Units as to which the Dividend Equivalents relate and provided, however, that such cash dividends or Dividend Equivalents may not be paid out until the vesting provisions of such Restricted Stock Units or Deferred Stock Units lapse.
8.6 Enforcement of Restrictions. To enforce the restrictions referred to in this Section 8, the Committee may place a legend on the stock certificates or book-entry notations representing Restricted Stock Awards referring to such restrictions and may require the Participant, until the restrictions have lapsed, to keep the stock certificates, together with duly endorsed stock powers, in the custody of the Company or its transfer agent, or to maintain evidence of stock ownership, together with duly endorsed stock powers, in a certificateless book entry stock account with the Company’s transfer agent. Alternatively, Restricted Stock Awards may be held in non-certificated form pursuant to such terms and conditions as the Company may establish with its registrar and transfer agent or any third-party administrator designated by the Company to hold Restricted Stock Awards on behalf of Participants.
8.7 Lapse of Restrictions; Settlement. Except as otherwise provided in this Plan, including without limitation this Section 8 and 16.4 of this Plan, shares of Common Stock underlying a Restricted Stock Award will become freely transferable by the Participant after all conditions and restrictions applicable to such shares have been satisfied or lapse (including satisfaction of any applicable tax withholding obligations). Upon the vesting of a Restricted Stock Unit or Deferred Stock Unit, the Restricted Stock Unit or Deferred Stock Unit will be settled, subject to the terms and conditions of the applicable Award Agreement, (a) in cash, based upon the Fair Market Value of the vested underlying shares of Common Stock, (b) in shares of Common Stock or (c) a combination thereof, as provided in the Award Agreement, except to the extent that a Participant has properly elected to defer income that may be attributable to a Restricted Stock Unit or Deferred Stock Unit under a Company deferred compensation plan or arrangement.
8.8 Section 83(b) Election for Restricted Stock Award. If a Participant makes an election pursuant to Section 83(b) of the Code with respect to a Restricted Stock Award, the Participant must file, within thirty (30) days following the Grant Date of the Restricted Stock Award, a copy of such election with the Company and with the Internal Revenue Service, in accordance with the regulations under Section 83 of the Code. The Committee may provide in the Award Agreement that the Restricted Stock Award is conditioned upon the Participant’s making or refraining from making an election with respect to the award under Section 83(b) of the Code.
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9. Performance Awards.
9.1 Grant. An Eligible Recipient may be granted one or more Performance Awards under this Plan, and such Awards will be subject to such terms and conditions, consistent with the other provisions of this Plan, as may be determined by the Committee in its sole discretion, including the achievement of one or more Performance Goals.
9.2 Award Agreement. Each Performance Award will be evidenced by an Award Agreement that will specify the amount of cash, shares of Common Stock, other Awards, or combination of both to be received by the Participant upon payout of the Performance Award, any Performance Goals upon which the Performance Award is subject, any Performance Period during which any Performance Goals must be achieved and such other provisions as the Committee will determine which are not inconsistent with the terms of this Plan.
9.3 Vesting. Subject to the terms of this Plan, the Committee may impose such restrictions or conditions, not inconsistent with the provisions of this Plan, to the vesting of such Performance Awards as it deems appropriate, including the achievement of one or more of the Performance Goals and any additional time-based restrictions on vesting following the attainment of the Performance Goals.
9.4 Performance Goals. The Performance Goals may be based on any one or more of the following performance measures, or among any other measures as determined by the Committee: revenue, net revenue, invoiced revenue, collected revenue, revenues from new services, bad debts, orders, cost of transportation and other services, operating partner commissions, personnel costs, selling, general and administrative expenses, operating expenses, non-cash expenses, tax expense, non-operating expenses, total expenses; gross margin, net operating income, earnings before interest, taxes, depreciation and amortization (EBITDA), earnings before interest and taxes (EBIT), net operating income after taxes (NOPAT), net income, net income before taxes, net cash flow, net cash flow from operations, maintenance or improvement of profit margins; cash, excess cash, accounts receivable, days sales outstanding, current assets, working capital, total capital, fixed assets, total assets, change in net assets, accounts payable, current accrued liabilities, total current liabilities, total debt, debt principal payments, net current borrowings, total long-term debt, credit rating, retained earnings, total common equity, total equity, cash-to-debt, interest coverage, liquidity; earnings per share (diluted and fully diluted), stock price, dividends, shares repurchased, total return to stockholders, price/earnings ratio, market capitalization, book value, debt coverage ratios, return on assets, return on equity, return on invested capital, economic profit (for example, economic value added); customer satisfaction, customer retention, customer service/care, brand awareness and perception, market share, warranty rates, service quality, strategic business objectives, introduction of new services, acquisition/entrance into new markets, asset acquisitions, strategic asset sales or acquisitions, improvements in capital structure; headcount, employee performance, employee productivity, standard hours, employee engagement/satisfaction, employee turnover, employee diversity, safety, or satisfactory completion of major project or organizational initiative. Any Performance Goal can be based on the performance of the Company or any Subsidiary as a whole or any division or business unit of the Company, station, service group, region or territory, or Subsidiary, or any combination thereof, as the Committee may deem appropriate. Any Performance Goal can be compared to the performance of a peer group or published or special index that the Committee, in its sole discretion, deems appropriate.
9.5 Earning of Performance Award Payment. Subject to the terms of this Plan and the Award Agreement, after the applicable Performance Period has ended, the holder of Performance Awards will be entitled to receive payout on the value and number of Performance Awards earned by the Participant over the Performance Period, to be determined as a function of the extent to which the corresponding Performance Goals have been achieved and such other restrictions or conditions imposed on the vesting and payout of the Performance Awards has been satisfied.
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9.6 Evaluation of Performance. The Committee may provide in an Award Agreement that any evaluation of performance or achievement of Performance Goals may include or exclude certain items or events that occur during a Performance Period, including without limitation any of the following: (a) items related to a change in accounting principles; (b) items relating to financing activities; (c) expenses for restructuring or productivity initiatives; (d) other non-operating items; (e) items related to acquisitions; (f) items attributable to the business operations of any entity acquired by the Company during the Performance Period; (g) items related to the disposal of a business or segment of a business; (h) items related to discontinued operations that do not qualify as a segment of a business under applicable accounting standards; (i) items attributable to any stock dividend, stock split, combination or exchange of stock occurring during the Performance Period; (j) any other items of significant income or expense which are determined to be appropriate adjustments; (k) items relating to unusual or extraordinary corporate transactions, events or developments; (l) items related to amortization of acquired intangible assets; (m) items that are outside the scope of the Company’s core, on-going business activities; (n) items related to acquired in-process research and development; (o) items relating to changes in tax laws; (p) items relating to major licensing or partnership arrangements; (q) items relating to asset impairment charges; (r) items relating to gains or losses for litigation, arbitration and contractual settlements; (s) foreign exchange gains and losses; or (t) items relating to any other unusual or nonrecurring events or changes in applicable laws, accounting principles or business conditions.
