INVU 8-K
Investview, Inc. (INVU)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
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Securities registered pursuant to Section 12(b) of the Exchange Act: None
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (Section 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (Section 240.12b-2 of this chapter).
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
ITEM 1.01—ENTRY INTO A DEFINITIVE MATERIAL AGREEMENT
See the disclosure provided under Item 5.02.
ITEM 5.02—DEPARTURE OF DIRECTORS OR CERTAIN OFFICERS; ELECTION
OF DIRECTORS; APPOINTMENT OF CERTAIN OFFICERS; COMPENSATORY
ARRANGEMENTS OF CERTAIN OFFICERS
On June 24, 2022, Investview, Inc. (the “Company”) undertook to restructure unvested incentive equity awards previously granted to its senior leadership team. The Company’s senior management team and board of directors unanimously agreed to surrender and terminate an aggregate of approximately 288 million outstanding unvested restricted shares in exchange for the issuance of options to purchase approximately 360 million shares, vesting in equal amounts over a five-year period, at an exercise price of $0.05 per share, or approximately a 66% premium over the closing price of the Company’s shares on Thursday, June 23, 2022. The exercise price and number of options into which the unvested restricted shares were surrendered (based on an exchange ratio of 1.25 to 1) were established by an independent valuation firm engaged by the Company that applied relevant valuation methodologies in a manner consistent with the Company’s recently completed December 31, 2021 audit. Of particular note, the shares issuable, if at all, upon exercise of the options, remain subject to the terms of the Company’s existing lock-up agreement through April 2025. Copies of the related amendments to executive employment agreements and non-statutory option award and non-statutory option award agreements are attached hereto as exhibits (see Item 9.01).
ITEM 8.01—OTHER EVENTS
On June 27, 2022, the Company issued a press release, a copy of which is attached hereto as exhibit 99.01 (as modified to correct a typographical error: the Company’s existing lock-up agreement expires in April 2025).
ITEM 9.01—FINANCIAL STATEMENTS AND EXHIBITS
The following are filed as exhibits to this report:
Exhibit Number* |
Title of Document |
Location | ||
| Item 10 | Material Contracts | |||
| 10.110 | Non-Statutory Option Award and Non-Statutory Option Award Agreement for David B. Rothrock #1 | This filing | ||
| 10.111 | Non-Statutory Option Award and Non-Statutory Option Award Agreement for David B. Rothrock #2 | This filing | ||
| 10.112 | Amendment to Employment Agreement with Victor Oviedo | This filing | ||
| 10.113 | Non-Statutory Option Award and Non-Statutory Option Award Agreement for Victor Oviedo #1 | This filing |
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| _______________ |
| * | 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: June 30, 2022 | By: | /s/ Ralph Valvano |
| Ralph Valvano | ||
| Chief Financial Officer | ||
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Exhibit 10.110
Final Execution Version
David B. Rothrock – Director Option Award
Option Grant No. 2022-07
INVESTVIEW, INC.
2022 INCENTIVE PLAN
NON-STATUTORY OPTION AWARD
Investview, Inc., a Nevada corporation (the “Company”), pursuant to the terms of the Investview, Inc. 2022 Incentive Plan (the “Plan”) and the Non-Statutory Option Award Agreement (the “Agreement”) attached to this Non-Statutory Option Award (this “Option Award”), hereby grants to the individual named in Section 2 below (the “Optionee”), effective as of the grant date set forth in Section 1 below, the option to purchase the number of shares of the Company’s Common Stock as set forth in Section 3 below, subject to the exercise price as set forth in Section 4 below and vesting as set forth in Section 5 below and the terms and conditions of this Option Award and the Agreement attached to this Option Award.
The terms of this Option Award are subject to all of the provisions of the Plan and the attached Agreement, with such provisions being incorporated herein by reference. All of the capitalized terms used in this Option Award and the Agreement not otherwise defined herein or therein shall have the same meaning as defined in the Plan. A copy of the Plan and the prospectus for the Plan have been delivered to Optionee together with this Option Award and the Agreement.
| 1. | Grant Date: | June 24, 2022 |
| 2. | Name of Optionee: | David B. Rothrock |
| 3. | Number of Underlying Shares of Common Stock: | 43,750,000 (subject to adjustment as provided in the Plan) |
| 4. | Exercise Price: | $.05 per share (subject to adjustment as provided in the Plan) |
| 5. | Vesting of Options (on a cumulative basis and subject to adjustment as provided in the Plan): | |
| Vesting Date | No. of Underlying Shares to be Vested* | |||
| February 3, 2023 | 8,750,000 | |||
| February 3, 2024 | 8,750,000 | |||
| February 3, 2025 | 8,750,000 | |||
| February 3, 2026 | 8,750,000 | |||
| February 3, 2027 | 8,750,000 | |||
| *Vesting to occur pursuant to Section 3 of the attached Agreement and conditioned upon continued service as a member of the Board of Directors of the Company, as described therein. |
| 6. | Expiration Date: | June 24, 2029 |
The Optionee acknowledges receipt of and understands and agrees to be bound by all of the terms of this Option Award, inclusive of the attached Agreement, and the Plan, and that the terms thereof supersede any and all other written or oral agreements between the Optionee and the Company, other than the Optionee’s Employment Agreement, regarding the subject matter contained herein.
| Investview, Inc. | Optionee: | |||
| By: | /s/ Victor M. Oviedo | /s/ David B. Rothrock | ||
| Victor M. Oviedo, Chief Executive Officer | Date: | 06/24/2022 | ||
| Date: | 06/24/2022 | |||
NON-STATUTORY OPTION AWARD AGREEMENT
THIS NON-STATUTORY OPTION AWARD AGREEMENT (this “Agreement”) is made as of the grant date set forth in Section 1 of the Non-Statutory Option Award (the “Option Award”) to which this Agreement relates and is attached (the “Grant Date”) between Investview, Inc., a Nevada corporation (the “Company”), and the individual identified in Section 2 of the Option Award to which this Agreement relates and is attached (the “Optionee”).
W I T N E S S E T H:
WHEREAS, the Company adopted the Investview, Inc. 2022 Incentive Plan (the “Plan”), which provides for the grant of certain awards, including without limitation, Non-Statutory Stock Options to Employees of the Company, with the corresponding right to purchase shares of Common Stock of the Company (the “Common Stock”).
WHEREAS, the Board of Directors of the Company, acting as the Committee under the Plan (the “Committee”), has authorized the grant of a Non-Statutory Option to the Optionee on the date of this Agreement as evidenced by the Option Award to which this Agreement is attached, thereby allowing the Optionee to acquire a proprietary interest in the Company in order that the Optionee will have a further incentive for remaining with and increasing his or her efforts on behalf of the Company.
WHEREAS, this Agreement has been prepared in conjunction with and under the terms of the Plan, which are incorporated herein and made a part hereof by reference, and unless otherwise covered by the terms of this Agreement, the terms of this Option Award are intended to be governed by the Plan.
WHEREAS, this Agreement is intended to supersede and replace in its entirety, the Company’s prior commitment during February 2022 to issue to the Optionee, in return for his continued service as a member of the Board of Directors of the Company, thirty-five million (35,000,000) shares of the Company’s Common Stock, subject to vesting and the other terms stated in this Agreement, the subject matter of which was covered by a Current Report on Form 8-K filed by the Company with the United States Securities and Exchange Commission on or about February 23, 2022 (the “February 2022 Prior Share Commitment”).
WHEREAS, this Agreement and the associated Option Award, are part of an overall restructuring of the Company’s prior unvested restricted stock awards, pursuant to which the Company, after consideration of the taxation and tax withholding implications, and other consequences of the granting and vesting of unvested restricted stock under the Plan, has determined that it is in the best interests of the Company to restructure the grant of unvested restricted stock under the Plan as the grant of stock options, based on a conversion factor, which, following consultation with an independent valuation firm, was determined, based upon prevailing market and other conditions, to be 1.25 to 1.
WHEREAS, the Optionee has accepted the grant of Non-Statutory Stock Options evidenced by the Option Award and this Agreement in replacement for the February 2022 Prior Share Commitment, and has agreed to the terms and conditions stated herein and therein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants hereinafter set forth and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows:
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1. Confirmation of Grant of Option. Pursuant to a determination by the Committee, the Company, subject to the terms of the Plan and this Agreement, hereby grants to the Optionee as a matter of separate inducement and agreement, and in addition to and not in lieu of salary or other compensation or fees for services, the right to purchase (the “Option”) an aggregate number of shares of Common Stock as is set forth in Section 3 of the Option Award, subject to adjustment as provided in the Plan (such shares, as adjusted, the “Option Shares”). The Option is not intended to qualify as an incentive stock option under Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”).
2. Exercise Price. The per share exercise price of the Shares covered by the Option will be the per share amount set forth in Section 4 of the Option Award, at all times being not less than 100% of the Fair Market Value of one share of Common Stock on the Grant Date, subject to adjustment as provided in the Plan.
3. Vesting and Exercisability of Option. The Option shall vest and become exercisable on the terms and conditions hereinafter set forth:
(a) The Option shall vest and become exercisable (on a cumulative basis) in such installments (after giving effect to any adjustment pursuant to the Plan) and on such vesting dates, as set forth in Section 5 of the Option Award, provided that the Optionee remains a member of the Board of Directors of the Company as of each such applicable vesting date as indicated in Section 5 of the Option Award.
(b) In addition, the Option shall vest and become exercisable to the extent and as provided in Sections 6, 7 and 8 hereof and as expressly provided by the terms of any Individual Agreement (as defined in the Plan) between the Optionee and the Company or one of its Subsidiaries or Affiliates. The Committee may decide, in its absolute discretion, to accelerate the vesting of all or some lesser portion of any unvested Options at any time, at the date specified by the Committee.
(c) The Option may be exercised pursuant to the provisions of this Section 3 and Sections 6, 7 and 8 hereof, by delivery of an Exercise Notice and payment to the Company as provided in Sections 10 and 15 hereof.
4. Term of Option. The term of the Option shall be the period of years from the Grant Date as is set forth in Section 1 of the Option Award and shall expire on the date set forth in Section 6 of the Option Award, subject to earlier termination or cancellation as provided in this Agreement.
5. Non-transferability of Option. The Option shall not be assigned, transferred or otherwise disposed of, or pledged or hypothecated in any way, and shall not be subject to execution, attachment or other process, except as may be provided in the Plan. Any assignment, transfer, pledge, hypothecation or other disposition of the Option attempted contrary to the provisions of the Plan, or any levy of execution, attachment or other process attempted upon the Option, will be null and void and without effect. Any attempt to make any such assignment, transfer, pledge, hypothecation or other disposition of the Option will cause the Option to terminate immediately upon the happening of any such event; provided, however, that any such termination of the Option under the foregoing provisions of this Section 5 will not prejudice any rights or remedies which the Company or one of its Subsidiaries or Affiliates may have under this Agreement or otherwise.
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6. Exercise Upon Cessation of Status as an Eligible Recipient Other Than on Account of Death or Disability. The terms of this Section 6 apply unless otherwise expressly provided by the terms of any Individual Agreement between the Optionee and the Company or one of its Subsidiaries or Affiliates or a plan or policy of the Company applicable to the Optionee specifically provides otherwise, and subject to the provisions of Section 5 hereof and Sections 13.4 and 13.5 of the Plan. In no event, however, may the Option be exercised after the expiration of the term provided in Section 4 hereof.
(a) If the Optionee ceases to be a Member of the Board of Directors by reason of an involuntary removal from such position or if Optionee is no longer appointed or elected to the Board of Directors, the Option may thereafter following such cessation of such service only be exercised by the Optionee to the same extent the Optionee would have been entitled under Section 3 hereof to exercise the Option immediately prior to such cessation of service, at any time within the later of: (i) thirty (30) days after such cessation of service; or (ii) that date that occurs upon the earlier of: (X) thirty (30) days following the expiration of the “Lock-Up Agreement” (as hereafter defined); or (Y) thirty (30) days following the release of Optionee from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the Optionee prior to the effective date of such release, if at all, in the Company’s sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the Optionee shall forfeit all rights hereunder.
(b) If the Optionee at any time ceases to be a Member of the Board of Directors by reason of the Optionee’s voluntary resignation from such position (and other than Optionee’s removal or failure to appoint or elect to the Board, or Optionee’s removal upon death or Disability), the Option may be exercised by the Optionee to the same extent the Optionee would have been entitled under Section 3 hereof to exercise the Option immediately prior to such cessation of service, at any time within the later of: (i) ninety (90) days after such cessation of service; or (ii) that date that occurs upon the earlier of: (X) ninety (90) days following the expiration of the Lock-Up Agreement; or (Y) ninety (90) days following the release of Optionee from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the Optionee prior to the effective date of such release, if at all, in its sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the Optionee shall forfeit all rights hereunder, even if the Optionee subsequently returns to the employ of the Company or one of its Subsidiaries or Affiliates or begins providing other service to the Company or one of its Subsidiaries or Affiliates.
(c) The Option shall not be affected by any change of duties or position of the Optionee so long as Optionee continues to be a member of the Board of Directors of the Company. If the Optionee is granted a temporary leave of absence of 90 days or less, such leave of absence shall be deemed a continuation of his or her service as a member of the Board of Directors of the Company for the purposes of this Agreement, but only if and so long as the Company consents thereto.
(d) The change in an Optionee’s status from that of a member of the Board of Directors to that of an Employee or Consultant will, for purposes of this Agreement, be deemed to result in a termination of such Optionee’s membership on the Board of Directors of the Company, unless the Committee otherwise determines in its sole discretion.
7. Exercise Upon Death or Disability. The terms of this Section 7 apply unless otherwise expressly provided by the terms of an Individual Agreement between the Optionee and the Company or one of its Subsidiaries or Affiliates or a plan or policy of the Company applicable to the Optionee specifically provides otherwise, and subject to the provisions of Section 5 hereof and Sections 13.4 and 13.5 of the Plan. In no event, however, may the Option be exercised after the expiration of the term provided in Section 4 hereof.
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(a) If the Optionee’s service as a Board member ceases as a result of Optionee’s death, the Option may be exercised (to the extent the Option is vested pursuant to Section 3 immediately prior to Optionee’s death), by the estate of the Optionee (or by the person or persons who acquire the right to exercise the Option by written designation of the Optionee) at any time within the later of: (i) twelve (12) months after such cessation of service; or (ii) that date that occurs upon the earlier of: (X) twelve (12) months following the expiration of the Lock-Up Agreement; or (Y) twelve (12) months following the release of Optionee (and the estate) from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the estate of the Optionee prior to the effective date of such release, if at all, in its sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the estate or other beneficiaries shall forfeit all rights hereunder; provided, however, that without the consent of the Optionee’s estate, the Company cannot release the Optionee’s estate from the terms of the Lock-Up Agreement prior to twelve months following the Grant Date.
(b) If the Optionee’s service as a Board member ceases as a result of Disability of the Optionee, the Option may be exercised (to the extent the Option is vested pursuant to Section 3 immediately prior to the termination of the Optionee’s service due to Disability), by the Optionee at any time within the later of: (i) twelve (12) months after such cessation of service; or (ii) that date that occurs upon the earlier of: (X) twelve (12) months following the expiration of the Lock-Up Agreement; or (Y) twelve (12) months following the release of Optionee from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the Optionee prior to the effective date of such release, if at all, in its sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the Optionee shall forfeit all rights hereunder even if the Optionee subsequently returns to the employ of the Company or one of its Subsidiaries or Affiliates or begins providing other service to the Company or one of its Subsidiaries or Affiliates; provided, however, that without the consent of the Optionee, the Company cannot release the Optionee from the terms of the Lock-Up Agreement prior to twelve months following the Grant Date.
8. Change in Control of the Company. If there is a Change in Control, unless otherwise expressly provided by the terms of an Individual Agreement between the Optionee and the Company or one of its Subsidiaries or Affiliates, the Option will be governed by the provisions of Article 15 of the Plan.
9. Registration. The shares covered by the Option have been registered and qualified for sale pursuant to the Securities Act of 1933, as amended, by the Company pursuant to a registration statement on Form S-8.
10. Method of Exercise of Option.
(a) Subject to the terms and conditions of this Agreement, the Option shall be exercisable by delivery of a completed written Option Exercise Form in substantially the form set forth in Exhibit A hereto (the “Exercise Notice”) and provision for payment to the Company in accordance with the procedure prescribed herein. Each such Notice shall:
(i) state the election to exercise the Option and the number of Shares with respect to which it is being exercised;
(ii) be signed by the Optionee or the person or persons entitled to exercise the Option and, if the Option is being exercised by any person or persons other than the Optionee, be accompanied by proof, satisfactory to counsel to the Company, of the right of such other person or persons to exercise the Option (collectively an “Authorized Person”);
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(iii) include payment of the full purchase price for the shares of Common Stock to be purchased pursuant to such exercise of the Option; and
(iv) be received by the Company on or before the date of the expiration of this Option. In the event the date of expiration of this Option falls on a day which is not a regular business day at the Company’s headquarters office, then such written Exercise Notice must be received at such office on or before the last regular business day prior to such date of expiration.
(b) Payment of the purchase price of any shares of Common Stock, in respect of which the Option shall be exercised, shall be made by the Optionee or Authorized Person at the place specified by the Company on the date the Exercise Notice is received by the Company (i) by delivering to the Company cash or a certified or bank cashier’s check payable to the order of the Company, (ii) by delivering to the Company properly endorsed certificates of shares of Common Stock (or certificates accompanied by an appropriate stock power) with signature guaranties by a bank or trust company, (iii) by tender of a Broker Exercise Notice, subject to approval in advance by the Committee solely for the purpose of determining that the sale of any shares of Common Stock in respect of such Broker Exercise Notice will provide the Company with sufficient proceeds to pay the exercise price, (iv) by having withheld from the total number of shares of Common Stock to be acquired upon the “net exercise” of this Option a specified number of such shares of Common Stock, or (v) by any combination of the foregoing. For purposes of the immediately preceding sentence, an exercise effected by the tender of Common Stock (or deemed to be effected by the tender of Common Stock) may only be consummated with Common Stock held by the Optionee for a period of six (6) months or acquired by the Optionee other than under the Plan (or a similar plan maintained by the Company).
(c) The Option shall be deemed to have been exercised with respect to any particular shares of Common Stock if, and only if, the preceding provisions of this Section 10 and the provisions of Section 11 hereof shall have been complied with, in which event the Option shall be deemed to have been exercised on the date the Exercise Notice was received by the Company. Anything in this Agreement to the contrary notwithstanding, any Exercise Notice given pursuant to the provisions of this Section 10 shall be void and of no effect if all of the preceding provisions of this Section 10 and the provisions of Section 11 shall not have been strictly complied with.
(d) The certificate or certificates or book-entry notations for shares of Common Stock as to which the Option shall be exercised will be registered in the name of the Optionee (or in the name of the Optionee’s estate or other beneficiary if the Option is exercised after the Optionee’s death), or if the Option is exercised by the Optionee and if the Optionee so requests in the notice exercising the Option, will be registered in the name of the Optionee and another person jointly, with right of survivorship and will be delivered as soon as practical after the date the Exercise Notice is received by the Company (accompanied by full payment of the exercise price), but only upon compliance with all of the provisions of this Agreement.
(e) If the Optionee fails to accept delivery of and pay for all or any part of the number of Shares specified in such Exercise Notice, Optionee’s right to exercise the Option shall be terminated with respect to such undelivered Shares, unless the Committee, it its sole discretion, determines otherwise. The Option may be exercised only with respect to full Shares.
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(f) The Company shall not be required to issue or deliver any certificate or certificates or perform any book-entry notations for shares of its Common Stock purchased upon the exercise of any part of the Option prior to the payment to the Company, upon its demand, of any amount requested by the Company for the purpose of satisfying its maximum statutory liability, if any, to withhold federal, state or local income or earnings tax or any other applicable tax or assessment (plus interest or penalties thereon, if any, caused by a delay in making such payment) incurred by reason of the exercise of this Option or the transfer of shares thereupon. Such payment shall be made by the Optionee in cash or, with the written consent of the Company, by tendering to the Company shares of Common Stock equal in value to the amount of the required withholding. In the alternative, the Company, at its sole discretion, may satisfy such withholding requirements by withholding from the shares of Common Stock to be delivered to the Optionee pursuant to an exercise of the Option a number of shares of Common Stock equal in value to the amount of the required withholding.
11. Approval of Counsel. The exercise of the Option and the issuance and delivery of shares of Common Stock pursuant to this Agreement shall be subject to approval by the Company’s counsel of all legal matters in connection therewith, including, but not limited to, compliance with the requirements of the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended, and the requirements of any stock exchange or automated trading medium upon which the Common Stock may then be listed or traded.
12. Resale of Common Stock, Etc. If required by counsel for the Company, the stock certificate(s) or book-entry notation(s) for the Common Stock issued upon exercise of the Option shall bear the following (or similar) legends:
THE SHARES EVIDENCED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS THEY HAVE FIRST BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNLESS, IN THE OPINION OF COUNSEL FOR THE COMPANY, SUCH REGISTRATION IS NOT REQUIRED.
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.
13. Reservation of Shares. The Company shall at all times during the term of the Option reserve and keep available such number of shares of Common Stock as will be sufficient to satisfy the requirements of this Agreement.
14. Limitation of Action. The Optionee and the Company each acknowledge that every right of action accruing to the Optionee or the Company, as the case may be, and arising out of or in connection with this Agreement against the Optionee, on the one hand, or against the Company, on the other hand, shall, irrespective of the place where an action may be brought, cease and be barred by the expiration of twenty-four (24) months from the date of the act or omission in respect of which such right of action arises.
15. Notices. Each notice relating to the Option Award and this Agreement shall be in writing and delivered in person, by recognized overnight carrier or by certified mail to the proper address. All notices to the Company or the Committee shall be addressed to them at the address of the Company’s headquarters as reflected in the Company’s most recent federal securities filings, Attn: Chairman. All notices to the Optionee shall be addressed to the Optionee or such other person or persons at the Optionee’s address set forth in the Company’s records. Anyone to whom a notice may be given under this Agreement may designate a new address by notice to that effect.
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16. Successors. This Agreement shall inure to the benefit of the Company, the Optionee and their respective heirs, executors, administrators, personal representatives, successors and assigns.
17. Construction. Wherever possible, each provision of this Agreement will be interpreted so that it is valid under the Applicable Law (as defined in the Plan). If any provision of this 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 Agreement will continue to be valid, and the Agreement will continue to be valid in other jurisdictions.
18. Governing Law. All questions pertaining to the validity, construction and administration of this Agreement shall be determined in accordance with the laws of the State of Nevada without regard to its principles of conflicts of law.
19. Board Service. Nothing in this Agreement will interfere with or limit in any way the right of the Company or any Subsidiary or Affiliate to terminate the service of the Optionee as a Board member under applicable law, to the extent otherwise permissible, at any time, nor confer upon the Optionee any right to continue service as a Board member with the Company or any Subsidiary or Affiliate.
20. Clawback. Any shares of Common Stock issued upon exercise of the Option may be subject to recoupment by the Company, however, only to the extent required under applicable laws, rules or regulations in effect from time to time, and the Company’s then effective Clawback and Forfeiture Policy.
21. Definitions. Unless otherwise defined in this Agreement or the Option Award, all capitalized terms used in this Agreement shall have the same definitions as set forth in the Plan.
22. Incorporation of Terms of Plan. This Agreement shall be interpreted under, and subject to, all of the terms and provisions of the Plan, which are incorporated herein by reference.
23. Joinder to Lock-Up Agreement. Optionee 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 Company and DBR Capital, LLC, a copy of which has been provided to Optionee for his review and consent.
24. Termination of February 2022 Prior Share Commitment. Optionee confirms and agrees that upon execution of this Agreement, he does release, remise and forever discharge the Company from any and all obligations to issue any and all shares of the Company’s Common Stock contemplated by the February 2022 Prior Share Commitment, and accepts this Agreement as the entire agreement between the parties hereto with respect to the subject matter contained herein.
25. No Strict Construction. The language used in this Agreement shall be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction shall apply against any party.
26. Advice of Counsel. Optionee acknowledges that Fox Rothschild LLP represents the Company as its legal counsel. Optionee represents that Optionee 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 Optionee’s counsel’s advice and that Optionee is executing the Agreement voluntarily and fully intending to be legally bound because, among other things, the Agreement provides valuable benefits to Optionee which Optionee 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.
BY WAY OF THEIR EXECUTION OF THE OPTION AWARD TO WHICH THIS AGREEMENT RELATES AND IS ATTACHED, the Company and the Optionee (and each of their heirs, successors and assigns) agree to be bound by each and every one of the terms set forth in this Agreement.
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EXHIBIT A
NON-STATUTORY OPTION EXERCISE FORM
[DATE]
Investview, Inc.
[Address]
Attention: Chairman
1. Option Exercise. I hereby elect to exercise my option to purchase the following shares of Common Stock of Investview, Inc. under the Investview, Inc. 2022 Incentive Plan (the “Plan”) and the Option Agreement (the “Option”) identified below:
| Option Grant #: | ________________________ | ||
| Grant Date: | ________________________ | ||
| Number of Shares: | ________________________ | ||
| Exercise Price Per Share: | $_______________________ | ||
| Total Purchase Price: | $_______________________ |
2. Payment. I am paying the purchase price of the exercised Option as follows (check the applicable form of payment):
| _____ | I am attaching cash or a check in the amount of $____________, as the total purchase price for the shares. | |
| _____ | I have delivered ________ shares of Common Stock of Investview, Inc. (the “Company”) that I have previously acquired. I own these shares free and clear of any liens, claims, encumbrances or security interests. I have enclosed the certificates representing these previously acquired shares endorsed or accompanied by an executed assignment separate from certificate. | |
| _____ | I have delivered irrevocable instructions to a broker to sell a sufficient number of shares of Common Stock of the Company to pay the total purchase price and to pay such amounts to the Company. [Please note that this form of payment is only available upon prior written approval of the Committee solely for the purpose of determining that the sale of shares of Common Stock in respect of such broker exercise notice will provide the Company with sufficient proceeds to pay the exercise price and is subject to any applicable restrictions on the sale of such shares by Optionee.] | |
| The name, address and telephone number of the broker is as follows: |
| Name of Firm:______________________________ | |
| Contact:_________________________________ | |
| Address:_________________________________ | |
| Phone:___________________________________ | |
| Fax:______________________________________ |
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| [Please also see Section 4 of this Option Exercise Notice, which may prevent you from using this type of “cashless” exercise feature if you possess material non-public information about the Company or its securities at the time of exercise.] | ||
| _____ | I hereby elect to convert the attached option into shares of Common Stock of the Company on a “net exercise” basis pursuant to Section 6.5(b) of the Plan. | |
| _____ | I have elected to pay any required withholding with the exercise transaction. Accordingly, I have included $_______, which I would like applied to federal and state tax withholdings as follows:_________________________________________________________. |
3. Certificate Delivery. I elect to have my shares of Common Stock delivered as follows:
| _____ | Please have the shares delivered electronically via DWAC to my brokerage account. Please use the information below to execute the transaction. |
| Broker DTC number: | _________________________ | |
| My Account Number | _________________________ |
| _____ | Please register the certificate or book-entry notation representing the shares in the name set forth below and send the certificate or evidence of book-entry notation to the following address: |
| Registered Name: | ___________________________________ | |
| Address: | ___________________________________ | |
| ___________________________________ |
4. Compliance with Insider Trading Policy. I acknowledge that I have read and understand the Company’s current insider trading policy, including the portions that may, among other things, restrict my ability to exercise my Options through a broker sale on the open market or otherwise sell the shares of Common Stock issuable upon exercise of my Options. I understand that the information in this letter does not limit in any manner my own, personal responsibilities and obligations under the policy and the securities laws, including, but not limited to, the prohibitions on trading (including by means of a broker assisted option exercise) while I possess material, non-public information or during a blackout period that may be imposed under the policy. I agree to provide a copy of this exercise notice to my broker, and to require his or her compliance with the policy. I understand that the Company may reject any broker exercise completed during a blackout period or that is otherwise prohibited by any Company policy, including the current insider trading policy.
5. Representations. I acknowledge that I have received, read and understand the Plan and my Non-Statutory Option Award Agreement, which together govern the terms of my Option and its exercise. I have also read the current Plan prospectus, the Company’s latest annual report to stockholders and the other public reports and information incorporated by reference into the prospectus in making my decision to exercise my options.
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6. Effectiveness and Execution of Transaction. I understand and agree that this exercise election will be subject to acknowledgement by the Company. In the case of a cash exercise, my Option exercise will be processed as soon as practicable. In the case of a cashless exercise, I understand it may take longer to process my Option exercise.
| Submitted by: | Acknowledged by: | |||
| Optionee | Broker | |||
| By: | Firm Name: | |||
| Its: | By: | |||
| Date: | Its: | |||
| Date: | ||||
| Acknowledged by: | ||||
| Investview, Inc. | ||||
| By: | ||||
| Its: | ||||
| Date: | ||||
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Exhibit 10.111
Final Execution Version
David B. Rothrock – Director Option Award
Option Grant No. 2022-08
INVESTVIEW, INC.
2022 INCENTIVE PLAN
NON-STATUTORY OPTION AWARD
Investview, Inc., a Nevada corporation (the “Company”), pursuant to the terms of the Investview, Inc. 2022 Incentive Plan (the “Plan”) and the Non-Statutory Option Award Agreement (the “Agreement”) attached to this Non-Statutory Option Award (this “Option Award”), hereby grants to the individual named in Section 2 below (the “Optionee”), effective as of the grant date set forth in Section 1 below, the option to purchase the number of shares of the Company’s Common Stock as set forth in Section 3 below, subject to the exercise price as set forth in Section 4 below and vesting as set forth in Section 5 below and the terms and conditions of this Option Award and the Agreement attached to this Option Award.
The terms of this Option Award are subject to all of the provisions of the Plan and the attached Agreement, with such provisions being incorporated herein by reference. All of the capitalized terms used in this Option Award and the Agreement not otherwise defined herein or therein shall have the same meaning as defined in the Plan. A copy of the Plan and the prospectus for the Plan have been delivered to Optionee together with this Option Award and the Agreement.
| 1. | Grant Date: | June 24, 2022 |
| 2. | Name of Optionee: | David B. Rothrock |
| 3. | Number of Underlying Shares of Common Stock: (subject to adjustment as provided in the Plan) |
41,666,665 |
| 4. | Exercise Price: | $.05 per share (subject to adjustment as provided in the Plan) |
| 5. | Vesting of Options (on a cumulative basis and subject to adjustment as provided in the Plan): | |
| Vesting Date | No. of Underlying Shares to be Vested* | |||
| November 9, 2022 | 20,833,332 | |||
| November 9, 2023 | 20,833,333 | |||
*Vesting to occur pursuant to Section 3 of the attached Agreement and conditioned upon continued service as a member of the Board of Directors of the Company, as described therein.
| 6. | Expiration Date: | June 24, 2029 |
The Optionee acknowledges receipt of and understands and agrees to be bound by all of the terms of this Option Award, inclusive of the attached Agreement, and the Plan, and that the terms thereof supersede any and all other written or oral agreements between the Optionee and the Company, other than the Optionee’s Employment Agreement, regarding the subject matter contained herein.
| Investview, Inc. | Optionee: | ||
| By: | /s/ Victor M. Oviedo | /s/ David B. Rothrock | |
| Victor M. Oviedo, Chief Executive Officer | Date: 06/24/2022 | ||
| Date: 06/24/2022 | |||
NON-STATUTORY OPTION AWARD AGREEMENT
THIS NON-STATUTORY OPTION AWARD AGREEMENT (this “Agreement”) is made as of the grant date set forth in Section 1 of the Non-Statutory Option Award (the “Option Award”) to which this Agreement relates and is attached (the “Grant Date”) between Investview, Inc., a Nevada corporation (the “Company”), and the individual identified in Section 2 of the Option Award to which this Agreement relates and is attached (the “Optionee”).
W I T N E S S E T H:
WHEREAS, the Company adopted the Investview, Inc. 2022 Incentive Plan (the “Plan”), which provides for the grant of certain awards, including without limitation, Non-Statutory Stock Options to Employees of the Company, with the corresponding right to purchase shares of Common Stock of the Company (the “Common Stock”).
WHEREAS, the Board of Directors of the Company, acting as the Committee under the Plan (the “Committee”), has authorized the grant of a Non-Statutory Option to the Optionee on the date of this Agreement as evidenced by the Option Award to which this Agreement is attached, thereby allowing the Optionee to acquire a proprietary interest in the Company in order that the Optionee will have a further incentive for remaining with and increasing his or her efforts on behalf of the Company.
WHEREAS, this Agreement has been prepared in conjunction with and under the terms of the Plan, which are incorporated herein and made a part hereof by reference, and unless otherwise covered by the terms of this Agreement, the terms of this Option Award are intended to be governed by the Plan.
WHEREAS, this Agreement is intended to supersede and replace in its entirety, the Restricted Share Award Agreement issued by the Company to Optionee dated November 9, 2020, for which 33,333,332 shares of restricted stock remains unvested (the “November 2020 Award Agreement”).
WHEREAS, this Agreement and the associated Option Award, are part of an overall restructuring of the Company’s prior unvested restricted stock awards, pursuant to which the Company, after consideration of the taxation and tax withholding implications, and other consequences of the granting and vesting of unvested restricted stock under the Plan, has determined that it is in the best interests of the Company to restructure the grant of unvested restricted stock under the Plan as the grant of stock options, based on a conversion factor, which, following consultation with an independent valuation firm, was determined, based upon prevailing market and other conditions, to be 1.25 to 1.
WHEREAS, the Optionee has accepted the grant of Non-Statutory Stock Options evidenced by the Option Award and this Agreement in replacement for the unvested portion of the November 2020 Award Agreement, and has agreed to the terms and conditions stated herein and therein.
