EXHIBIT 10.8
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") entered into this 26th day
of May 2004 (the "Effective Date"), is by and between Trycera Financial,
Inc., a corporation formed under the laws of the State of Nevada with its
principal place of business at 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx
Xxxxx, XX 00000 ("Trycera"), and Xxxxx X. Xxxxxx ("the Employee").
RECITALS:
WHEREAS, Trycera desires to engage the services of the Employee as
Chief Financial Officer, and the Employee is willing to render such
services to Trycera in consideration of the terms and conditions agreed to
by the parties; and
WHEREAS, the Board of Directors of Trycera (the "Board") has approved
the employment of the Employee on the terms and conditions set forth in
this Agreement;
NOW THEREFORE, in consideration of the mutual covenants and promises
contained herein, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged by the parties hereto,
Trycera agrees to employ the Employee, and the Employee agrees to perform
services for Trycera as an employee, upon the terms and conditions set
forth herein.
1. TERM.
The initial term of this Agreement shall begin on June 7th, 2004, and
be for a period of three (3) years, unless it is terminated earlier as
provided herein. Beginning on that date, and on each anniversary
thereafter, unless it is terminated earlier as provided herein or Trycera
delivers written notice to the Employee of its intention not to extend the
Agreement at least thirty (30) days before such anniversary date, the term
of this Agreement shall automatically be extended for one additional year.
The restrictive covenants in Section 9 hereof shall survive the termination
of this Agreement.
2. TITLE AND DUTIES.
The Employee shall be employed as Chief Financial Officer of Trycera.
The Employee shall perform such services consistent with his position as
might be assigned to him from time to time and are consistent with the
bylaws of Trycera. The Board has appointed the Employee to serve as the
Chief Financial Officer and Employee shall have such responsibilities and
authority as is commensurate with such offices and as may be prescribed by
the Board and bylaws of Trycera. The Board shall have the right to review
and change the responsibilities of Employee from time to time as it may
deem necessary or appropriate, provided, however, that such
responsibilities shall not be inconsistent with the Employee's position as
Chief Financial Officer.
3. LOCATION.
The Employee's place of employment shall be the offices of Trycera
described above, or at such other location as mutually agreed between
Trycera and the Board.
4. EXTENT OF SERVICES.
a. Duty to Perform Services.
The Employee agrees not to engage in any business activities
during the term of this Agreement except those that are for the benefit of
Trycera and its subsidiaries, and to devote 100% of his entire business
time, attention, skill, and effort to the performance of his duties under
this Agreement for Trycera and any corporation controlled by Trycera now or
during the term of this Agreement. Notwithstanding the foregoing, the
Employee may engage in charitable, professional and civic activities that
do not impair the performance of his duties to Trycera, as the same may be
changed from time to time. While employed by Trycera, and with the
exception of employee serving on the board of Mitco Industries in a
non-management capacity, employee may not serve on the board of directors
of any other company. Nothing contained herein shall prevent the Employee
from managing his own personal investments and affairs, including, but not
limited to, investing his assets in the securities of publicly traded
companies; provided, however, that the Employee's activities do not
constitute a conflict of interest, violate securities laws, or otherwise
interfere with the performance of his duties and responsibilities as
described herein. The Employee agrees to adhere to Trycera's published
policies and procedures, as adopted from time to time, affecting directors,
officers, employees, and agents and shall use his best efforts to promote
Trycera's interest, reputation, business and welfare.
b. Corporate Opportunities.
The Employee agrees that he will not take personal advantage of
any Trycera business opportunities that arise during his employment with
Trycera and that might be of benefit to Trycera. All material facts
regarding such opportunities must be promptly reported to the Board for
consideration by Trycera.
5. COMPENSATION AND BENEFITS.
a. Base Salary.
The Employee's annual base salary shall be $100,000. The base
salary shall be payable in equal installments in accordance with Trycera's
standard payroll practices. The Employee's annual base salary shall be
further reviewed no less frequently than annually for increases in the
discretion of the Trycera Compensation Committee and/or Board, taking into
account the compensation level for employees with similar skills and
responsibilities at companies comparable to Trycera, the financial
condition of Trycera, and the Employee's value to Trycera relative to other
members of the executive management of Trycera; provided, however, that at
no time during the term of this Agreement shall the Employee's base salary
be decreased from the base salary then in effect except as part of a
general program of salary adjustment by Trycera applicable to all vice
presidents and above.