9.7 Adjustment of Performance Goals, Performance Periods or other Vesting Criteria. The Committee may amend or modify the vesting criteria (including any Performance Goals or Performance Periods) of any outstanding Awards based in whole or in part on the financial performance of the Company (or any Subsidiary or division, business unit or other sub-unit thereof) in recognition of unusual or nonrecurring events (including the events described in Sections 9.6 or 4.4(a) of this Plan) affecting the Company or the financial statements of the Company or of changes in applicable laws, regulations or accounting principles, whenever the Committee determines that such adjustments are appropriate in order to prevent unintended dilution or enlargement of the benefits or potential benefits intended to be made available under this Plan. The determination of the Committee as to the foregoing adjustments, if any, will be final, conclusive and binding on Participants under this Plan.
9.8 Form and Timing of Performance Award Payment. Subject to the terms of this Plan, after the applicable Performance Period has ended, the holder of Performance Awards will be entitled to receive payment on the value and number of Performance Awards earned by the Participant over the Performance Period, to be determined as a function of the extent to which the corresponding Performance Goals have been achieved. Payment of earned Performance Awards will be as determined by the Committee and as evidenced in the Award Agreement. Subject to the terms of this Plan, the Committee, in its sole discretion, may pay earned Performance Awards in the form of cash, in shares of Common Stock or other Awards (or in a combination thereof) equal to the value of the earned Performance Awards at the close of the applicable Performance Period. Payment of any Performance Award will be made as soon as practicable after the Committee has determined the extent to which the applicable Performance Goals have been achieved and not later than the fifteenth (15th) day of the third (3rd) month immediately following the later of (i) the end of the Company’s fiscal year in which the Performance Period ends and any additional vesting restrictions are satisfied or (ii) the end of the calendar year in which the Performance Period ends and any additional vesting restrictions are satisfied, except to the extent that a Participant has properly elected to defer payment that may be attributable to a Performance Award under a Company deferred compensation plan or arrangement. The determination of the Committee with respect to the form and time of payment of Performance Awards will be set forth in the Award Agreement pertaining to the grant of the Performance Award. Any shares of Common Stock or other Awards issued in payment of earned Performance Awards may be granted subject to any restrictions deemed appropriate by the Committee, including that the Participant remain in the continuous employment or service with the Company or a Subsidiary for a certain period.
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9.9 Voting Rights. A Participant will have no voting rights with respect to any Performance Award granted hereunder.
9.10 Dividend Rights. If provided in an Award Agreement, a Participant holding a Performance Award granted under this Plan may receive cash dividends or Dividend Equivalents based on the dividends declared on shares of Common Stock that are subject to such Performance Award during the period between the date that such Performance Award is granted and the date such Performance Award is settled; provided, however, that such cash dividends or Dividend Equivalents may not be paid out until the vesting provisions of such Performance Award lapse.
10. Non-Employee Director Awards.
10.1 Automatic and Non-Discretionary Awards to Non-Employee Directors. Subject to such terms and conditions, consistent with the other provisions of this Plan, the Committee at any time and from time to time may approve resolutions providing for the automatic grant to Non-Employee Directors of Non-Employee Director Awards granted under this Plan and may grant to Non-Employee Directors such discretionary Non-Employee Director Awards on such terms and conditions, consistent with the other provisions of this Plan, as may be determined by the Committee in its sole discretion, and set forth in an applicable Award Agreement.
10.2 Deferral of Award Payment; Election to Receive Award in Lieu of Retainers. The Committee may permit Non-Employee Directors the opportunity to defer the payment of an Award pursuant to such terms and conditions as the Committee may prescribe from time to time. In addition, the Committee may permit Non-Employee Directors to elect to receive, pursuant to the procedures established by the Board or a committee of the Board, all or any portion of their annual retainers, meeting fees, or other fees in Restricted Stock, Restricted Stock Units, Deferred Stock Units or other Stock-Based Awards as contemplated by this Plan in lieu of cash.
11. Other Stock-Based Awards.
11.1 Other Stock-Based Awards. Subject to such terms and conditions, consistent with the other provisions of this Plan, as may be determined by the Committee in its sole discretion, the Committee may grant Other Stock-Based Awards to Eligible Recipients not otherwise described by the terms of this Plan (including the grant or offer for sale of unrestricted shares of Common Stock) in such amounts and subject to such terms and conditions as the Committee will determine. Such Awards may involve the transfer of actual shares of Common Stock to Participants as a bonus or in lieu of obligations to pay cash or deliver other property under this Plan or under other plans or compensatory arrangements, or payment in cash or otherwise of amounts based on the value of shares of Common Stock, and may include Awards designed to comply with or take advantage of the applicable local laws of jurisdictions other than the United States.
11.2 Value of Other Stock-Based Awards. Each Other Stock-Based Award will be expressed in terms of shares of Common Stock or units based on shares of Common Stock, as determined by the Committee. The Committee may establish Performance Goals in its discretion for any Other Stock-Based Award. If the Committee exercises its discretion to establish Performance Goals for any such Awards, the number or value of Other Stock-Based Awards that will be paid out to the Participant will depend on the extent to which the Performance Goals are met.
11.3 Payment of Other Stock-Based Awards. Payment, if any, with respect to an Other Stock-Based Award will be made in accordance with the terms of the Award, in cash or shares of Common Stock for any Other Stock-Based Award, as the Committee determines, except to the extent that a Participant has properly elected to defer payment that may be attributable to an Other Stock-Based Award under a Company deferred compensation plan or arrangement.
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12. Dividend Equivalents.
Subject to the provisions of this Plan and any Award Agreement, any Participant selected by the Committee may be granted Dividend Equivalents based on the dividends declared on shares of Common Stock that are subject to any Award (including any Award that has been deferred), to be credited as of dividend payment dates, during the period between the date the Award is granted and the date the Award is exercised, vests, settles, is paid or expires, as determined by the Committee. Such Dividend Equivalents will be converted to cash or additional shares of Common Stock by such formula and at such time and subject to such limitations as may be determined by the Committee and the Committee may provide that such amounts (if any) will be deemed to have been reinvested in additional shares of Common Stock or otherwise reinvested. Notwithstanding the foregoing, the Committee may not grant Dividend Equivalents based on the dividends declared on shares of Common Stock that are subject to an Option or Stock Appreciation Right or unvested Performance Awards; and further, no dividend or Dividend Equivalents will be paid out with respect to any unvested Awards.
