AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit 10.118
EXECUTION VERSION
Xxxxx X. Xxxx
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 Xxxxx X. Xxxx (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/ Xxxxxx Xxxxxx | |
| Name: | Xxxxxx Xxxxxx | |
| Title: | Chief Executive Officer | |
| By: | /s/ Xxxxx X. Xxxxxxxx | |
| Name: | Xxxxx X. Xxxxxxxx | |
| Title: | Chairman of the Board | |
| EXECUTIVE: | ||
| By: | /s/ Xxxxx X. Xxxx | |
| Name: | Xxxxx X. Xxxx | |
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