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NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants hereinafter set forth and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Confirmation of Grant of Option. Pursuant to a determination by the Committee, the Company, subject to the terms of the Plan and this Agreement, hereby grants to the Optionee as a matter of separate inducement and agreement, and in addition to and not in lieu of salary or other compensation or fees for services, the right to purchase (the “Option”) an aggregate number of shares of Common Stock as is set forth in Section 3 of the Option Award, subject to adjustment as provided in the Plan (such shares, as adjusted, the “Option Shares”). The Option is not intended to qualify as an incentive stock option under Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”).
2. Exercise Price. The per share exercise price of the Shares covered by the Option will be the per share amount set forth in Section 4 of the Option Award, at all times being not less than 100% of the Fair Market Value of one share of Common Stock on the Grant Date, subject to adjustment as provided in the Plan.
3. Vesting and Exercisability of Option. The Option shall vest and become exercisable on the terms and conditions hereinafter set forth:
(a) The Option shall vest and become exercisable (on a cumulative basis) in such installments (after giving effect to any adjustment pursuant to the Plan) and on such vesting dates, as set forth in Section 5 of the Option Award, provided that the Optionee remains a member of the Board of Directors of the Company as of each such applicable vesting date as indicated in Section 5 of the Option Award.
(b) In addition, the Option shall vest and become exercisable to the extent and as provided in Sections 6, 7 and 8 hereof and as expressly provided by the terms of any Individual Agreement (as defined in the Plan) between the Optionee and the Company or one of its Subsidiaries or Affiliates. The Committee may decide, in its absolute discretion, to accelerate the vesting of all or some lesser portion of any unvested Options at any time, at the date specified by the Committee.
(c) The Option may be exercised pursuant to the provisions of this Section 3 and Sections 6, 7 and 8 hereof, by delivery of an Exercise Notice and payment to the Company as provided in Sections 10 and 15 hereof.
4. Term of Option. The term of the Option shall be the period of years from the Grant Date as is set forth in Section 1 of the Option Award and shall expire on the date set forth in Section 6 of the Option Award, subject to earlier termination or cancellation as provided in this Agreement.
5. Non-transferability of Option. The Option shall not be assigned, transferred or otherwise disposed of, or pledged or hypothecated in any way, and shall not be subject to execution, attachment or other process, except as may be provided in the Plan. Any assignment, transfer, pledge, hypothecation or other disposition of the Option attempted contrary to the provisions of the Plan, or any levy of execution, attachment or other process attempted upon the Option, will be null and void and without effect. Any attempt to make any such assignment, transfer, pledge, hypothecation or other disposition of the Option will cause the Option to terminate immediately upon the happening of any such event; provided, however, that any such termination of the Option under the foregoing provisions of this Section 5 will not prejudice any rights or remedies which the Company or one of its Subsidiaries or Affiliates may have under this Agreement or otherwise.
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6. Exercise Upon Cessation of Status as an Eligible Recipient Other Than on Account of Death or Disability. The terms of this Section 6 apply unless otherwise expressly provided by the terms of any Individual Agreement between the Optionee and the Company or one of its Subsidiaries or Affiliates or a plan or policy of the Company applicable to the Optionee specifically provides otherwise, and subject to the provisions of Section 5 hereof and Sections 13.4 and 13.5 of the Plan. In no event, however, may the Option be exercised after the expiration of the term provided in Section 4 hereof.
(a) If the Optionee ceases to be a Member of the Board of Directors by reason of an involuntary removal from such position or if Optionee is no longer appointed or elected to the Board of Directors, the Option may thereafter following such cessation of such service only be exercised by the Optionee to the same extent the Optionee would have been entitled under Section 3 hereof to exercise the Option immediately prior to such cessation of service, at any time within the later of: (i) thirty (30) days after such cessation of service; or (ii) that date that occurs upon the earlier of: (X) thirty (30) days following the expiration of the “Lock-Up Agreement” (as hereafter defined); or (Y) thirty (30) days following the release of Optionee from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the Optionee prior to the effective date of such release, if at all, in the Company’s sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the Optionee shall forfeit all rights hereunder.
(b) If the Optionee at any time ceases to be a Member of the Board of Directors by reason of the Optionee’s voluntary resignation from such position (and other than Optionee’s removal or failure to appoint or elect to the Board, or Optionee’s removal upon death or Disability), the Option may be exercised by the Optionee to the same extent the Optionee would have been entitled under Section 3 hereof to exercise the Option immediately prior to such cessation of service, at any time within the later of: (i) ninety (90) days after such cessation of service; or (ii) that date that occurs upon the earlier of: (X) ninety (90) days following the expiration of the Lock-Up Agreement; or (Y) ninety (90) days following the release of Optionee from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the Optionee prior to the effective date of such release, if at all, in its sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the Optionee shall forfeit all rights hereunder, even if the Optionee subsequently returns to the employ of the Company or one of its Subsidiaries or Affiliates or begins providing other service to the Company or one of its Subsidiaries or Affiliates.
(c) The Option shall not be affected by any change of duties or position of the Optionee so long as Optionee continues to be a member of the Board of Directors of the Company. If the Optionee is granted a temporary leave of absence of 90 days or less, such leave of absence shall be deemed a continuation of his or her service as a member of the Board of Directors of the Company for the purposes of this Agreement, but only if and so long as the Company consents thereto.
(d) The change in an Optionee’s status from that of a member of the Board of Directors to that of an Employee or Consultant will, for purposes of this Agreement, be deemed to result in a termination of such Optionee’s membership on the Board of Directors of the Company, unless the Committee otherwise determines in its sole discretion.
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7. Exercise Upon Death or Disability. The terms of this Section 7 apply unless otherwise expressly provided by the terms of an Individual Agreement between the Optionee and the Company or one of its Subsidiaries or Affiliates or a plan or policy of the Company applicable to the Optionee specifically provides otherwise, and subject to the provisions of Section 5 hereof and Sections 13.4 and 13.5 of the Plan. In no event, however, may the Option be exercised after the expiration of the term provided in Section 4 hereof.
(a) If the Optionee’s service as a Board member ceases as a result of Optionee’s death, the Option may be exercised (to the extent the Option is vested pursuant to Section 3 immediately prior to Optionee’s death), by the estate of the Optionee (or by the person or persons who acquire the right to exercise the Option by written designation of the Optionee) at any time within the later of: (i) twelve (12) months after such cessation of service; or (ii) that date that occurs upon the earlier of: (X) twelve (12) months following the expiration of the Lock-Up Agreement; or (Y) twelve (12) months following the release of Optionee (and the estate) from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the estate of the Optionee prior to the effective date of such release, if at all, in its sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the estate or other beneficiaries shall forfeit all rights hereunder; provided, however, that without the consent of the Optionee’s estate, the Company cannot release the Optionee’s estate from the terms of the Lock-Up Agreement prior to twelve months following the Grant Date.
(b) If the Optionee’s service as a Board member ceases as a result of Disability of the Optionee, the Option may be exercised (to the extent the Option is vested pursuant to Section 3 immediately prior to the termination of the Optionee’s service due to Disability), by the Optionee at any time within the later of: (i) twelve (12) months after such cessation of service; or (ii) that date that occurs upon the earlier of: (X) twelve (12) months following the expiration of the Lock-Up Agreement; or (Y) twelve (12) months following the release of Optionee from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the Optionee prior to the effective date of such release, if at all, in its sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the Optionee shall forfeit all rights hereunder even if the Optionee subsequently returns to the employ of the Company or one of its Subsidiaries or Affiliates or begins providing other service to the Company or one of its Subsidiaries or Affiliates; provided, however, that without the consent of the Optionee, the Company cannot release the Optionee from the terms of the Lock-Up Agreement prior to twelve months following the Grant Date.
8. Change in Control of the Company. If there is a Change in Control, unless otherwise expressly provided by the terms of an Individual Agreement between the Optionee and the Company or one of its Subsidiaries or Affiliates, the Option will be governed by the provisions of Article 15 of the Plan.
9. Registration. The shares covered by the Option have been registered and qualified for sale pursuant to the Securities Act of 1933, as amended, by the Company pursuant to a registration statement on Form S-8.
10. Method of Exercise of Option.
(a) Subject to the terms and conditions of this Agreement, the Option shall be exercisable by delivery of a completed written Option Exercise Form in substantially the form set forth in Exhibit A hereto (the “Exercise Notice”) and provision for payment to the Company in accordance with the procedure prescribed herein. Each such Notice shall:
(i) state the election to exercise the Option and the number of Shares with respect to which it is being exercised;
(ii) be signed by the Optionee or the person or persons entitled to exercise the Option and, if the Option is being exercised by any person or persons other than the Optionee, be accompanied by proof, satisfactory to counsel to the Company, of the right of such other person or persons to exercise the Option (collectively an “Authorized Person”);
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(iii) include payment of the full purchase price for the shares of Common Stock to be purchased pursuant to such exercise of the Option; and
(iv) be received by the Company on or before the date of the expiration of this Option. In the event the date of expiration of this Option falls on a day which is not a regular business day at the Company’s headquarters office, then such written Exercise Notice must be received at such office on or before the last regular business day prior to such date of expiration.
(b) Payment of the purchase price of any shares of Common Stock, in respect of which the Option shall be exercised, shall be made by the Optionee or Authorized Person at the place specified by the Company on the date the Exercise Notice is received by the Company (i) by delivering to the Company cash or a certified or bank cashier’s check payable to the order of the Company, (ii) by delivering to the Company properly endorsed certificates of shares of Common Stock (or certificates accompanied by an appropriate stock power) with signature guaranties by a bank or trust company, (iii) by tender of a Broker Exercise Notice, subject to approval in advance by the Committee solely for the purpose of determining that the sale of any shares of Common Stock in respect of such Broker Exercise Notice will provide the Company with sufficient proceeds to pay the exercise price, (iv) by having withheld from the total number of shares of Common Stock to be acquired upon the “net exercise” of this Option a specified number of such shares of Common Stock, or (v) by any combination of the foregoing. For purposes of the immediately preceding sentence, an exercise effected by the tender of Common Stock (or deemed to be effected by the tender of Common Stock) may only be consummated with Common Stock held by the Optionee for a period of six (6) months or acquired by the Optionee other than under the Plan (or a similar plan maintained by the Company).
(c) The Option shall be deemed to have been exercised with respect to any particular shares of Common Stock if, and only if, the preceding provisions of this Section 10 and the provisions of Section 11 hereof shall have been complied with, in which event the Option shall be deemed to have been exercised on the date the Exercise Notice was received by the Company. Anything in this Agreement to the contrary notwithstanding, any Exercise Notice given pursuant to the provisions of this Section 10 shall be void and of no effect if all of the preceding provisions of this Section 10 and the provisions of Section 11 shall not have been strictly complied with.
(d) The certificate or certificates or book-entry notations for shares of Common Stock as to which the Option shall be exercised will be registered in the name of the Optionee (or in the name of the Optionee’s estate or other beneficiary if the Option is exercised after the Optionee’s death), or if the Option is exercised by the Optionee and if the Optionee so requests in the notice exercising the Option, will be registered in the name of the Optionee and another person jointly, with right of survivorship and will be delivered as soon as practical after the date the Exercise Notice is received by the Company (accompanied by full payment of the exercise price), but only upon compliance with all of the provisions of this Agreement.
(e) If the Optionee fails to accept delivery of and pay for all or any part of the number of Shares specified in such Exercise Notice, Optionee’s right to exercise the Option shall be terminated with respect to such undelivered Shares, unless the Committee, it its sole discretion, determines otherwise. The Option may be exercised only with respect to full Shares.
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(f) The Company shall not be required to issue or deliver any certificate or certificates or perform any book-entry notations for shares of its Common Stock purchased upon the exercise of any part of the Option prior to the payment to the Company, upon its demand, of any amount requested by the Company for the purpose of satisfying its maximum statutory liability, if any, to withhold federal, state or local income or earnings tax or any other applicable tax or assessment (plus interest or penalties thereon, if any, caused by a delay in making such payment) incurred by reason of the exercise of this Option or the transfer of shares thereupon. Such payment shall be made by the Optionee in cash or, with the written consent of the Company, by tendering to the Company shares of Common Stock equal in value to the amount of the required withholding. In the alternative, the Company, at its sole discretion, may satisfy such withholding requirements by withholding from the shares of Common Stock to be delivered to the Optionee pursuant to an exercise of the Option a number of shares of Common Stock equal in value to the amount of the required withholding.
11. Approval of Counsel. The exercise of the Option and the issuance and delivery of shares of Common Stock pursuant to this Agreement shall be subject to approval by the Company’s counsel of all legal matters in connection therewith, including, but not limited to, compliance with the requirements of the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended, and the requirements of any stock exchange or automated trading medium upon which the Common Stock may then be listed or traded.
12. Resale of Common Stock, Etc. If required by counsel for the Company, the stock certificate(s) or book-entry notation(s) for the Common Stock issued upon exercise of the Option shall bear the following (or similar) legends:
THE SHARES EVIDENCED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS THEY HAVE FIRST BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNLESS, IN THE OPINION OF COUNSEL FOR THE COMPANY, SUCH REGISTRATION IS NOT REQUIRED.
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.
13. Reservation of Shares. The Company shall at all times during the term of the Option reserve and keep available such number of shares of Common Stock as will be sufficient to satisfy the requirements of this Agreement.
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14. Limitation of Action. The Optionee and the Company each acknowledge that every right of action accruing to the Optionee or the Company, as the case may be, and arising out of or in connection with this Agreement against the Optionee, on the one hand, or against the Company, on the other hand, shall, irrespective of the place where an action may be brought, cease and be barred by the expiration of twenty-four (24) months from the date of the act or omission in respect of which such right of action arises.
15. Notices. Each notice relating to the Option Award and this Agreement shall be in writing and delivered in person, by recognized overnight carrier or by certified mail to the proper address. All notices to the Company or the Committee shall be addressed to them at the address of the Company’s headquarters as reflected in the Company’s most recent federal securities filings, Attn: Chairman. All notices to the Optionee shall be addressed to the Optionee or such other person or persons at the Optionee’s address set forth in the Company’s records. Anyone to whom a notice may be given under this Agreement may designate a new address by notice to that effect.
16. Successors. This Agreement shall inure to the benefit of the Company, the Optionee and their respective heirs, executors, administrators, personal representatives, successors and assigns.
17. Construction. Wherever possible, each provision of this Agreement will be interpreted so that it is valid under the Applicable Law (as defined in the Plan). If any provision of this 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 Agreement will continue to be valid, and the Agreement will continue to be valid in other jurisdictions.
18. Governing Law. All questions pertaining to the validity, construction and administration of this Agreement shall be determined in accordance with the laws of the State of Nevada without regard to its principles of conflicts of law.
19. Board Service. Nothing in this Agreement will interfere with or limit in any way the right of the Company or any Subsidiary or Affiliate to terminate the service of the Optionee as a Board member under applicable law, to the extent otherwise permissible, at any time, nor confer upon the Optionee any right to continue service as a Board member with the Company or any Subsidiary or Affiliate.
20. Clawback. Any shares of Common Stock issued upon exercise of the Option may be subject to recoupment by the Company, however, only to the extent required under applicable laws, rules or regulations in effect from time to time, and the Company’s then effective Clawback and Forfeiture Policy.
21. Definitions. Unless otherwise defined in this Agreement or the Option Award, all capitalized terms used in this Agreement shall have the same definitions as set forth in the Plan.
22. Incorporation of Terms of Plan. This Agreement shall be interpreted under, and subject to, all of the terms and provisions of the Plan, which are incorporated herein by reference.
23. Joinder to Lock-Up Agreement. Optionee 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 Company and DBR Capital, LLC, a copy of which has been provided to Optionee for his review and consent.
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24. Termination of November 2020 Award Agreement. Optionee confirms and agrees that upon execution of this Agreement, he does release, remise and forever discharge the Company from any and all obligations to issue any and all shares of the Company’s Common Stock contemplated by the November 2020 Award Agreement, and accepts this Agreement as the entire agreement between the parties hereto with respect to the subject matter contained herein, with the understanding that this Agreement will supersede and is in full substitution for the November 2020 Award Agreement, which for purposes of clarity, shall be of no force and effect after the Effective Date hereof. No change, addition, or amendment shall be made except by written agreement signed by the parties hereto.
25. No Strict Construction. The language used in this Agreement shall be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction shall apply against any party.
26. Advice of Counsel. Optionee acknowledges that Fox Rothschild LLP represents the Company as its legal counsel. Optionee represents that Optionee 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 Optionee’s counsel’s advice and that Optionee is executing the Agreement voluntarily and fully intending to be legally bound because, among other things, the Agreement provides valuable benefits to Optionee which Optionee 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.
BY WAY OF THEIR EXECUTION OF THE OPTION AWARD TO WHICH THIS AGREEMENT RELATES AND IS ATTACHED, the Company and the Optionee (and each of their heirs, successors and assigns) agree to be bound by each and every one of the terms set forth in this Agreement.
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EXHIBIT A
NON-STATUTORY OPTION EXERCISE FORM
[DATE]
Investview, Inc.
Attention: Chairman
1. Option Exercise. I hereby elect to exercise my option to purchase the following shares of Common Stock of Investview, Inc. under the Investview, Inc. 2022 Incentive Plan (the “Plan”) and the Option Agreement (the “Option”) identified below:
| Option Grant #: | _____________________________________ | |
| Grant Date: | _____________________________________ | |
| Number of Shares: | _____________________________________ | |
| Exercise Price Per Share: | $_____________________________________ | |
| Total Purchase Price: | $_____________________________________ |
2. Payment. I am paying the purchase price of the exercised Option as follows (check the applicable form of payment):
| _____ | I am attaching cash or a check in the amount of $____________, as the total purchase price for the shares. |
| _____ | I have delivered ________ shares of Common Stock of Investview, Inc. (the “Company”) that I have previously acquired. I own these shares free and clear of any liens, claims, encumbrances or security interests. I have enclosed the certificates representing these previously acquired shares endorsed or accompanied by an executed assignment separate from certificate. |
| _____ | I have delivered irrevocable instructions to a broker to sell a sufficient number of shares of Common Stock of the Company to pay the total purchase price and to pay such amounts to the Company. [Please note that this form of payment is only available upon prior written approval of the Committee solely for the purpose of determining that the sale of shares of Common Stock in respect of such broker exercise notice will provide the Company with sufficient proceeds to pay the exercise price and is subject to any applicable restrictions on the sale of such shares by Optionee.] |
The name, address and telephone number of the broker is as follows:
| Name of Firm: ______________________________ |
| Contact: __________________________________ |
| Address: _________________________________ |
| Phone: ___________________________________ |
| Fax: _____________________________________ |
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[Please also see Section 4 of this Option Exercise Notice, which may prevent you from using this type of “cashless” exercise feature if you possess material non-public information about the Company or its securities at the time of exercise.]
| _____ | I hereby elect to convert the attached option into shares of Common Stock of the Company on a “net exercise” basis pursuant to Section 6.5(b) of the Plan. |
| _____ | I have elected to pay any required withholding with the exercise transaction. Accordingly, I have included $_______, which I would like applied to federal and state tax withholdings as follows:_________________________________________________________. |
3. Certificate Delivery. I elect to have my shares of Common Stock delivered as follows:
| _____ | Please have the shares delivered electronically via DWAC to my brokerage account. Please use the information below to execute the transaction. |
| Broker DTC number: | ______________________________ | |
| My Account Number | ______________________________ |
| _____ | Please register the certificate or book-entry notation representing the shares in the name set forth below and send the certificate or evidence of book-entry notation to the following address: |
| Registered Name: | ____________________________________ | |
| Address: | ____________________________________ | |
| ____________________________________ |
4. Compliance with Insider Trading Policy. I acknowledge that I have read and understand the Company’s current insider trading policy, including the portions that may, among other things, restrict my ability to exercise my Options through a broker sale on the open market or otherwise sell the shares of Common Stock issuable upon exercise of my Options. I understand that the information in this letter does not limit in any manner my own, personal responsibilities and obligations under the policy and the securities laws, including, but not limited to, the prohibitions on trading (including by means of a broker assisted option exercise) while I possess material, non-public information or during a blackout period that may be imposed under the policy. I agree to provide a copy of this exercise notice to my broker, and to require his or her compliance with the policy. I understand that the Company may reject any broker exercise completed during a blackout period or that is otherwise prohibited by any Company policy, including the current insider trading policy.
5. Representations. I acknowledge that I have received, read and understand the Plan and my Non-Statutory Option Award Agreement, which together govern the terms of my Option and its exercise. I have also read the current Plan prospectus, the Company’s latest annual report to stockholders and the other public reports and information incorporated by reference into the prospectus in making my decision to exercise my options.
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6. Effectiveness and Execution of Transaction. I understand and agree that this exercise election will be subject to acknowledgement by the Company. In the case of a cash exercise, my Option exercise will be processed as soon as practicable. In the case of a cashless exercise, I understand it may take longer to process my Option exercise.
| Submitted by: | Acknowledged by: | |||
| Optionee | Broker | |||
| By: | Firm Name: | |||
| Its: | By: | |||
| Date: | Its: | |||
| Date: | ||||
| Acknowledged by: | ||||
| Investview, Inc. | ||||
| By: | ||||
| Its: | ||||
| Date: | ||||
| 12 |
Exhibit 10.112
Final Execution Version Victor M. Oviedo
AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT (this “Amendment”) to the Employment Agreement (the “Employment Agreement”) dated February 10, 2022 by and between Investview, Inc. (the “Employer”) and Victor M. Oviedo (the “Executive”) is entered into this 24th day of June, 2022.
WHEREAS Sections 2.5 and 2.7 of the Employment Agreement contemplated the grant of restricted stock to the Executive pursuant to the terms of the Investview, Inc. 2022 Incentive Plan, which restricted stock has not been granted to the Executive; and
WHEREAS, after consideration of the taxation and tax withholding implications, and other consequences, of the granting and vesting of restricted stock under the Plan, the parties have determined it is in the best interests of the Employer and Executive to restructure the grant of equity under Section 2.5 and 2.7 of the Employment Agreement as the grant of stock options, based on a conversion factor which, following consultation with an independent valuation firm, was determined, based upon prevailing market and other conditions, to be 1.25 to 1; and
WHEREAS the parties have agreed that the Employment Agreement be amended to provide for the grant of stock options rather than restricted stock under Sections 2.5 and 2.7 of the Employment Agreement.
NOW, THEREFORE, the parties agree to amend the Employment Agreement as follows:
1. Section 2.5 of the Employment Agreement is hereby amended and restated to read as follows:
2.5 Grant of Stock Option. 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 a stock option (the “Option”) to acquire seventy-five million (75,000,000) shares of INVU Common Stock (collectively, the “Option 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 Option to be subject to the vesting, forfeiture and other restrictions as contained below and in the Plan and the award agreement evidencing such Option to be executed between the Employer and the Executive, which shall be in substantially the form attached hereto as Exhibit A (the “Option Award Agreement”). To the extent authorized in the Plan and Option Award Agreement, the Option Award Agreement shall be subject to the terms as provided below, notwithstanding any terms to the contrary in the Plan or the Option Award Agreement itself.
(a) Vesting of Option. Subject to the terms of this Agreement, the Plan and the Option Award Agreement, the Option shall vest and become exercisable, on a cumulative basis, in accordance with the following schedule, subject to at the time of each vesting date (each, a “Section 2.5(a) Scheduled Vesting Date”): (i) the Executive remaining a full-time employee of the Employer, and (ii) there not having occurred a For Cause Event:
| Vesting Date | Option Vesting | Option Shares | ||||||
| February 3, 2023 | 20 | % | 15,000,000 | |||||
| February 3, 2024 | 20 | % | 15,000,000 | |||||
| February 3, 2025 | 20 | % | 15,000,000 | |||||
| February 3, 2026 | 20 | % | 15,000,000 | |||||
| February 3, 2027 | 20 | % | 15,000,000 | |||||
(b) Treatment of Options Upon a Change in Control. Upon the occurrence of a “Change in Control” (as defined in the Plan), vesting of the Option 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 Options that have not yet vested as of such date shall immediately and automatically vest and become non-forfeitable.
(c) Treatment of Option Upon a Termination of Employment. The following provisions governing the treatment of the Option 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 Option shall cease as of the date of such termination, and any unvested portion of the Option shall be forfeited by the Executive.
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 portion of the Option that is scheduled to vest during the period from the date of Executive’s termination of employment through the next Section 2.5(a) Scheduled Vesting Date, as applicable (but in no event longer than a six-month period following the date of Executive’s termination of employment) shall immediately and automatically vest and become non-forfeitable and the remaining unvested portion of the Option shall terminate and be forfeited by the Executive.
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 portion of the Option that is scheduled to vest during the period from the date of Executive’s termination of employment through the next Section 2.5(a) 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 termination of employment) shall immediately and automatically vest and become non-forfeitable and the remaining unvested portion of the Option shall terminate and be forfeited by the Executive.
(d) Prohibition Against Transfer of Option. Prior to the vesting and exercise of the Option, 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 Option 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 reasonably determines is payable as a result of the exercise of the Option or any payments thereon or in connection therewith, and the Employer may defer issuing the Option Shares to the Executive until arrangements satisfactory to the Employer have been made with regard to any such withholding obligation. The Employer, in its sole discretion, may withhold a portion of the Option Shares to satisfy such withholding obligations.
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2. Section 2.7 of the Employment Agreement. Section 2.7 of the Employment Agreement is hereby amended and restated to read as follows:
2.7 Board Member Compensation. As a member of the Employer’s Board, the Executive will be entitled to the additional compensation as provided in this Section 2.7.
(a) Initial Board Member Compensation. 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 a stock option (the “Director Option”) to acquire twenty-five million (25,000,000) shares of INVU Common Stock (collectively, the “Director Option Shares”) under the Plan, such Director Option to be subject to the vesting, forfeiture and other restrictions as contained below and in the Plan and award agreement evidencing such Director Option to be executed between the Employer and the Executive, which shall be in substantially the form attached hereto as Exhibit B (the “Director Option Award Agreement”). To the extent authorized in the Plan and Director Award Agreement, the Director Option Award Agreement shall be subject to the terms as provided below, notwithstanding any terms to the contrary in the Plan or the Director Option Award Agreement itself.
(b) Vesting of Director Option. Subject to the terms of this Section 2.7, the Plan and the Director Option Award Agreement, the Director Option 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 “Section 2.7(b) 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 | Option Vesting | Director Option Shares | ||||||
| February 3, 2023 | 20 | % | 5,000,000 | |||||
| February 3, 2024 | 20 | % | 5,000,000 | |||||
| February 3, 2025 | 20 | % | 5,000,000 | |||||
| February 3, 2026 | 20 | % | 5,000,000 | |||||
| February 3, 2027 | 20 | % | 5,000,000 | |||||
(c) Treatment of Director Option Upon a Change in Control. Upon the occurrence of a Change in Control (as defined in the Plan), vesting of the Director Option 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 Option that has not yet vested as of such date shall immediately and automatically vest and become non-forfeitable.
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(d) Treatment of Director Option Upon Ceasing to be a Member of the Board of Directors. The following provisions governing the treatment of the Director Option 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 Option shall cease as of the date of such termination, and the remaining unvested portion of the Director Option shall be forfeited by the Executive.
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 that portion of the Director Option that is scheduled to vest during the period from the date of termination through the next Section 2.7(b) Scheduled Vesting Date, as applicable (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 portion of the Director Option shall terminate and be forfeited by the Executive.
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 that portion of the Director Option that is scheduled to vest during the period from the date of termination through the next Section 2.7(b) Scheduled Vesting Date, as applicable (but in no event longer than a six-month period following the date of Executive’s termination) shall immediately and automatically vest and become non-forfeitable and the remaining unvested portion of the Director Option shall terminate and be forfeited by the Executive.
3. Section 6.3(b)(iv) of the Employment Agreement. Section 6.3(b)(iv) of the Employment Agreement is amended and restated to read as follows:
iv. Any unvested portion of the Option and Director Option that is scheduled to vest during the period from the date of termination through the next Section 2.5(a) Scheduled Vesting Date or Section 2.7(b) 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 portion of the Option and Director Option shall terminate and be forfeited by the Executive.
4. Section 8.9 of the Employment Agreement. Section 8.9 of the Employment Agreement is amended by changing the phrase “Restricted Shares or Director Restricted Shares” to “Option Shares or Director Option Shares” where it appears in Section 8.9.
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5. 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 Amendment and has elected to forego advice from counsel or is satisfied with Executive’s counsel’s advice and that Executive is executing the Amendment voluntarily and fully intending to be legally bound because, among other things, the Amendment 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 Amendment. Hence, this Amendment shall not be construed against any party.
6. Counterparts. This Amendment 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 Amendment, 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 was an original thereof.
7. Effect of Amendment. The Executive, by execution of this Amendment and the corresponding right to receive a grant of the Option and the Director Option, agrees to relinquish any and all rights to receive a grant of restricted stock as originally contemplated in the Employment Agreement. This Amendment only changes the provisions of the Employment Agreement noted in this Amendment, and in all other respects the Employment Agreement remains in full force and effect.
SIGNED AND DELIVERED to be effective as of the date first noted above.
| EMPLOYER: | ||
| Investview, Inc. | ||
| By: | /s/ James R. Bell | |
| Name: | James R. Bell | |
| Title: | President; Acting Chief Operating Officer | |
| By: | /s/ David B. Rothrock | |
| Name: | David B. Rothrock | |
| Title: | Chairman of the Board | |
| EXECUTIVE: | ||
| By: | /s/ Victor M. Oviedo | |
| Name: | Victor M. Oviedo | |
| 5 |
Exhibit 10.113
Exhibit B: Victor M. Oviedo – Director Option Award (Conversion of February 2022 Restricted Shares)
Option Grant No. 2022-2
INVESTVIEW, INC.
2022 INCENTIVE PLAN
NON-STATUTORY OPTION AWARD
Investview, Inc., a Nevada corporation (the “Company”), pursuant to the terms of the Investview, Inc. 2022 Incentive Plan (the “Plan”) and the Non-Statutory Option Award Agreement (the “Agreement”) attached to this Non-Statutory Option Award (this “Option Award”), hereby grants to the individual named in Section 2 below (the “Optionee”), effective as of the grant date set forth in Section 1 below, the option to purchase the number of shares of the Company’s Common Stock as set forth in Section 3 below, subject to the exercise price as set forth in Section 4 below and vesting as set forth in Section 5 below and the terms and conditions of this Option Award and the Agreement attached to this Option Award.
The terms of this Option Award are subject to all of the provisions of the Plan and the attached Agreement, with such provisions being incorporated herein by reference. All of the capitalized terms used in this Option Award and the Agreement not otherwise defined herein or therein shall have the same meaning as defined in the Plan. A copy of the Plan and the prospectus for the Plan have been delivered to Optionee together with this Option Award and the Agreement.
| 1. | Grant Date: | June 24, 2022 |
| 2. | Name of Optionee: | Victor M. Oviedo |
| 3. | Number
of Underlying Shares of Common Stock: (subject to adjustment as provided in the Plan) |
25,000,000 |
| 4. | Exercise Price: | $.05 per share (subject to adjustment as provided in the Plan) |
| 5. | Vesting of Options (on a cumulative basis and subject to adjustment as provided in the Plan): | |
| Vesting Date | No. of Underlying Shares to be Vested* | |||
| February 3, 2023 | 5,000,000 | |||
| February 3, 2024 | 5,000,000 | |||
| February 3, 2025 | 5,000,000 | |||
| February 3, 2026 | 5,000,000 | |||
| February 3, 2027 | 5,000,000 | |||
*Vesting to occur pursuant to Section 3 of the attached Agreement and conditioned upon continued service on the Company’s Board of Directors, as described therein.
| 6. | Expiration Date: | June 24, 2029 |
The Optionee acknowledges receipt of and understands and agrees to be bound by all of the terms of this Option Award, inclusive of the attached Agreement, and the Plan, and that the terms thereof supersede any and all other written or oral agreements between the Optionee and the Company, other than the Optionee’s Employment Agreement, regarding the subject matter contained herein.
| Investview, Inc. | Optionee: | ||
| By: | /s/ James R. Bell | /s/ Victor M. Oviedo | |
| James R. Bell | Date: 06/24/2022 | ||
| President & Acting Chief Operating Officer | |||
| Date: | 06/24/2022 | ||
NON-STATUTORY OPTION AWARD AGREEMENT
THIS NON-STATUTORY OPTION AWARD AGREEMENT (this “Agreement”) is made as of the grant date set forth in Section 1 of the Non-Statutory Option Award (the “Option Award”) to which this Agreement relates and is attached (the “Grant Date”) between Investview, Inc., a Nevada corporation (the “Company”), and the individual identified in Section 2 of the Option Award to which this Agreement relates and is attached (the “Optionee”).
W I T N E S S E T H:
WHEREAS, the Company adopted the Investview, Inc. 2022 Incentive Plan (the “Plan”), which provides for the grant of certain awards, including without limitation, Non-Statutory Stock Options to Employees of the Company, with the corresponding right to purchase shares of Common Stock of the Company (the “Common Stock”).
WHEREAS, the Board of Directors of the Company, acting as the Committee under the Plan (the “Committee”), has authorized the grant of a Non-Statutory Option to the Optionee on the date of this Agreement as evidenced by the Option Award to which this Agreement is attached, thereby allowing the Optionee to acquire a proprietary interest in the Company in order that the Optionee will have a further incentive for remaining with and increasing his or her efforts on behalf of the Company.
WHEREAS, this Agreement is prepared in conjunction with and under the terms of the Plan, which are incorporated herein and made a part hereof by reference, and subject to the terms, conditions and requirements provided in the Employment Agreement dated February 10, 2022 by and between the Company and Optionee, as amended by that Amendment to Employment Agreement dated June 24, 2022 (collectively, the “Employment Agreement”).
WHEREAS, the Optionee has accepted the grant of Non-Statutory Stock Options evidenced by the Option Award and this Agreement and has agreed to the terms and conditions stated herein and therein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants hereinafter set forth and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Confirmation of Grant of Option. Pursuant to a determination by the Committee, the Company, subject to the terms of the Plan and this Agreement, hereby grants to the Optionee as a matter of separate inducement and agreement, and in addition to and not in lieu of salary or other compensation or fees for services, the right to purchase (the “Option”) an aggregate number of shares of Common Stock as is set forth in Section 3 of the Option Award, subject to adjustment as provided in the Plan (such shares, as adjusted, the “Option Shares”). The Option is not intended to qualify as an incentive stock option under Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”).