13. Effect of Termination of Employment or Other Service.
13.1 Termination Due to Cause. Unless otherwise expressly provided by the Committee in its sole discretion in an Award Agreement or the terms of an Individual Agreement between the Participant and the Company or one of its Subsidiaries or Affiliates or a plan or policy of the Company applicable to the Participant specifically provides otherwise, and subject to Sections 13.4 and 13.5 of this Plan, in the event a Participant’s employment or other service with the Company and all Subsidiaries is terminated for Cause:
(a) All outstanding Options and Stock Appreciation Rights held by the Participant as of the effective date of such termination will be immediately terminated and forfeited;
(b) All outstanding but unvested Restricted Stock Awards, Restricted Stock Units, Performance Awards and Other Stock-Based Awards held by the Participant as of the effective date of such termination will be terminated and forfeited; and
(c) All other outstanding Awards to the extent not vested will be immediately terminated and forfeited.
13.2 Termination Due to Death, Disability or Retirement. Unless otherwise expressly provided by the Committee in its sole discretion in an Award Agreement or the terms of an Individual Agreement between the Participant and the Company or one of its Subsidiaries or Affiliates or a plan or policy of the Company applicable to the Participant specifically provides otherwise, and subject to Sections 13.4, 13.5 and 15 of this Plan, in the event a Participant’s employment or other service with the Company and all Subsidiaries is terminated by reason of death or Disability of a Participant, or in the case of a Participant that is an Employee, Retirement:
(a) All outstanding Options (excluding Non-Employee Director Options in the case of Retirement) and Stock Appreciation Rights held by the Participant as of the effective date of such termination or Retirement will, to the extent exercisable as of the date of such termination or Retirement, remain exercisable for a period of one (1) year after the date of such termination or Retirement (but in no event after the expiration date of any such Option or Stock Appreciation Right) and Options and Stock Appreciation Rights not exercisable as of the date of such termination or Retirement will be terminated and forfeited;
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(b) All outstanding unvested Restricted Stock Awards held by the Participant as of the effective date of such termination or Retirement will be terminated and forfeited; and
(c) All outstanding unvested Restricted Stock Units, Deferred Stock Units, Performance Awards, and Other Stock-Based Awards held by the Participant as of the effective date of such termination or Retirement will be terminated and forfeited; provided, however, that with respect to any such Awards the vesting of which is based on the achievement of Performance Goals, if a Participant’s employment or other service with the Company or any Subsidiary, as the case may be, is terminated prior to the end of the Performance Period of such Award, but after the conclusion of a portion of the Performance Period (but in no event less than one year), the Committee may, in its sole discretion, cause shares of Common Stock to be delivered or payment made (except to the extent that a Participant has properly elected to defer income that may be attributable to such Award under a Company deferred compensation plan or arrangement) with respect to the Participant’s Award, but only if otherwise earned for the entire Performance Period and only with respect to the portion of the applicable Performance Period completed at the date of such event, with proration based on the number of months or years that the Participant was employed or performed services during the Performance Period. The Committee will consider the provisions of Section 13.5 of this Plan and will have the discretion to consider any other fact or circumstance in making its decision as to whether to deliver such shares of Common Stock or other payment, including whether the Participant again becomes employed.
13.3 Termination for Reasons Other than Death, Disability or Retirement. Unless otherwise expressly provided by the Committee in its sole discretion in an Award Agreement or the terms of an Individual Agreement between the Participant and the Company or one of its Subsidiaries or Affiliates or a plan or policy of the Company applicable to the Participant specifically provides otherwise, and subject to Sections 13.4, 13.5 and 15 of this Plan, in the event a Participant’s employment or other service with the Company and all Subsidiaries is terminated for any reason other than for Cause or death or Disability of a Participant, or in the case of a Participant that is an Employee, Retirement:
(a) All outstanding Options (including Non-Employee Director Options) and Stock Appreciation Rights held by the Participant as of the effective date of such termination will, to the extent exercisable as of such termination, remain exercisable for a period of three (3) months after such termination (but in no event after the expiration date of any such Option or Stock Appreciation Right) and Options and Stock Appreciation Rights not exercisable as of such termination will be terminated and forfeited. If the Participant dies within the three (3) month period referred to in the preceding sentence, the Option or Stock Appreciation Right may be exercised by those entitled to do so under the Participant’s will or by the laws of descent and distribution within a period of one (1) year following the Participant’s death (but in no event after the expiration date of any such Option or Stock Appreciation Right).
(b) All outstanding unvested Restricted Stock Awards held by the Participant as of the effective date of such termination will be terminated and forfeited;
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(c) All outstanding unvested Restricted Stock Units, Deferred Stock Units, Performance Awards, and Other Stock-Based Awards held by the Participant as of the effective date of such termination will be terminated and forfeited; provided, however, that with respect to any such Awards the vesting of which is based on the achievement of Performance Goals, if a Participant’s employment or other service with the Company or any Subsidiary, as the case may be, is terminated by the Company without Cause prior to the end of the Performance Period of such Award, but after the conclusion of a portion of the Performance Period (but in no event less than one year), the Committee may, in its sole discretion, cause Shares to be delivered or payment made (except to the extent that a Participant has properly elected to defer income that may be attributable to such Award under a Company deferred compensation plan or arrangement) with respect to the Participant’s Award, but only if otherwise earned for the entire Performance Period and only with respect to the portion of the applicable Performance Period completed at the date of such event, with proration based on the number of months or years that the Participant was employed or performed services during the Performance Period.
13.4 Modification of Rights upon Termination. Notwithstanding the other provisions of this Section 13, upon a Participant’s termination of employment or other service with the Company or any Subsidiary, as the case may be, the Committee may, in its sole discretion (which may be exercised at any time on or after the Grant Date, including following such termination) cause Options or Stock Appreciation Rights (or any part thereof) held by such Participant as of the effective date of such termination to terminate, become or continue to become exercisable or remain exercisable following such termination of employment or service, and Restricted Stock, Restricted Stock Units, Deferred Stock Units, Performance Awards, Non-Employee Director Awards, and Other Stock-Based Awards held by such Participant as of the effective date of such termination to terminate, vest or become free of restrictions and conditions to payment, as the case may be, following such termination of employment or service, in each case in the manner determined by the Committee; provided, however, that (a) no Option or Stock Appreciation Right may remain exercisable beyond its expiration date; and (b) any such action by the Committee adversely affecting any outstanding Award will not be effective without the consent of the affected Participant (subject to the right of the Committee to take whatever action it deems appropriate under Section 4.4, 13.5, 15 or 19 of this Plan).