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b. Signing Bonus.
Upon execution of this Agreement, the Employee shall be issued
600,000 shares of stock as a signing bonus.
c. Performance Bonus.
Executive will be eligible to receive an annual bonus of a
minimum of 10.0% and a maximum of 50.0% of the then applicable Base Salary,
less applicable withholding taxes, payable in cash or stock at the
discretion of the Compensation Committee, upon achievement of annual
performance objectives to be determined by the Board and Executive, which
such objectives for the first year of this Agreement will be established
within thirty (30) days of the Effective Date. Objectives for subsequent
years will be determined as set forth herein within thirty (30) days of
each anniversary of this Agreement.
d. Stock Options
Upon execution of this Agreement, Employee will be granted
750,000 ISO options as a base option plan priced at (i) $0.25 per share for
the first 187,500 options, (ii) $0.45 per share for the second 187,500
options, (iii) $0.65 per share for the third 187,500 options, and (iv)
$0.85 per share for the fourth 187,500 options. Vesting for the 750,000 ISO
based options will follow the following schedule and include an early
exercise provision should Employee wish to exercise it: (1) 1/12th per
quarter for each quarter of Trycera revenue exceeding the previous quarter
of revenue since Employee's date of hire, independent of whether the
revenue is generated from acquisition or non-acquisition business
activities, (2) 1/12th for each $250K in aggregate gross revenue growth
from the day Employee commences work at Trycera, and/or (3) at the 3 year 6
month anniversary of Employee's employment with Trycera.
All options will be subject to the terms, definitions and
provisions of Trycera's 2004 Stock Option/Stock Issuances Plan, as amended
from time to time (the "Option Plan") which document is incorporated herein
by reference.
e. Other Benefits.
During the Employment Term, Employee will be entitled to
participate in the employee benefit plans currently and hereafter
maintained by Trycera of general applicability to other senior executives
of Trycera, including, without limitation, Trycera's group medical, dental,
vision, disability, life insurance, flexible-spending account, 401(k) and
other plans.
f. Vacation.
Employee will be entitled to paid vacation of Three (3) weeks per
year in accordance with Trycera's vacation policy, with the timing and
duration of specific vacations mutually and reasonably agreed to by the
parties hereto.
g. Reimbursement of Business Expenses.
Trycera shall promptly reimburse the Employee for all reasonable
travel, entertainment and other expenses incurred or paid by the Employee
in connection with, or related to, the performance of his duties,
responsibilities or services under this Agreement, upon presentation by the
Employee of such supporting information and documentation as Trycera may
reasonably request in accordance with company policy and the requirements
of the Internal Revenue Code.
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6. TERMINATION OF EMPLOYMENT.
a. Termination Due to Death.
The Employee's employment and this Agreement shall terminate
immediately upon his death. If the Employee's employment is terminated due
to his death, his estate or his beneficiaries, as the case may be, shall be
entitled to:
(i) payment of any unpaid portion of his base salary
through the date of such termination;
(ii) reimbursement for any outstanding reasonable business
expenses he incurred in performing his duties hereunder;
(iii) the right to elect continuation coverage of
insurance benefits to the extent required by law;
(iv) full and immediate vesting of any unexercised stock
options;
(v) any pension survivor benefits that may become due
pursuant to any employee benefit plan or program of Trycera; and
(vi) payment of any accrued but unpaid benefits, and any
other rights, as required by the terms of any employee benefit
plan or program of Trycera, this Agreement, or any other
agreement between Trycera and the Employee.
b. Termination Due to Disability.
Trycera may terminate the Employee's employment at any time if
the Employee becomes disabled, upon written notice by Trycera to the
Employee. For all purposes under this Agreement, "Disability" shall mean
that the Employee, at the time the notice is given, has been unable to
perform his duties under this Agreement for a period of not less than
ninety (90) days during any 180-day period as a result of the Employee's
incapacity due to physical or mental illness. If the Employee's employment
is terminated due to his disability, he shall be entitled to:
(i) payment of any unpaid portion of his base salary
through the date of such termination;
(ii) reimbursement for any outstanding reasonable business
expenses he has incurred in performing his duties hereunder;
(iii) the right to elect continuation coverage of
insurance benefits to the extent required by law;
(iv) full and immediate vesting of any unexercised stock
options; and
(v) payment of any accrued but unpaid benefits, and any
other rights, as required by the terms of any employee benefit
plan or program of Trycera, this Agreement, or any other
agreement between Trycera and the Employee.