2. Exercise Price. The per share exercise price of the Shares covered by the Option will be the per share amount set forth in Section 4 of the Option Award, at all times being not less than 100% of the Fair Market Value of one share of Common Stock on the Grant Date, subject to adjustment as provided in the Plan.
3. Vesting and Exercisability of Option. The Option shall vest and become exercisable on the terms and conditions hereinafter set forth:
(a) The Option shall vest and become exercisable (on a cumulative basis) in such installments (after giving effect to any adjustment pursuant to the Plan) and on such vesting dates, as set forth in Section 5 of the Option Award, provided that the Optionee (i) remains a member of the Board of Directors of the Company as of each such applicable vesting date as indicated in Section 5 of the Option Award, and (ii) there not having occurred a “For Cause Event” as such term is defined in the Employment Agreement.
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(b) In addition, the Option shall vest and become exercisable to the extent and as provided in Sections 6, 7 and 8 hereof and as expressly provided by the terms of the Employment Agreement or any other Individual Agreement (as defined in the Plan) between the Optionee and the Company or one of its Subsidiaries or Affiliates. The Committee may decide, in its absolute discretion, to accelerate the vesting of all or some lesser portion of any unvested Options at any time, at the date specified by the Committee.
(c) The Option may be exercised pursuant to the provisions of this Section 3 and Sections 6, 7 and 8 hereof, by delivery of an Exercise Notice and payment to the Company as provided in Sections 10 and 15 hereof.
4. Term of Option. The term of the Option shall be the period of years from the Grant Date as is set forth in Section 1 of the Option Award and shall expire on the date set forth in Section 6 of the Option Award, subject to earlier termination or cancellation as provided in this Agreement.
5. Non-transferability of Option. The Option shall not be assigned, transferred or otherwise disposed of, or pledged or hypothecated in any way, and shall not be subject to execution, attachment or other process, except as may be provided in the Plan. Any assignment, transfer, pledge, hypothecation or other disposition of the Option attempted contrary to the provisions of the Plan, or any levy of execution, attachment or other process attempted upon the Option, will be null and void and without effect. Any attempt to make any such assignment, transfer, pledge, hypothecation or other disposition of the Option will cause the Option to terminate immediately upon the happening of any such event; provided, however, that any such termination of the Option under the foregoing provisions of this Section 5 will not prejudice any rights or remedies which the Company or one of its Subsidiaries or Affiliates may have under this Agreement or otherwise.
6. Exercise Upon Cessation of Employment Other Than on Account of Death or Disability. The terms of this Section 6 apply unless otherwise expressly provided by the terms of the Employment Agreement or any other an Individual Agreement between the Optionee and the Company or one of its Subsidiaries or Affiliates or a plan or policy of the Company applicable to the Optionee specifically provides otherwise, and subject to the provisions of Section 5 hereof and Sections 13.4 and 13.5 of the Plan. In no event, however, may the Option be exercised after the expiration of the term provided in Section 4 hereof.
(a) If the Optionee ceases to be a Member of the Board of Directors by reason of the termination by the Company of Optionee’s employment with the Company or one of its Subsidiaries or Affiliates, for Cause, the Option may thereafter following such cessation of employment only be exercised by the Optionee to the same extent the Optionee would have been entitled under Section 3 hereof to exercise the Option immediately prior to such cessation of employment or other service, at any time within the later of: (i) thirty (30) days after such cessation of employment or other service; or (ii) that date that occurs upon the earlier of: (X) thirty (30) days following the expiration of the “Lock-Up Agreement” (as defined in the Employment Agreement); or (Y) thirty (30) days following the release of Optionee from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the Optionee prior to the effective date of such release, if at all, in the Company’s sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the Optionee shall forfeit all rights hereunder.
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(b) If the Optionee at any time ceases to be a Member of the Board of Directors by reason of the Optionee’s employment with the Company or one of its Subsidiaries or Affiliates being terminated by the Optionee other than for Good Reason (and other than Optionee’s discharge for Cause and Optionee’s termination upon death or Disability), the Option may be exercised by the Optionee to the same extent the Optionee would have been entitled under Section 3 hereof to exercise the Option immediately prior to such cessation of employment or other service, at any time within the later of: (i) ninety (90) days after such cessation of employment or other service; or (ii) that date that occurs upon the earlier of: (X) ninety (90) days following the expiration of the “Lock-Up Agreement” (as defined in the Employment Agreement); or (Y) ninety (90) days following the release of Optionee from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the Optionee prior to the effective date of such release, if at all, in its sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the Optionee shall forfeit all rights hereunder, even if the Optionee subsequently returns to the employ of the Company or one of its Subsidiaries or Affiliates or begins providing other service to the Company or one of its Subsidiaries or Affiliates.
(c) If the Optionee at any time ceases to be to be a Member of the Board of Directors by reason of the Optionee’s employment with the Company or one of its Subsidiaries or Affiliates being terminated by reason of his discharge by the Company without Cause or by the Optionee for Good Reason (and other than Optionee’s termination upon death or Disability), the Option may be exercised by the Optionee to the same extent the Optionee would have been entitled under Section 3 hereof to exercise the Option immediately prior to such cessation of employment or other service, at any time within the later of: (i) six (6) months after such cessation of employment or other service; or (ii) that date that occurs upon the earlier of: (X) six (6) months following the expiration of the Lock-Up Agreement; or (Y) six (6) months following the release of Optionee from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the Optionee prior to the effective date of such release, if at all, in its sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the Optionee shall forfeit all rights hereunder, even if the Optionee subsequently returns to the employ of the Company or one of its Subsidiaries or Affiliates or begins providing other service to the Company or one of its Subsidiaries or Affiliates; provided, however, that without the consent of the Optionee, the Company cannot release the Optionee from the terms of the Lock-Up Agreement prior to twelve months following the Grant Date.
(d) The Option shall not be affected by any change of duties or position of the Optionee so long as Optionee continues to be a member of the Board of Directors of the Company. If the Optionee is granted a temporary leave of absence of 90 days or less, such leave of absence shall be deemed a continuation of his or her service as a member of the Board of Directors of the Company for the purposes of this Agreement, but only if and so long as the Company consents thereto.
(e) The change in an Optionee’s status from that of a member of the Board of Directors to that of an Employee or Consultant will, for purposes of this Agreement, be deemed to result in a termination of such Optionee’s membership on the Board of Directors of the Company, unless the Committee otherwise determines in its sole discretion. Unless the Committee otherwise determines in its sole discretion, an Optionee’s employment or other service will, for purposes of this Agreement, be deemed to have terminated on the date recorded on the personnel or other records of the Company or the Subsidiary or Affiliate for which the Optionee provides employment, as determined by the Committee in its sole discretion based upon such records.
7. Exercise Upon Death or Disability. The terms of this Section 7 apply unless otherwise expressly provided by the terms of the Employment Agreement or any other Individual Agreement between the Optionee and the Company or one of its Subsidiaries or Affiliates or a plan or policy of the Company applicable to the Optionee specifically provides otherwise, and subject to the provisions of Section 5 hereof and Sections 13.4 and 13.5 of the Plan. In no event, however, may the Option be exercised after the expiration of the term provided in Section 4 hereof.
(a) If the Optionee dies while he or she is employed by the Company or one of its Subsidiaries or Affiliates, the Option may be exercised (to the extent the Option is vested pursuant to Section 3 immediately prior to Optionee’s death), by the estate of the Optionee (or by the person or persons who acquire the right to exercise the Option by written designation of the Optionee) at any time within the later of: (i) twelve (12) months after such cessation of employment or other service; or (ii) that date that occurs upon the earlier of: (X) twelve (12) months following the expiration of the Lock-Up Agreement; or (Y) twelve (12) months following the release of Optionee (and the estate) from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the estate of the Optionee prior to the effective date of such release, if at all, in its sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the estate or other beneficiaries shall forfeit all rights hereunder; provided, however, that without the consent of the Optionee’s estate, the Company cannot release the Optionee’s estate from the terms of the Lock-Up Agreement prior to twelve months following the Grant Date.
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(b) In the event that the employment of the Optionee with the Company or one of its Subsidiaries or Affiliates is terminated by reason of the Disability of the Optionee, the Option may be exercised (to the extent the Option is vested pursuant to Section 3 immediately prior to the termination of the Optionee’s employment due to Disability), by the Optionee at any time within the later of: (i) twelve (12) months after such cessation of employment or other service; or (ii) that date that occurs upon the earlier of: (X) twelve (12) months following the expiration of the Lock-Up Agreement; or (Y) twelve (12) months following the release of Optionee from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the Optionee prior to the effective date of such release, if at all, in its sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the Optionee shall forfeit all rights hereunder even if the Optionee subsequently returns to the employ of the Company or one of its Subsidiaries or Affiliates or begins providing other service to the Company or one of its Subsidiaries or Affiliates; provided, however, that without the consent of the Optionee, the Company cannot release the Optionee from the terms of the Lock-Up Agreement prior to twelve months following the Grant Date.
8. Change in Control of the Company. If there is a Change in Control, unless otherwise expressly provided by the terms of the Employment Agreement or any other Individual Agreement between the Optionee and the Company or one of its Subsidiaries or Affiliates, the Option will be subject to the provisions of Article 15 of the Plan.
9. Registration. The shares covered by the Option have been registered and qualified for sale pursuant to the Securities Act of 1933, as amended, by the Company pursuant to a registration statement on Form S-8.
10. Method of Exercise of Option.
(a) Subject to the terms and conditions of this Agreement, the Option shall be exercisable by delivery of a completed written Option Exercise Form in substantially the form set forth in Exhibit A hereto (the “Exercise Notice”) and provision for payment to the Company in accordance with the procedure prescribed herein. Each such Notice shall:
(i) state the election to exercise the Option and the number of Shares with respect to which it is being exercised;
(ii) be signed by the Optionee or the person or persons entitled to exercise the Option and, if the Option is being exercised by any person or persons other than the Optionee, be accompanied by proof, satisfactory to counsel to the Company, of the right of such other person or persons to exercise the Option (collectively an “Authorized Person”);
(iii) include payment of the full purchase price for the shares of Common Stock to be purchased pursuant to such exercise of the Option; and
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(iv) be received by the Company on or before the date of the expiration of this Option. In the event the date of expiration of this Option falls on a day which is not a regular business day at the Company’s headquarters office, then such written Exercise Notice must be received at such office on or before the last regular business day prior to such date of expiration.
(b) Payment of the purchase price of any shares of Common Stock, in respect of which the Option shall be exercised, shall be made by the Optionee or Authorized Person at the place specified by the Company on the date the Exercise Notice is received by the Company (i) by delivering to the Company cash or a certified or bank cashier’s check payable to the order of the Company, (ii) by delivering to the Company properly endorsed certificates of shares of Common Stock (or certificates accompanied by an appropriate stock power) with signature guaranties by a bank or trust company, (iii) by tender of a Broker Exercise Notice, subject to approval in advance by the Committee solely for the purpose of determining that the sale of any shares of Common Stock in respect of such Broker Exercise Notice will provide the Company with sufficient proceeds to pay the exercise price, (iv) by having withheld from the total number of shares of Common Stock to be acquired upon the “net exercise” of this Option a specified number of such shares of Common Stock, or (v) by any combination of the foregoing. For purposes of the immediately preceding sentence, an exercise effected by the tender of Common Stock (or deemed to be effected by the tender of Common Stock) may only be consummated with Common Stock held by the Optionee for a period of six (6) months or acquired by the Optionee other than under the Plan (or a similar plan maintained by the Company).
(c) The Option shall be deemed to have been exercised with respect to any particular shares of Common Stock if, and only if, the preceding provisions of this Section 10 and the provisions of Section 11 hereof shall have been complied with, in which event the Option shall be deemed to have been exercised on the date the Exercise Notice was received by the Company. Anything in this Agreement to the contrary notwithstanding, any Exercise Notice given pursuant to the provisions of this Section 10 shall be void and of no effect if all of the preceding provisions of this Section 10 and the provisions of Section 11 shall not have been strictly complied with.
(d) The certificate or certificates or book-entry notations for shares of Common Stock as to which the Option shall be exercised will be registered in the name of the Optionee (or in the name of the Optionee’s estate or other beneficiary if the Option is exercised after the Optionee’s death), or if the Option is exercised by the Optionee and if the Optionee so requests in the notice exercising the Option, will be registered in the name of the Optionee and another person jointly, with right of survivorship and will be delivered as soon as practical after the date the Exercise Notice is received by the Company (accompanied by full payment of the exercise price), but only upon compliance with all of the provisions of this Agreement.
(e) If the Optionee fails to accept delivery of and pay for all or any part of the number of Shares specified in such Exercise Notice, Optionee’s right to exercise the Option shall be terminated with respect to such undelivered Shares, unless the Committee, it its sole discretion, determines otherwise. The Option may be exercised only with respect to full Shares.
(f) The Company shall not be required to issue or deliver any certificate or certificates or perform any book-entry notations for shares of its Common Stock purchased upon the exercise of any part of the Option prior to the payment to the Company, upon its demand, of any amount requested by the Company for the purpose of satisfying its maximum statutory liability, if any, to withhold federal, state or local income or earnings tax or any other applicable tax or assessment (plus interest or penalties thereon, if any, caused by a delay in making such payment) incurred by reason of the exercise of this Option or the transfer of shares thereupon. Such payment shall be made by the Optionee in cash or, with the written consent of the Company, by tendering to the Company shares of Common Stock equal in value to the amount of the required withholding. In the alternative, the Company, at its sole discretion, may satisfy such withholding requirements by withholding from the shares of Common Stock to be delivered to the Optionee pursuant to an exercise of the Option a number of shares of Common Stock equal in value to the amount of the required withholding.
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11. Approval of Counsel. The exercise of the Option and the issuance and delivery of shares of Common Stock pursuant to this Agreement shall be subject to approval by the Company’s counsel of all legal matters in connection therewith, including, but not limited to, compliance with the requirements of the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended, and the requirements of any stock exchange or automated trading medium upon which the Common Stock may then be listed or traded.
12. Resale of Common Stock, Etc. If required by counsel for the Company, the stock certificate(s) or book-entry notation(s) for the Common Stock issued upon exercise of the Option shall bear the following (or similar) legends:
THE SHARES EVIDENCED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS THEY HAVE FIRST BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNLESS, IN THE OPINION OF COUNSEL FOR THE COMPANY, SUCH REGISTRATION IS NOT REQUIRED.
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.
13. Reservation of Shares. The Company shall at all times during the term of the Option reserve and keep available such number of shares of Common Stock as will be sufficient to satisfy the requirements of this Agreement.
14. Limitation of Action. The Optionee and the Company each acknowledge that every right of action accruing to the Optionee or the Company, as the case may be, and arising out of or in connection with this Agreement against the Optionee, on the one hand, or against the Company, on the other hand, shall, irrespective of the place where an action may be brought, cease and be barred by the expiration of twenty-four (24) months from the date of the act or omission in respect of which such right of action arises.
15. Notices. Each notice relating to the Option Award and this Agreement shall be in writing and delivered in person, by recognized overnight carrier or by certified mail to the proper address. All notices to the Company or the Committee shall be addressed to them at the address of the Company’s headquarters as reflected in the Company’s most recent federal securities filings, Attn: Chairman. All notices to the Optionee shall be addressed to the Optionee or such other person or persons at the Optionee’s address set forth in the Company’s records. Anyone to whom a notice may be given under this Agreement may designate a new address by notice to that effect.
16. Successors. This Agreement shall inure to the benefit of the Company, the Optionee and their respective heirs, executors, administrators, personal representatives, successors and assigns.
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17. Construction. Wherever possible, each provision of this Agreement will be interpreted so that it is valid under the Applicable Law (as defined in the Plan). If any provision of this 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 Agreement will continue to be valid, and the Agreement will continue to be valid in other jurisdictions.
18. Governing Law. All questions pertaining to the validity, construction and administration of this Agreement shall be determined in accordance with the laws of the State of Nevada without regard to its principles of conflicts of law.
19. Employment. Nothing in this Agreement will interfere with or limit in any way the right of the Company or any Subsidiary or Affiliate to terminate the employment or service of the Optionee at any time, nor confer upon the Optionee any right to continue employment or other service with the Company or any Subsidiary or Affiliate.
20. Clawback. Any shares of Common Stock issued upon exercise of the Option may be subject to recoupment by the Company, however, only to the extent required under applicable laws, rules or regulations in effect from time to time, and the Company’s then effective Clawback and Forfeiture Policy.
21. Definitions. Unless otherwise defined in this Agreement or the Option Award, all capitalized terms used in this Agreement shall have the same definitions as set forth in the Plan.
22. Incorporation of Terms of Plan. This Agreement shall be interpreted under, and subject to, all of the terms and provisions of the Plan, which are incorporated herein by reference.
23. No Strict Construction. The language used in this Agreement shall be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction shall apply against any party.
BY WAY OF THEIR EXECUTION OF THE OPTION AWARD TO WHICH THIS AGREEMENT RELATES AND IS ATTACHED, the Company and the Optionee (and each of their heirs, successors and assigns) agree to be bound by each and every one of the terms set forth in this Agreement.
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EXHIBIT A
NON-STATUTORY OPTION EXERCISE FORM
[DATE]
Investview, Inc.
Attention: Chairman
1. Option Exercise. I hereby elect to exercise my option to purchase the following shares of Common Stock of Investview, Inc. under the Investview, Inc. 2022 Incentive Plan (the “Plan”) and the Option Agreement (the “Option”) identified below:
| Option Grant #: | |||
| Grant Date: | |||
| Number of Shares: | |||
| Exercise Price Per Share: | $ | ||
| Total Purchase Price: | $ | ||
2. Payment. I am paying the purchase price of the exercised Option as follows (check the applicable form of payment):
| _____ | I am attaching cash or a check in the amount of $____________, as the total purchase price for the shares. | |
| _____ | I have delivered ________ shares of Common Stock of Investview, Inc. (the “Company”) that I have previously acquired. I own these shares free and clear of any liens, claims, encumbrances or security interests. I have enclosed the certificates representing these previously acquired shares endorsed or accompanied by an executed assignment separate from certificate. | |
| _____ | I have delivered irrevocable instructions to a broker to sell a sufficient number of shares of Common Stock of the Company to pay the total purchase price and to pay such amounts to the Company. [Please note that this form of payment is only available upon prior written approval of the Committee solely for the purpose of determining that the sale of shares of Common Stock in respect of such broker exercise notice will provide the Company with sufficient proceeds to pay the exercise price and is subject to any applicable restrictions on the sale of such shares by Optionee.] |
The name, address and telephone number of the broker is as follows:
| Name of Firm: ____________________________ |
| Contact: ________________________________ |
| Address: _______________________________ |
| Phone: _________________________________ |
| Fax: ___________________________________ |
[Please also see Section 4 of this Option Exercise Notice, which may prevent you from using this type of “cashless” exercise feature if you possess material non-public information about the Company or its securities at the time of exercise.]
| _____ | I hereby elect to convert the attached option into shares of Common Stock of the Company on a “net exercise” basis pursuant to Section 6.5(b) of the Plan. | |
| _____ | I have elected to pay any required withholding with the exercise transaction. Accordingly, I have included $_______, which I would like applied to federal and state tax withholdings as follows:_________________________________________________________. |
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3. Certificate Delivery. I elect to have my shares of Common Stock delivered as follows:
| _____ | Please have the shares delivered electronically via DWAC to my brokerage account. Please use the information below to execute the transaction. |
| Broker DTC number: | ||
| My Account Number |
| _____ | Please register the certificate or book-entry notation representing the shares in the name set forth below and send the certificate or evidence of book-entry notation to the following address: |
| Registered Name: | ||
| Address: | ||
4. Compliance with Insider Trading Policy. I acknowledge that I have read and understand the Company’s current insider trading policy, including the portions that may, among other things, restrict my ability to exercise my Options through a broker sale on the open market or otherwise sell the shares of Common Stock issuable upon exercise of my Options. I understand that the information in this letter does not limit in any manner my own, personal responsibilities and obligations under the policy and the securities laws, including, but not limited to, the prohibitions on trading (including by means of a broker assisted option exercise) while I possess material, non-public information or during a blackout period that may be imposed under the policy. I agree to provide a copy of this exercise notice to my broker, and to require his or her compliance with the policy. I understand that the Company may reject any broker exercise completed during a blackout period or that is otherwise prohibited by any Company policy, including the current insider trading policy.
5. Representations. I acknowledge that I have received, read and understand the Plan and my Non-Statutory Option Award Agreement, which together govern the terms of my Option and its exercise. I have also read the current Plan prospectus, the Company’s latest annual report to stockholders and the other public reports and information incorporated by reference into the prospectus in making my decision to exercise my options.
6. Effectiveness and Execution of Transaction. I understand and agree that this exercise election will be subject to acknowledgement by the Company. In the case of a cash exercise, my Option exercise will be processed as soon as practicable. In the case of a cashless exercise, I understand it may take longer to process my Option exercise.
| Submitted by: | Acknowledged by: | |||
| Optionee | Broker | |||
| By: | Firm Name: | |||
| Its: | By: | |||
| Date: | Its: | |||
| Date: | ||||
| Acknowledged by: | ||||
| Investview, Inc. | ||||
| By: | ||||
| Its: | ||||
| Date: | ||||
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Exhibit 10.114
FINAL EXECUTION VERSION
Exhibit A: Victor M. Oviedo – Employee Option Award (Conversion of February 2022 Restricted Shares)
Option Grant No. 2022-1
INVESTVIEW, INC.
2022 INCENTIVE PLAN
NON-STATUTORY OPTION AWARD
Investview, Inc., a Nevada corporation (the “Company”), pursuant to the terms of the Investview, Inc. 2022 Incentive Plan (the “Plan”) and the Non-Statutory Option Award Agreement (the “Agreement”) attached to this Non-Statutory Option Award (this “Option Award”), hereby grants to the individual named in Section 2 below (the “Optionee”), effective as of the grant date set forth in Section 1 below, the option to purchase the number of shares of the Company’s Common Stock as set forth in Section 3 below, subject to the exercise price as set forth in Section 4 below and vesting as set forth in Section 5 below and the terms and conditions of this Option Award and the Agreement attached to this Option Award.
The terms of this Option Award are subject to all of the provisions of the Plan and the attached Agreement, with such provisions being incorporated herein by reference. All of the capitalized terms used in this Option Award and the Agreement not otherwise defined herein or therein shall have the same meaning as defined in the Plan. A copy of the Plan and the prospectus for the Plan have been delivered to Optionee together with this Option Award and the Agreement.
| 1. | Grant Date: | June 24 2022 |
| 2. | Name of Optionee: | Victor M. Oviedo |
| 3. | Number of Underlying Shares of Common Stock: | 75,000,000 |
| (subject to adjustment as provided in the Plan) | ||
| 4. | Exercise Price: | $.05 per share (subject to adjustment as provided in the Plan) |
| 5. | Vesting of Options (on a cumulative basis and subject to adjustment as provided in the Plan): | |
| Vesting Date | No. of Underlying Shares to be Vested* | |||
| February 3, 2023 | 15,000,000 | |||
| February 3, 2024 | 15,000,000 | |||
| February 3, 2025 | 15,000,000 | |||
| February 3, 2026 | 15,000,000 | |||
| February 3, 2027 | 15,000,000 | |||
*Vesting to occur pursuant to Section 3 of the attached Agreement and conditioned upon continued employment as described therein.
| 6. | Expiration Date: | June 24, 2029 |
The Optionee acknowledges receipt of and understands and agrees to be bound by all of the terms of this Option Award, inclusive of the attached Agreement, and the Plan, and that the terms thereof supersede any and all other written or oral agreements between the Optionee and the Company, other than the Optionee’s Employment Agreement, regarding the subject matter contained herein.
| Investview, Inc. | Optionee: | ||
| By: | /s/ James R. Bell | /s/ Victor M. Oviedo | |
| James R. Bell | Date: 06/24/2022 | ||
| President & Acting Chief Operating Officer | |||
| Date: 06/24/2022 | |||
NON-STATUTORY OPTION AWARD AGREEMENT
THIS NON-STATUTORY OPTION AWARD AGREEMENT (this “Agreement”) is made as of the grant date set forth in Section 1 of the Non-Statutory Option Award (the “Option Award”) to which this Agreement relates and is attached (the “Grant Date”) between Investview, Inc., a Nevada corporation (the “Company”), and the individual identified in Section 2 of the Option Award to which this Agreement relates and is attached (the “Optionee”).
W I T N E S S E T H:
WHEREAS, the Company adopted the Investview, Inc. 2022 Incentive Plan (the “Plan”), which provides for the grant of certain awards, including without limitation, Non-Statutory Stock Options to Employees of the Company, with the corresponding right to purchase shares of Common Stock of the Company (the “Common Stock”).
WHEREAS, the Board of Directors of the Company, acting as the Committee under the Plan (the “Committee”), has authorized the grant of a Non-Statutory Option to the Optionee on the date of this Agreement as evidenced by the Option Award to which this Agreement is attached, thereby allowing the Optionee to acquire a proprietary interest in the Company in order that the Optionee will have a further incentive for remaining with and increasing his or her efforts on behalf of the Company.
WHEREAS, this Agreement is prepared in conjunction with and under the terms of the Plan, which are incorporated herein and made a part hereof by reference, and subject to the terms, conditions and requirements provided in the Employment Agreement dated February 10, 2022 by and between the Company and Optionee, as amended by that Amendment to Employment Agreement dated June 24, 2022 (collectively, the “Employment Agreement”).
WHEREAS, the Optionee has accepted the grant of Non-Statutory Stock Options evidenced by the Option Award and this Agreement and has agreed to the terms and conditions stated herein and therein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants hereinafter set forth and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Confirmation of Grant of Option. Pursuant to a determination by the Committee, the Company, subject to the terms of the Plan and this Agreement, hereby grants to the Optionee as a matter of separate inducement and agreement, and in addition to and not in lieu of salary or other compensation or fees for services, the right to purchase (the “Option”) an aggregate number of shares of Common Stock as is set forth in Section 3 of the Option Award, subject to adjustment as provided in the Plan (such shares, as adjusted, the “Shares”). The Option is not intended to qualify as an incentive stock option under Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”).
2. Exercise Price. The per share exercise price of the Shares covered by the Option will be the per share amount set forth in Section 4 of the Option Award, at all times being not less than 100% of the Fair Market Value of one share of Common Stock on the Grant Date, subject to adjustment as provided in the Plan.
3. Vesting and Exercisability of Option. The Option shall vest and become exercisable on the terms and conditions hereinafter set forth:
(a) The Option shall vest and become exercisable (on a cumulative basis) in such installments (after giving effect to any adjustment pursuant to the Plan) and on such vesting dates, as set forth in Section 5 of the Option Award, provided that the Optionee (i) remains an Employee of the Company or one of its Subsidiaries or Affiliates as of each such applicable vesting date as indicated in Section 5 of the Option Award, and (ii) there not having occurred a “For Cause Event” as such term is defined in the Employment Agreement.
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(b) In addition, the Option shall vest and become exercisable to the extent and as provided in Sections 6, 7 and 8 hereof and as expressly provided by the terms of the Employment Agreement or any other Individual Agreement (as defined in the Plan) between the Optionee and the Company or one of its Subsidiaries or Affiliates. The Committee may decide, in its absolute discretion, to accelerate the vesting of all or some lesser portion of any unvested Options at any time, at the date specified by the Committee.
(c) The Option may be exercised pursuant to the provisions of this Section 3 and Sections 6, 7 and 8 hereof, by delivery of an Exercise Notice and payment to the Company as provided in Sections 10 and 15 hereof.
4. Term of Option. The term of the Option shall be the period of years from the Grant Date as is set forth in Section 1 of the Option Award and shall expire on the date set forth in Section 6 of the Option Award, subject to earlier termination or cancellation as provided in this Agreement.
5. Non-transferability of Option. The Option shall not be assigned, transferred or otherwise disposed of, or pledged or hypothecated in any way, and shall not be subject to execution, attachment or other process, except as may be provided in the Plan. Any assignment, transfer, pledge, hypothecation or other disposition of the Option attempted contrary to the provisions of the Plan, or any levy of execution, attachment or other process attempted upon the Option, will be null and void and without effect. Any attempt to make any such assignment, transfer, pledge, hypothecation or other disposition of the Option will cause the Option to terminate immediately upon the happening of any such event; provided, however, that any such termination of the Option under the foregoing provisions of this Section 5 will not prejudice any rights or remedies which the Company or one of its Subsidiaries or Affiliates may have under this Agreement or otherwise.
6. Exercise Upon Cessation of Employment Other Than on Account of Death or Disability. The terms of this Section 6 apply unless otherwise expressly provided by the terms of the Employment Agreement or any other an Individual Agreement between the Optionee and the Company or one of its Subsidiaries or Affiliates or a plan or policy of the Company applicable to the Optionee specifically provides otherwise, and subject to the provisions of Section 5 hereof and Sections 13.4 and 13.5 of the Plan. In no event, however, may the Option be exercised after the expiration of the term provided in Section 4 hereof.
(a) If the Optionee at any time ceases to be an Employee of the Company or one of its Subsidiaries or Affiliates by reason of his or her discharge by the Company for Cause, the Option may thereafter following such cessation of employment only be exercised by the Optionee to the same extent the Optionee would have been entitled under Section 3 hereof to exercise the Option immediately prior to such cessation of employment or other service, at any time within the later of: (i) thirty (30) days after such cessation of employment or other service; or (ii) that date that occurs upon the earlier of: (X) thirty (30) days following the expiration of the “Lock-Up Agreement” (as defined in the Employment Agreement); or (Y) thirty (30) days following the release of Optionee from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the Optionee prior to the effective date of such release, if at all, in the Company’s sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the Optionee shall forfeit all rights hereunder.
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(b) If the Optionee terminates employment with the Company and all of its Subsidiaries or Affiliates other than for Good Reason (and other than Optionee’s discharge for Cause and Optionee’s termination upon death or Disability), the Option may be exercised by the Optionee to the same extent the Optionee would have been entitled under Section 3 hereof to exercise the Option immediately prior to such cessation of employment or other service, at any time within the later of: (i) ninety (90) days after such cessation of employment or other service; or (ii) that date that occurs upon the earlier of: (X) ninety (90) days following the expiration of the “Lock-Up Agreement” (as defined in the Employment Agreement); or (Y) ninety (90) days following the release of Optionee from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the Optionee prior to the effective date of such release, if at all, in the Company’s sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the Optionee shall forfeit all rights hereunder, even if the Optionee subsequently returns to the employ of the Company or one of its Subsidiaries or Affiliates or begins providing other service to the Company or one of its Subsidiaries or Affiliates.
(c) If the Optionee at any time ceases to be an Employee of the Company or one of its Subsidiaries or Affiliates by reason of his or her discharge by the Company without Cause or by the Optionee for Good Reason (and other than Optionee’s termination upon death or Disability), the Option may be exercised by the Optionee to the same extent the Optionee would have been entitled under Section 3 hereof to exercise the Option immediately prior to such cessation of employment or other service, at any time within the later of: (i) six (6) months after such cessation of employment or other service; or (ii) that date that occurs upon the earlier of: (X) six (6) months following the expiration of the Lock-Up Agreement; or (Y) six (6) months following the release of Optionee from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the Optionee prior to the effective date of such release, if at all, in the Company’s sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the Optionee shall forfeit all rights hereunder, even if the Optionee subsequently returns to the employ of the Company or one of its Subsidiaries or Affiliates or begins providing other service to the Company or one of its Subsidiaries or Affiliates; provided, however, that without the consent of the Optionee, the Company cannot release the Optionee from the terms of the Lock-Up Agreement prior to twelve months following the Grant Date.
(d) The Option shall not be affected by any change of duties or position of the Optionee so long as Optionee continues to be a full-time Employee of the Company or one of its Subsidiaries or Affiliates. If the Optionee is granted a temporary leave of absence of 90 days or less, such leave of absence shall be deemed a continuation of his or her employment by the Company or one of its Subsidiaries or Affiliates for the purposes of this Agreement, but only if and so long as the employing corporation consents thereto.
(e) The change in an Optionee’s status from that of an Employee to that of a Consultant will, for purposes of this Agreement, be deemed to result in a termination of such Optionee’s employment with the Company and its Subsidiaries and Affiliates, unless the Committee otherwise determines in its sole discretion. Unless the Committee otherwise determines in its sole discretion, an Optionee’s employment or other service will, for purposes of this Agreement, be deemed to have terminated on the date recorded on the personnel or other records of the Company or the Subsidiary or Affiliate for which the Optionee provides employment, as determined by the Committee in its sole discretion based upon such records.
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7. Exercise Upon Death or Disability. The terms of this Section 7 apply unless otherwise expressly provided by the terms of the Employment Agreement or any other Individual Agreement between the Optionee and the Company or one of its Subsidiaries or Affiliates or a plan or policy of the Company applicable to the Optionee specifically provides otherwise, and subject to the provisions of Section 5 hereof and Sections 13.4 and 13.5 of the Plan. In no event, however, may the Option be exercised after the expiration of the term provided in Section 4 hereof.
(a) If the Optionee dies while he or she is employed by the Company or one of its Subsidiaries or Affiliates, the Option may be exercised (to the extent the Option is vested pursuant to Section 3 immediately prior to Optionee’s death), by the estate of the Optionee (or by the person or persons who acquire the right to exercise the Option by written designation of the Optionee) at any time within the later of: (i) twelve (12) months after such cessation of employment or other service; or (ii) that date that occurs upon the earlier of: (X) twelve (12) months following the expiration of the Lock-Up Agreement; or (Y) twelve (12) months following the release of Optionee (and the Optionee’s estate) from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the estate of the Optionee prior to the effective date of such release, if at all, in the Company’s sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the estate or other beneficiaries shall forfeit all rights hereunder; provided, however, that without the consent of the Optionee’s estate, the Company cannot release the Optionee’s estate from the terms of the Lock-Up Agreement prior to twelve months following the Grant Date.