13.5 Additional Forfeiture Events.
(a) Effect of Actions Constituting Cause or Adverse Action. Notwithstanding anything in this Plan to the contrary and in addition to the other rights of the Committee under this Plan, including this Section 13.5, if a Participant is determined by the Committee, acting in its sole discretion, to have taken any action that would constitute Cause or an Adverse Action during or within one (1) year after the termination of employment or other service with the Company or a Subsidiary, irrespective of whether such action or the Committee’s determination occurs before or after termination of such Participant’s employment or other service with the Company or any Subsidiary and irrespective of whether or not the Participant was terminated as a result of such Cause or Adverse Action, (i) all rights of the Participant under this Plan and any Award Agreements evidencing an Award then held by the Participant will terminate and be forfeited without notice of any kind, and (ii) the Committee in its sole discretion will have the authority to rescind the exercise, vesting or issuance of, or payment in respect of, any Awards of the Participant that were exercised, vested or issued, or as to which such payment was made, and to require the Participant to pay to the Company, within ten (10) days of receipt from the Company of notice of such rescission, any amount received or the amount of any gain realized as a result of such rescinded exercise, vesting, issuance or payment (including any dividends paid or other distributions made with respect to any shares of Common Stock subject to any Award). The Company may defer the exercise of any Option or Stock Appreciation Right for a period of up to six (6) months after receipt of the Participant’s written notice of exercise or the issuance of share certificates or book-entry notations upon the vesting of any Award for a period of up to six (6) months after the date of such vesting in order for the Committee to make any determination as to the existence of Cause or an Adverse Action. The Company will be entitled to withhold and deduct from future wages of the Participant (or from other amounts that may be due and owing to the Participant from the Company or a Subsidiary) or make other arrangements for the collection of all amounts necessary to satisfy such payment obligations. Unless otherwise provided by the Committee in an applicable Award Agreement, this Section 13.5(a) will not apply to any Participant following a Change in Control.
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(b) Forfeiture or Clawback of Awards Under Applicable Law and Company Policy. All Awards under this Plan will be subject to forfeiture or other penalties pursuant to any clawback or forfeiture policy of the Company, as in effect from time to time, and such forfeiture and/or penalty conditions or provisions as determined by the Committee and set forth in the applicable Award Agreement, or as otherwise required or permitted under Applicable Law.
14. Payment of Withholding Taxes.
14.1 General Rules. The Company is entitled to (a) withhold and deduct from future wages of the Participant (or from other amounts that may be due and owing to the Participant from the Company or a Subsidiary), or make other arrangements for the collection of, all amounts the Company reasonably determines are necessary to satisfy any and all federal, foreign, state and local withholding and employment related tax requirements attributable to an Award, including the grant, exercise, vesting or settlement of, or payment of dividends with respect to, an Award or a disqualifying disposition of stock received upon exercise of an Incentive Stock Option, or (b) require the Participant promptly to remit the amount of such withholding to the Company before taking any action, including issuing any shares of Common Stock, with respect to an Award. When withholding shares of Common Stock for taxes is effected under this Plan, it will be withheld only up to an amount based on the maximum statutory tax rates in the Participant’s applicable tax jurisdiction or such other rate that will not trigger a negative accounting impact on the Company.
14.2 Special Rules. The Committee may, in its sole discretion and upon terms and conditions established by the Committee, permit or require a Participant to satisfy, in whole or in part, any withholding or employment related tax obligation described in Section 14.1 of this Plan by withholding shares of Common Stock underlying an Award, by electing to tender, or by attestation as to ownership of, Previously Acquired Shares, by delivery of a Broker Exercise Notice or a combination of such methods. For purposes of satisfying a Participant’s withholding or employment-related tax obligation, shares of Common Stock withheld by the Company or Previously Acquired Shares tendered or covered by an attestation will be valued at their Fair Market Value on the Tax Date.
15. Change in Control.
15.1 Definition of Change in Control. Unless otherwise provided in an Award Agreement or Individual Agreement between the Participant and the Company or one of its Subsidiaries or Affiliates, a “Change in Control” will mean the occurrence of any of the following:
(a) The acquisition, other than from the Company, by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of fifty percent (50%) or more of either the then outstanding shares of Common Stock of the Company or the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors, but excluding, for this purpose, any such acquisition by the Company or any of its Subsidiaries, or any employee benefit plan (or related trust) of the Company or its Subsidiaries, or any entity with respect to which, following such acquisition, more than fifty percent (50%) of, respectively, the then outstanding equity of such entity and the combined voting power of the then outstanding voting equity of such entity entitled to vote generally in the election of all or substantially all of the members of such entity’s governing body is then beneficially owned, directly or indirectly, by the individuals and entities who were the beneficial owners, respectively, of the Common Stock and voting securities of the Company immediately prior to such acquisition in substantially the same proportion as their ownership, immediately prior to such acquisition, of the then outstanding shares of Common Stock of the Company or the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors, as the case may be; or
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(b) The consummation of a reorganization, merger or consolidation of the Company, in each case, with respect to which all or substantially all of the individuals and entities who were the respective beneficial owners of the Common Stock and voting securities of the Company immediately prior to such reorganization, merger or consolidation do not, following such reorganization, merger or consolidation, beneficially own, directly or indirectly, more than fifty percent (50%) of, respectively, the then outstanding shares of Common Stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such reorganization, merger or consolidation; or
(c) a complete liquidation or dissolution of the Company or the sale or other disposition of all or substantially all of the assets of the Company.
15.2 Effect of Change in Control. Subject to the terms of the applicable Award Agreement or an Individual Agreement, in the event of a Change in Control, the Committee (as constituted prior to such Change in Control) may, in its discretion:
(a) require that shares of stock of the corporation resulting from such Change in Control, or a parent corporation thereof, be substituted for some or all of the shares of Common Stock subject to an outstanding Award, with an appropriate and equitable adjustment to such Award as shall be determined by the Board in accordance with Section 4.4;
(b) provide that (i) some or all outstanding Options shall become exercisable in full or in part, either immediately or upon a subsequent termination of employment, (ii) the restrictions or vesting applicable to some or all outstanding Restricted Stock Awards, Restricted Stock Units and Deferred Stock Units shall lapse in full or in part, either immediately or upon a subsequent termination of employment, (iii) the Performance Period applicable to some or all outstanding Awards shall lapse in full or in part, and/or (iv) the Performance Goals applicable to some or all outstanding Awards shall be deemed to be satisfied at the target or any other level; and/or
(c) require outstanding Awards, in whole or in part, to be surrendered to the Company by the holder, and to be immediately cancelled by the Company, and to provide for the holder to receive (A) a cash payment in an amount determined pursuant to Section 15.3 below; (B) shares of capital stock of the corporation resulting from or succeeding to the business of the Company pursuant to such Change in Control, or a parent corporation thereof, having a fair market value not less than the amount determined under clause (A) above; or (C) a combination of the payment of cash pursuant to clause (A) above and the issuance of shares pursuant to clause (B) above.
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15.3 Alternative Treatment of Incentive Awards. In connection with a Change in Control, the Committee in its sole discretion, either in an Award Agreement at the time of grant of an Award or at any time after the grant of such an Award, in lieu of providing a substitute award to a Participant pursuant to Section 15.2(a), may determine that any or all outstanding Awards granted under the Plan, whether or not exercisable or vested, as the case may be, will be canceled and terminated and that in connection with such cancellation and termination the holder of such Award will receive for each share of Common Stock subject to such Award a cash payment (or the delivery of shares of stock, other securities or a combination of cash, stock and securities with a fair market value (as determined by the Committee in good faith) equivalent to such cash payment) equal to the difference, if any, between the consideration received by stockholders of the Company in respect of a share of Common Stock in connection with such Change in Control and the purchase price per share, if any, under the Award, multiplied by the number of shares of Common Stock subject to such Award (or in which such Award is denominated); provided, however, that if such product is zero ($0) or less or to the extent that the Award is not then exercisable, the Award may be canceled and terminated without payment therefor. If any portion of the consideration pursuant to a Change in Control may be received by holders of shares of Common Stock on a contingent or delayed basis, the Committee may, in its sole discretion, determine the fair market value per share of such consideration as of the time of the Change in Control on the basis of the Committee’s good faith estimate of the present value of the probable future payment of such consideration. Notwithstanding the foregoing, any shares of Common Stock issued pursuant to an Award that immediately prior to the effectiveness of the Change in Control are subject to no further restrictions pursuant to the Plan or an Award Agreement (other than pursuant to the securities laws) will be deemed to be outstanding shares of Common Stock and receive the same consideration as other outstanding shares of Common Stock in connection with the Change in Control.
15.4 Limitation on Change in Control Payments. Notwithstanding anything in this Section 15 to the contrary, if, with respect to a Participant, the acceleration of the vesting of an Award or the payment of cash in exchange for all or part of a Stock-Based Award (which acceleration or payment could be deemed a “payment” within the meaning of Section 280G(b)(2) of the Code), together with any other “payments” that such Participant has the right to receive from the Company or any corporation that is a member of an “affiliated group” (as defined in Section 1504(a) of the Code without regard to Section 1504(b) of the Code) of which the Company is a member, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the “payments” to such Participant pursuant to Section 15.2 or Section 15.3 of this Plan will be reduced (or acceleration of vesting eliminated) to the largest amount as will result in no portion of such “payments” being subject to the excise tax imposed by Section 4999 of the Code; provided, however, that such reduction will be made only if the aggregate amount of the payments after such reduction exceeds the difference between (a) the amount of such payments absent such reduction minus (b) the aggregate amount of the excise tax imposed under Section 4999 of the Code attributable to any such excess parachute payments; and provided, further that such payments will be reduced (or acceleration of vesting eliminated) by first eliminating vesting of Options with an exercise price above the then Fair Market Value of a share of Common Stock that have a positive value for purposes of Section 280G of the Code, followed by reducing or eliminating payments or benefits pro rata among Awards that are deferred compensation subject to Section 409A of the Code, and, if a further reduction is necessary, by reducing or eliminating payments or benefits pro rata among Awards that are not subject to Section 409A of the Code. Notwithstanding the foregoing sentence, if a Participant is subject to a separate agreement with the Company or a Subsidiary that expressly addresses the potential application of Section 280G or 4999 of the Code, then this Section 15.4 will not apply and any “payments” to a Participant pursuant to Section 15 of this Plan will be treated as “payments” arising under such separate agreement; provided, however, such separate agreement may not modify the time or form of payment under any Award that constitutes deferred compensation subject to Section 409A of the Code if the modification would cause such Award to become subject to the adverse tax consequences specified in Section 409A of the Code.
15.5 Exceptions. Notwithstanding anything in this Section 15 to the contrary, individual Award Agreements or Individual Agreements between a Participant and the Company or one of its Subsidiaries or Affiliates may contain provisions with respect to vesting, payment or treatment of Awards upon the occurrence of a Change in Control, and the terms of any such Award Agreement or Individual Agreement will govern to the extent of any inconsistency with the terms of this Section 15. The Committee will not be obligated to treat all Awards subject to this Section 15 in the same manner. The timing of any payment under this Section 15 may be governed by any election to defer receipt of a payment made under a Company deferred compensation plan or arrangement.
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16. Rights of Eligible Recipients and Participants; Transferability.
16.1 Employment. Nothing in this Plan or an Award Agreement will interfere with or limit in any way the right of the Company or any Subsidiary to terminate the employment or service of any Eligible Recipient or Participant at any time, nor confer upon any Eligible Recipient or Participant any right to continue employment or other service with the Company or any Subsidiary.
16.2 Effect on Existing Rights. Nothing in this Plan is intended to abrogate the rights of any Participant under any contract or agreement existing between the Participant and the Company or any Subsidiary, or any subsequent amendments or modifications of such contract or agreement, and all Awards granted under this Plan and actions taken with respect to this Plan shall be subject to the terms of any contract or agreement between the Participant and the Company or any Subsidiary.
16.3 No Rights to Awards. No Participant or Eligible Recipient will have any claim to be granted any Award under this Plan.
16.4 Rights as a Stockholder. Except as otherwise provided in the Award Agreement, a Participant will have no rights as a stockholder with respect to shares of Common Stock covered by any Stock-Based Award unless and until the Participant becomes the holder of record of such shares of Common Stock and then subject to any restrictions or limitations as provided herein or in the Award Agreement.
16.5 Restrictions on Transfer.
(a) Except pursuant to testamentary will or the laws of descent and distribution or as otherwise expressly permitted by subsections (b) and (c) below, no right or interest of any Participant in an Award prior to the exercise (in the case of Options or Stock Appreciation Rights) or vesting, issuance or settlement of such Award will be assignable or transferable, or subjected to any lien, during the lifetime of the Participant, either voluntarily or involuntarily, directly or indirectly, by operation of law or otherwise.
(b) A Participant will be entitled to designate a beneficiary to receive an Award upon such Participant’s death, and in the event of such Participant’s death, payment of any amounts due under this Plan will be made to, and exercise of any Options or Stock Appreciation Rights (to the extent permitted pursuant to Section 13 of this Plan) may be made by, such beneficiary. If a deceased Participant has failed to designate a beneficiary, or if a beneficiary designated by the Participant fails to survive the Participant, payment of any amounts due under this Plan will be made to, and exercise of any Options or Stock Appreciation Rights (to the extent permitted pursuant to Section 13 of this Plan) may be made by, the Participant’s legal representatives, heirs and legatees. If a deceased Participant has designated a beneficiary and such beneficiary survives the Participant but dies before complete payment of all amounts due under this Plan or exercise of all exercisable Options or Stock Appreciation Rights, then such payments will be made to, and the exercise of such Options or Stock Appreciation Rights may be made by, the legal representatives, heirs and legatees of the beneficiary.