(b) In the event that the employment of the Optionee with the Company or one of its Subsidiaries or Affiliates is terminated by reason of the Disability of the Optionee, the Option may be exercised (to the extent the Option is vested pursuant to Section 3 immediately prior to the termination of the Optionee’s employment due to Disability), by the Optionee at any time within the later of: (i) twelve (12) months after such cessation of employment or other service; or (ii) that date that occurs upon the earlier of: (X) twelve (12) months following the expiration of the Lock-Up Agreement; or (Y) twelve (12) months following the release of Optionee from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the Optionee prior to the effective date of such release, if at all, in the Company’s sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the Optionee shall forfeit all rights hereunder even if the Optionee subsequently returns to the employ of the Company or one of its Subsidiaries or Affiliates or begins providing other service to the Company or one of its Subsidiaries or Affiliates; provided, however, that without the consent of the Optionee, the Company cannot release the Optionee from the terms of the Lock-Up Agreement prior to twelve months following the Grant Date.
8. Change in Control of the Company. If there is a Change in Control, unless otherwise expressly provided by the terms of the Employment Agreement or any other Individual Agreement between the Optionee and the Company or one of its Subsidiaries or Affiliates, the Option will be subject to the provisions of Article 15 of the Plan.
9. Registration. The shares covered by the Option have been registered and qualified for sale pursuant to the Securities Act of 1933, as amended, by the Company pursuant to a registration statement on Form S-8.
10. Method of Exercise of Option.
(a) Subject to the terms and conditions of this Agreement, the Option shall be exercisable by delivery of a completed written Option Exercise Form in substantially the form set forth in Exhibit A hereto (the “Exercise Notice”) and provision for payment to the Company in accordance with the procedure prescribed herein. Each such Notice shall:
(i) state the election to exercise the Option and the number of Shares with respect to which it is being exercised;
(ii) be signed by the Optionee or the person or persons entitled to exercise the Option and, if the Option is being exercised by any person or persons other than the Optionee, be accompanied by proof, satisfactory to counsel to the Company, of the right of such other person or persons to exercise the Option (collectively an “Authorized Person”);
(iii) include payment of the full purchase price for the shares of Common Stock to be purchased pursuant to such exercise of the Option; and
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(iv) be received by the Company on or before the date of the expiration of this Option. In the event the date of expiration of this Option falls on a day which is not a regular business day at the Company’s headquarters office, then such written Exercise Notice must be received at such office on or before the last regular business day prior to such date of expiration.
(b) Payment of the purchase price of any shares of Common Stock, in respect of which the Option shall be exercised, shall be made by the Optionee or Authorized Person at the place specified by the Company on the date the Exercise Notice is received by the Company (i) by delivering to the Company cash or a certified or bank cashier’s check payable to the order of the Company, (ii) by delivering to the Company properly endorsed certificates of shares of Common Stock (or certificates accompanied by an appropriate stock power) with signature guaranties by a bank or trust company, (iii) by tender of a Broker Exercise Notice, subject to approval in advance by the Committee solely for the purpose of determining that the sale of any shares of Common Stock in respect of such Broker Exercise Notice will provide the Company with sufficient proceeds to pay the exercise price, (iv) by having withheld from the total number of shares of Common Stock to be acquired upon the “net exercise” of this Option a specified number of such shares of Common Stock as determined pursuant to Section 6.5(b) of the Plan, or (v) by any combination of the foregoing. For purposes of the immediately preceding sentence, an exercise effected by the tender of Common Stock (or deemed to be effected by the tender of Common Stock) may only be consummated with Common Stock held by the Optionee for a period of six (6) months or acquired by the Optionee other than under the Plan (or a similar plan maintained by the Company).
(c) The Option shall be deemed to have been exercised with respect to any particular shares of Common Stock if, and only if, the preceding provisions of this Section 10 and the provisions of Section 11 hereof shall have been complied with, in which event the Option shall be deemed to have been exercised on the date the Exercise Notice was received by the Company. Anything in this Agreement to the contrary notwithstanding, any Exercise Notice given pursuant to the provisions of this Section 10 shall be void and of no effect if all of the preceding provisions of this Section 10 and the provisions of Section 11 shall not have been strictly complied with.
(d) The certificate or certificates or book-entry notations for shares of Common Stock as to which the Option shall be exercised will be registered in the name of the Optionee (or in the name of the Optionee’s estate or other beneficiary if the Option is exercised after the Optionee’s death), or if the Option is exercised by the Optionee and if the Optionee so requests in the notice exercising the Option, will be registered in the name of the Optionee and another person jointly, with right of survivorship and will be delivered as soon as practical after the date the Exercise Notice is received by the Company (accompanied by full payment of the exercise price), but only upon compliance with all of the provisions of this Agreement.
(e) If the Optionee fails to accept delivery of and pay for all or any part of the number of Shares specified in such Exercise Notice, Optionee’s right to exercise the Option shall be terminated with respect to such undelivered Shares, unless the Committee, in the sole discretion, determines otherwise. The Option may be exercised only with respect to full Shares.
(f) The Company shall not be required to issue or deliver any certificate or certificates or perform any book-entry notations for shares of its Common Stock purchased upon the exercise of any part of the Option prior to the payment to the Company, upon its demand, of any amount requested by the Company for the purpose of satisfying its maximum statutory liability, if any, to withhold federal, state or local income or earnings tax or any other applicable tax or assessment (plus interest or penalties thereon, if any, caused by a delay in making such payment) incurred by reason of the exercise of this Option or the transfer of shares thereupon. Such payment shall be made by the Optionee in cash or, with the written consent of the Company, by tendering to the Company shares of Common Stock equal in value to the amount of the required withholding. In the alternative, the Company, at its sole discretion, may satisfy such withholding requirements by withholding from the shares of Common Stock to be delivered to the Optionee pursuant to an exercise of the Option a number of shares of Common Stock equal in value to the amount of the required withholding.
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11. Approval of Counsel. The exercise of the Option and the issuance and delivery of shares of Common Stock pursuant to this Agreement shall be subject to approval by the Company’s counsel of all legal matters in connection therewith, including, but not limited to, compliance with the requirements of the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended, and the requirements of any stock exchange or automated trading medium upon which the Common Stock may then be listed or traded.
12. Resale of Common Stock, Etc. If required by counsel for the Company, the stock certificate(s) or book-entry notation(s) for the Common Stock issued upon exercise of the Option shall bear the following (or similar) legends:
THE SHARES EVIDENCED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS THEY HAVE FIRST BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNLESS, IN THE OPINION OF COUNSEL FOR THE COMPANY, SUCH REGISTRATION IS NOT REQUIRED.
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.
13. Reservation of Shares. The Company shall at all times during the term of the Option reserve and keep available such number of shares of Common Stock as will be sufficient to satisfy the requirements of this Agreement.
14. Limitation of Action. The Optionee and the Company each acknowledge that every right of action accruing to the Optionee or the Company, as the case may be, and arising out of or in connection with this Agreement against the Optionee, on the one hand, or against the Company, on the other hand, shall, irrespective of the place where an action may be brought, cease and be barred by the expiration of twenty-four (24) months from the date of the act or omission in respect of which such right of action arises.
15. Notices. Each notice relating to the Option Award and this Agreement shall be in writing and delivered in person, by recognized overnight carrier or by certified mail to the proper address. All notices to the Company or the Committee shall be addressed to them at the address of the Company’s headquarters as reflected in the Company’s most recent federal securities filings, Attn: Chairman. All notices to the Optionee shall be addressed to the Optionee or such other person or persons at the Optionee’s address set forth in the Company’s records. Anyone to whom a notice may be given under this Agreement may designate a new address by notice to that effect.
16. Successors. This Agreement shall inure to the benefit of the Company, the Optionee and their respective heirs, executors, administrators, personal representatives, successors and assigns.
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17. Construction. Wherever possible, each provision of this Agreement will be interpreted so that it is valid under the Applicable Law (as defined in the Plan). If any provision of this 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 Agreement will continue to be valid, and the Agreement will continue to be valid in other jurisdictions.
18. Governing Law. All questions pertaining to the validity, construction and administration of this Agreement shall be determined in accordance with the laws of the State of Nevada without regard to its principles of conflicts of law.
19. Employment. Nothing in this Agreement will interfere with or limit in any way the right of the Company or any Subsidiary or Affiliate to terminate the employment or service of the Optionee at any time, nor confer upon the Optionee any right to continue employment or other service with the Company or any Subsidiary or Affiliate.
20. Clawback. Any shares of Common Stock issued upon exercise of the Option may be subject to recoupment by the Company, however, only to the extent required under applicable laws, rules or regulations in effect from time to time, and the Company’s then effective Clawback and Forfeiture Policy.
21. Definitions. Unless otherwise defined in this Agreement or the Option Award, all capitalized terms used in this Agreement shall have the same definitions as set forth in the Plan.
22. Incorporation of Terms of Plan. This Agreement shall be interpreted under, and subject to, all of the terms and provisions of the Plan, which are incorporated herein by reference.
23. No Strict Construction. The language used in this Agreement shall be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction shall apply against any party.
BY WAY OF THEIR EXECUTION OF THE OPTION AWARD TO WHICH THIS AGREEMENT RELATES AND IS ATTACHED, the Company and the Optionee (and each of their heirs, successors and assigns) agree to be bound by each and every one of the terms set forth in this Agreement.
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EXHIBIT A
NON-STATUTORY OPTION EXERCISE FORM
[DATE]
Investview, Inc.
Attention: Chairman
1. Option Exercise. I hereby elect to exercise my option to purchase the following shares of Common Stock of Investview, Inc. under the Investview, Inc. 2022 Incentive Plan (the “Plan”) and the Option Agreement (the “Option”) identified below:
| Option Grant #: | _________________________ | |
| Grant Date: | _________________________ | |
| Number of Shares: | _________________________ | |
| Exercise Price Per Share: | $ ________________________ | |
| Total Purchase Price: | $ ________________________ |
2. Payment. I am paying the purchase price of the exercised Option as follows (check the applicable form of payment):
| _____ | I am attaching cash or a check in the amount of $____________, as the total purchase price for the shares. |
| _____ | I have delivered ________ shares of Common Stock of Investview, Inc. (the “Company”) that I have previously acquired. I own these shares free and clear of any liens, claims, encumbrances or security interests. I have enclosed the certificates representing these previously acquired shares endorsed or accompanied by an executed assignment separate from certificate. |
| _____ | I have delivered irrevocable instructions to a broker to sell a sufficient number of shares of Common Stock of the Company to pay the total purchase price and to pay such amounts to the Company. [Please note that this form of payment is only available upon prior written approval of the Committee solely for the purpose of determining that the sale of shares of Common Stock in respect of such broker exercise notice will provide the Company with sufficient proceeds to pay the exercise price and is subject to any applicable restrictions on the sale of such shares by Optionee.] |
The name, address and telephone number of the broker is as follows:
| Name of Firm: ________________________________ |
| Contact: ____________________________________ |
| Address: ___________________________________ |
| Phone: _____________________________________ |
| Fax: _______________________________________ |
[Please also see Section 4 of this Option Exercise Notice, which may prevent you from using this type of “cashless” exercise feature if you possess material non-public information about the Company or its securities at the time of exercise.]
| _____ | I hereby elect to convert the attached option into shares of Common Stock of the Company on a “net exercise” basis pursuant to Section 6.5(b) of the Plan. |
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| _____ | I have elected to pay any required withholding with the exercise transaction. Accordingly, I have included $_______, which I would like applied to federal and state tax withholdings as follows:_________________________________________________________. |
3. Certificate Delivery. I elect to have my shares of Common Stock delivered as follows:
| _____ | Please have the shares delivered electronically via DWAC to my brokerage account. Please use the information below to execute the transaction. |
| Broker DTC number: | ______________________________ |
| My Account Number | ______________________________ |
| _____ | Please register the certificate or book-entry notation representing the shares in the name set forth below and send the certificate or evidence of book-entry notation to the following address: |
| Registered Name: | _____________________________ |
| Address: | _____________________________ |
| _____________________________ |
4. Compliance with Insider Trading Policy. I acknowledge that I have read and understand the Company’s current insider trading policy, including the portions that may, among other things, restrict my ability to exercise my Options through a broker sale on the open market or otherwise sell the shares of Common Stock issuable upon exercise of my Options. I understand that the information in this letter does not limit in any manner my own, personal responsibilities and obligations under the policy and the securities laws, including, but not limited to, the prohibitions on trading (including by means of a broker assisted option exercise) while I possess material, non-public information or during a blackout period that may be imposed under the policy. I agree to provide a copy of this exercise notice to my broker, and to require his or her compliance with the policy. I understand that the Company may reject any broker exercise completed during a blackout period or that is otherwise prohibited by any Company policy, including the current insider trading policy.
5. Representations. I acknowledge that I have received, read and understand the Plan and my Non-Statutory Option Award Agreement, which together govern the terms of my Option and its exercise. I have also read the current Plan prospectus, the Company’s latest annual report to stockholders and the other public reports and information incorporated by reference into the prospectus in making my decision to exercise my options.
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6. Effectiveness and Execution of Transaction. I understand and agree that this exercise election will be subject to acknowledgement by the Company. In the case of a cash exercise, my Option exercise will be processed as soon as practicable. In the case of a cashless exercise, I understand it may take longer to process my Option exercise.
| Submitted by: | Acknowledged by: | |||
| Optionee | Broker | |||
| By: | Firm Name: | |||
| Its: | By: | |||
| Date: | Its: | |||
| Date: | ||||
| Acknowledged by: | ||||
| Investview, Inc. | ||||
| By: | ||||
| Its: | ||||
| Date: | ||||
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Exhibit 10.115
EXECUTION VERSION
James R. Bell
AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT (this “Amendment”) to the Employment Agreement (the “Employment Agreement”) dated February 22, 2022 by and between Investview, Inc. (the “Employer”) and James R. Bell (the “Executive”) is entered into this 24th day of June 2022.
WHEREAS Section 2.5 of the Employment Agreement contemplated the grant of restricted stock to the Executive pursuant to the terms of the Investview, Inc. 2022 Incentive Plan, which restricted stock has not been granted to the Executive; and
WHEREAS, after consideration of the taxation and tax withholding implications, and other consequences, of the granting and vesting of restricted stock under the Plan, the parties have determined it is in the best interests of the Employer and Executive to restructure the grant of equity under Section 2.5 of the Employment Agreement as the grant of stock options, based on a conversion factor, which, following consultation with an independent valuation firm, was determined, based upon prevailing market and other conditions, to be 1.25 to 1; and
WHEREAS the parties have agreed that the Employment Agreement be amended to provide for the grant of stock options rather than restricted stock under Section 2.5 of the Employment Agreement.
NOW, THEREFORE, the parties agree to amend the Employment Agreement as follows:
1. Section 2.5 of the Employment Agreement is hereby amended and restated to read as follows:
2.5 Grant of Stock Option. The Employer hereby agrees to award and grant to the Executive a stock option (the “Option”) to acquire seventy-five million (75,000,000) shares of INVU Common Stock (collectively, the “Option 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 Option to be subject to vesting, forfeiture and the other restrictions as contained below and in the Plan and the award agreement evidencing such Option to be executed between the Employer and the Executive, which shall be in substantially the form attached hereto as Exhibit A (the “Option Award Agreement”). To the extent authorized in the Plan and Option Award Agreement, the Option Award Agreement shall be subject to the terms as provided below, notwithstanding any terms to the contrary in the Plan or the Option Award Agreement itself.
(a) Vesting of Option. Subject to the terms of this Agreement, the Plan and the Option Award Agreement, the Option shall vest and become exercisable, 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 full-time employee of the Employer, and (ii) there not having occurred a For Cause Event:
| Vesting Date | Option Vesting | Option Shares | ||||||
| February 21, 2023 | 20 | % | 15,000,000 | |||||
| February 21, 2024 | 20 | % | 15,000,000 | |||||
| February 21, 2025 | 20 | % | 15,000,000 | |||||
| February 21, 2026 | 20 | % | 15,000,000 | |||||
| February 21, 2027 | 20 | % | 15,000,000 | |||||
(b) Treatment of Options Upon a Change in Control. Upon the occurrence of a “Change in Control” (as defined in the Plan), vesting of the Option 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 Options that have not yet vested as of such date shall immediately and automatically vest and become non-forfeitable.
(c) Treatment of Option Upon a Termination of Employment. The following provisions governing the treatment of the Option 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 Option shall cease as of the date of such termination, and any unvested portion of the Option shall be forfeited by the Executive.
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 portion of the Option that is scheduled to vest during the period from the date of Executive’s termination of employment through the next Scheduled Vesting Date, as applicable (but in no event longer than a six-month period following the date of Executive’s termination of employment) shall immediately and automatically vest and become non-forfeitable and the remaining unvested portion of the Option shall terminate and be forfeited by the Executive.
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 portion of the Option that is scheduled to vest during the period from the date of Executive’s termination of employment 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 termination of employment) shall immediately and automatically vest and become non-forfeitable and the remaining unvested portion of the Option shall terminate and be forfeited by the Executive.
(d) Prohibition Against Transfer of Option. Prior to the vesting and exercise of the Option, 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 Option 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 reasonably determines is payable as a result of the exercise of the Option or any payments thereon or in connection therewith, and the Employer may defer issuing the Option Shares to the Executive until arrangements satisfactory to the Employer have been made with regard to any such withholding obligation. The Employer, in its sole discretion, may withhold a portion of the Option Shares to satisfy such withholding obligations.
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2. Section 6.3(b)(iv) of the Employment Agreement is amended and restated to read as follows:
iv. Any unvested portion of the Option that is 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 portion of the Option shall terminate and be forfeited by the Executive.
3. Section 8.9 of the Employment Agreement is amended by changing the phrase “Restricted Shares” to “Option Shares” where it appears in Section 8.9.
4. 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 Amendment and has elected to forego advice from counsel or is satisfied with Executive’s counsel’s advice and that Executive is executing the Amendment voluntarily and fully intending to be legally bound because, among other things, the Amendment 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 Amendment. Hence, this Amendment shall not be construed against any party.
5. Counterparts. This Amendment 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 Amendment, 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.
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SIGNED AND DELIVERED to be effective as of the Effective Date of the Employment Agreement.
| EMPLOYER: | ||
| Investview, Inc. | ||
| By: | /s/ Victor M. Oviedo | |
| Name: | Victor M. Oviedo | |
| Title: | Chief Executive Officer | |
| By: | /s/ David B. Rothrock | |
| Name: | David B. Rothrock | |
| Title: | Chairman of the Board | |
| EXECUTIVE: | ||
| By: | /s/ James R. Bell | |
| Name: | James R. Bell | |
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Exhibit 10.116
EXECUTION VERSION
Exhibit A: James R. Bell– Employee Option Award (Conversion of February 2022 Restricted Shares)
Option Grant No. 2022-03
INVESTVIEW, INC.
2022 INCENTIVE PLAN
NON-STATUTORY OPTION AWARD
Investview, Inc., a Nevada corporation (the “Company”), pursuant to the terms of the Investview, Inc. 2022 Incentive Plan (the “Plan”) and the Non-Statutory Option Award Agreement (the “Agreement”) attached to this Non-Statutory Option Award (this “Option Award”), hereby grants to the individual named in Section 2 below (the “Optionee”), effective as of the grant date set forth in Section 1 below, the option to purchase the number of shares of the Company’s Common Stock as set forth in Section 3 below, subject to the exercise price as set forth in Section 4 below and vesting as set forth in Section 5 below and the terms and conditions of this Option Award and the Agreement attached to this Option Award.
The terms of this Option Award are subject to all of the provisions of the Plan and the attached Agreement, with such provisions being incorporated herein by reference. All of the capitalized terms used in this Option Award and the Agreement not otherwise defined herein or therein shall have the same meaning as defined in the Plan. A copy of the Plan and the prospectus for the Plan have been delivered to Optionee together with this Option Award and the Agreement.
| 1. | Grant Date: | June 24, 2022 |
| 2. | Name of Optionee: | James R. Bell |
| 3. | Number of Underlying Shares of Common Stock: | 75,000,000 |
| (subject to adjustment as provided in the Plan) | ||
| 4. | Exercise Price: | $.05 per share (subject to adjustment as provided in the Plan) |
| 5. | Vesting of Options (on a cumulative basis and subject to adjustment as provided in the Plan): |
| VESTING DATE | NO. OF UNDERLYING SHARES TO BE VESTED* | |||
| February 3, 2023 | 15,000,000 | |||
| February 3, 2024 | 15,000,000 | |||
| February 3, 2025 | 15,000,000 | |||
| February 3, 2026 | 15,000,000 | |||
| February 3, 2027 | 15,000,000 | |||
*Vesting to occur pursuant to Section 3 of the attached Agreement and conditioned upon continued employment as described therein.
| 6. | Expiration Date: | June 24, 2029 |
The Optionee acknowledges receipt of and understands and agrees to be bound by all of the terms of this Option Award, inclusive of the attached Agreement, and the Plan, and that the terms thereof supersede any and all other written or oral agreements between the Optionee and the Company, other than the Optionee’s Employment Agreement, regarding the subject matter contained herein.
| Investview, Inc. | Optionee: | ||
| By: | /s/ Victor M. Oviedo | /s/ James R. Bell | |
| Victor M. Oviedo, Chief Executive Officer | Date: 06/24/2022 | ||
| Date: | 06/24/2022 | ||
NON-STATUTORY OPTION AWARD AGREEMENT
THIS NON-STATUTORY OPTION AWARD AGREEMENT (this “Agreement”) is made as of the grant date set forth in Section 1 of the Non-Statutory Option Award (the “Option Award”) to which this Agreement relates and is attached (the “Grant Date”) between Investview, Inc., a Nevada corporation (the “Company”), and the individual identified in Section 2 of the Option Award to which this Agreement relates and is attached (the “Optionee”).
W I T N E S S E T H:
WHEREAS, the Company adopted the Investview, Inc. 2022 Incentive Plan (the “Plan”), which provides for the grant of certain awards, including without limitation, Non-Statutory Stock Options to Employees of the Company, with the corresponding right to purchase shares of Common Stock of the Company (the “Common Stock”).
WHEREAS, the Board of Directors of the Company, acting as the Committee under the Plan (the “Committee”), has authorized the grant of a Non-Statutory Option to the Optionee on the date of this Agreement as evidenced by the Option Award to which this Agreement is attached, thereby allowing the Optionee to acquire a proprietary interest in the Company in order that the Optionee will have a further incentive for remaining with and increasing his or her efforts on behalf of the Company.
WHEREAS, this Agreement is prepared in conjunction with and under the terms of the Plan, which are incorporated herein and made a part hereof by reference, and subject to the terms, conditions and requirements provided in the Employment Agreement dated February 10, 2022 by and between the Company and Optionee, as amended by that Amendment to Employment Agreement dated June 24, 2022 (collectively, the “Employment Agreement”).
WHEREAS, the Optionee has accepted the grant of Non-Statutory Stock Options evidenced by the Option Award and this Agreement and has agreed to the terms and conditions stated herein and therein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants hereinafter set forth and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Confirmation of Grant of Option. Pursuant to a determination by the Committee, the Company, subject to the terms of the Plan and this Agreement, hereby grants to the Optionee as a matter of separate inducement and agreement, and in addition to and not in lieu of salary or other compensation or fees for services, the right to purchase (the “Option”) an aggregate number of shares of Common Stock as is set forth in Section 3 of the Option Award, subject to adjustment as provided in the Plan (such shares, as adjusted, the “Shares”). The Option is not intended to qualify as an incentive stock option under Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”).
2. Exercise Price. The per share exercise price of the Shares covered by the Option will be the per share amount set forth in Section 4 of the Option Award, at all times being not less than 100% of the Fair Market Value of one share of Common Stock on the Grant Date, subject to adjustment as provided in the Plan.
3. Vesting and Exercisability of Option. The Option shall vest and become exercisable on the terms and conditions hereinafter set forth:
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(a) The Option shall vest and become exercisable (on a cumulative basis) in such installments (after giving effect to any adjustment pursuant to the Plan) and on such vesting dates, as set forth in Section 5 of the Option Award, provided that the Optionee (i) remains an Employee of the Company or one of its Subsidiaries or Affiliates as of each such applicable vesting date as indicated in Section 5 of the Option Award, and (ii) there not having occurred a “For Cause Event” as such term is defined in the Employment Agreement.
(b) In addition, the Option shall vest and become exercisable to the extent and as provided in Sections 6, 7 and 8 hereof and as expressly provided by the terms of the Employment Agreement or any other Individual Agreement (as defined in the Plan) between the Optionee and the Company or one of its Subsidiaries or Affiliates. The Committee may decide, in its absolute discretion, to accelerate the vesting of all or some lesser portion of any unvested Options at any time, at the date specified by the Committee.
(c) The Option may be exercised pursuant to the provisions of this Section 3 and Sections 6, 7 and 8 hereof, by delivery of an Exercise Notice and payment to the Company as provided in Sections 10 and 15 hereof.
4. Term of Option. The term of the Option shall be the period of years from the Grant Date as is set forth in Section 1 of the Option Award and shall expire on the date set forth in Section 6 of the Option Award, subject to earlier termination or cancellation as provided in this Agreement.
5. Non-transferability of Option. The Option shall not be assigned, transferred or otherwise disposed of, or pledged or hypothecated in any way, and shall not be subject to execution, attachment or other process, except as may be provided in the Plan. Any assignment, transfer, pledge, hypothecation or other disposition of the Option attempted contrary to the provisions of the Plan, or any levy of execution, attachment or other process attempted upon the Option, will be null and void and without effect. Any attempt to make any such assignment, transfer, pledge, hypothecation or other disposition of the Option will cause the Option to terminate immediately upon the happening of any such event; provided, however, that any such termination of the Option under the foregoing provisions of this Section 5 will not prejudice any rights or remedies which the Company or one of its Subsidiaries or Affiliates may have under this Agreement or otherwise.
6. Exercise Upon Cessation of Employment Other Than on Account of Death or Disability. The terms of this Section 6 apply unless otherwise expressly provided by the terms of the Employment Agreement or any other an Individual Agreement between the Optionee and the Company or one of its Subsidiaries or Affiliates or a plan or policy of the Company applicable to the Optionee specifically provides otherwise, and subject to the provisions of Section 5 hereof and Sections 13.4 and 13.5 of the Plan. In no event, however, may the Option be exercised after the expiration of the term provided in Section 4 hereof.
(a) If the Optionee at any time ceases to be an Employee of the Company or one of its Subsidiaries or Affiliates by reason of his or her discharge by the Company for Cause, the Option may thereafter following such cessation of employment only be exercised by the Optionee to the same extent the Optionee would have been entitled under Section 3 hereof to exercise the Option immediately prior to such cessation of employment or other service, at any time within the later of: (i) thirty (30) days after such cessation of employment or other service; or (ii) that date that occurs upon the earlier of: (X) thirty (30) days following the expiration of the “Lock-Up Agreement” (as defined in the Employment Agreement); or (Y) thirty (30) days following the release of Optionee from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the Optionee prior to the effective date of such release, if at all, in the Company’s sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the Optionee shall forfeit all rights hereunder.
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(b) If the Optionee terminates employment with the Company and all of its Subsidiaries or Affiliates other than for Good Reason (and other than Optionee’s discharge for Cause and Optionee’s termination upon death or Disability), the Option may be exercised by the Optionee to the same extent the Optionee would have been entitled under Section 3 hereof to exercise the Option immediately prior to such cessation of employment or other service, at any time within the later of: (i) ninety (90) days after such cessation of employment or other service; or (ii) that date that occurs upon the earlier of: (X) ninety (90) days following the expiration of the “Lock-Up Agreement” (as defined in the Employment Agreement); or (Y) ninety (90) days following the release of Optionee from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the Optionee prior to the effective date of such release, if at all, in the Company’s sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the Optionee shall forfeit all rights hereunder, even if the Optionee subsequently returns to the employ of the Company or one of its Subsidiaries or Affiliates or begins providing other service to the Company or one of its Subsidiaries or Affiliates.
(c) If the Optionee at any time ceases to be an Employee of the Company or one of its Subsidiaries or Affiliates by reason of his or her discharge by the Company without Cause or by the Optionee for Good Reason (and other than Optionee’s termination upon death or Disability), the Option may be exercised by the Optionee to the same extent the Optionee would have been entitled under Section 3 hereof to exercise the Option immediately prior to such cessation of employment or other service, at any time within the later of: (i) six (6) months after such cessation of employment or other service; or (ii) that date that occurs upon the earlier of: (X) six (6) months following the expiration of the Lock-Up Agreement; or (Y) six (6) months following the release of Optionee from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the Optionee prior to the effective date of such release, if at all, in the Company’s sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the Optionee shall forfeit all rights hereunder, even if the Optionee subsequently returns to the employ of the Company or one of its Subsidiaries or Affiliates or begins providing other service to the Company or one of its Subsidiaries or Affiliates; provided, however, that without the consent of the Optionee, the Company cannot release the Optionee from the terms of the Lock-Up Agreement prior to twelve months following the Grant Date.
(d) The Option shall not be affected by any change of duties or position of the Optionee so long as Optionee continues to be a full-time Employee of the Company or one of its Subsidiaries or Affiliates. If the Optionee is granted a temporary leave of absence of 90 days or less, such leave of absence shall be deemed a continuation of his or her employment by the Company or one of its Subsidiaries or Affiliates for the purposes of this Agreement, but only if and so long as the employing corporation consents thereto.
(e) The change in an Optionee’s status from that of an Employee to that of a Consultant will, for purposes of this Agreement, be deemed to result in a termination of such Optionee’s employment with the Company and its Subsidiaries and Affiliates, unless the Committee otherwise determines in its sole discretion. Unless the Committee otherwise determines in its sole discretion, an Optionee’s employment or other service will, for purposes of this Agreement, be deemed to have terminated on the date recorded on the personnel or other records of the Company or the Subsidiary or Affiliate for which the Optionee provides employment, as determined by the Committee in its sole discretion based upon such records.
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7. Exercise Upon Death or Disability. The terms of this Section 7 apply unless otherwise expressly provided by the terms of the Employment Agreement or any other Individual Agreement between the Optionee and the Company or one of its Subsidiaries or Affiliates or a plan or policy of the Company applicable to the Optionee specifically provides otherwise, and subject to the provisions of Section 5 hereof and Sections 13.4 and 13.5 of the Plan. In no event, however, may the Option be exercised after the expiration of the term provided in Section 4 hereof.
(a) If the Optionee dies while he or she is employed by the Company or one of its Subsidiaries or Affiliates, the Option may be exercised (to the extent the Option is vested pursuant to Section 3 immediately prior to Optionee’s death), by the estate of the Optionee (or by the person or persons who acquire the right to exercise the Option by written designation of the Optionee) at any time within the later of: (i) twelve (12) months after such cessation of employment or other service; or (ii) that date that occurs upon the earlier of: (X) twelve (12) months following the expiration of the Lock-Up Agreement; or (Y) twelve (12) months following the release of Optionee (and the Optionee’s estate) from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the estate of the Optionee prior to the effective date of such release, if at all, in the Company’s sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the estate or other beneficiaries shall forfeit all rights hereunder; provided, however, that without the consent of the Optionee, the Company cannot release the Optionee from the terms of the Lock-Up Agreement prior to twelve months following the Grant Date.
(b) In the event that the employment of the Optionee with the Company or one of its Subsidiaries or Affiliates is terminated by reason of the Disability of the Optionee, the Option may be exercised (to the extent the Option is vested pursuant to Section 3 immediately prior to the termination of the Optionee’s employment due to Disability), by the Optionee at any time within the later of: (i) twelve (12) months after such cessation of employment or other service; or (ii) that date that occurs upon the earlier of: (X) twelve (12) months following the expiration of the Lock-Up Agreement; or (Y) twelve (12) months following the release of Optionee from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the Optionee prior to the effective date of such release, if at all, in the Company’s sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the Optionee shall forfeit all rights hereunder even if the Optionee subsequently returns to the employ of the Company or one of its Subsidiaries or Affiliates or begins providing other service to the Company or one of its Subsidiaries or Affiliates; provided, however, that without the consent of the Optionee, the Company cannot release the Optionee from the terms of the Lock-Up Agreement prior to twelve months following the Grant Date.
8. Change in Control of the Company. If there is a Change in Control, unless otherwise expressly provided by the terms of the Employment Agreement or any other Individual Agreement between the Optionee and the Company or one of its Subsidiaries or Affiliates, the Option will be subject to the provisions of Article 15 of the Plan.
9. Registration. The shares covered by the Option have been registered and qualified for sale pursuant to the Securities Act of 1933, as amended, by the Company pursuant to a registration statement on Form S-8.
10. Method of Exercise of Option.
(a) Subject to the terms and conditions of this Agreement, the Option shall be exercisable by delivery of a completed written Option Exercise Form in substantially the form set forth in Exhibit A hereto (the “Exercise Notice”) and provision for payment to the Company in accordance with the procedure prescribed herein. Each such Notice shall:
(i) state the election to exercise the Option and the number of Shares with respect to which it is being exercised;
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(ii) be signed by the Optionee or the person or persons entitled to exercise the Option and, if the Option is being exercised by any person or persons other than the Optionee, be accompanied by proof, satisfactory to counsel to the Company, of the right of such other person or persons to exercise the Option (collectively an “Authorized Person”);
(iii) include payment of the full purchase price for the shares of Common Stock to be purchased pursuant to such exercise of the Option; and
(iv) be received by the Company on or before the date of the expiration of this Option. In the event the date of expiration of this Option falls on a day which is not a regular business day at the Company’s headquarters office, then such written Exercise Notice must be received at such office on or before the last regular business day prior to such date of expiration.