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(c) Upon a Participant’s request, the Committee may, in its sole discretion, permit a transfer of all or a portion of a Non-Statutory Stock Option, other than for value, to such Participant’s child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, any person sharing such Participant’s household (other than a tenant or employee), a trust in which any of the foregoing have more than fifty percent (50%) of the beneficial interests, a foundation in which any of the foregoing (or the Participant) control the management of assets, and any other entity in which these persons (or the Participant) own more than fifty percent (50%) of the voting interests. Any permitted transferee will remain subject to all the terms and conditions applicable to the Participant prior to the transfer. A permitted transfer may be conditioned upon such requirements as the Committee may, in its sole discretion, determine, including execution or delivery of appropriate acknowledgements, opinion of counsel, or other documents by the transferee.
(d) The Committee may impose such restrictions on any shares of Common Stock acquired by a Participant under this Plan as it may deem advisable, including minimum holding period requirements, restrictions under applicable federal securities laws, under the requirements of any stock exchange or market upon which the Common Stock is then listed or traded, or under any blue sky or state securities laws applicable to such shares or the Company’s insider trading policy.
16.6 Non-Exclusivity of this Plan. Nothing contained in this Plan is intended to modify or rescind any previously approved compensation plans or programs of the Company or create any limitations on the power or authority of the Board to adopt such additional or other compensation arrangements as the Board may deem necessary or desirable.
17. Securities Law and Other Restrictions.
17.1 Restrictions. Notwithstanding any other provision of this Plan or any Award Agreements entered into pursuant to this Plan, the Company will not be required to issue any shares of Common Stock under this Plan, and a Participant may not sell, assign, transfer or otherwise dispose of shares of Common Stock issued pursuant to Awards granted under this Plan, unless (a) there is in effect with respect to such shares a registration statement under the Securities Act and any applicable securities laws of a state or foreign jurisdiction or an exemption from such registration under the Securities Act and applicable state or foreign securities laws, and (b) there has been obtained any other consent, approval or permit from any other U.S. or foreign regulatory body which the Committee, in its sole discretion, deems necessary or advisable. The Company may condition such issuance, sale or transfer upon the receipt of any representations or agreements from the parties involved, and the placement of any legends on certificates or book-entry notations representing shares of Common Stock, as may be deemed necessary or advisable by the Company in order to comply with such securities law or other restrictions.
17.2 Market Stand-Off Agreement. Except as otherwise approved by the Committee, the holder of any shares of Common Stock acquired in connection with the grant, exercise or vesting of an Incentive Award may not sell, assign, transfer or otherwise dispose of, make any short sale of, grant any option for the purchase of, or enter into any hedging or similar transaction with the same economic effect as a sale of, any Common Stock (or other securities) of the Company held by such holder (other than those included in the registration) during the one hundred eighty (180) day period following the effective date of the initial registration statement of the Company filed under the Securities Act (or such longer period as the underwriters or the Company shall request in order to facilitate compliance with FINRA Rule 2711 or NYSE Member Rule 472 or any successor or similar rule or regulation) and during the ninety (90) day period following the effective date of any subsequent registration statement of the Company filed under the Securities Act (or such longer period as the underwriters or the Company shall request in order to facilitate compliance with FINRA Rule 2711 or NYSE Member Rule 472 or any successor or similar rule or regulation); provided, however, that such restrictions with respect to any subsequent registration shall terminate two (2) years after the effective date of the Company’s initial registration statement filed under the Securities Act. The foregoing provisions will not apply to the sale of any securities to an underwriter pursuant to an underwriting agreement and shall only be applicable to such holder if all then current executive officers and directors of the Company enter into similar agreements. The provisions hereof shall not apply to a registration relating solely to employee benefit plans on Form S-1 or Form S-8 or Rule 145 transactions on Form S-4, or similar forms that may be promulgated in the future. The Company may impose stop transfer instructions with respect to the securities subject to the provisions hereof until the end of the applicable periods. The underwriters in connection with any public offering subject to the foregoing provisions are intended third-party beneficiaries of this Section 17.2 and will have the right to enforce the provisions hereof as though they were a party hereto. By accepting an Incentive Award under the Plan, each Participant agrees to enter into an appropriate lock-up agreement with any such underwriters containing provisions similar in all material respects with the terms of this Section 17.2.
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18. Deferred Compensation; Compliance with Section 409A.
It is intended that all Awards issued under this Plan be in a form and administered in a manner that will comply with the requirements of Section 409A of the Code, or the requirements of an exception to Section 409A of the Code, and the Award Agreements and this Plan will be construed and administered in a manner that is consistent with and gives effect to such intent. The Committee is authorized to adopt rules or regulations deemed necessary or appropriate to qualify for an exception from or to comply with the requirements of Section 409A of the Code. With respect to an Award that constitutes a deferral of compensation subject to Section 409A of the Code: (a) if any amount is payable under such Award upon a termination of service, a termination of service will be treated as having occurred only at such time the Participant has experienced a “separation from service” as defined for purposes of Section 409A of the Code (“Separation from Service”); (b) if any amount is payable under such Award upon a Disability, a Disability will be treated as having occurred only at such time the Participant has experienced a “disability” as such term is defined for purposes of Section 409A of the Code; (c) if any amount is payable under such Award on account of the occurrence of a Change in Control, a Change in Control will be treated as having occurred only at such time a “change in the ownership or effective control of the corporation or in the ownership of a substantial portion of the assets of the corporation” as such terms are defined for purposes of Section 409A of the Code; (d) if any amount becomes payable under such Award on account of a Participant’s Separation from Service at such time as the Participant is a “specified employee” within the meaning of Section 409A of the Code, then no payment will be made, except as permitted under Section 409A of the Code, prior to the first business day after the earlier of (i) the date that is six months after the date of the Participant’s Separation from Service or (ii) the Participant’s death; and (e) no amendment to or payment under such Award will be made except and only to the extent permitted under Section 409A of the Code.
19. Amendment, Modification and Termination.
19.1 Generally. Subject to other subsections of this Section 19 of this Plan, the Board at any time may suspend or terminate this Plan (or any portion thereof) or terminate any outstanding Award Agreement and the Committee, at any time and from time to time, may amend this Plan or amend or modify the terms of an outstanding Award. The Committee’s power and authority to amend or modify the terms of an outstanding Award includes the authority to modify the number of shares of Common Stock or other terms and conditions of an Award, extend the term of an Award, accept the surrender of any outstanding Award or, to the extent not previously exercised or vested, authorize the grant of new Awards in substitution for surrendered Awards; provided, however that the amended or modified terms are permitted by this Plan as then in effect and that any Participant adversely affected by such amended or modified terms has consented to such amendment or modification.
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19.2 Stockholder Approval-General. No amendments to this Plan will be effective without approval of the Company’s stockholders if: (a) stockholder approval of the amendment is then required pursuant to Section 422 of the Code, the rules of the primary stock exchange or stock market on which the Common Stock is then traded, applicable state corporate laws or regulations, applicable federal laws or regulations, and the applicable laws of any foreign country or jurisdiction where Awards are, or will be, granted under this Plan; or (b) such amendment would: (i) materially increase benefits accruing to Participants; (ii) increase the aggregate number of shares of Common Stock issued or issuable under this Plan; (iii) increase any limitation set forth in this Plan on the number of shares of Common Stock which may be issued or the aggregate value of Awards which may be made, in respect of any type of Award to any single Participant during any specified period; (iv) modify the eligibility requirements for Participants in this Plan; or (v) reduce the minimum exercise price or grant price as set forth in Sections 6.3 and 7.3 of this Plan.
19.3 Shareholder Approval-Awarding of Incentive Stock Options. The Plan was approved by the Board and became effective on February 2, 2022. Those provisions of the Plan that for federal tax purposes require approval of the stockholders of the Company (i.e., the granting of incentive stock options) shall not become effective until adopted by the stockholders, however, the Company reserves the right to grant Incentive Stock Options provided stockholder approval is secured within one (1) year from the date thereof. In the event Incentive Stock Options are granted and Stockholder approval is not timely secured, such Options shall remain in full force and effect, however, shall automatically convert to Non-Qualified Options.
19.4 Awards Previously Granted. Notwithstanding any other provision of this Plan to the contrary, no termination, suspension or amendment of this Plan may adversely affect any outstanding Award without the consent of the affected Participant; provided, however, that this sentence will not impair the right of the Committee to take whatever action it deems appropriate under Sections 4.4, 9.7, 13, 15, 18 or 19.5 of this Plan.
19.5 Amendments to Conform to Law. Notwithstanding any other provision of this Plan to the contrary, the Committee may amend this Plan or an Award Agreement, to take effect retroactively or otherwise, as deemed necessary or advisable for the purpose of conforming this Plan or an Award Agreement to any present or future law relating to plans of this or similar nature, and to the administrative regulations and rulings promulgated thereunder. By accepting an Award under this Plan, a Participant agrees to any amendment made pursuant to this Section 19 to any Award granted under this Plan without further consideration or action.
20. Substituted Awards.
The Committee may grant Awards under this Plan in substitution for stock and stock-based awards held by employees of another entity who become employees of the Company or a Subsidiary as a result of a merger or consolidation of the former employing entity with the Company or a Subsidiary or the acquisition by the Company or a Subsidiary of property or stock of the former employing corporation. The Committee may direct that the substitute Awards be granted on such terms and conditions as the Committee considers appropriate in the circumstances.
21. Effective Date and Duration of this Plan.
This Plan is effective as of the Effective Date. This Plan will terminate at midnight on the day before the ten (10) year anniversary of the Effective Date, and may be terminated prior to such time by Board action. No Award will be granted after termination of this Plan, but Awards outstanding upon termination of this Plan will remain outstanding in accordance with their applicable terms and conditions and the terms and conditions of this Plan.
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22. Miscellaneous.
22.1 Usage. In this Plan, except where otherwise indicated by clear contrary intention, (a) any masculine term used herein also will include the feminine, (b) the plural will include the singular, and the singular will include the plural, (c) “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding such term, and (d) “or” is used in the inclusive sense of “and/or”.
22.2 Relationship to Other Benefits. Neither Awards made under this Plan nor shares of Common Stock or cash paid pursuant to such Awards under this Plan will be included as “compensation” for purposes of computing the benefits payable to any Participant under any pension, retirement (qualified or non-qualified), savings, profit sharing, group insurance, welfare, or benefit plan of the Company or any Subsidiary unless provided otherwise in such plan.
22.3 Fractional Shares. No fractional shares of Common Stock will be issued or delivered under this Plan or any Award. The Committee will determine whether cash, other Awards or other property will be issued or paid in lieu of fractional shares of Common Stock or whether such fractional shares of Common Stock or any rights thereto will be forfeited or otherwise eliminated by rounding up or down.
22.4 Governing Law. Except to the extent expressly provided herein or in connection with other matters of corporate governance and authority (all of which will be governed by the laws of the Company’s jurisdiction of incorporation), the validity, construction, interpretation, administration and effect of this Plan and any rules, regulations and actions relating to this Plan will be governed by and construed exclusively in accordance with the laws of the State of New Jersey, notwithstanding the conflicts of laws principles of any jurisdictions.
22.5 Successors. All obligations of the Company under this Plan with respect to Awards granted hereunder will be binding on any successor to the Company, whether the existence of such successor is the result of a direct or indirect purchase, merger, consolidation or otherwise, of all or substantially all of the business or assets of the Company.
22.6 Construction. Wherever possible, each provision of this Plan and any Award Agreement will be interpreted so that it is valid under the Applicable Law. If any provision of this Plan or any Award Agreement is to any extent invalid under the Applicable Law, that provision will still be effective to the extent it remains valid. The remainder of this Plan and the Award Agreement also will continue to be valid, and the entire Plan and Award Agreement will continue to be valid in other jurisdictions.
22.7 Delivery and Execution of Electronic Documents. To the extent permitted by Applicable Law, the Company may: (a) deliver by email or other electronic means (including posting on a Web site maintained by the Company or by a third party under contract with the Company) all documents relating to this Plan or any Award hereunder (including prospectuses required by the Securities and Exchange Commission) and all other documents that the Company is required to deliver to its security holders (including annual reports and proxy statements), and (b) permit Participants to use electronic, internet or other non-paper means to execute applicable Plan documents (including Award Agreements) and take other actions under this Plan in a manner prescribed by the Committee.
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22.8 No Representations or Warranties Regarding Tax Effect; No Obligation to Minimize or Notify Regarding Taxes. Notwithstanding any provision of this Plan to the contrary, the Company and its Subsidiaries, the Board, and the Committee neither represent nor warrant the tax treatment under any federal, state, local, or foreign laws and regulations thereunder (individually and collectively referred to as the “Tax Laws”) of any Award granted or any amounts paid to any Participant under this Plan including, but not limited to, when and to what extent such Awards or amounts may be subject to tax, penalties, and interest under the Tax Laws and have no duty or obligation to minimize the tax consequences of an Award to the holder of such Award. The Company will have no duty or obligation to any Participant to advise such holder as to the time or manner of exercising an Award. Furthermore, the Company will have no duty or obligation to warn or otherwise advise such holder of a pending termination or expiration of an Award or a possible period in which the Award may not be exercised.
22.9 Unfunded Plan. Participants will have no right, title or interest whatsoever in or to any investments that the Company or its Subsidiaries may make to aid it in meeting its obligations under this Plan. Nothing contained in this Plan, and no action taken pursuant to its provisions, will create or be construed to create a trust of any kind, or a fiduciary relationship between the Company and any Participant, beneficiary, legal representative, or any other individual. To the extent that any individual acquires a right to receive payments from the Company or any Subsidiary under this Plan, such right will be no greater than the right of an unsecured general creditor of the Company or the Subsidiary, as the case may be. All payments to be made hereunder will be paid from the general funds of the Company or the Subsidiary, as the case may be, and no special or separate fund will be established and no segregation of assets will be made to assure payment of such amounts except as expressly set forth in this Plan.