(b) Payment of the purchase price of any shares of Common Stock, in respect of which the Option shall be exercised, shall be made by the Optionee or Authorized Person at the place specified by the Company on the date the Exercise Notice is received by the Company (i) by delivering to the Company cash or a certified or bank cashier’s check payable to the order of the Company, (ii) by delivering to the Company properly endorsed certificates of shares of Common Stock (or certificates accompanied by an appropriate stock power) with signature guaranties by a bank or trust company, (iii) by tender of a Broker Exercise Notice, subject to approval in advance by the Committee solely for the purpose of determining that the sale of any shares of Common Stock in respect of such Broker Exercise Notice will provide the Company with sufficient proceeds to pay the exercise price, (iv) by having withheld from the total number of shares of Common Stock to be acquired upon the “net exercise” of this Option a specified number of such shares of Common Stock as determined pursuant to Section 6.5(b) of the Plan, or (v) by any combination of the foregoing. For purposes of the immediately preceding sentence, an exercise effected by the tender of Common Stock (or deemed to be effected by the tender of Common Stock) may only be consummated with Common Stock held by the Optionee for a period of six (6) months or acquired by the Optionee other than under the Plan (or a similar plan maintained by the Company).
(c) The Option shall be deemed to have been exercised with respect to any particular shares of Common Stock if, and only if, the preceding provisions of this Section 10 and the provisions of Section 11 hereof shall have been complied with, in which event the Option shall be deemed to have been exercised on the date the Exercise Notice was received by the Company. Anything in this Agreement to the contrary notwithstanding, any Exercise Notice given pursuant to the provisions of this Section 10 shall be void and of no effect if all of the preceding provisions of this Section 10 and the provisions of Section 11 shall not have been strictly complied with.
(d) The certificate or certificates or book-entry notations for shares of Common Stock as to which the Option shall be exercised will be registered in the name of the Optionee (or in the name of the Optionee’s estate or other beneficiary if the Option is exercised after the Optionee’s death), or if the Option is exercised by the Optionee and if the Optionee so requests in the notice exercising the Option, will be registered in the name of the Optionee and another person jointly, with right of survivorship and will be delivered as soon as practical after the date the Exercise Notice is received by the Company (accompanied by full payment of the exercise price), but only upon compliance with all of the provisions of this Agreement.
(e) If the Optionee fails to accept delivery of and pay for all or any part of the number of Shares specified in such Exercise Notice, Optionee’s right to exercise the Option shall be terminated with respect to such undelivered Shares, unless the Committee, in the sole discretion, determines otherwise. The Option may be exercised only with respect to full Shares.
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(f) The Company shall not be required to issue or deliver any certificate or certificates or perform any book-entry notations for shares of its Common Stock purchased upon the exercise of any part of the Option prior to the payment to the Company, upon its demand, of any amount requested by the Company for the purpose of satisfying its maximum statutory liability, if any, to withhold federal, state or local income or earnings tax or any other applicable tax or assessment (plus interest or penalties thereon, if any, caused by a delay in making such payment) incurred by reason of the exercise of this Option or the transfer of shares thereupon. Such payment shall be made by the Optionee in cash or, with the written consent of the Company, by tendering to the Company shares of Common Stock equal in value to the amount of the required withholding. In the alternative, the Company, at its sole discretion, may satisfy such withholding requirements by withholding from the shares of Common Stock to be delivered to the Optionee pursuant to an exercise of the Option a number of shares of Common Stock equal in value to the amount of the required withholding.
11. Approval of Counsel. The exercise of the Option and the issuance and delivery of shares of Common Stock pursuant to this Agreement shall be subject to approval by the Company’s counsel of all legal matters in connection therewith, including, but not limited to, compliance with the requirements of the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended, and the requirements of any stock exchange or automated trading medium upon which the Common Stock may then be listed or traded.
12. Resale of Common Stock, Etc. If required by counsel for the Company, the stock certificate(s) or book-entry notation(s) for the Common Stock issued upon exercise of the Option shall bear the following (or similar) legends:
THE SHARES EVIDENCED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS THEY HAVE FIRST BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNLESS, IN THE OPINION OF COUNSEL FOR THE COMPANY, SUCH REGISTRATION IS NOT REQUIRED.
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.
13. Reservation of Shares. The Company shall at all times during the term of the Option reserve and keep available such number of shares of Common Stock as will be sufficient to satisfy the requirements of this Agreement.
14. Limitation of Action. The Optionee and the Company each acknowledge that every right of action accruing to the Optionee or the Company, as the case may be, and arising out of or in connection with this Agreement against the Optionee, on the one hand, or against the Company, on the other hand, shall, irrespective of the place where an action may be brought, cease and be barred by the expiration of twenty-four (24) months from the date of the act or omission in respect of which such right of action arises.
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15. Notices. Each notice relating to the Option Award and this Agreement shall be in writing and delivered in person, by recognized overnight carrier or by certified mail to the proper address. All notices to the Company or the Committee shall be addressed to them at the address of the Company’s headquarters as reflected in the Company’s most recent federal securities filings, Attn: Chairman. All notices to the Optionee shall be addressed to the Optionee or such other person or persons at the Optionee’s address set forth in the Company’s records. Anyone to whom a notice may be given under this Agreement may designate a new address by notice to that effect.
16. Successors. This Agreement shall inure to the benefit of the Company, the Optionee and their respective heirs, executors, administrators, personal representatives, successors and assigns.
17. Construction. Wherever possible, each provision of this Agreement will be interpreted so that it is valid under the Applicable Law (as defined in the Plan). If any provision of this 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 Agreement will continue to be valid, and the Agreement will continue to be valid in other jurisdictions.
18. Governing Law. All questions pertaining to the validity, construction and administration of this Agreement shall be determined in accordance with the laws of the State of Nevada without regard to its principles of conflicts of law.
19. Employment. Nothing in this Agreement will interfere with or limit in any way the right of the Company or any Subsidiary or Affiliate to terminate the employment or service of the Optionee at any time, nor confer upon the Optionee any right to continue employment or other service with the Company or any Subsidiary or Affiliate.
20. Clawback. Any shares of Common Stock issued upon exercise of the Option may be subject to recoupment by the Company, however, only to the extent required under applicable laws, rules or regulations in effect from time to time, and the Company’s then effective Clawback and Forfeiture Policy.
21. Definitions. Unless otherwise defined in this Agreement or the Option Award, all capitalized terms used in this Agreement shall have the same definitions as set forth in the Plan.
22. Incorporation of Terms of Plan. This Agreement shall be interpreted under, and subject to, all of the terms and provisions of the Plan, which are incorporated herein by reference.
23. No Strict Construction. The language used in this Agreement shall be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction shall apply against any party.
BY WAY OF THEIR EXECUTION OF THE OPTION AWARD TO WHICH THIS AGREEMENT RELATES AND IS ATTACHED, the Company and the Optionee (and each of their heirs, successors and assigns) agree to be bound by each and every one of the terms set forth in this Agreement.
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EXHIBIT A
NON-STATUTORY OPTION EXERCISE FORM
[DATE]
Investview, Inc.
Attention: Chairman
1. Option Exercise. I hereby elect to exercise my option to purchase the following shares of Common Stock of Investview, Inc. under the Investview, Inc. 2022 Incentive Plan (the “Plan”) and the Option Agreement (the “Option”) identified below:
| Option Grant #: | ||
| Grant Date: | ||
| Number of Shares: | ||
| Exercise Price Per Share: | $ | |
| Total Purchase Price: | $ | |
2. Payment. I am paying the purchase price of the exercised Option as follows (check the applicable form of payment):
| _____ | I am attaching cash or a check in the amount of $____________, as the total purchase price for the shares. | |
| _____ | I have delivered ________ shares of Common Stock of Investview, Inc. (the “Company”) that I have previously acquired. I own these shares free and clear of any liens, claims, encumbrances or security interests. I have enclosed the certificates representing these previously acquired shares endorsed or accompanied by an executed assignment separate from certificate. | |
| _____ | I have delivered irrevocable instructions to a broker to sell a sufficient number of shares of Common Stock of the Company to pay the total purchase price and to pay such amounts to the Company. [Please note that this form of payment is only available upon prior written approval of the Committee solely for the purpose of determining that the sale of shares of Common Stock in respect of such broker exercise notice will provide the Company with sufficient proceeds to pay the exercise price and is subject to any applicable restrictions on the sale of such shares by Optionee.] | |
| The name, address and telephone number of the broker is as follows: | ||
| Name of Firm: | ||
| Contact: | ||
| Address: | ||
| Phone: | ||
| Fax: | ||
| [Please also see Section 4 of this Option Exercise Notice, which may prevent you from using this type of “cashless” exercise feature if you possess material non-public information about the Company or its securities at the time of exercise.] | ||
| _____ | I hereby elect to convert the attached option into shares of Common Stock of the Company on a “net exercise” basis pursuant to Section 6.5(b) of the Plan. | |
| _____ | I have elected to pay any required withholding with the exercise transaction. Accordingly, I have included $_______, which I would like applied to federal and state tax withholdings as follows:_________________________________________________________. | |
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3. Certificate Delivery. I elect to have my shares of Common Stock delivered as follows:
| _____ | Please have the shares delivered electronically via DWAC to my brokerage account. Please use the information below to execute the transaction. | |
| Broker DTC number: | ||
| My Account Number | ||
| _____ | Please register the certificate or book-entry notation representing the shares in the name set forth below and send the certificate or evidence of book-entry notation to the following address: | |
| Registered Name: | ||
| Address: | ||
4. Compliance with Insider Trading Policy. I acknowledge that I have read and understand the Company’s current insider trading policy, including the portions that may, among other things, restrict my ability to exercise my Options through a broker sale on the open market or otherwise sell the shares of Common Stock issuable upon exercise of my Options. I understand that the information in this letter does not limit in any manner my own, personal responsibilities and obligations under the policy and the securities laws, including, but not limited to, the prohibitions on trading (including by means of a broker assisted option exercise) while I possess material, non-public information or during a blackout period that may be imposed under the policy. I agree to provide a copy of this exercise notice to my broker, and to require his or her compliance with the policy. I understand that the Company may reject any broker exercise completed during a blackout period or that is otherwise prohibited by any Company policy, including the current insider trading policy.
5. Representations. I acknowledge that I have received, read and understand the Plan and my Non-Statutory Option Award Agreement, which together govern the terms of my Option and its exercise. I have also read the current Plan prospectus, the Company’s latest annual report to stockholders and the other public reports and information incorporated by reference into the prospectus in making my decision to exercise my options.
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6. Effectiveness and Execution of Transaction. I understand and agree that this exercise election will be subject to acknowledgement by the Company. In the case of a cash exercise, my Option exercise will be processed as soon as practicable. In the case of a cashless exercise, I understand it may take longer to process my Option exercise.
| Submitted by: | Acknowledged by: | |||
| Optionee | Broker | |||
| By: | Firm Name: | |||
| Its: | By: | |||
| Date: | Its: | |||
| Date: | ||||
| Acknowledged by: | ||||
| Investview, Inc. | ||||
| By: | ||||
| Its: | ||||
| Date: | ||||
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Exhibit 10.117
Final Execution Version
James R. Bell– Director Option Award
Option Grant No. 2022-09
INVESTVIEW, INC.
2022 INCENTIVE PLAN
NON-STATUTORY OPTION AWARD
Investview, Inc., a Nevada corporation (the “Company”), pursuant to the terms of the Investview, Inc. 2022 Incentive Plan (the “Plan”) and the Non-Statutory Option Award Agreement (the “Agreement”) attached to this Non-Statutory Option Award (this “Option Award”), hereby grants to the individual named in Section 2 below (the “Optionee”), effective as of the grant date set forth in Section 1 below, the option to purchase the number of shares of the Company’s Common Stock as set forth in Section 3 below, subject to the exercise price as set forth in Section 4 below and vesting as set forth in Section 5 below and the terms and conditions of this Option Award and the Agreement attached to this Option Award.
The terms of this Option Award are subject to all of the provisions of the Plan and the attached Agreement, with such provisions being incorporated herein by reference. All of the capitalized terms used in this Option Award and the Agreement not otherwise defined herein or therein shall have the same meaning as defined in the Plan. A copy of the Plan and the prospectus for the Plan have been delivered to Optionee together with this Option Award and the Agreement.
| 1. | Grant Date: | June 24, 2022 |
| 2. | Name of Optionee: | James R. Bell |
| 3. | Number of Underlying Shares of Common Stock: | 37,500,000 |
| (subject to adjustment as provided in the Plan) | ||
| 4. | Exercise Price: | $.05 per share (subject to adjustment as provided in the Plan) |
| 5. | Vesting of Options (on a cumulative basis and subject to adjustment as provided in the Plan): | |
| Vesting Date | No. of Underlying Shares to be Vested* | |||
| November 9, 2022 | 18,750,000 | |||
| November 9, 2023 | 18,750,000 | |||
*Vesting to occur pursuant to Section 3 of the attached Agreement and conditioned upon continued service as a member of the Board of Directors of the Company, as described therein.
| 6. | Expiration Date: | June 24, 2029 |
The Optionee acknowledges receipt of and understands and agrees to be bound by all of the terms of this Option Award, inclusive of the attached Agreement, and the Plan, and that the terms thereof supersede any and all other written or oral agreements between the Optionee and the Company, other than the Optionee’s Employment Agreement, regarding the subject matter contained herein.
| Investview, Inc. | Optionee: | ||
| By: | /s/ Victor M. Oviedo | /s/ James R. Bell | |
| Victor M. Oviedo, Chief Executive Officer | Date: 06/24/2022 | ||
| Date: 06/24/2022 | |||
NON-STATUTORY OPTION AWARD AGREEMENT
THIS NON-STATUTORY OPTION AWARD AGREEMENT (this “Agreement”) is made as of the grant date set forth in Section 1 of the Non-Statutory Option Award (the “Option Award”) to which this Agreement relates and is attached (the “Grant Date”) between Investview, Inc., a Nevada corporation (the “Company”), and the individual identified in Section 2 of the Option Award to which this Agreement relates and is attached (the “Optionee”).
W I T N E S S E T H:
WHEREAS, the Company adopted the Investview, Inc. 2022 Incentive Plan (the “Plan”), which provides for the grant of certain awards, including without limitation, Non-Statutory Stock Options to Employees of the Company, with the corresponding right to purchase shares of Common Stock of the Company (the “Common Stock”).
WHEREAS, the Board of Directors of the Company, acting as the Committee under the Plan (the “Committee”), has authorized the grant of a Non-Statutory Option to the Optionee on the date of this Agreement as evidenced by the Option Award to which this Agreement is attached, thereby allowing the Optionee to acquire a proprietary interest in the Company in order that the Optionee will have a further incentive for remaining with and increasing his or her efforts on behalf of the Company.
WHEREAS, this Agreement has been prepared in conjunction with and under the terms of the Plan, which are incorporated herein and made a part hereof by reference, and unless otherwise covered by the terms of this Agreement, the terms of this Option Award are intended to be governed by the Plan.
WHEREAS, this Agreement is intended to supersede and replace in its entirety, the Restricted Share Award Agreement issued by the Company to Optionee dated November 9, 2020, for which 30,000,000 shares of restricted stock remains unvested (the “November 2020 Award Agreement”).
WHEREAS, this Agreement and the associated Option Award, are part of an overall restructuring of the Company’s prior unvested restricted stock awards, pursuant to which the Company, after consideration of the taxation and tax withholding implications, and other consequences of the granting and vesting of unvested restricted stock under the Plan, has determined that it is in the best interests of the Company to restructure the grant of unvested restricted stock under the Plan as the grant of stock options, based on a conversion factor, which, following consultation with an independent valuation firm, was determined, based upon prevailing market and other conditions, to be 1.25 to 1.
WHEREAS, the Optionee has accepted the grant of Non-Statutory Stock Options evidenced by the Option Award and this Agreement in replacement for the unvested portion of the November 2020 Award Agreement, and has agreed to the terms and conditions stated herein and therein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants hereinafter set forth and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Confirmation of Grant of Option. Pursuant to a determination by the Committee, the Company, subject to the terms of the Plan and this Agreement, hereby grants to the Optionee as a matter of separate inducement and agreement, and in addition to and not in lieu of salary or other compensation or fees for services, the right to purchase (the “Option”) an aggregate number of shares of Common Stock as is set forth in Section 3 of the Option Award, subject to adjustment as provided in the Plan (such shares, as adjusted, the “Option Shares”). The Option is not intended to qualify as an incentive stock option under Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”).
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2. Exercise Price. The per share exercise price of the Shares covered by the Option will be the per share amount set forth in Section 4 of the Option Award, at all times being not less than 100% of the Fair Market Value of one share of Common Stock on the Grant Date, subject to adjustment as provided in the Plan.
3. Vesting and Exercisability of Option. The Option shall vest and become exercisable on the terms and conditions hereinafter set forth:
(a) The Option shall vest and become exercisable (on a cumulative basis) in such installments (after giving effect to any adjustment pursuant to the Plan) and on such vesting dates, as set forth in Section 5 of the Option Award, provided that the Optionee remains a member of the Board of Directors of the Company as of each such applicable vesting date as indicated in Section 5 of the Option Award.
(b) In addition, the Option shall vest and become exercisable to the extent and as provided in Sections 6, 7 and 8 hereof and as expressly provided by the terms of any Individual Agreement (as defined in the Plan) between the Optionee and the Company or one of its Subsidiaries or Affiliates. The Committee may decide, in its absolute discretion, to accelerate the vesting of all or some lesser portion of any unvested Options at any time, at the date specified by the Committee.
(c) The Option may be exercised pursuant to the provisions of this Section 3 and Sections 6, 7 and 8 hereof, by delivery of an Exercise Notice and payment to the Company as provided in Sections 10 and 15 hereof.
4. Term of Option. The term of the Option shall be the period of years from the Grant Date as is set forth in Section 1 of the Option Award and shall expire on the date set forth in Section 6 of the Option Award, subject to earlier termination or cancellation as provided in this Agreement.
5. Non-transferability of Option. The Option shall not be assigned, transferred or otherwise disposed of, or pledged or hypothecated in any way, and shall not be subject to execution, attachment or other process, except as may be provided in the Plan. Any assignment, transfer, pledge, hypothecation or other disposition of the Option attempted contrary to the provisions of the Plan, or any levy of execution, attachment or other process attempted upon the Option, will be null and void and without effect. Any attempt to make any such assignment, transfer, pledge, hypothecation or other disposition of the Option will cause the Option to terminate immediately upon the happening of any such event; provided, however, that any such termination of the Option under the foregoing provisions of this Section 5 will not prejudice any rights or remedies which the Company or one of its Subsidiaries or Affiliates may have under this Agreement or otherwise.
6. Exercise Upon Cessation of Status as an Eligible Recipient Other Than on Account of Death or Disability. The terms of this Section 6 apply unless otherwise expressly provided by the terms of any Individual Agreement between the Optionee and the Company or one of its Subsidiaries or Affiliates or a plan or policy of the Company applicable to the Optionee specifically provides otherwise, and subject to the provisions of Section 5 hereof and Sections 13.4 and 13.5 of the Plan. In no event, however, may the Option be exercised after the expiration of the term provided in Section 4 hereof.
(a) If the Optionee ceases to be a Member of the Board of Directors by reason of an involuntary removal from such position or if Optionee is no longer appointed or elected to the Board of Directors, the Option may thereafter following such cessation of such service only be exercised by the Optionee to the same extent the Optionee would have been entitled under Section 3 hereof to exercise the Option immediately prior to such cessation of service, at any time within the later of: (i) thirty (30) days after such cessation of service; or (ii) that date that occurs upon the earlier of: (X) thirty (30) days following the expiration of the “Lock-Up Agreement” (as hereafter defined); or (Y) thirty (30) days following the release of Optionee from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the Optionee prior to the effective date of such release, if at all, in the Company’s sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the Optionee shall forfeit all rights hereunder.
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(b) If the Optionee at any time ceases to be a Member of the Board of Directors by reason of the Optionee’s voluntary resignation from such position (and other than Optionee’s removal or failure to appoint or elect to the Board, or Optionee’s removal upon death or Disability), the Option may be exercised by the Optionee to the same extent the Optionee would have been entitled under Section 3 hereof to exercise the Option immediately prior to such cessation of service, at any time within the later of: (i) ninety (90) days after such cessation of service; or (ii) that date that occurs upon the earlier of: (X) ninety (90) days following the expiration of the Lock-Up Agreement; or (Y) ninety (90) days following the release of Optionee from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the Optionee prior to the effective date of such release, if at all, in its sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the Optionee shall forfeit all rights hereunder, even if the Optionee subsequently returns to the employ of the Company or one of its Subsidiaries or Affiliates or begins providing other service to the Company or one of its Subsidiaries or Affiliates.
(c) The Option shall not be affected by any change of duties or position of the Optionee so long as Optionee continues to be a member of the Board of Directors of the Company. If the Optionee is granted a temporary leave of absence of 90 days or less, such leave of absence shall be deemed a continuation of his or her service as a member of the Board of Directors of the Company for the purposes of this Agreement, but only if and so long as the Company consents thereto.
(d) The change in an Optionee’s status from that of a member of the Board of Directors to that of an Employee or Consultant will, for purposes of this Agreement, be deemed to result in a termination of such Optionee’s membership on the Board of Directors of the Company, unless the Committee otherwise determines in its sole discretion.
7. Exercise Upon Death or Disability. The terms of this Section 7 apply unless otherwise expressly provided by the terms of an Individual Agreement between the Optionee and the Company or one of its Subsidiaries or Affiliates or a plan or policy of the Company applicable to the Optionee specifically provides otherwise, and subject to the provisions of Section 5 hereof and Sections 13.4 and 13.5 of the Plan. In no event, however, may the Option be exercised after the expiration of the term provided in Section 4 hereof.
(a) If the Optionee’s service as a Board member ceases as a result of Optionee’s death, the Option may be exercised (to the extent the Option is vested pursuant to Section 3 immediately prior to Optionee’s death), by the estate of the Optionee (or by the person or persons who acquire the right to exercise the Option by written designation of the Optionee) at any time within the later of: (i) twelve (12) months after such cessation of service; or (ii) that date that occurs upon the earlier of: (X) twelve (12) months following the expiration of the Lock-Up Agreement; or (Y) twelve (12) months following the release of Optionee (and the estate) from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the estate of the Optionee prior to the effective date of such release, if at all, in its sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the estate or other beneficiaries shall forfeit all rights hereunder; provided, however, that without the consent of the Optionee’s estate, the Company cannot release the Optionee’s estate from the terms of the Lock-Up Agreement prior to twelve months following the Grant Date.
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(b) If the Optionee’s service as a Board member ceases as a result of Disability of the Optionee, the Option may be exercised (to the extent the Option is vested pursuant to Section 3 immediately prior to the termination of the Optionee’s service due to Disability), by the Optionee at any time within the later of: (i) twelve (12) months after such cessation of service; or (ii) that date that occurs upon the earlier of: (X) twelve (12) months following the expiration of the Lock-Up Agreement; or (Y) twelve (12) months following the release of Optionee from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the Optionee prior to the effective date of such release, if at all, in its sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the Optionee shall forfeit all rights hereunder even if the Optionee subsequently returns to the employ of the Company or one of its Subsidiaries or Affiliates or begins providing other service to the Company or one of its Subsidiaries or Affiliates; provided, however, that without the consent of the Optionee, the Company cannot release the Optionee from the terms of the Lock-Up Agreement prior to twelve months following the Grant Date.
8. Change in Control of the Company. If there is a Change in Control, unless otherwise expressly provided by the terms of an Individual Agreement between the Optionee and the Company or one of its Subsidiaries or Affiliates, the Option will be governed by the provisions of Article 15 of the Plan.
9. Registration. The shares covered by the Option have been registered and qualified for sale pursuant to the Securities Act of 1933, as amended, by the Company pursuant to a registration statement on Form S-8.
10. Method of Exercise of Option.
(a) Subject to the terms and conditions of this Agreement, the Option shall be exercisable by delivery of a completed written Option Exercise Form in substantially the form set forth in Exhibit A hereto (the “Exercise Notice”) and provision for payment to the Company in accordance with the procedure prescribed herein. Each such Notice shall:
(i) state the election to exercise the Option and the number of Shares with respect to which it is being exercised;
(ii) be signed by the Optionee or the person or persons entitled to exercise the Option and, if the Option is being exercised by any person or persons other than the Optionee, be accompanied by proof, satisfactory to counsel to the Company, of the right of such other person or persons to exercise the Option (collectively an “Authorized Person”);
(iii) include payment of the full purchase price for the shares of Common Stock to be purchased pursuant to such exercise of the Option; and
(iv) be received by the Company on or before the date of the expiration of this Option. In the event the date of expiration of this Option falls on a day which is not a regular business day at the Company’s headquarters office, then such written Exercise Notice must be received at such office on or before the last regular business day prior to such date of expiration.
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(b) Payment of the purchase price of any shares of Common Stock, in respect of which the Option shall be exercised, shall be made by the Optionee or Authorized Person at the place specified by the Company on the date the Exercise Notice is received by the Company (i) by delivering to the Company cash or a certified or bank cashier’s check payable to the order of the Company, (ii) by delivering to the Company properly endorsed certificates of shares of Common Stock (or certificates accompanied by an appropriate stock power) with signature guaranties by a bank or trust company, (iii) by tender of a Broker Exercise Notice, subject to approval in advance by the Committee solely for the purpose of determining that the sale of any shares of Common Stock in respect of such Broker Exercise Notice will provide the Company with sufficient proceeds to pay the exercise price, (iv) by having withheld from the total number of shares of Common Stock to be acquired upon the “net exercise” of this Option a specified number of such shares of Common Stock, or (v) by any combination of the foregoing. For purposes of the immediately preceding sentence, an exercise effected by the tender of Common Stock (or deemed to be effected by the tender of Common Stock) may only be consummated with Common Stock held by the Optionee for a period of six (6) months or acquired by the Optionee other than under the Plan (or a similar plan maintained by the Company).
(c) The Option shall be deemed to have been exercised with respect to any particular shares of Common Stock if, and only if, the preceding provisions of this Section 10 and the provisions of Section 11 hereof shall have been complied with, in which event the Option shall be deemed to have been exercised on the date the Exercise Notice was received by the Company. Anything in this Agreement to the contrary notwithstanding, any Exercise Notice given pursuant to the provisions of this Section 10 shall be void and of no effect if all of the preceding provisions of this Section 10 and the provisions of Section 11 shall not have been strictly complied with.
(d) The certificate or certificates or book-entry notations for shares of Common Stock as to which the Option shall be exercised will be registered in the name of the Optionee (or in the name of the Optionee’s estate or other beneficiary if the Option is exercised after the Optionee’s death), or if the Option is exercised by the Optionee and if the Optionee so requests in the notice exercising the Option, will be registered in the name of the Optionee and another person jointly, with right of survivorship and will be delivered as soon as practical after the date the Exercise Notice is received by the Company (accompanied by full payment of the exercise price), but only upon compliance with all of the provisions of this Agreement.
(e) If the Optionee fails to accept delivery of and pay for all or any part of the number of Shares specified in such Exercise Notice, Optionee’s right to exercise the Option shall be terminated with respect to such undelivered Shares, unless the Committee, it its sole discretion, determines otherwise. The Option may be exercised only with respect to full Shares.
(f) The Company shall not be required to issue or deliver any certificate or certificates or perform any book-entry notations for shares of its Common Stock purchased upon the exercise of any part of the Option prior to the payment to the Company, upon its demand, of any amount requested by the Company for the purpose of satisfying its maximum statutory liability, if any, to withhold federal, state or local income or earnings tax or any other applicable tax or assessment (plus interest or penalties thereon, if any, caused by a delay in making such payment) incurred by reason of the exercise of this Option or the transfer of shares thereupon. Such payment shall be made by the Optionee in cash or, with the written consent of the Company, by tendering to the Company shares of Common Stock equal in value to the amount of the required withholding. In the alternative, the Company, at its sole discretion, may satisfy such withholding requirements by withholding from the shares of Common Stock to be delivered to the Optionee pursuant to an exercise of the Option a number of shares of Common Stock equal in value to the amount of the required withholding.
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11. Approval of Counsel. The exercise of the Option and the issuance and delivery of shares of Common Stock pursuant to this Agreement shall be subject to approval by the Company’s counsel of all legal matters in connection therewith, including, but not limited to, compliance with the requirements of the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended, and the requirements of any stock exchange or automated trading medium upon which the Common Stock may then be listed or traded.
12. Resale of Common Stock, Etc. If required by counsel for the Company, the stock certificate(s) or book-entry notation(s) for the Common Stock issued upon exercise of the Option shall bear the following (or similar) legends:
THE SHARES EVIDENCED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS THEY HAVE FIRST BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNLESS, IN THE OPINION OF COUNSEL FOR THE COMPANY, SUCH REGISTRATION IS NOT REQUIRED.
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.
13. Reservation of Shares. The Company shall at all times during the term of the Option reserve and keep available such number of shares of Common Stock as will be sufficient to satisfy the requirements of this Agreement.
14. Limitation of Action. The Optionee and the Company each acknowledge that every right of action accruing to the Optionee or the Company, as the case may be, and arising out of or in connection with this Agreement against the Optionee, on the one hand, or against the Company, on the other hand, shall, irrespective of the place where an action may be brought, cease and be barred by the expiration of twenty-four (24) months from the date of the act or omission in respect of which such right of action arises.
15. Notices. Each notice relating to the Option Award and this Agreement shall be in writing and delivered in person, by recognized overnight carrier or by certified mail to the proper address. All notices to the Company or the Committee shall be addressed to them at the address of the Company’s headquarters as reflected in the Company’s most recent federal securities filings, Attn: Chairman. All notices to the Optionee shall be addressed to the Optionee or such other person or persons at the Optionee’s address set forth in the Company’s records. Anyone to whom a notice may be given under this Agreement may designate a new address by notice to that effect.
16. Successors. This Agreement shall inure to the benefit of the Company, the Optionee and their respective heirs, executors, administrators, personal representatives, successors and assigns.
17. Construction. Wherever possible, each provision of this Agreement will be interpreted so that it is valid under the Applicable Law (as defined in the Plan). If any provision of this 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 Agreement will continue to be valid, and the Agreement will continue to be valid in other jurisdictions.
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18. Governing Law. All questions pertaining to the validity, construction and administration of this Agreement shall be determined in accordance with the laws of the State of Nevada without regard to its principles of conflicts of law.
19. Board Service. Nothing in this Agreement will interfere with or limit in any way the right of the Company or any Subsidiary or Affiliate to terminate the service of the Optionee as a Board member under applicable law, to the extent otherwise permissible, at any time, nor confer upon the Optionee any right to continue service as a Board member with the Company or any Subsidiary or Affiliate.
20. Clawback. Any shares of Common Stock issued upon exercise of the Option may be subject to recoupment by the Company, however, only to the extent required under applicable laws, rules or regulations in effect from time to time, and the Company’s then effective Clawback and Forfeiture Policy.
21. Definitions. Unless otherwise defined in this Agreement or the Option Award, all capitalized terms used in this Agreement shall have the same definitions as set forth in the Plan.
22. Incorporation of Terms of Plan. This Agreement shall be interpreted under, and subject to, all of the terms and provisions of the Plan, which are incorporated herein by reference.
23. Joinder to Lock-Up Agreement. Optionee 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 Company and DBR Capital, LLC, a copy of which has been provided to Optionee for his review and consent.
24. Termination of November 2020 Award Agreement. Optionee confirms and agrees that upon execution of this Agreement, he does release, remise and forever discharge the Company from any and all obligations to issue any and all shares of the Company’s Common Stock contemplated by the November 2020 Award Agreement, and accepts this Agreement as the entire agreement between the parties hereto with respect to the subject matter contained herein, with the understanding that this Agreement will supersede and is in full substitution for the November 2020 Award Agreement, which for purposes of clarity, shall be of no force and effect after the Effective Date hereof. No change, addition, or amendment shall be made except by written agreement signed by the parties hereto.
25. No Strict Construction. The language used in this Agreement shall be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction shall apply against any party.
26. Advice of Counsel. Optionee acknowledges that Fox Rothschild LLP represents the Company as its legal counsel. Optionee represents that Optionee 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 Optionee’s counsel’s advice and that Optionee is executing the Agreement voluntarily and fully intending to be legally bound because, among other things, the Agreement provides valuable benefits to Optionee which Optionee 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.
BY WAY OF THEIR EXECUTION OF THE OPTION AWARD TO WHICH THIS AGREEMENT RELATES AND IS ATTACHED, the Company and the Optionee (and each of their heirs, successors and assigns) agree to be bound by each and every one of the terms set forth in this Agreement.
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EXHIBIT A
NON-STATUTORY OPTION EXERCISE FORM
[DATE]
Investview, Inc.