22.10 Indemnification. Subject to any limitations and requirements of Nevada law, each individual who is or will have been a member of the Board, or a Committee appointed by the Board, or an officer or Employee of the Company to whom authority was delegated in accordance with Section 3.3 of this Plan, will be indemnified and held harmless by the Company against and from any loss, cost, liability or expense that may be imposed upon or reasonably incurred by him or her in connection with or resulting from any claim, action, suit or proceeding to which he or she may be a party or in which he or she may be involved by reason of any action taken or failure to act under this Plan and against and from any and all amounts paid by him or her in settlement thereof, with the Company’s approval, or paid by him or her in satisfaction of any judgment in any such action, suit or proceeding against him or her, provided he or she will give the Company an opportunity, at its own expense, to handle and defend the same before he or she undertakes to handle and defend it on his/her own behalf. The foregoing right of indemnification will not be exclusive of any other rights of indemnification to which such individuals may be entitled under the Company’s Certificate of Incorporation or Bylaws, as a matter of law, or otherwise, or pursuant to any agreement with the Company, or any power that the Company may have to indemnify them or hold them harmless.
| 29 |
Exhibit 99.1
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234 Industrial Way West |
| Building A Suite 202 | |
| Eatontown, NJ 07724 | |
| Tel: 732.889.4300 | |
| www.investview.com |
Investview (‘‘INVU’’) Announces Completion of Management Restructuring with New Executive Appointments.
Victor M. Oviedo announced as new Chief Executive Officer of Investview.
Eatontown, NJ, February. 23, 2022 — Investview, Inc. (OTCQB: INVU) today announced that it has completed a restructuring of its executive management team with the appointment of a new slate of executive officers, including the appointment of Victor M. Oviedo as its new Chief Executive Officer. Mr. Oviedo has also been appointed to the Company’s Board of Directors.
Mr. Oviedo brings a wealth of expertise to this role, having held several other key leadership roles throughout his 25-year career. For the past 4 years, Mr. Oviedo has been founder and managing partner of StageLight Group, which provides strategic capital to early and growth-stage companies. Prior to that, he was a Partner at SkyBridge Capital and Global Head of Business Development & Strategy where he was directly responsible for the firm’s growth, international expansion, new business development and brand strategy initiatives. During his 12-year tenure, he was instrumental in growing the firm’s assets from $300M to $14B, acquiring their flagship fund-of-fund business and creating & launching the world-renowned SALT Conference. Mr. Oviedo received an MBA in Finance & Entrepreneurship from the Wharton School at the University of Pennsylvania and a MA in Advance International Studies from the Paul H. Nitze School of Advanced International Studies (SAIS) at Johns Hopkins University. He also graduated with honors with a BSFS in International Economics from the Edmund A. Walsh School of Foreign Service at Georgetown University.
Additional senior leadership appointments include Jim Bell, who will transition from his current role as acting-CEO to the newly created roles of President and Acting COO. In these positions, Mr. Bell will be expected to manage operations and lead the Company’s corporate strategy and leadership teams. Supporting Mr. Bell in operations will be Myles Gill, newly appointed Director of Operations. Mr. Gill will also be expected to manage the Company’s compliance and governance initiatives.
Following an 18-year career that began as a Naval Officer, Mr. Gill has held several key leadership roles and brings significant knowledge and expertise. From 2017 -2021, Mr. Gill had been President/ CIO for Mannis Operations Group, a private family office. In that role, Mr. Gill provided strategic direction, vision, leadership, and management in all functional areas (including investments, operations, environmental, social, governance, trust and estate planning/compliance, risk management, legal, human resources) for a $2B AUM, 23 entity single-family office. Mr. Gill earned a Bachelor of Science degree in Mathematics and Oceanography as a Naval Officer from the United States Naval Academy.
Ralph R. Valvano will remain in his role as Chief Financial Officer and will oversee all aspects of the Company’s financial reporting, accounting, tax, treasury, risk management and financial planning and analysis, as well as leading investor relations.
Speaking to the new appointments, Company Chairman, David B. Rothrock commented, “the new team we have put in place reflects a culmination of a process that has taken months to accomplish. Given time to rationalize our existing operations and, where appropriate, implement new strategic initiatives, we expect our new management team to be able to position our Company to unlock what we believe is significant pent-up shareholder value as we continue to execute on our fundamental business model.”
Mr. Rothrock also commented, ‘‘We are particularly pleased to have someone of the caliber and pedigree of Victor to join our team. He is a proven leader, well known for his financial acumen and record of driving transformative change, which we view as a winning combination for all Investview stakeholders. With his sophisticated understanding of financial markets and trends, as well as the operational, business development, and leadership expertise he has, we are confident that Victor will be able to deliver on the Company’s vision, mission and values.”
According to Mr. Oviedo, “I look forward to leading Investview at what is such an important inflection point in the Company’s history. I also look forward to working closely with the Board, the executive leadership team and our very talented employees, to try to position the Company to realize its potential growth opportunities.”
About Investview, Inc.
Investview, Inc. is a diversified financial technology and global distributor organization that operates through its subsidiaries to provide financial education tools, content, research, and management of digital asset technology that mines cryptocurrencies, with a focus on Bitcoin mining and the next generation of digital assets. For more information on Investview and its family of wholly owned subsidiaries, please visit: www.investview.com.
Forward-Looking Statements
All statements in this release that are not based on historical fact are “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. Forward-looking statements, which are based on certain assumptions and describe our future plans, strategies, and expectations, can generally be identified by the use of forward-looking terms such as “believe,” “expect,” “may,” “should,” “could,” “seek,” “intend,” “plan,” “goal,” “estimate,” “anticipate” or other comparable terms. These forward-looking statements are based on Investview’s current beliefs and assumptions and information currently available to Investview and involve known and unknown risks, uncertainties and other factors which may cause the actual results, performance, or achievements of the company to be materially different from any future results, performance or achievements expressed or implied by these forward-looking statements. More information on potential factors that could affect Investview’s financial results is included from time to time in Investview’s public reports filed with the U.S. Securities and Exchange Commission (the “SEC”), including the Company’s Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, and Current Reports on Form 8-K. The forward-looking statements made in this release speak only as of the date of this release, and Investview, Inc. (“INVU”) assumes no obligation to update any such forward-looking statements to reflect actual results or changes in expectations, except as otherwise required by law.
Investor Relations
Contact: Ralph R. Valvano
Phone Number: 732.889.4300
Email: [email protected]