Attention: Chairman
1. Option Exercise. I hereby elect to exercise my option to purchase the following shares of Common Stock of Investview, Inc. under the Investview, Inc. 2022 Incentive Plan (the “Plan”) and the Option Agreement (the “Option”) identified below:
| Option Grant #: | |
| Grant Date: | |
| Number of Shares: |
| Exercise Price Per Share: | $ | |
| Total Purchase Price: | $ |
2. Payment. I am paying the purchase price of the exercised Option as follows (check the applicable form of payment):
| _____ | I am attaching cash or a check in the amount of $____________, as the total purchase price for the shares. |
| _____ | I have delivered ________ shares of Common Stock of Investview, Inc. (the “Company”) that I have previously acquired. I own these shares free and clear of any liens, claims, encumbrances or security interests. I have enclosed the certificates representing these previously acquired shares endorsed or accompanied by an executed assignment separate from certificate. |
| _____ | I have delivered irrevocable instructions to a broker to sell a sufficient number of shares of Common Stock of the Company to pay the total purchase price and to pay such amounts to the Company. [Please note that this form of payment is only available upon prior written approval of the Committee solely for the purpose of determining that the sale of shares of Common Stock in respect of such broker exercise notice will provide the Company with sufficient proceeds to pay the exercise price and is subject to any applicable restrictions on the sale of such shares by Optionee.] |
The name, address and telephone number of the broker is as follows:
Name of Firm:
Contact:
Address:
Phone:
Fax:
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[Please also see Section 4 of this Option Exercise Notice, which may prevent you from using this type of “cashless” exercise feature if you possess material non-public information about the Company or its securities at the time of exercise.]
| _____ | I hereby elect to convert the attached option into shares of Common Stock of the Company on a “net exercise” basis pursuant to Section 6.5(b) of the Plan. |
| _____ | I have elected to pay any required withholding with the exercise transaction. Accordingly, I have included $_______, which I would like applied to federal and state tax withholdings as follows:_________________________________________________________. |
3. Certificate Delivery. I elect to have my shares of Common Stock delivered as follows:
| _____ | Please have the shares delivered electronically via DWAC to my brokerage account. Please use the information below to execute the transaction. |
| Broker DTC number: | |
| My Account Number |
| _____ | Please register the certificate or book-entry notation representing the shares in the name set forth below and send the certificate or evidence of book-entry notation to the following address: |
| Registered Name: | |
| Address: | |
4. Compliance with Insider Trading Policy. I acknowledge that I have read and understand the Company’s current insider trading policy, including the portions that may, among other things, restrict my ability to exercise my Options through a broker sale on the open market or otherwise sell the shares of Common Stock issuable upon exercise of my Options. I understand that the information in this letter does not limit in any manner my own, personal responsibilities and obligations under the policy and the securities laws, including, but not limited to, the prohibitions on trading (including by means of a broker assisted option exercise) while I possess material, non-public information or during a blackout period that may be imposed under the policy. I agree to provide a copy of this exercise notice to my broker, and to require his or her compliance with the policy. I understand that the Company may reject any broker exercise completed during a blackout period or that is otherwise prohibited by any Company policy, including the current insider trading policy.
5. Representations. I acknowledge that I have received, read and understand the Plan and my Non-Statutory Option Award Agreement, which together govern the terms of my Option and its exercise. I have also read the current Plan prospectus, the Company’s latest annual report to stockholders and the other public reports and information incorporated by reference into the prospectus in making my decision to exercise my options.
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6. Effectiveness and Execution of Transaction. I understand and agree that this exercise election will be subject to acknowledgement by the Company. In the case of a cash exercise, my Option exercise will be processed as soon as practicable. In the case of a cashless exercise, I understand it may take longer to process my Option exercise.
| Submitted by: | Acknowledged by: | |||
| Optionee | Broker | |||
| By: | Firm Name: | |||
| Its: | By: | |||
| Date: | Its: | |||
| Date: | ||||
| Acknowledged by: | ||
| Investview, Inc. | ||
| By: | ||
| Its: | ||
| Date: | ||
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Exhibit 10.118
EXECUTION VERSION
Myles P. Gill
AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT (this “Amendment”) to the Employment Agreement (the “Employment Agreement”) dated February 21, 2022 by and between Investview, Inc. (the “Employer”) and Myles P. Gill (the “Executive”) is entered into this 24th day of June, 2022.
WHEREAS Section 2.5 of the Employment Agreement contemplated the grant of restricted stock to the Executive pursuant to the terms of the Investview, Inc. 2022 Incentive Plan, which restricted stock has not been granted to the Executive; and
WHEREAS, after consideration of the taxation and tax withholding implications, and other consequences, of the granting and vesting of restricted stock under the Plan, the parties have determined it is in the best interests of the Employer and Executive to restructure the grant of equity under Section 2.5 of the Employment Agreement as the grant of stock options, based on a conversion factor which, following consultation with an independent valuation firm, was determined, based upon prevailing market and other conditions, to be 1.25 to 1; and
WHEREAS the parties have agreed that the Employment Agreement be amended to provide for the grant of stock options rather than restricted stock under Section 2.5 of the Employment Agreement.
NOW, THEREFORE, the parties agree to amend the Employment Agreement as follows:
1. Section 2.5 of the Employment Agreement is hereby amended and restated to read as follows:
2.5 Grant of Stock Option. The Employer hereby agrees to award and grant to the Executive a stock option (the “Option”) to acquire twenty-five million (25,000,000) shares of INVU Common Stock (collectively, the “Option 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 Option to be subject to vesting, forfeiture and the other restrictions as contained below and in the Plan and the award agreement evidencing such Option to be executed between the Employer and the Executive, which shall be in substantially the form attached hereto as Exhibit A (the “Option Award Agreement”). To the extent authorized in the Plan and Option Award Agreement, the Option Award Agreement shall be subject to the terms as provided below, notwithstanding any terms to the contrary in the Plan or the Option Award Agreement itself.
(a) Vesting of Option. Subject to the terms of this Agreement, the Plan and the Option Award Agreement, the Option shall vest and become exercisable, 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 full-time employee of the Employer, and (ii) there not having occurred a For Cause Event:
| Vesting Date | Option Vesting | Option Shares | ||||||
| February 21, 2023 | 20 | % | 5,000,000 | |||||
| February 21, 2024 | 20 | % | 5,000,000 | |||||
| February 21, 2025 | 20 | % | 5,000,000 | |||||
| February 21, 2026 | 20 | % | 5,000,000 | |||||
| February 21, 2027 | 20 | % | 5,000,000 | |||||
(b) Treatment of Options Upon a Change in Control. Upon the occurrence of a “Change in Control” (as defined in the Plan), vesting of the Option 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 Options that have not yet vested as of such date shall immediately and automatically vest and become non-forfeitable.
(c) Treatment of Option Upon a Termination of Employment. The following provisions governing the treatment of the Option 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 Option shall cease as of the date of such termination, and any unvested portion of the Option shall be forfeited by the Executive.
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 portion of the Option that is scheduled to vest during the period from the date of Executive’s termination of employment through the next Scheduled Vesting Date, as applicable (but in no event longer than a six-month period following the date of Executive’s termination of employment) shall immediately and automatically vest and become non-forfeitable and the remaining unvested portion of the Option shall terminate and be forfeited by the Executive.
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 portion of the Option that is scheduled to vest during the period from the date of Executive’s termination of employment 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 termination of employment) shall immediately and automatically vest and become non-forfeitable and the remaining unvested portion of the Option shall terminate and be forfeited by the Executive.
(d) Prohibition Against Transfer of Option. Prior to the vesting and exercise of the Option, 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 Option Shares. Any such transfer in violation of this Section 2.5(d) shall be void and of no further effect.
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(e) Required Tax Withholding Obligations. The Employer may require payment by the Executive or withhold any income or employment tax which the Employer reasonably determines is payable as a result of the exercise of the Option or any payments thereon or in connection therewith, and the Employer may defer issuing the Option Shares to the Executive until arrangements satisfactory to the Employer have been made with regard to any such withholding obligation. The Employer, in its sole discretion, may withhold a portion of the Option Shares to satisfy such withholding obligations.
2. Section 6.3(b)(iv) of the Employment Agreement is amended and restated to read as follows:
iv. Any unvested portion of the Option that is 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 portion of the Option shall terminate and be forfeited by the Executive.
3. Section 8.9 of the Employment Agreement is amended by changing the phrase “Restricted Shares” to “Option Shares” where it appears in Section 8.9.
4. 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 Amendment and has elected to forego advice from counsel or is satisfied with Executive’s counsel’s advice and that Executive is executing the Amendment voluntarily and fully intending to be legally bound because, among other things, the Amendment 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 Amendment. Hence, this Amendment shall not be construed against any party.
5. Counterparts. This Amendment 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 Amendment, 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.
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SIGNED AND DELIVERED to be effective as of the Effective Date of the Employment Agreement.
| EMPLOYER: | ||
| Investview, Inc. | ||
| By: | /s/ Victor Oviedo | |
| Name: | Victor Oviedo | |
| Title: | Chief Executive Officer | |
| By: | /s/ David B. Rothrock | |
| Name: | David B. Rothrock | |
| Title: | Chairman of the Board | |
| EXECUTIVE: | ||
| By: | /s/ Myles P. Gill | |
| Name: | Myles P. Gill | |
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Exhibit 10.119
FINAL EXECUTION VERSION
Exhibit A: Myles P. Gill – Employee Option Award (Conversion of February 2022 Restricted Shares)
Option Grant No. 2022-04
INVESTVIEW, INC.
2022 INCENTIVE PLAN
NON-STATUTORY OPTION AWARD
Investview, Inc., a Nevada corporation (the “Company”), pursuant to the terms of the Investview, Inc. 2022 Incentive Plan (the “Plan”) and the Non-Statutory Option Award Agreement (the “Agreement”) attached to this Non-Statutory Option Award (this “Option Award”), hereby grants to the individual named in Section 2 below (the “Optionee”), effective as of the grant date set forth in Section 1 below, the option to purchase the number of shares of the Company’s Common Stock as set forth in Section 3 below, subject to the exercise price as set forth in Section 4 below and vesting as set forth in Section 5 below and the terms and conditions of this Option Award and the Agreement attached to this Option Award.
The terms of this Option Award are subject to all of the provisions of the Plan and the attached Agreement, with such provisions being incorporated herein by reference. All of the capitalized terms used in this Option Award and the Agreement not otherwise defined herein or therein shall have the same meaning as defined in the Plan. A copy of the Plan and the prospectus for the Plan have been delivered to Optionee together with this Option Award and the Agreement.
| 1. | Grant Date: | June 24, 2022 |
| 2. | Name of Optionee: | Myles P. Gill |
| 3. | Number of Underlying Shares of Common Stock: | 25,000,000 |
| (subject to adjustment as provided in the Plan) | ||
| 4. | Exercise Price: | $.05 per share (subject to adjustment as provided in the Plan) |
| 5. | Vesting of Options (on a cumulative basis and subject to adjustment as provided in the Plan): |
| VESTING DATE | NO. OF UNDERLYING SHARES TO BE VESTED* | |||
| February 21, 2023 | 5,000,000 | |||
| February 21, 2024 | 5,000,000 | |||
| February 21, 2025 | 5,000,000 | |||
| February 21, 2026 | 5,000,000 | |||
| February 21, 2027 | 5,000,000 | |||
*Vesting to occur pursuant to Section 3 of the attached Agreement and conditioned upon continued employment as described therein.
| 6. | Expiration Date: | June 24, 2029 |
The Optionee acknowledges receipt of and understands and agrees to be bound by all of the terms of this Option Award, inclusive of the attached Agreement, and the Plan, and that the terms thereof supersede any and all other written or oral agreements between the Optionee and the Company, other than the Optionee’s Employment Agreement, regarding the subject matter contained herein.
| Investview, Inc. | Optionee: | ||
| By: | /s/ Victor M. Oviedo | /s/ Myles P. Gill | |
| Victor M. Oviedo, Chief Executive Officer | Date: 06/24/2022 | ||
| Date: | 06/24/2022 | ||
NON-STATUTORY OPTION AWARD AGREEMENT
THIS NON-STATUTORY OPTION AWARD AGREEMENT (this “Agreement”) is made as of the grant date set forth in Section 1 of the Non-Statutory Option Award (the “Option Award”) to which this Agreement relates and is attached (the “Grant Date”) between Investview, Inc., a Nevada corporation (the “Company”), and the individual identified in Section 2 of the Option Award to which this Agreement relates and is attached (the “Optionee”).
W I T N E S S E T H:
WHEREAS, the Company adopted the Investview, Inc. 2022 Incentive Plan (the “Plan”), which provides for the grant of certain awards, including without limitation, Non-Statutory Stock Options to Employees of the Company, with the corresponding right to purchase shares of Common Stock of the Company (the “Common Stock”).
WHEREAS, the Board of Directors of the Company, acting as the Committee under the Plan (the “Committee”), has authorized the grant of a Non-Statutory Option to the Optionee on the date of this Agreement as evidenced by the Option Award to which this Agreement is attached, thereby allowing the Optionee to acquire a proprietary interest in the Company in order that the Optionee will have a further incentive for remaining with and increasing his or her efforts on behalf of the Company.
WHEREAS, this Agreement is prepared in conjunction with and under the terms of the Plan, which are incorporated herein and made a part hereof by reference, and subject to the terms, conditions and requirements provided in the Employment Agreement dated February 10, 2022 by and between the Company and Optionee, as amended by that Amendment to Employment Agreement dated June 24, 2022 (collectively, the “Employment Agreement”).
WHEREAS, the Optionee has accepted the grant of Non-Statutory Stock Options evidenced by the Option Award and this Agreement and has agreed to the terms and conditions stated herein and therein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants hereinafter set forth and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Confirmation of Grant of Option. Pursuant to a determination by the Committee, the Company, subject to the terms of the Plan and this Agreement, hereby grants to the Optionee as a matter of separate inducement and agreement, and in addition to and not in lieu of salary or other compensation or fees for services, the right to purchase (the “Option”) an aggregate number of shares of Common Stock as is set forth in Section 3 of the Option Award, subject to adjustment as provided in the Plan (such shares, as adjusted, the “Shares”). The Option is not intended to qualify as an incentive stock option under Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”).
2. Exercise Price. The per share exercise price of the Shares covered by the Option will be the per share amount set forth in Section 4 of the Option Award, at all times being not less than 100% of the Fair Market Value of one share of Common Stock on the Grant Date, subject to adjustment as provided in the Plan.
3. Vesting and Exercisability of Option. The Option shall vest and become exercisable on the terms and conditions hereinafter set forth:
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(a) The Option shall vest and become exercisable (on a cumulative basis) in such installments (after giving effect to any adjustment pursuant to the Plan) and on such vesting dates, as set forth in Section 5 of the Option Award, provided that the Optionee (i) remains an Employee of the Company or one of its Subsidiaries or Affiliates as of each such applicable vesting date as indicated in Section 5 of the Option Award, and (ii) there not having occurred a “For Cause Event” as such term is defined in the Employment Agreement.
(b) In addition, the Option shall vest and become exercisable to the extent and as provided in Sections 6, 7 and 8 hereof and as expressly provided by the terms of the Employment Agreement or any other Individual Agreement (as defined in the Plan) between the Optionee and the Company or one of its Subsidiaries or Affiliates. The Committee may decide, in its absolute discretion, to accelerate the vesting of all or some lesser portion of any unvested Options at any time, at the date specified by the Committee.
(c) The Option may be exercised pursuant to the provisions of this Section 3 and Sections 6, 7 and 8 hereof, by delivery of an Exercise Notice and payment to the Company as provided in Sections 10 and 15 hereof.
4. Term of Option. The term of the Option shall be the period of years from the Grant Date as is set forth in Section 1 of the Option Award and shall expire on the date set forth in Section 6 of the Option Award, subject to earlier termination or cancellation as provided in this Agreement.
5. Non-transferability of Option. The Option shall not be assigned, transferred or otherwise disposed of, or pledged or hypothecated in any way, and shall not be subject to execution, attachment or other process, except as may be provided in the Plan. Any assignment, transfer, pledge, hypothecation or other disposition of the Option attempted contrary to the provisions of the Plan, or any levy of execution, attachment or other process attempted upon the Option, will be null and void and without effect. Any attempt to make any such assignment, transfer, pledge, hypothecation or other disposition of the Option will cause the Option to terminate immediately upon the happening of any such event; provided, however, that any such termination of the Option under the foregoing provisions of this Section 5 will not prejudice any rights or remedies which the Company or one of its Subsidiaries or Affiliates may have under this Agreement or otherwise.
6. Exercise Upon Cessation of Employment Other Than on Account of Death or Disability. The terms of this Section 6 apply unless otherwise expressly provided by the terms of the Employment Agreement or any other an Individual Agreement between the Optionee and the Company or one of its Subsidiaries or Affiliates or a plan or policy of the Company applicable to the Optionee specifically provides otherwise, and subject to the provisions of Section 5 hereof and Sections 13.4 and 13.5 of the Plan. In no event, however, may the Option be exercised after the expiration of the term provided in Section 4 hereof.
(a) If the Optionee at any time ceases to be an Employee of the Company or one of its Subsidiaries or Affiliates by reason of his or her discharge by the Company for Cause, the Option may thereafter following such cessation of employment only be exercised by the Optionee to the same extent the Optionee would have been entitled under Section 3 hereof to exercise the Option immediately prior to such cessation of employment or other service, at any time within the later of: (i) thirty (30) days after such cessation of employment or other service; or (ii) that date that occurs upon the earlier of: (X) thirty (30) days following the expiration of the “Lock-Up Agreement” (as defined in the Employment Agreement); or (Y) thirty (30) days following the release of Optionee from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the Optionee prior to the effective date of such release, if at all, in the Company’s sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the Optionee shall forfeit all rights hereunder.
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(b) If the Optionee terminates employment with the Company and all of its Subsidiaries or Affiliates other than for Good Reason (and other than Optionee’s discharge for Cause and Optionee’s termination upon death or Disability), the Option may be exercised by the Optionee to the same extent the Optionee would have been entitled under Section 3 hereof to exercise the Option immediately prior to such cessation of employment or other service, at any time within the later of: (i) ninety (90) days after such cessation of employment or other service; or (ii) that date that occurs upon the earlier of: (X) ninety (90) days following the expiration of the “Lock-Up Agreement” (as defined in the Employment Agreement); or (Y) ninety (90) days following the release of Optionee from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the Optionee prior to the effective date of such release, if at all, in the Company’s sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the Optionee shall forfeit all rights hereunder, even if the Optionee subsequently returns to the employ of the Company or one of its Subsidiaries or Affiliates or begins providing other service to the Company or one of its Subsidiaries or Affiliates.
(c) If the Optionee at any time ceases to be an Employee of the Company or one of its Subsidiaries or Affiliates by reason of his or her discharge by the Company without Cause or by the Optionee for Good Reason (and other than Optionee’s termination upon death or Disability), the Option may be exercised by the Optionee to the same extent the Optionee would have been entitled under Section 3 hereof to exercise the Option immediately prior to such cessation of employment or other service, at any time within the later of: (i) six (6) months after such cessation of employment or other service; or (ii) that date that occurs upon the earlier of: (X) six (6) months following the expiration of the Lock-Up Agreement; or (Y) six (6) months following the release of Optionee from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the Optionee prior to the effective date of such release, if at all, in the Company’s sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the Optionee shall forfeit all rights hereunder, even if the Optionee subsequently returns to the employ of the Company or one of its Subsidiaries or Affiliates or begins providing other service to the Company or one of its Subsidiaries or Affiliates; provided, however, that without the consent of the Optionee, the Company cannot release the Optionee from the terms of the Lock-Up Agreement prior to twelve months following the Grant Date.
(d) The Option shall not be affected by any change of duties or position of the Optionee so long as Optionee continues to be a full-time Employee of the Company or one of its Subsidiaries or Affiliates. If the Optionee is granted a temporary leave of absence of 90 days or less, such leave of absence shall be deemed a continuation of his or her employment by the Company or one of its Subsidiaries or Affiliates for the purposes of this Agreement, but only if and so long as the employing corporation consents thereto.
(e) The change in an Optionee’s status from that of an Employee to that of a Consultant will, for purposes of this Agreement, be deemed to result in a termination of such Optionee’s employment with the Company and its Subsidiaries and Affiliates, unless the Committee otherwise determines in its sole discretion. Unless the Committee otherwise determines in its sole discretion, an Optionee’s employment or other service will, for purposes of this Agreement, be deemed to have terminated on the date recorded on the personnel or other records of the Company or the Subsidiary or Affiliate for which the Optionee provides employment, as determined by the Committee in its sole discretion based upon such records.
7. Exercise Upon Death or Disability. The terms of this Section 7 apply unless otherwise expressly provided by the terms of the Employment Agreement or any other Individual Agreement between the Optionee and the Company or one of its Subsidiaries or Affiliates or a plan or policy of the Company applicable to the Optionee specifically provides otherwise, and subject to the provisions of Section 5 hereof and Sections 13.4 and 13.5 of the Plan. In no event, however, may the Option be exercised after the expiration of the term provided in Section 4 hereof.
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(a) If the Optionee dies while he or she is employed by the Company or one of its Subsidiaries or Affiliates, the Option may be exercised (to the extent the Option is vested pursuant to Section 3 immediately prior to Optionee’s death), by the estate of the Optionee (or by the person or persons who acquire the right to exercise the Option by written designation of the Optionee) at any time within the later of: (i) twelve (12) months after such cessation of employment or other service; or (ii) that date that occurs upon the earlier of: (X) twelve (12) months following the expiration of the Lock-Up Agreement; or (Y) twelve (12) months following the release of Optionee (and the Optionee’s estate) from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the estate of the Optionee prior to the effective date of such release, if at all, in the Company’s sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the estate or other beneficiaries shall forfeit all rights hereunder; provided, however, that without the consent of the Optionee, the Company cannot release the Optionee from the terms of the Lock-Up Agreement prior to twelve months following the Grant Date.
(b) In the event that the employment of the Optionee with the Company or one of its Subsidiaries or Affiliates is terminated by reason of the Disability of the Optionee, the Option may be exercised (to the extent the Option is vested pursuant to Section 3 immediately prior to the termination of the Optionee’s employment due to Disability), by the Optionee at any time within the later of: (i) twelve (12) months after such cessation of employment or other service; or (ii) that date that occurs upon the earlier of: (X) twelve (12) months following the expiration of the Lock-Up Agreement; or (Y) twelve (12) months following the release of Optionee from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the Optionee prior to the effective date of such release, if at all, in the Company’s sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the Optionee shall forfeit all rights hereunder even if the Optionee subsequently returns to the employ of the Company or one of its Subsidiaries or Affiliates or begins providing other service to the Company or one of its Subsidiaries or Affiliates; provided, however, that without the consent of the Optionee, the Company cannot release the Optionee from the terms of the Lock-Up Agreement prior to twelve months following the Grant Date.
8. Change in Control of the Company. If there is a Change in Control, unless otherwise expressly provided by the terms of the Employment Agreement or any other Individual Agreement between the Optionee and the Company or one of its Subsidiaries or Affiliates, the Option will be subject to the provisions of Article 15 of the Plan.
9. Registration. The shares covered by the Option have been registered and qualified for sale pursuant to the Securities Act of 1933, as amended, by the Company pursuant to a registration statement on Form S-8.
10. Method of Exercise of Option.
(a) Subject to the terms and conditions of this Agreement, the Option shall be exercisable by delivery of a completed written Option Exercise Form in substantially the form set forth in Exhibit A hereto (the “Exercise Notice”) and provision for payment to the Company in accordance with the procedure prescribed herein. Each such Notice shall:
(i) state the election to exercise the Option and the number of Shares with respect to which it is being exercised;
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(ii) be signed by the Optionee or the person or persons entitled to exercise the Option and, if the Option is being exercised by any person or persons other than the Optionee, be accompanied by proof, satisfactory to counsel to the Company, of the right of such other person or persons to exercise the Option (collectively an “Authorized Person”);
(iii) include payment of the full purchase price for the shares of Common Stock to be purchased pursuant to such exercise of the Option; and
(iv) be received by the Company on or before the date of the expiration of this Option. In the event the date of expiration of this Option falls on a day which is not a regular business day at the Company’s headquarters office, then such written Exercise Notice must be received at such office on or before the last regular business day prior to such date of expiration.
(b) Payment of the purchase price of any shares of Common Stock, in respect of which the Option shall be exercised, shall be made by the Optionee or Authorized Person at the place specified by the Company on the date the Exercise Notice is received by the Company (i) by delivering to the Company cash or a certified or bank cashier’s check payable to the order of the Company, (ii) by delivering to the Company properly endorsed certificates of shares of Common Stock (or certificates accompanied by an appropriate stock power) with signature guaranties by a bank or trust company, (iii) by tender of a Broker Exercise Notice, subject to approval in advance by the Committee solely for the purpose of determining that the sale of any shares of Common Stock in respect of such Broker Exercise Notice will provide the Company with sufficient proceeds to pay the exercise price, (iv) by having withheld from the total number of shares of Common Stock to be acquired upon the “net exercise” of this Option a specified number of such shares of Common Stock as determined pursuant to Section 6.5(b) of the Plan, or (v) by any combination of the foregoing. For purposes of the immediately preceding sentence, an exercise effected by the tender of Common Stock (or deemed to be effected by the tender of Common Stock) may only be consummated with Common Stock held by the Optionee for a period of six (6) months or acquired by the Optionee other than under the Plan (or a similar plan maintained by the Company).
(c) The Option shall be deemed to have been exercised with respect to any particular shares of Common Stock if, and only if, the preceding provisions of this Section 10 and the provisions of Section 11 hereof shall have been complied with, in which event the Option shall be deemed to have been exercised on the date the Exercise Notice was received by the Company. Anything in this Agreement to the contrary notwithstanding, any Exercise Notice given pursuant to the provisions of this Section 10 shall be void and of no effect if all of the preceding provisions of this Section 10 and the provisions of Section 11 shall not have been strictly complied with.
(d) The certificate or certificates or book-entry notations for shares of Common Stock as to which the Option shall be exercised will be registered in the name of the Optionee (or in the name of the Optionee’s estate or other beneficiary if the Option is exercised after the Optionee’s death), or if the Option is exercised by the Optionee and if the Optionee so requests in the notice exercising the Option, will be registered in the name of the Optionee and another person jointly, with right of survivorship and will be delivered as soon as practical after the date the Exercise Notice is received by the Company (accompanied by full payment of the exercise price), but only upon compliance with all of the provisions of this Agreement.
(e) If the Optionee fails to accept delivery of and pay for all or any part of the number of Shares specified in such Exercise Notice, Optionee’s right to exercise the Option shall be terminated with respect to such undelivered Shares, unless the Committee, in the sole discretion, determines otherwise. The Option may be exercised only with respect to full Shares.
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(f) The Company shall not be required to issue or deliver any certificate or certificates or perform any book-entry notations for shares of its Common Stock purchased upon the exercise of any part of the Option prior to the payment to the Company, upon its demand, of any amount requested by the Company for the purpose of satisfying its maximum statutory liability, if any, to withhold federal, state or local income or earnings tax or any other applicable tax or assessment (plus interest or penalties thereon, if any, caused by a delay in making such payment) incurred by reason of the exercise of this Option or the transfer of shares thereupon. Such payment shall be made by the Optionee in cash or, with the written consent of the Company, by tendering to the Company shares of Common Stock equal in value to the amount of the required withholding. In the alternative, the Company, at its sole discretion, may satisfy such withholding requirements by withholding from the shares of Common Stock to be delivered to the Optionee pursuant to an exercise of the Option a number of shares of Common Stock equal in value to the amount of the required withholding.
11. Approval of Counsel. The exercise of the Option and the issuance and delivery of shares of Common Stock pursuant to this Agreement shall be subject to approval by the Company’s counsel of all legal matters in connection therewith, including, but not limited to, compliance with the requirements of the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended, and the requirements of any stock exchange or automated trading medium upon which the Common Stock may then be listed or traded.
12. Resale of Common Stock, Etc. If required by counsel for the Company, the stock certificate(s) or book-entry notation(s) for the Common Stock issued upon exercise of the Option shall bear the following (or similar) legends:
THE SHARES EVIDENCED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS THEY HAVE FIRST BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNLESS, IN THE OPINION OF COUNSEL FOR THE COMPANY, SUCH REGISTRATION IS NOT REQUIRED.
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.
13. Reservation of Shares. The Company shall at all times during the term of the Option reserve and keep available such number of shares of Common Stock as will be sufficient to satisfy the requirements of this Agreement.
14. Limitation of Action. The Optionee and the Company each acknowledge that every right of action accruing to the Optionee or the Company, as the case may be, and arising out of or in connection with this Agreement against the Optionee, on the one hand, or against the Company, on the other hand, shall, irrespective of the place where an action may be brought, cease and be barred by the expiration of twenty-four (24) months from the date of the act or omission in respect of which such right of action arises.
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15. Notices. Each notice relating to the Option Award and this Agreement shall be in writing and delivered in person, by recognized overnight carrier or by certified mail to the proper address. All notices to the Company or the Committee shall be addressed to them at the address of the Company’s headquarters as reflected in the Company’s most recent federal securities filings, Attn: Chairman. All notices to the Optionee shall be addressed to the Optionee or such other person or persons at the Optionee’s address set forth in the Company’s records. Anyone to whom a notice may be given under this Agreement may designate a new address by notice to that effect.
16. Successors. This Agreement shall inure to the benefit of the Company, the Optionee and their respective heirs, executors, administrators, personal representatives, successors and assigns.
17. Construction. Wherever possible, each provision of this Agreement will be interpreted so that it is valid under the Applicable Law (as defined in the Plan). If any provision of this 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 Agreement will continue to be valid, and the Agreement will continue to be valid in other jurisdictions.
18. Governing Law. All questions pertaining to the validity, construction and administration of this Agreement shall be determined in accordance with the laws of the State of Nevada without regard to its principles of conflicts of law.
19. Employment. Nothing in this Agreement will interfere with or limit in any way the right of the Company or any Subsidiary or Affiliate to terminate the employment or service of the Optionee at any time, nor confer upon the Optionee any right to continue employment or other service with the Company or any Subsidiary or Affiliate.
20. Clawback. Any shares of Common Stock issued upon exercise of the Option may be subject to recoupment by the Company, however, only to the extent required under applicable laws, rules or regulations in effect from time to time, and the Company’s then effective Clawback and Forfeiture Policy.
21. Definitions. Unless otherwise defined in this Agreement or the Option Award, all capitalized terms used in this Agreement shall have the same definitions as set forth in the Plan.
22. Incorporation of Terms of Plan. This Agreement shall be interpreted under, and subject to, all of the terms and provisions of the Plan, which are incorporated herein by reference.
23. No Strict Construction. The language used in this Agreement shall be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction shall apply against any party.
BY WAY OF THEIR EXECUTION OF THE OPTION AWARD TO WHICH THIS AGREEMENT RELATES AND IS ATTACHED, the Company and the Optionee (and each of their heirs, successors and assigns) agree to be bound by each and every one of the terms set forth in this Agreement.
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EXHIBIT A
NON-STATUTORY OPTION EXERCISE FORM
[DATE]
Investview, Inc.
Attention: Chairman
1. Option Exercise. I hereby elect to exercise my option to purchase the following shares of Common Stock of Investview, Inc. under the Investview, Inc. 2022 Incentive Plan (the “Plan”) and the Option Agreement (the “Option”) identified below:
| Option Grant #: | ||
| Grant Date: | ||
| Number of Shares: | ||
| Exercise Price Per Share: | $ | |
| Total Purchase Price: | $ | |
2. Payment. I am paying the purchase price of the exercised Option as follows (check the applicable form of payment):
| _____ | I am attaching cash or a check in the amount of $____________, as the total purchase price for the shares. | |
| _____ | I have delivered ________ shares of Common Stock of Investview, Inc. (the “Company”) that I have previously acquired. I own these shares free and clear of any liens, claims, encumbrances or security interests. I have enclosed the certificates representing these previously acquired shares endorsed or accompanied by an executed assignment separate from certificate. | |
| _____ | I have delivered irrevocable instructions to a broker to sell a sufficient number of shares of Common Stock of the Company to pay the total purchase price and to pay such amounts to the Company. [Please note that this form of payment is only available upon prior written approval of the Committee solely for the purpose of determining that the sale of shares of Common Stock in respect of such broker exercise notice will provide the Company with sufficient proceeds to pay the exercise price and is subject to any applicable restrictions on the sale of such shares by Optionee.] | |
| The name, address and telephone number of the broker is as follows: | ||
| Name of Firm: | ||
| Contact: | ||
| Address: | ||
| Phone: | ||
| Fax: | ||
| [Please also see Section 4 of this Option Exercise Notice, which may prevent you from using this type of “cashless” exercise feature if you possess material non-public information about the Company or its securities at the time of exercise.] | ||
| _____ | I hereby elect to convert the attached option into shares of Common Stock of the Company on a “net exercise” basis pursuant to Section 6.5(b) of the Plan. | |
| _____ | I have elected to pay any required withholding with the exercise transaction. Accordingly, I have included $_______, which I would like applied to federal and state tax withholdings as follows:_________________________________________________________. | |
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3. Certificate Delivery. I elect to have my shares of Common Stock delivered as follows:
| _____ | Please have the shares delivered electronically via DWAC to my brokerage account. Please use the information below to execute the transaction. | |
| Broker DTC number: | ||
| My Account Number | ||
| _____ | Please register the certificate or book-entry notation representing the shares in the name set forth below and send the certificate or evidence of book-entry notation to the following address: | |
| Registered Name: | ||
| Address: | ||
4. Compliance with Insider Trading Policy. I acknowledge that I have read and understand the Company’s current insider trading policy, including the portions that may, among other things, restrict my ability to exercise my Options through a broker sale on the open market or otherwise sell the shares of Common Stock issuable upon exercise of my Options. I understand that the information in this letter does not limit in any manner my own, personal responsibilities and obligations under the policy and the securities laws, including, but not limited to, the prohibitions on trading (including by means of a broker assisted option exercise) while I possess material, non-public information or during a blackout period that may be imposed under the policy. I agree to provide a copy of this exercise notice to my broker, and to require his or her compliance with the policy. I understand that the Company may reject any broker exercise completed during a blackout period or that is otherwise prohibited by any Company policy, including the current insider trading policy.
5. Representations. I acknowledge that I have received, read and understand the Plan and my Non-Statutory Option Award Agreement, which together govern the terms of my Option and its exercise. I have also read the current Plan prospectus, the Company’s latest annual report to stockholders and the other public reports and information incorporated by reference into the prospectus in making my decision to exercise my options.
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6. Effectiveness and Execution of Transaction. I understand and agree that this exercise election will be subject to acknowledgement by the Company. In the case of a cash exercise, my Option exercise will be processed as soon as practicable. In the case of a cashless exercise, I understand it may take longer to process my Option exercise.
| Submitted by: | Acknowledged by: | |||
| Optionee | Broker | |||
| By: | Firm Name: | |||
| Its: | By: | |||
| Date: | Its: | |||
| Date: | ||||
| Acknowledged by: | ||||
| Investview, Inc. | ||||
| By: | ||||
| Its: | ||||
| Date: | ||||
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Exhibit 10.120
Final Execution Version
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “Agreement”) is entered into as of June 24, 2022 (the “Effective Date”), by and between Investview, Inc. a Nevada corporation (the “Employer”), and Ralph R. Valvano (the “Executive”); Employer and Executive individually a “party” and collectively the “parties”.
WHEREAS, the Employer and Executive are parties to an employment agreement dated June 7, 2021 (the “Original Employment Agreement”);
WHEREAS, the parties wish to amend and restate the terms of the Original Employment Agreement by substituting in its place the terms of this Agreement, intended to fully replace and supersede the terms of the Original Employment Agreement commencing as of the Effective Date.
NOW, THEREFORE, 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 Chief Financial 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 duties appropriate as may be assigned to him from time to time by the Employer’s Chief Executive Officer and 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, effective as of February 22, 2022, in an initial amount of $285,000 for all hours worked commencing as of February 22, 2022, 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 Special Signing Bonus; Quarterly Incentive Bonuses. Upon the Effective Date of this Agreement, the Executive shall be paid a special signing bonus of $25,000, subject to normal payroll practices. Thereafter, during the Term, the Executive shall be eligible to receive a quarterly incentive bonus, payable in cash, with $15,000 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 $18,000 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 60,000 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 6,000 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 0.00009 (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 | 0.00009 | $90,000 cash and 90,000 shares | ||||||||
| $1.5 billion | 4 million | $1.5 million | $ | 0.51 | 0.00009 | $135,000 cash and 135,000 shares | ||||||||
| $2.0 billion | 4 million | $2.0 million | $ | 0.68 | 0.00009 | $180,000 cash and 180,000 shares | ||||||||
| $2.5 billion | 4 million | $2.5 million | $ | 0.85 | 0.00009 | $225,000 cash and 225,000 shares | ||||||||
| $3.0 billion | 4 million | $3.0 million | $ | 1.01 | 0.00009 | $270,000 cash and 270,000 shares | ||||||||
| $3.5 billion | 4 million | $3.5 million | $ | 1.18 | 0.00009 | $315,000 cash and 315,000 shares | ||||||||
| $4.0 billion | 4 million | $4.0 million | $ | 1.34 | 0.00009 | $360,000 cash and 360,000 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) | |||||||||
| $4.5 billion | 4 million | $4.5 million | $ | 1.51 | 0.00009 | $405,000 cash and 405,000 shares | ||||||||
| $5.0 billion | 4 million | $5.0 million | $ | 1.68 | 0.00009 | $450,000 cash and 450,000 shares | ||||||||
| $5.5 billion | 4 million | $5.5 million | $ | 1.85 | 0.00009 | $495,000 cash and 495,000 shares | ||||||||
| $6.0 billion | 4 million | $6.0 million | $ | 2.02 | 0.00009 | $540,000 cash and 540,000 shares | ||||||||
| $7.0 billion | 4 million | $7.0 million | $ | 2.35 | 0.00009 | $630,000 cash and 630,000 shares | ||||||||
| $8.0 billion | 4 million | $8.0 million | $ | 2.69 | 0.00009 | $720,000 cash and 720,000 shares | ||||||||
| $9.0 billion | 4 million | $9.0 million | $ | 3.03 | 0.00009 | $810,000 cash and 810,000 shares | ||||||||
| $10.0 billion | 4 million | $10.0 million | $ | 3.36 | 0.00009 | $900,000 cash and 900,000 shares | ||||||||
| $11.0 billion | 4 million | $11.0 million | $ | 3.70 | 0.00009 | $990,000 cash and 990,000 shares | ||||||||
| $12.0 billion | 4 million | $12.0 million | $ | 4.03 | 0.00009 | $1,080,000 and 1,080,000 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.
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 Options. 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 options to purchase INVU Common Stock consisting of: (i) an option (the “Tranche 1 Option”) to purchase eight million one hundred and twenty-five thousand (8,125,000) shares of INVU Common Stock (the “Tranche 1 Option Shares”); and (ii) an option (the “Tranche 2 Option”) to purchase twenty-nine million three-hundred and seventy-five thousand (29,375,000) shares of INVU Common Stock (the “Tranche 2 Option Shares”) (the Tranche 1 Option and the Tranche 2 Option collectively referred to as the “Options”; and the Tranche 1 Option Shares and the Tranche 2 Option Shares collectively referred to as the “Option 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 Options to be subject to forfeiture, vesting and the other restrictions as contained below and in the Plan and award agreements evidencing such Options to be executed between the Employer and the Executive, which shall be in substantially the forms attached hereto as Exhibits A and B, respectively (the “Award Agreements”) . To the extent authorized in the Plan and Award Agreements, the Award Agreements shall be subject to the terms as provided below, notwithstanding any terms to the contrary in the Plan or the Award Agreements themselves.
(a) Vesting of Tranche 1 Options. Subject to the terms of this Agreement, the Plan and the Award Agreement, the Tranche 1 Option 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 “Section 2.5(a) Scheduled Vesting Date”):
| Vesting Date | Option Vesting | Option Shares | ||||||
| As of the Effective Date | 20 | % | 1,625,000 | |||||
| May 31, 2023 | 20 | % | 1,625,000 | |||||
| May 31, 2024 | 20 | % | 1,625,000 | |||||
| May 31, 2025 | 20 | % | 1,625,000 | |||||
| May 31, 2026 | 20 | % | 1,625,000 | |||||
(b) Vesting of Tranche 2 Options. Subject to the terms of this Agreement, the Plan and the Award Agreement, the Tranche 2 Option 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 “Section 2.5(b) Scheduled Vesting Date”):
| Vesting Date | Option Vesting | Option Shares | ||||||
| February 21, 2023 | 20 | % | 5,875,000 | |||||
| February 21, 2024 | 20 | % | 5,875,000 | |||||
| February 21, 2025 | 20 | % | 5,875,000 | |||||
| February 21, 2026 | 20 | % | 5,875,000 | |||||
| February 21, 2027 | 20 | % | 5,875,000 | |||||
(c) Treatment of Options Upon a Change in Control. Upon the occurrence of a “Change in Control” (as defined in the Plan), vesting of the Options shall remain subject to the terms of Sections 2.5(a) and 2.5(b) above and 2.5(d) 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 Options that have not yet vested as of such date shall immediately and automatically vest and become non-forfeitable.
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(d) Treatment of Options Upon a Termination of Employment. The following provisions governing the treatment of the Options 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 Options shall cease as of the date of such termination, and any unvested Options shall be forfeited by the Executive.
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 portion of the Options that are scheduled to vest during the period from the date of Executive’s termination of employment through the next Section 2.5(a) Scheduled Vesting Date or Section 2.5(b) Scheduled Vesting Date, as applicable, pursuant to Section 2.5(a) and Section 2.5(b) above (but in no event longer than a six-month period following the date of Executive’s termination of employment) shall immediately and automatically vest and become non-forfeitable and the remaining unvested portion of the Options shall terminate and be forfeited by the Executive.
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 portion of the Options that are scheduled to vest during the period from the date of Executive’s termination of employment through the next Section 2.5(a) Scheduled Vesting Date or Section 2.5(b) Scheduled Vesting Date, as applicable, pursuant to Section 2.5(a) and Section 2.5(b) above (but in no event longer than a six-month period following the date of Executive’s termination of employment) shall immediately and automatically vest and become non-forfeitable and the remaining unvested portion of the Option shall terminate and be forfeited by the Executive.
(e) Prohibition Against Transfer of Options. Prior to the vesting and exercise of the Option, 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 Option Shares. Any such transfer in violation of this Section 2.5(e) shall be void and of no further effect.
(f) Required Tax Withholding Obligations. The Employer may require payment by the Executive or withhold any income or employment tax which the Employer reasonably determines is payable as a result of the exercise of the Option or any payments thereon or in connection therewith, and the Employer may defer issuing the Option Shares to the Executive until arrangements satisfactory to the Employer have been made with regard to any such withholding obligation. The Employer, in its sole discretion, may withhold a portion of the Option Shares to satisfy such withholding obligations.
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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.
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.
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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: (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. Notwithstanding the above, Executive shall not be deemed to have engaged in activities competitive with the then “business of the Employer” should his activities for a third party business or entity consist primarily of his service as an employee, advisor or consultant who is providing accounting, finance, treasury or other business functions that are typically associated with the scope of services provided by a principal accounting officer, accountant, treasurer, chief financial officer, vp/finance, Investor Relations, chief operating officer, human relations (HR), personnel management or oversight, or any variations of the above; with the recognition that it is not the intention of the Employer to restrict Executive from pursuing his livelihood for which he is licensed and experienced; although Executive is expected in all events to remain bound by the other terms of this Agreements; including but not limited to the Non-Solicitation covenants within this Article VI and the covenants not to disclose Confidential Information in Article III.
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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 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.
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 filed with the U.S. Securities and Exchange Commission, and otherwise 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 (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.
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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) 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.
(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 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.
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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 2.8.
ii. Any remaining unvested Options 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.
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 Options that are scheduled to vest during the period from the date of termination through the next Scheduled Vesting Date, as applicable, pursuant to Sections 2.5(a) and 2.5(b) (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 Options 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 Options that are scheduled to vest during the period from the date of termination through the next Scheduled Vesting Date, as applicable, pursuant to Sections 2.5(a) and 2.5(b) (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 Options 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.
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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 Options that are scheduled to vest during the Severance Period, shall immediately and automatically vest and become non-forfeitable and the remaining unvested Options 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.
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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.”
“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.”
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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.
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.
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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.
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.
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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, Options or Restricted Shares and any purchase price or exercise 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. In the case of the Options, the relevant adjustments shall be contained within the Award Agreement and Plan.
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).
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| 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: | Ralph R. Valvano | |||
| 694 Preachtree Lane | ||||
| Franklin Lakes, NJ 07417 | ||||
| Email: | [email protected] | |||
| [email protected] | ||||
| Phone: | (201) 675-4881 | |||
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 the Original Employment Agreement and any and all prior understandings or with respect to the Executive’s employment. For purposes of clarity, the Original Employment Agreement shall be of no force and effect after the Effective Date hereof, and any restricted shares issued under the Original Employment Agreement shall be deemed terminated and promptly surrendered for cancellation by the Executive prior to any vesting thereunder. 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.
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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 | |
| EXECUTIVE: | ||
| By: | /s/ Ralph R. Valvano | |
| Name: | Ralph R. Valvano | |
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Final Execution Version
SCHEDULE A
Duties and Responsibilities:
As Chief Financial Officer (CFO) of Employer you will have the primary responsibility for the planning, implementation, managing and running of all the finance activities of Employer, including business planning, budgeting, forecasting negotiations, regulatory compliance, and obtaining and maintaining investor relations and partnership compliance. Specific duties and responsibilities will be as assigned by the Board of Directors and will include, but not necessarily be limited to, the following:
| ● | Establish and Directing accounting policies, procedures and internal controls | |
| ● | Providing leadership, direction and management of the finance and accounting team | |
| ● | Providing strategic management of the accounting and finance functions | |
| ● | Overseeing entire financial team including Controller, assistant controllers, regulatory compliance team | |
| ● | Overseeing financial systems implementations and upgrades | |
| ● | Reviewing, approving, and signing all required SEC reports and certifications | |
| ● | Providing strategic recommendations to the CEO, President, COO, Board of Directors and other members of the executive management team | |
| ● | Hiring, training and retaining skilled accounting and finance staff | |
| ● | Managing and overseeing the relationship with independent auditors | |
| ● | Managing the processes for financial forecasting and budgets, and overseeing the preparation of all financial reporting | |
| ● | Recommending improvements to ensure the integrity of a company’s financial information | |
| ● | Advising on long-term business and financial planning | |
| ● | Establishing and developing relations with senior management and external partners and stakeholders | |
| ● | Co-managing relationships with investors and investment institutions | |
| ● | Reviewing all formal finance, HR and IT related procedures | |
| ● | Identifying and managing business risks and insurance requirements | |
| ● | Collaborate with the Board of Directors on the selection of independent auditors, and to the extent applicable, outside accountants and tax advisors |
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 10.121
Option Grant No. 2022-5
INVESTVIEW, INC.
2022 INCENTIVE PLAN
NON-STATUTORY OPTION AWARD
Investview, Inc., a Nevada corporation (the “Company”), pursuant to the terms of the Investview, Inc. 2022 Incentive Plan (the “Plan”) and the Non-Statutory Option Award Agreement (the “Agreement”) attached to this Non-Statutory Option Award (this “Option Award”), hereby grants to the individual named in Section 2 below (the “Optionee”), effective as of the grant date set forth in Section 1 below, the option to purchase the number of shares of the Company’s Common Stock as set forth in Section 3 below, subject to the exercise price as set forth in Section 4 below and vesting as set forth in Section 5 below and the terms and conditions of this Option Award and the Agreement attached to this Option Award.
The terms of this Option Award are subject to all of the provisions of the Plan and the attached Agreement, with such provisions being incorporated herein by reference. All of the capitalized terms used in this Option Award and the Agreement not otherwise defined herein or therein shall have the same meaning as defined in the Plan. A copy of the Plan and the prospectus for the Plan have been delivered to Optionee together with this Option Award and the Agreement.
| 1. | Grant Date: | June 24, 2022 |
| 2. | Name of Optionee: | Ralph Valvano |
| 3. | Number of Underlying Shares of Common Stock: | 8,125,000 |
| (subject to adjustment as provided in the Plan) | ||
| 4. | Exercise Price: | $.05 per share (subject to adjustment as provided in the Plan) |
| 5. | Vesting of Options (on a cumulative basis and subject to adjustment as provided in the Plan): | |
| VESTING DATE | NO. OF UNDERLYING SHARES TO BE VESTED* | |
| Grant Date | 1,625,000 | |
| May 31, 2023 | 1,625,000 | |
| May 31, 2024 | 1,625,000 | |
| May 31, 2025 | 1,625,000 | |
| May 31, 2026 | 1,625,000 |
| *Vesting to occur pursuant to Section 3 of the attached Agreement and conditioned upon continued employment as described therein. |
| 6. | Expiration Date: | June 24, 2029 |
The Optionee acknowledges receipt of and understands and agrees to be bound by all of the terms of this Option Award, inclusive of the attached Agreement, and the Plan, and that the terms thereof supersede any and all other written or oral agreements between the Optionee and the Company, other than the Optionee’s Amended and Restated Employment Agreement dated June 24, 2022, regarding the subject matter contained herein.
| Investview, Inc. | Optionee: | ||
| By: | /s/ Victor M. Oviedo | /s/ Ralph Valvano | |
| Victor M. Oviedo, Chief Executive Officer | Date: 06/24/2022 | ||
| Date: | 06/24/2022 | ||
NON-STATUTORY OPTION AWARD AGREEMENT
THIS NON-STATUTORY OPTION AWARD AGREEMENT (this “Agreement”) is made as of the grant date set forth in Section 1 of the Non-Statutory Option Award (the “Option Award”) to which this Agreement relates and is attached (the “Grant Date”) between Investview, Inc., a Nevada corporation (the “Company”), and the individual identified in Section 2 of the Option Award to which this Agreement relates and is attached (the “Optionee”).
W I T N E S S E T H:
WHEREAS, the Company adopted the Investview, Inc. 2022 Incentive Plan (the “Plan”), which provides for the grant of certain awards, including without limitation, Non-Statutory Stock Options to Employees of the Company, with the corresponding right to purchase shares of Common Stock of the Company (the “Common Stock”).
WHEREAS, the Board of Directors of the Company, acting as the Committee under the Plan (the “Committee”), has authorized the grant of a Non-Statutory Option to the Optionee on the date of this Agreement as evidenced by the Option Award to which this Agreement is attached, thereby allowing the Optionee to acquire a proprietary interest in the Company in order that the Optionee will have a further incentive for remaining with and increasing his or her efforts on behalf of the Company.
WHEREAS, this Agreement is prepared in conjunction with and under the terms of the Plan, which are incorporated herein and made a part hereof by reference, and subject to the terms, conditions and requirements provided in the Amended and Restated Employment Agreement dated June ___, 2022 by and between the Company and Optionee (the “Employment Agreement”).
WHEREAS, the Optionee has accepted the grant of Non-Statutory Stock Options evidenced by the Option Award and this Agreement and has agreed to the terms and conditions stated herein and therein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants hereinafter set forth and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Confirmation of Grant of Option. Pursuant to a determination by the Committee, the Company, subject to the terms of the Plan and this Agreement, hereby grants to the Optionee as a matter of separate inducement and agreement, and in addition to and not in lieu of salary or other compensation or fees for services, the right to purchase (the “Option”) an aggregate number of shares of Common Stock as is set forth in Section 3 of the Option Award, subject to adjustment as provided in the Plan (such shares, as adjusted, the “Shares”). The Option is not intended to qualify as an incentive stock option under Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”).
2. Exercise Price. The per share exercise price of the Shares covered by the Option will be the per share amount set forth in Section 4 of the Option Award, at all times being not less than 100% of the Fair Market Value of one share of Common Stock on the Grant Date, subject to adjustment as provided in the Plan.
3. Vesting and Exercisability of Option. The Option shall vest and become exercisable on the terms and conditions hereinafter set forth:
(a) The Option shall vest and become exercisable (on a cumulative basis) in such installments (after giving effect to any adjustment pursuant to the Plan) and on such vesting dates, as set forth in Section 5 of the Option Award, provided that the Optionee (i) remains an Employee of the Company or one of its Subsidiaries or Affiliates as of each such applicable vesting date as indicated in Section 5 of the Option Award, and (ii) there not having occurred a “For Cause Event” as such term is defined in the Employment Agreement.
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(b) In addition, the Option shall vest and become exercisable to the extent and as provided in Sections 6, 7 and 8 hereof and as expressly provided by the terms of the Employment Agreement or any other Individual Agreement (as defined in the Plan) between the Optionee and the Company or one of its Subsidiaries or Affiliates. The Committee may decide, in its absolute discretion, to accelerate the vesting of all or some lesser portion of any unvested Options at any time, at the date specified by the Committee.
(c) The Option may be exercised pursuant to the provisions of this Section 3 and Sections 6, 7 and 8 hereof, by delivery of an Exercise Notice and payment to the Company as provided in Sections 10 and 15 hereof.
4. Term of Option. The term of the Option shall be the period of years from the Grant Date as is set forth in Section 1 of the Option Award and shall expire on the date set forth in Section 6 of the Option Award, subject to earlier termination or cancellation as provided in this Agreement.
5. Non-transferability of Option. The Option shall not be assigned, transferred or otherwise disposed of, or pledged or hypothecated in any way, and shall not be subject to execution, attachment or other process, except as may be provided in the Plan. Any assignment, transfer, pledge, hypothecation or other disposition of the Option attempted contrary to the provisions of the Plan, or any levy of execution, attachment or other process attempted upon the Option, will be null and void and without effect. Any attempt to make any such assignment, transfer, pledge, hypothecation or other disposition of the Option will cause the Option to terminate immediately upon the happening of any such event; provided, however, that any such termination of the Option under the foregoing provisions of this Section 5 will not prejudice any rights or remedies which the Company or one of its Subsidiaries or Affiliates may have under this Agreement or otherwise.
6. Exercise Upon Cessation of Employment Other Than on Account of Death or Disability. The terms of this Section 6 apply unless otherwise expressly provided by the terms of the Employment Agreement or any other an Individual Agreement between the Optionee and the Company or one of its Subsidiaries or Affiliates or a plan or policy of the Company applicable to the Optionee specifically provides otherwise, and subject to the provisions of Section 5 hereof and Sections 13.4 and 13.5 of the Plan. In no event, however, may the Option be exercised after the expiration of the term provided in Section 4 hereof.
(a) If the Optionee at any time ceases to be an Employee of the Company or one of its Subsidiaries or Affiliates by reason of his or her discharge by the Company for Cause, the Option may thereafter following such cessation of employment only be exercised by the Optionee to the same extent the Optionee would have been entitled under Section 3 hereof to exercise the Option immediately prior to such cessation of employment or other service, at any time within the later of: (i) thirty (30) days after such cessation of employment or other service; or (ii) that date that occurs upon the earlier of: (X) thirty (30) days following the expiration of the “Lock-Up Agreement” (as defined in the Employment Agreement); or (Y) thirty (30) days following the release of Optionee from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the Optionee prior to the effective date of such release, if at all, in the Company’s sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the Optionee shall forfeit all rights hereunder.
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(b) If the Optionee terminates employment with the Company and all of its Subsidiaries or Affiliates other than for Good Reason (and other than Optionee’s discharge for Cause and Optionee’s termination upon death or Disability), the Option may be exercised by the Optionee to the same extent the Optionee would have been entitled under Section 3 hereof to exercise the Option immediately prior to such cessation of employment or other service, at any time within the later of: (i) ninety (90) days after such cessation of employment or other service; or (ii) that date that occurs upon the earlier of: (X) ninety (90) days following the expiration of the “Lock-Up Agreement” (as defined in the Employment Agreement); or (Y) ninety (90) days following the release of Optionee from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the Optionee prior to the effective date of such release, if at all, in the Company’s sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the Optionee shall forfeit all rights hereunder, even if the Optionee subsequently returns to the employ of the Company or one of its Subsidiaries or Affiliates or begins providing other service to the Company or one of its Subsidiaries or Affiliates.
(c) If the Optionee at any time ceases to be an Employee of the Company or one of its Subsidiaries or Affiliates by reason of his or her discharge by the Company without Cause or by the Optionee for Good Reason (and other than Optionee’s termination upon death or Disability), the Option may be exercised by the Optionee to the same extent the Optionee would have been entitled under Section 3 hereof to exercise the Option immediately prior to such cessation of employment or other service, at any time within the later of: (i) six (6) months after such cessation of employment or other service; or (ii) that date that occurs upon the earlier of: (X) six (6) months following the expiration of the Lock-Up Agreement; or (Y) six (6) months following the release of Optionee from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the Optionee prior to the effective date of such release, if at all, in the Company’s sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the Optionee shall forfeit all rights hereunder, even if the Optionee subsequently returns to the employ of the Company or one of its Subsidiaries or Affiliates or begins providing other service to the Company or one of its Subsidiaries or Affiliates; provided, however, that without the consent of the Optionee, the Company cannot release the Optionee from the terms of the Lock-Up Agreement prior to twelve months following the Grant Date.
(d) The Option shall not be affected by any change of duties or position of the Optionee so long as Optionee continues to be a full-time Employee of the Company or one of its Subsidiaries or Affiliates. If the Optionee is granted a temporary leave of absence of 90 days or less, such leave of absence shall be deemed a continuation of his or her employment by the Company or one of its Subsidiaries or Affiliates for the purposes of this Agreement, but only if and so long as the employing corporation consents thereto.
(e) The change in an Optionee’s status from that of an Employee to that of a Consultant will, for purposes of this Agreement, be deemed to result in a termination of such Optionee’s employment with the Company and its Subsidiaries and Affiliates, unless the Committee otherwise determines in its sole discretion. Unless the Committee otherwise determines in its sole discretion, an Optionee’s employment or other service will, for purposes of this Agreement, be deemed to have terminated on the date recorded on the personnel or other records of the Company or the Subsidiary or Affiliate for which the Optionee provides employment, as determined by the Committee in its sole discretion based upon such records.
7. Exercise Upon Death or Disability. The terms of this Section 7 apply unless otherwise expressly provided by the terms of the Employment Agreement or any other Individual Agreement between the Optionee and the Company or one of its Subsidiaries or Affiliates or a plan or policy of the Company applicable to the Optionee specifically provides otherwise, and subject to the provisions of Section 5 hereof and Sections 13.4 and 13.5 of the Plan. In no event, however, may the Option be exercised after the expiration of the term provided in Section 4 hereof.
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(a) If the Optionee dies while he or she is employed by the Company or one of its Subsidiaries or Affiliates, the Option may be exercised (to the extent the Option is vested pursuant to Section 3 immediately prior to Optionee’s death), by the estate of the Optionee (or by the person or persons who acquire the right to exercise the Option by written designation of the Optionee) at any time within the later of: (i) twelve (12) months after such cessation of employment or other service; or (ii) that date that occurs upon the earlier of: (X) twelve (12) months following the expiration of the Lock-Up Agreement; or (Y) twelve (12) months following the release of Optionee (and the Optionee’s estate) from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the estate of the Optionee prior to the effective date of such release, if at all, in the Company’s sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the estate or other beneficiaries shall forfeit all rights hereunder; provided, however, that without the consent of the Optionee, the Company cannot release the Optionee from the terms of the Lock-Up Agreement prior to twelve months following the Grant Date.
(b) In the event that the employment of the Optionee with the Company or one of its Subsidiaries or Affiliates is terminated by reason of the Disability of the Optionee, the Option may be exercised (to the extent the Option is vested pursuant to Section 3 immediately prior to the termination of the Optionee’s employment due to Disability), by the Optionee at any time within the later of: (i) twelve (12) months after such cessation of employment or other service; or (ii) that date that occurs upon the earlier of: (X) twelve (12) months following the expiration of the Lock-Up Agreement; or (Y) twelve (12) months following the release of Optionee from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the Optionee prior to the effective date of such release, if at all, in the Company’s sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the Optionee shall forfeit all rights hereunder even if the Optionee subsequently returns to the employ of the Company or one of its Subsidiaries or Affiliates or begins providing other service to the Company or one of its Subsidiaries or Affiliates; provided, however, that without the consent of the Optionee, the Company cannot release the Optionee from the terms of the Lock-Up Agreement prior to twelve months following the Grant Date.
8. Change in Control of the Company. If there is a Change in Control, unless otherwise expressly provided by the terms of the Employment Agreement or any other Individual Agreement between the Optionee and the Company or one of its Subsidiaries or Affiliates, the Option will be subject to the provisions of Article 15 of the Plan.
9. Registration. The shares covered by the Option have been registered and qualified for sale pursuant to the Securities Act of 1933, as amended, by the Company pursuant to a registration statement on Form S-8.
10. Method of Exercise of Option.
(a) Subject to the terms and conditions of this Agreement, the Option shall be exercisable by delivery of a completed written Option Exercise Form in substantially the form set forth in Exhibit A hereto (the “Exercise Notice”) and provision for payment to the Company in accordance with the procedure prescribed herein. Each such Notice shall:
(i) state the election to exercise the Option and the number of Shares with respect to which it is being exercised;
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(ii) be signed by the Optionee or the person or persons entitled to exercise the Option and, if the Option is being exercised by any person or persons other than the Optionee, be accompanied by proof, satisfactory to counsel to the Company, of the right of such other person or persons to exercise the Option (collectively an “Authorized Person”);
(iii) include payment of the full purchase price for the shares of Common Stock to be purchased pursuant to such exercise of the Option; and
(iv) be received by the Company on or before the date of the expiration of this Option. In the event the date of expiration of this Option falls on a day which is not a regular business day at the Company’s headquarters office, then such written Exercise Notice must be received at such office on or before the last regular business day prior to such date of expiration.
(b) Payment of the purchase price of any shares of Common Stock, in respect of which the Option shall be exercised, shall be made by the Optionee or Authorized Person at the place specified by the Company on the date the Exercise Notice is received by the Company (i) by delivering to the Company cash or a certified or bank cashier’s check payable to the order of the Company, (ii) by delivering to the Company properly endorsed certificates of shares of Common Stock (or certificates accompanied by an appropriate stock power) with signature guaranties by a bank or trust company, (iii) by tender of a Broker Exercise Notice, subject to approval in advance by the Committee solely for the purpose of determining that the sale of any shares of Common Stock in respect of such Broker Exercise Notice will provide the Company with sufficient proceeds to pay the exercise price, (iv) by having withheld from the total number of shares of Common Stock to be acquired upon the “net exercise” of this Option a specified number of such shares of Common Stock as determined pursuant to Section 6.5(b) of the Plan, or (v) by any combination of the foregoing. For purposes of the immediately preceding sentence, an exercise effected by the tender of Common Stock (or deemed to be effected by the tender of Common Stock) may only be consummated with Common Stock held by the Optionee for a period of six (6) months or acquired by the Optionee other than under the Plan (or a similar plan maintained by the Company).
(c) The Option shall be deemed to have been exercised with respect to any particular shares of Common Stock if, and only if, the preceding provisions of this Section 10 and the provisions of Section 11 hereof shall have been complied with, in which event the Option shall be deemed to have been exercised on the date the Exercise Notice was received by the Company. Anything in this Agreement to the contrary notwithstanding, any Exercise Notice given pursuant to the provisions of this Section 10 shall be void and of no effect if all of the preceding provisions of this Section 10 and the provisions of Section 11 shall not have been strictly complied with.
(d) The certificate or certificates or book-entry notations for shares of Common Stock as to which the Option shall be exercised will be registered in the name of the Optionee (or in the name of the Optionee’s estate or other beneficiary if the Option is exercised after the Optionee’s death), or if the Option is exercised by the Optionee and if the Optionee so requests in the notice exercising the Option, will be registered in the name of the Optionee and another person jointly, with right of survivorship and will be delivered as soon as practical after the date the Exercise Notice is received by the Company (accompanied by full payment of the exercise price), but only upon compliance with all of the provisions of this Agreement.
(e) If the Optionee fails to accept delivery of and pay for all or any part of the number of Shares specified in such Exercise Notice, Optionee’s right to exercise the Option shall be terminated with respect to such undelivered Shares, unless the Committee, in the sole discretion, determines otherwise. The Option may be exercised only with respect to full Shares.
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(f) The Company shall not be required to issue or deliver any certificate or certificates or perform any book-entry notations for shares of its Common Stock purchased upon the exercise of any part of the Option prior to the payment to the Company, upon its demand, of any amount requested by the Company for the purpose of satisfying its maximum statutory liability, if any, to withhold federal, state or local income or earnings tax or any other applicable tax or assessment (plus interest or penalties thereon, if any, caused by a delay in making such payment) incurred by reason of the exercise of this Option or the transfer of shares thereupon. Such payment shall be made by the Optionee in cash or, with the written consent of the Company, by tendering to the Company shares of Common Stock equal in value to the amount of the required withholding. In the alternative, the Company, at its sole discretion, may satisfy such withholding requirements by withholding from the shares of Common Stock to be delivered to the Optionee pursuant to an exercise of the Option a number of shares of Common Stock equal in value to the amount of the required withholding.
11. Approval of Counsel. The exercise of the Option and the issuance and delivery of shares of Common Stock pursuant to this Agreement shall be subject to approval by the Company’s counsel of all legal matters in connection therewith, including, but not limited to, compliance with the requirements of the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended, and the requirements of any stock exchange or automated trading medium upon which the Common Stock may then be listed or traded.
12. Resale of Common Stock, Etc. If required by counsel for the Company, the stock certificate(s) or book-entry notation(s) for the Common Stock issued upon exercise of the Option shall bear the following (or similar) legends:
THE SHARES EVIDENCED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS THEY HAVE FIRST BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNLESS, IN THE OPINION OF COUNSEL FOR THE COMPANY, SUCH REGISTRATION IS NOT REQUIRED.
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.
13. Reservation of Shares. The Company shall at all times during the term of the Option reserve and keep available such number of shares of Common Stock as will be sufficient to satisfy the requirements of this Agreement.
14. Limitation of Action. The Optionee and the Company each acknowledge that every right of action accruing to the Optionee or the Company, as the case may be, and arising out of or in connection with this Agreement against the Optionee, on the one hand, or against the Company, on the other hand, shall, irrespective of the place where an action may be brought, cease and be barred by the expiration of twenty-four (24) months from the date of the act or omission in respect of which such right of action arises.
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15. Notices. Each notice relating to the Option Award and this Agreement shall be in writing and delivered in person, by recognized overnight carrier or by certified mail to the proper address. All notices to the Company or the Committee shall be addressed to them at the address of the Company’s headquarters as reflected in the Company’s most recent federal securities filings, Attn: Chairman. All notices to the Optionee shall be addressed to the Optionee or such other person or persons at the Optionee’s address set forth in the Company’s records. Anyone to whom a notice may be given under this Agreement may designate a new address by notice to that effect.
16. Successors. This Agreement shall inure to the benefit of the Company, the Optionee and their respective heirs, executors, administrators, personal representatives, successors and assigns.
17. Construction. Wherever possible, each provision of this Agreement will be interpreted so that it is valid under the Applicable Law (as defined in the Plan). If any provision of this 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 Agreement will continue to be valid, and the Agreement will continue to be valid in other jurisdictions.
18. Governing Law. All questions pertaining to the validity, construction and administration of this Agreement shall be determined in accordance with the laws of the State of Nevada without regard to its principles of conflicts of law.
19. Employment. Nothing in this Agreement will interfere with or limit in any way the right of the Company or any Subsidiary or Affiliate to terminate the employment or service of the Optionee at any time, nor confer upon the Optionee any right to continue employment or other service with the Company or any Subsidiary or Affiliate.
20. Clawback. Any shares of Common Stock issued upon exercise of the Option may be subject to recoupment by the Company, however, only to the extent required under applicable laws, rules or regulations in effect from time to time, and the Company’s then effective Clawback and Forfeiture Policy.
21. Definitions. Unless otherwise defined in this Agreement or the Option Award, all capitalized terms used in this Agreement shall have the same definitions as set forth in the Plan.
22. Incorporation of Terms of Plan. This Agreement shall be interpreted under, and subject to, all of the terms and provisions of the Plan, which are incorporated herein by reference.
23. No Strict Construction. The language used in this Agreement shall be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction shall apply against any party.
BY WAY OF THEIR EXECUTION OF THE OPTION AWARD TO WHICH THIS AGREEMENT RELATES AND IS ATTACHED, the Company and the Optionee (and each of their heirs, successors and assigns) agree to be bound by each and every one of the terms set forth in this Agreement.
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EXHIBIT A
NON-STATUTORY OPTION EXERCISE FORM
[DATE]
Investview, Inc.
[Address]
Attention: Chairman
1. Option Exercise. I hereby elect to exercise my option to purchase the following shares of Common Stock of Investview, Inc. under the Investview, Inc. 2022 Incentive Plan (the “Plan”) and the Option Agreement (the “Option”) identified below:
| Option Grant #: | ______________________________________ |
| Grant Date: | ______________________________________ |
| Number of Shares: | ______________________________________ |
| Exercise Price Per Share: | $______________________________________ |
| Total Purchase Price: | $______________________________________ |
2. Payment. I am paying the purchase price of the exercised Option as follows (check the applicable form of payment):
| _____ | I am attaching cash or a check in the amount of $____________, as the total purchase price for the shares. | |
| _____ | I have delivered ________ shares of Common Stock of Investview, Inc. (the “Company”) that I have previously acquired. I own these shares free and clear of any liens, claims, encumbrances or security interests. I have enclosed the certificates representing these previously acquired shares endorsed or accompanied by an executed assignment separate from certificate. | |
| _____ | I have delivered irrevocable instructions to a broker to sell a sufficient number of shares of Common Stock of the Company to pay the total purchase price and to pay such amounts to the Company. [Please note that this form of payment is only available upon prior written approval of the Committee solely for the purpose of determining that the sale of shares of Common Stock in respect of such broker exercise notice will provide the Company with sufficient proceeds to pay the exercise price and is subject to any applicable restrictions on the sale of such shares by Optionee.] | |
| The name, address and telephone number of the broker is as follows: | ||
| Name of Firm: _______________________________ | ||
| Contact: ___________________________________ | ||
| Address: __________________________________ | ||
| Phone: ____________________________________ | ||
| Fax: ______________________________________ | ||
| [Please also see Section 4 of this Option Exercise Notice, which may prevent you from using this type of “cashless” exercise feature if you possess material non-public information about the Company or its securities at the time of exercise.] | ||
| _____ | I hereby elect to convert the attached option into shares of Common Stock of the Company on a “net exercise” basis pursuant to Section 6.5(b) of the Plan. | |
| _____ | I have elected to pay any required withholding with the exercise transaction. Accordingly, I have included $_______, which I would like applied to federal and state tax withholdings as follows:_________________________________________________________. | |
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3. Certificate Delivery. I elect to have my shares of Common Stock delivered as follows:
| _____ | Please have the shares delivered electronically via DWAC to my brokerage account. Please use the information below to execute the transaction. | |
| Broker DTC number: ___________________________ | ||
| My Account Number __________________________ | ||
| _____ | Please register the certificate or book-entry notation representing the shares in the name set forth below and send the certificate or evidence of book-entry notation to the following address: | |
| Registered Name: _________________________________________________ | ||
| Address: _______________________________________________________ | ||
4. Compliance with Insider Trading Policy. I acknowledge that I have read and understand the Company’s current insider trading policy, including the portions that may, among other things, restrict my ability to exercise my Options through a broker sale on the open market or otherwise sell the shares of Common Stock issuable upon exercise of my Options. I understand that the information in this letter does not limit in any manner my own, personal responsibilities and obligations under the policy and the securities laws, including, but not limited to, the prohibitions on trading (including by means of a broker assisted option exercise) while I possess material, non-public information or during a blackout period that may be imposed under the policy. I agree to provide a copy of this exercise notice to my broker, and to require his or her compliance with the policy. I understand that the Company may reject any broker exercise completed during a blackout period or that is otherwise prohibited by any Company policy, including the current insider trading policy.
5. Representations. I acknowledge that I have received, read and understand the Plan and my Non-Statutory Option Award Agreement, which together govern the terms of my Option and its exercise. I have also read the current Plan prospectus, the Company’s latest annual report to stockholders and the other public reports and information incorporated by reference into the prospectus in making my decision to exercise my options.
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6. Effectiveness and Execution of Transaction. I understand and agree that this exercise election will be subject to acknowledgement by the Company. In the case of a cash exercise, my Option exercise will be processed as soon as practicable. In the case of a cashless exercise, I understand it may take longer to process my Option exercise.
| Submitted by: | Acknowledged by: | |||
| Optionee | Broker | |||
| By: | Firm Name: | |||
| Its: | By: | |||
| Date: | Its: | |||
| Date: | ||||
| Acknowledged by: | ||||
| Investview, Inc. | ||||
| By: | ||||
| Its: | ||||
| Date: | ||||
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Exhibit 10.122
FINAL EXECUTION VERSION
Exhibit B: Ralph Valvano – Employee Option Award (Tranche 2)
Option Grant No. 2022-6
INVESTVIEW, INC.
2022 INCENTIVE PLAN
NON-STATUTORY OPTION AWARD
Investview, Inc., a Nevada corporation (the “Company”), pursuant to the terms of the Investview, Inc. 2022 Incentive Plan (the “Plan”) and the Non-Statutory Option Award Agreement (the “Agreement”) attached to this Non-Statutory Option Award (this “Option Award”), hereby grants to the individual named in Section 2 below (the “Optionee”), effective as of the grant date set forth in Section 1 below, the option to purchase the number of shares of the Company’s Common Stock as set forth in Section 3 below, subject to the exercise price as set forth in Section 4 below and vesting as set forth in Section 5 below and the terms and conditions of this Option Award and the Agreement attached to this Option Award.
The terms of this Option Award are subject to all of the provisions of the Plan and the attached Agreement, with such provisions being incorporated herein by reference. All of the capitalized terms used in this Option Award and the Agreement not otherwise defined herein or therein shall have the same meaning as defined in the Plan. A copy of the Plan and the prospectus for the Plan have been delivered to Optionee together with this Option Award and the Agreement.
| 1. | Grant Date: | June 24, 2022 | |
| 2. | Name of Optionee: | Ralph Valvano | |
| 3. | Number of Underlying Shares of Common Stock: | 29,375,000 | |
| (subject to adjustment as provided in the Plan) | |||
| 4. | Exercise Price: | $.05 per share (subject to adjustment as provided in the Plan) | |
| 5. | Vesting of Options (on a cumulative basis and subject to adjustment as provided in the Plan): | ||
| VESTING DATE | NO. OF UNDERLYING SHARES TO BE VESTED* | |||
| February 21, 2023 | 5,875,000 | |||
| February 21, 2024 | 5,875,000 | |||
| February 21, 2025 | 5,875,000 | |||
| February 21, 2026 | 5,875,000 | |||
| February 21, 2027 | 5,875,000 | |||
*Vesting to occur pursuant to Section 3 of the attached Agreement and conditioned upon continued employment as described therein.
| 6. | Expiration Date: | June 25, 2029 |
The Optionee acknowledges receipt of and understands and agrees to be bound by all of the terms of this Option Award, inclusive of the attached Agreement, and the Plan, and that the terms thereof supersede any and all other written or oral agreements between the Optionee and the Company, other than the Optionee’s Amended and Restated Employment Agreement dated June 24, 2022, regarding the subject matter contained herein.
| Investview, Inc. | Optionee: | ||
| By: | /s/ Victor M. Oviedo | /s/ Ralph Valvano | |
| Victor M. Oviedo, Chief Executive Officer | Date: 06/24/2022 | ||
| Date: | 06/24/2022 | ||
NON-STATUTORY OPTION AWARD AGREEMENT
THIS NON-STATUTORY OPTION AWARD AGREEMENT (this “Agreement”) is made as of the grant date set forth in Section 1 of the Non-Statutory Option Award (the “Option Award”) to which this Agreement relates and is attached (the “Grant Date”) between Investview, Inc., a Nevada corporation (the “Company”), and the individual identified in Section 2 of the Option Award to which this Agreement relates and is attached (the “Optionee”).
W I T N E S S E T H:
WHEREAS, the Company adopted the Investview, Inc. 2022 Incentive Plan (the “Plan”), which provides for the grant of certain awards, including without limitation, Non-Statutory Stock Options to Employees of the Company, with the corresponding right to purchase shares of Common Stock of the Company (the “Common Stock”).
WHEREAS, the Board of Directors of the Company, acting as the Committee under the Plan (the “Committee”), has authorized the grant of a Non-Statutory Option to the Optionee on the date of this Agreement as evidenced by the Option Award to which this Agreement is attached, thereby allowing the Optionee to acquire a proprietary interest in the Company in order that the Optionee will have a further incentive for remaining with and increasing his or her efforts on behalf of the Company.
WHEREAS, this Agreement is prepared in conjunction with and under the terms of the Plan, which are incorporated herein and made a part hereof by reference, and subject to the terms, conditions and requirements provided in the Amended and Restated Employment Agreement dated June ___, 2022, by and between the Company and Optionee (the “Employment Agreement”).
WHEREAS, the Optionee has accepted the grant of Non-Statutory Stock Options evidenced by the Option Award and this Agreement and has agreed to the terms and conditions stated herein and therein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants hereinafter set forth and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Confirmation of Grant of Option. Pursuant to a determination by the Committee, the Company, subject to the terms of the Plan and this Agreement, hereby grants to the Optionee as a matter of separate inducement and agreement, and in addition to and not in lieu of salary or other compensation or fees for services, the right to purchase (the “Option”) an aggregate number of shares of Common Stock as is set forth in Section 3 of the Option Award, subject to adjustment as provided in the Plan (such shares, as adjusted, the “Shares”). The Option is not intended to qualify as an incentive stock option under Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”).
2. Exercise Price. The per share exercise price of the Shares covered by the Option will be the per share amount set forth in Section 4 of the Option Award, at all times being not less than 100% of the Fair Market Value of one share of Common Stock on the Grant Date, subject to adjustment as provided in the Plan.
3. Vesting and Exercisability of Option. The Option shall vest and become exercisable on the terms and conditions hereinafter set forth:
(a) The Option shall vest and become exercisable (on a cumulative basis) in such installments (after giving effect to any adjustment pursuant to the Plan) and on such vesting dates, as set forth in Section 5 of the Option Award, provided that the Optionee (i) remains an Employee of the Company or one of its Subsidiaries or Affiliates as of each such applicable vesting date as indicated in Section 5 of the Option Award, and (ii) there not having occurred a “For Cause Event” as such term is defined in the Employment Agreement.
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(b) In addition, the Option shall vest and become exercisable to the extent and as provided in Sections 6, 7 and 8 hereof and as expressly provided by the terms of the Employment Agreement or any other Individual Agreement (as defined in the Plan) between the Optionee and the Company or one of its Subsidiaries or Affiliates. The Committee may decide, in its absolute discretion, to accelerate the vesting of all or some lesser portion of any unvested Options at any time, at the date specified by the Committee.
(c) The Option may be exercised pursuant to the provisions of this Section 3 and Sections 6, 7 and 8 hereof, by delivery of an Exercise Notice and payment to the Company as provided in Sections 10 and 15 hereof.
4. Term of Option. The term of the Option shall be the period of years from the Grant Date as is set forth in Section 1 of the Option Award and shall expire on the date set forth in Section 6 of the Option Award, subject to earlier termination or cancellation as provided in this Agreement.
5. Non-transferability of Option. The Option shall not be assigned, transferred or otherwise disposed of, or pledged or hypothecated in any way, and shall not be subject to execution, attachment or other process, except as may be provided in the Plan. Any assignment, transfer, pledge, hypothecation or other disposition of the Option attempted contrary to the provisions of the Plan, or any levy of execution, attachment or other process attempted upon the Option, will be null and void and without effect. Any attempt to make any such assignment, transfer, pledge, hypothecation or other disposition of the Option will cause the Option to terminate immediately upon the happening of any such event; provided, however, that any such termination of the Option under the foregoing provisions of this Section 5 will not prejudice any rights or remedies which the Company or one of its Subsidiaries or Affiliates may have under this Agreement or otherwise.
6. Exercise Upon Cessation of Employment Other Than on Account of Death or Disability. The terms of this Section 6 apply unless otherwise expressly provided by the terms of the Employment Agreement or any other an Individual Agreement between the Optionee and the Company or one of its Subsidiaries or Affiliates or a plan or policy of the Company applicable to the Optionee specifically provides otherwise, and subject to the provisions of Section 5 hereof and Sections 13.4 and 13.5 of the Plan. In no event, however, may the Option be exercised after the expiration of the term provided in Section 4 hereof.
(a) If the Optionee at any time ceases to be an Employee of the Company or one of its Subsidiaries or Affiliates by reason of his or her discharge by the Company for Cause, the Option may thereafter following such cessation of employment only be exercised by the Optionee to the same extent the Optionee would have been entitled under Section 3 hereof to exercise the Option immediately prior to such cessation of employment or other service, at any time within the later of: (i) thirty (30) days after such cessation of employment or other service; or (ii) that date that occurs upon the earlier of: (X) thirty (30) days following the expiration of the “Lock-Up Agreement” (as defined in the Employment Agreement); or (Y) thirty (30) days following the release of Optionee from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the Optionee prior to the effective date of such release, if at all, in the Company’s sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the Optionee shall forfeit all rights hereunder.
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(b) If the Optionee terminates employment with the Company and all of its Subsidiaries or Affiliates other than for Good Reason (and other than Optionee’s discharge for Cause and Optionee’s termination upon death or Disability), the Option may be exercised by the Optionee to the same extent the Optionee would have been entitled under Section 3 hereof to exercise the Option immediately prior to such cessation of employment or other service, at any time within the later of: (i) ninety (90) days after such cessation of employment or other service; or (ii) that date that occurs upon the earlier of: (X) ninety (90) days following the expiration of the “Lock-Up Agreement” (as defined in the Employment Agreement); or (Y) ninety (90) days following the release of Optionee from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the Optionee prior to the effective date of such release, if at all, in the Company’s sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the Optionee shall forfeit all rights hereunder, even if the Optionee subsequently returns to the employ of the Company or one of its Subsidiaries or Affiliates or begins providing other service to the Company or one of its Subsidiaries or Affiliates.
(c) If the Optionee at any time ceases to be an Employee of the Company or one of its Subsidiaries or Affiliates by reason of his or her discharge by the Company without Cause or by the Optionee for Good Reason (and other than Optionee’s termination upon death or Disability), the Option may be exercised by the Optionee to the same extent the Optionee would have been entitled under Section 3 hereof to exercise the Option immediately prior to such cessation of employment or other service, at any time within the later of: (i) six (6) months after such cessation of employment or other service; or (ii) that date that occurs upon the earlier of: (X) six (6) months following the expiration of the Lock-Up Agreement; or (Y) six (6) months following the release of Optionee from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the Optionee prior to the effective date of such release, if at all, in the Company’s sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the Optionee shall forfeit all rights hereunder, even if the Optionee subsequently returns to the employ of the Company or one of its Subsidiaries or Affiliates or begins providing other service to the Company or one of its Subsidiaries or Affiliates; provided, however, that without the consent of the Optionee, the Company cannot release the Optionee from the terms of the Lock-Up Agreement prior to twelve months following the Grant Date.
(d) The Option shall not be affected by any change of duties or position of the Optionee so long as Optionee continues to be a full-time Employee of the Company or one of its Subsidiaries or Affiliates. If the Optionee is granted a temporary leave of absence of 90 days or less, such leave of absence shall be deemed a continuation of his or her employment by the Company or one of its Subsidiaries or Affiliates for the purposes of this Agreement, but only if and so long as the employing corporation consents thereto.
(e) The change in an Optionee’s status from that of an Employee to that of a Consultant will, for purposes of this Agreement, be deemed to result in a termination of such Optionee’s employment with the Company and its Subsidiaries and Affiliates, unless the Committee otherwise determines in its sole discretion. Unless the Committee otherwise determines in its sole discretion, an Optionee’s employment or other service will, for purposes of this Agreement, be deemed to have terminated on the date recorded on the personnel or other records of the Company or the Subsidiary or Affiliate for which the Optionee provides employment, as determined by the Committee in its sole discretion based upon such records.
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7. Exercise Upon Death or Disability. The terms of this Section 7 apply unless otherwise expressly provided by the terms of the Employment Agreement or any other Individual Agreement between the Optionee and the Company or one of its Subsidiaries or Affiliates or a plan or policy of the Company applicable to the Optionee specifically provides otherwise, and subject to the provisions of Section 5 hereof and Sections 13.4 and 13.5 of the Plan. In no event, however, may the Option be exercised after the expiration of the term provided in Section 4 hereof.
(a) If the Optionee dies while he or she is employed by the Company or one of its Subsidiaries or Affiliates, the Option may be exercised (to the extent the Option is vested pursuant to Section 3 immediately prior to Optionee’s death), by the estate of the Optionee (or by the person or persons who acquire the right to exercise the Option by written designation of the Optionee) at any time within the later of: (i) twelve (12) months after such cessation of employment or other service; or (ii) that date that occurs upon the earlier of: (X) twelve (12) months following the expiration of the Lock-Up Agreement; or (Y) twelve (12) months following the release of Optionee (and the Optionee’s estate) from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the estate of the Optionee prior to the effective date of such release, if at all, in the Company’s sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the estate or other beneficiaries shall forfeit all rights hereunder; provided, however, that without the consent of the Optionee, the Company cannot release the Optionee from the terms of the Lock-Up Agreement prior to twelve months following the Grant Date.
(b) In the event that the employment of the Optionee with the Company or one of its Subsidiaries or Affiliates is terminated by reason of the Disability of the Optionee, the Option may be exercised (to the extent the Option is vested pursuant to Section 3 immediately prior to the termination of the Optionee’s employment due to Disability), by the Optionee at any time within the later of: (i) twelve (12) months after such cessation of employment or other service; or (ii) that date that occurs upon the earlier of: (X) twelve (12) months following the expiration of the Lock-Up Agreement; or (Y) twelve (12) months following the release of Optionee from the terms of the Lock-Up Agreement, by Company’s written agreement provided to the Optionee prior to the effective date of such release, if at all, in the Company’s sole discretion, at the end of which period the Option, to the extent not then exercised, shall terminate and the Optionee shall forfeit all rights hereunder even if the Optionee subsequently returns to the employ of the Company or one of its Subsidiaries or Affiliates or begins providing other service to the Company or one of its Subsidiaries or Affiliates; provided, however, that without the consent of the Optionee, the Company cannot release the Optionee from the terms of the Lock-Up Agreement prior to twelve months following the Grant Date.
8. Change in Control of the Company. If there is a Change in Control, unless otherwise expressly provided by the terms of the Employment Agreement or any other Individual Agreement between the Optionee and the Company or one of its Subsidiaries or Affiliates, the Option will be subject to the provisions of Article 15 of the Plan.
9. Registration. The shares covered by the Option have been registered and qualified for sale pursuant to the Securities Act of 1933, as amended, by the Company pursuant to a registration statement on Form S-8.
10. Method of Exercise of Option.
(a) Subject to the terms and conditions of this Agreement, the Option shall be exercisable by delivery of a completed written Option Exercise Form in substantially the form set forth in Exhibit A hereto (the “Exercise Notice”) and provision for payment to the Company in accordance with the procedure prescribed herein. Each such Notice shall:
(i) state the election to exercise the Option and the number of Shares with respect to which it is being exercised;
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(ii) be signed by the Optionee or the person or persons entitled to exercise the Option and, if the Option is being exercised by any person or persons other than the Optionee, be accompanied by proof, satisfactory to counsel to the Company, of the right of such other person or persons to exercise the Option (collectively an “Authorized Person”);
(iii) include payment of the full purchase price for the shares of Common Stock to be purchased pursuant to such exercise of the Option; and
(iv) be received by the Company on or before the date of the expiration of this Option. In the event the date of expiration of this Option falls on a day which is not a regular business day at the Company’s headquarters office, then such written Exercise Notice must be received at such office on or before the last regular business day prior to such date of expiration.
(b) Payment of the purchase price of any shares of Common Stock, in respect of which the Option shall be exercised, shall be made by the Optionee or Authorized Person at the place specified by the Company on the date the Exercise Notice is received by the Company (i) by delivering to the Company cash or a certified or bank cashier’s check payable to the order of the Company, (ii) by delivering to the Company properly endorsed certificates of shares of Common Stock (or certificates accompanied by an appropriate stock power) with signature guaranties by a bank or trust company, (iii) by tender of a Broker Exercise Notice, subject to approval in advance by the Committee solely for the purpose of determining that the sale of any shares of Common Stock in respect of such Broker Exercise Notice will provide the Company with sufficient proceeds to pay the exercise price, (iv) by having withheld from the total number of shares of Common Stock to be acquired upon the “net exercise” of this Option a specified number of such shares of Common Stock as determined pursuant to Section 6.5(b) of the Plan, or (v) by any combination of the foregoing. For purposes of the immediately preceding sentence, an exercise effected by the tender of Common Stock (or deemed to be effected by the tender of Common Stock) may only be consummated with Common Stock held by the Optionee for a period of six (6) months or acquired by the Optionee other than under the Plan (or a similar plan maintained by the Company).
(c) The Option shall be deemed to have been exercised with respect to any particular shares of Common Stock if, and only if, the preceding provisions of this Section 10 and the provisions of Section 11 hereof shall have been complied with, in which event the Option shall be deemed to have been exercised on the date the Exercise Notice was received by the Company. Anything in this Agreement to the contrary notwithstanding, any Exercise Notice given pursuant to the provisions of this Section 10 shall be void and of no effect if all of the preceding provisions of this Section 10 and the provisions of Section 11 shall not have been strictly complied with.
(d) The certificate or certificates or book-entry notations for shares of Common Stock as to which the Option shall be exercised will be registered in the name of the Optionee (or in the name of the Optionee’s estate or other beneficiary if the Option is exercised after the Optionee’s death), or if the Option is exercised by the Optionee and if the Optionee so requests in the notice exercising the Option, will be registered in the name of the Optionee and another person jointly, with right of survivorship and will be delivered as soon as practical after the date the Exercise Notice is received by the Company (accompanied by full payment of the exercise price), but only upon compliance with all of the provisions of this Agreement.
(e) If the Optionee fails to accept delivery of and pay for all or any part of the number of Shares specified in such Exercise Notice, Optionee’s right to exercise the Option shall be terminated with respect to such undelivered Shares, unless the Committee, in the sole discretion, determines otherwise. The Option may be exercised only with respect to full Shares.
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(f) The Company shall not be required to issue or deliver any certificate or certificates or perform any book-entry notations for shares of its Common Stock purchased upon the exercise of any part of the Option prior to the payment to the Company, upon its demand, of any amount requested by the Company for the purpose of satisfying its maximum statutory liability, if any, to withhold federal, state or local income or earnings tax or any other applicable tax or assessment (plus interest or penalties thereon, if any, caused by a delay in making such payment) incurred by reason of the exercise of this Option or the transfer of shares thereupon. Such payment shall be made by the Optionee in cash or, with the written consent of the Company, by tendering to the Company shares of Common Stock equal in value to the amount of the required withholding. In the alternative, the Company, at its sole discretion, may satisfy such withholding requirements by withholding from the shares of Common Stock to be delivered to the Optionee pursuant to an exercise of the Option a number of shares of Common Stock equal in value to the amount of the required withholding.
11. Approval of Counsel. The exercise of the Option and the issuance and delivery of shares of Common Stock pursuant to this Agreement shall be subject to approval by the Company’s counsel of all legal matters in connection therewith, including, but not limited to, compliance with the requirements of the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended, and the requirements of any stock exchange or automated trading medium upon which the Common Stock may then be listed or traded.
12. Resale of Common Stock, Etc. If required by counsel for the Company, the stock certificate(s) or book-entry notation(s) for the Common Stock issued upon exercise of the Option shall bear the following (or similar) legends:
THE SHARES EVIDENCED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS THEY HAVE FIRST BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNLESS, IN THE OPINION OF COUNSEL FOR THE COMPANY, SUCH REGISTRATION IS NOT REQUIRED.
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.
13. Reservation of Shares. The Company shall at all times during the term of the Option reserve and keep available such number of shares of Common Stock as will be sufficient to satisfy the requirements of this Agreement.
14. Limitation of Action. The Optionee and the Company each acknowledge that every right of action accruing to the Optionee or the Company, as the case may be, and arising out of or in connection with this Agreement against the Optionee, on the one hand, or against the Company, on the other hand, shall, irrespective of the place where an action may be brought, cease and be barred by the expiration of twenty-four (24) months from the date of the act or omission in respect of which such right of action arises.
15. Notices. Each notice relating to the Option Award and this Agreement shall be in writing and delivered in person, by recognized overnight carrier or by certified mail to the proper address. All notices to the Company or the Committee shall be addressed to them at the address of the Company’s headquarters as reflected in the Company’s most recent federal securities filings, Attn: Chairman. All notices to the Optionee shall be addressed to the Optionee or such other person or persons at the Optionee’s address set forth in the Company’s records. Anyone to whom a notice may be given under this Agreement may designate a new address by notice to that effect.
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16. Successors. This Agreement shall inure to the benefit of the Company, the Optionee and their respective heirs, executors, administrators, personal representatives, successors and assigns.
17. Construction. Wherever possible, each provision of this Agreement will be interpreted so that it is valid under the Applicable Law (as defined in the Plan). If any provision of this 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 Agreement will continue to be valid, and the Agreement will continue to be valid in other jurisdictions.
18. Governing Law. All questions pertaining to the validity, construction and administration of this Agreement shall be determined in accordance with the laws of the State of Nevada without regard to its principles of conflicts of law.
19. Employment. Nothing in this Agreement will interfere with or limit in any way the right of the Company or any Subsidiary or Affiliate to terminate the employment or service of the Optionee at any time, nor confer upon the Optionee any right to continue employment or other service with the Company or any Subsidiary or Affiliate.
20. Clawback. Any shares of Common Stock issued upon exercise of the Option may be subject to recoupment by the Company, however, only to the extent required under applicable laws, rules or regulations in effect from time to time, and the Company’s then effective Clawback and Forfeiture Policy.
21. Definitions. Unless otherwise defined in this Agreement or the Option Award, all capitalized terms used in this Agreement shall have the same definitions as set forth in the Plan.
22. Incorporation of Terms of Plan. This Agreement shall be interpreted under, and subject to, all of the terms and provisions of the Plan, which are incorporated herein by reference.
23. No Strict Construction. The language used in this Agreement shall be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction shall apply against any party.
BY WAY OF THEIR EXECUTION OF THE OPTION AWARD TO WHICH THIS AGREEMENT RELATES AND IS ATTACHED, the Company and the Optionee (and each of their heirs, successors and assigns) agree to be bound by each and every one of the terms set forth in this Agreement.
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EXHIBIT A
NON-STATUTORY OPTION EXERCISE FORM
[DATE]
Investview, Inc.
[Address]
Attention: Chairman
1. Option Exercise. I hereby elect to exercise my option to purchase the following shares of Common Stock of Investview, Inc. under the Investview, Inc. 2022 Incentive Plan (the “Plan”) and the Option Agreement (the “Option”) identified below:
| Option Grant #: | |||
| Grant Date: | |||
| Number of Shares: | |||
| Exercise Price Per Share: | $ | ||
| Total Purchase Price: | $ | ||
2. Payment. I am paying the purchase price of the exercised Option as follows (check the applicable form of payment):
| _____ | I am attaching cash or a check in the amount of $____________, as the total purchase price for the shares. | |
| _____ | I have delivered ________ shares of Common Stock of Investview, Inc. (the “Company”) that I have previously acquired. I own these shares free and clear of any liens, claims, encumbrances or security interests. I have enclosed the certificates representing these previously acquired shares endorsed or accompanied by an executed assignment separate from certificate. | |
| _____ | I have delivered irrevocable instructions to a broker to sell a sufficient number of shares of Common Stock of the Company to pay the total purchase price and to pay such amounts to the Company. [Please note that this form of payment is only available upon prior written approval of the Committee solely for the purpose of determining that the sale of shares of Common Stock in respect of such broker exercise notice will provide the Company with sufficient proceeds to pay the exercise price and is subject to any applicable restrictions on the sale of such shares by Optionee.] | |
| The name, address and telephone number of the broker is as follows: | ||
| Name of Firm: ____________________________ | ||
| Contact: ________________________________ | ||
| Address: _______________________________ | ||
| Phone: ____________________________ | ||
| Fax: ___________________________________ | ||
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| [Please also see Section 4 of this Option Exercise Notice, which may prevent you from using this type of “cashless” exercise feature if you possess material non-public information about the Company or its securities at the time of exercise.] | |
| _____ | I hereby elect to convert the attached option into shares of Common Stock of the Company on a “net exercise” basis pursuant to Section 6.5(b) of the Plan. |
| _____ | I have elected to pay any required withholding with the exercise transaction. Accordingly, I have included $_______, which I would like applied to federal and state tax withholdings as follows:_________________________________________________________. |
3. Certificate Delivery. I elect to have my shares of Common Stock delivered as follows:
| _____ | Please have the shares delivered electronically via DWAC to my brokerage account. Please use the information below to execute the transaction. | |
| Broker DTC number: ____________________________ | ||
| My Account Number ____________________________ | ||
| _____ | Please register the certificate or book-entry notation representing the shares in the name set forth below and send the certificate or evidence of book-entry notation to the following address: | |
| Registered Name: ______________________________________________ | ||
| Address: ____________________________________________________ | ||
4. Compliance with Insider Trading Policy. I acknowledge that I have read and understand the Company’s current insider trading policy, including the portions that may, among other things, restrict my ability to exercise my Options through a broker sale on the open market or otherwise sell the shares of Common Stock issuable upon exercise of my Options. I understand that the information in this letter does not limit in any manner my own, personal responsibilities and obligations under the policy and the securities laws, including, but not limited to, the prohibitions on trading (including by means of a broker assisted option exercise) while I possess material, non-public information or during a blackout period that may be imposed under the policy. I agree to provide a copy of this exercise notice to my broker, and to require his or her compliance with the policy. I understand that the Company may reject any broker exercise completed during a blackout period or that is otherwise prohibited by any Company policy, including the current insider trading policy.
5. Representations. I acknowledge that I have received, read and understand the Plan and my Non-Statutory Option Award Agreement, which together govern the terms of my Option and its exercise. I have also read the current Plan prospectus, the Company’s latest annual report to stockholders and the other public reports and information incorporated by reference into the prospectus in making my decision to exercise my options.
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6. Effectiveness and Execution of Transaction. I understand and agree that this exercise election will be subject to acknowledgement by the Company. In the case of a cash exercise, my Option exercise will be processed as soon as practicable. In the case of a cashless exercise, I understand it may take longer to process my Option exercise.
| Submitted by: | Acknowledged by: | |||
| Optionee | Broker | |||
| By: | Firm Name: | |||
| Its: | By: | |||
| Date: | Its: | |||
| Date: | ||||
| Acknowledged by: | ||||
| Investview, Inc. | ||||
| By: | ||||
| Its: | ||||
| Date: | ||||
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Exhibit 99.01
Investview, Inc. (‘‘INVU’’) Announces Restructuring of Incentive Equity Awards
Leadership team confirms confidence in Company outlook by surrender of outstanding share awards in favor of long-term option grants
Eatontown, NJ, June 27, 2022 — Investview, Inc. (OTCQB: INVU), a diversified financial technology company that through its subsidiaries and global distribution network provides financial technology, education tools, content, research, and management of digital asset technologies with a focus on Bitcoin mining and the new generation of digital assets, announced today an overall restructuring of the incentive equity awards previously granted to its senior leadership team. Under the restructuring, the Company’s senior management team and Board of Directors unanimously agreed to surrender and terminate an aggregate of approximately 288 million outstanding restricted shares in exchange for the issuance of approximately 360 million incentive options to purchase shares in the future at an exercise price of $.05 per share, or roughly a 66% premium over the closing price of the Company’s shares on Thursday, June 23, 2022. The exercise price and number of options into which the restricted shares were surrendered (based on an exchange ratio of 1.25 to 1) was established by an independent valuation firm engaged by the Company applying relevant valuation methodologies in a manner consistent with our recently completed annual audit. Of particular note, the shares issuable, if at all, upon exercise of the options, remain subject to the terms of the Company’s existing lock-up agreement through April 25th, 2025.
According to Victor M. Oviedo, Company Chief Executive Officer, the restructuring was essential so that we could, among others, accomplish three primary goals. First and foremost, the restructuring tightens the Company’s existing share capital by eliminating 288,333,334 million outstanding shares of company stock, (representing approximately an 11% reduction in the Company’s issued and outstanding shares effective June 24, 2022); second, it puts the Company in a better tax posture so as to avoid the future drain on the Company’s capital if and when called upon to pay withholding taxes upon the non-cash vesting of restricted shares; and third, it avoids the need for executives to disrupt the market with an influx of shares upon each vesting event, particularly if it required the waiver of existing lock-up agreements to which each member of the management team has agreed to. Of additional benefit to the Company, the exercise price of the options has been set at a 66% premium to the closing price on June 23, 2022. Thus, in order for the Executives to achieve in their option grants comparable value to the restricted shares surrendered, Investview’s market capitalization would have to grow to over $677 million (an increase of approximately $596 million from current market capitalization) or by roughly732%.
David B. Rothrock, Company Chairman, added, “The options were designed to incentivize future retention. Thus, the options are subject to annual vesting over a five-year period. For option awards to be fully-earned, Executives must remain with the Company for at least a five-year term. This creates the incentive for key Executives to continue to lead Investview’s management and to drive their performance as well as the performance of the Company over the long-term. This further aligns Leadership to focus its attention on key product and strategic initiatives and to make logical decisions that most impact Investview’s long-term growth and profitability. I believe this re-alignment through the stock conversion to options provides the long-term path for our Executive Management Team to dynamically allocate capital and talent to achieve the company’s short and long term goals for its existing operations but additionally allows, where appropriate, the implementation of new strategic and synergistic initiatives toward unlocking what we believe is significant pent-up shareholder value”.
About Investview, Inc.
Investview, Inc., a Nevada corporation (which we refer to as “we,” “us,” “our,” “Investview,” or the “Company”), a financial technology (FinTech) services company, operates several different businesses, including a Financial Education and Technology business that delivers a series of products and services involving financial education, digital assets and related technology, through a network of independent distributors; a Blockchain Technology and Crypto Mining Products and Services business including leading-edge research, development and FinTech services involving the management of digital asset technologies with a focus on Bitcoin mining and the new generation of digital assets; and a Brokerage and Financial Markets business that is currently in the early stages but plans to expand within the investment management and brokerage industries by commercializing on the proprietary trading platform we acquired in September 2021. For more information on Investview, please visit: www.investview.com.
Forward-Looking Statement
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 for the year-ended December 31, 2021, 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]