As soon as administratively possible following the Effective
Date, Trycera shall make available to the Employee, and other
similarly-situated employees, a disability benefit plan, paid by Trycera,
that provides monthly payments to Employee equal to at least two thirds
(2/3) of the highest monthly base salary Employee receives pursuant to this
Agreement, which payment will continue for as long as Employee remains
disabled.
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c. Termination for Cause.
Trycera may terminate the Employee's employment at any time for
Cause, provided that it gives written notice of termination to the Employee
as set forth below. If the Employee's employment is terminated for Cause,
as defined below, he shall be entitled to:
(i) payment of any unpaid portion of his base salary
through the date of such termination;
(ii) reimbursement for any outstanding reasonable business
expenses he incurred in performing his duties hereunder;
(iii) the right to elect continuation coverage of
insurance benefits to the extent required by law; and
(iv) payment of any accrued but unpaid benefits, and any
other rights, as required by the terms of any employee benefit
plan or program of Trycera, this Agreement, or any other
agreement between Trycera and the Employee.
For purposes of this Agreement, a termination for "Cause" shall
mean: (i) the final conviction of Employee of, or Employee's plea of
guilty or nolo contendere, to any felony involving moral turpitude,
(ii) fraud, misappropriation or embezzlement by Employee in connection with
Employee's duties to Trycera, or (iii) Employee's failure or misconduct in
the performance of his duties to Trycera.
d. Termination Without Cause or Constructive Termination Without
Cause.
Trycera may terminate the Employee's employment at any time
without Cause. If the Employee's employment is terminated without Cause, or
if there is a constructive termination without Cause, as defined below, the
Employee shall be entitled to receive from Trycera the following:
(i) payment of any unpaid portion of his base salary
through the date of such termination;
(ii) reimbursement for any outstanding reasonable business
expenses he incurred in performing his duties hereunder;
(iii) the right to elect continuation coverage of
insurance benefits to the extent required by law;
(iv) payment of any accrued but unpaid benefits, and any
other rights, as required by the terms of any employee benefit
plan or program of Trycera, this Agreement, or any other
agreement between Trycera and the Employee;
(v) a severance benefit in an amount equal to ninety days
(90) salary at employees then current rate.
For purposes of this Agreement, constructive termination without
Cause shall mean a termination of the Employee at his own initiative
following the occurrence, without the Employee's prior written consent, of
one or more of the following events not on account of Cause:
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(1) the failure of Trycera to obtain an assumption in writing of
its obligation to perform under this Agreement by any successor to all
or substantially all of the assets of Trycera in connection with any
merger, consolidation, sale or similar transaction; or
(2) any material breach of this Agreement by Trycera.
In the event the Employee is terminated without Cause or there is
a constructive termination without Cause, each party shall provide the
other with written notice not less than thirty (30) days before the
effective date of the termination of employment.
e. Voluntary Termination.
If the Employee voluntarily terminates his employment on his own
initiative for reasons other than his death, disability, or constructive
termination without Cause, he shall be entitled to:
(i) payment of any unpaid portion of his base salary
through the effective date of such termination;
(ii) reimbursement for any outstanding reasonable business
expenses he has incurred in performing his duties hereunder;
(iii) the right to elect continuation coverage of
insurance benefits to the extent required by law; and
(iv) payment of any accrued but unpaid benefits, and any
other rights, as required by the terms of any employee benefit
plan or program of Trycera, this Agreement, or any other
agreement between Trycera and the Employee.
A voluntary termination under this paragraph shall be effective
upon thirty (30) days' prior written notice to Trycera unless the parties
mutually agree to extend the effective date.
7. MITIGATION AND OFFSET.
If the Employee's employment is terminated during the term of this
Agreement pursuant to the provisions of paragraph 6(d), above, the Employee
shall be under no duty or obligation to seek or accept other employment,
and no payment or benefits of any kind due him under this Agreement shall
be reduced, suspended or in any way offset by any subsequent employment.
The obligation of Trycera to make the payments provided for in this
Agreement shall not be affected by any circumstance including, by way of
example rather than limitation, any set-off, counterclaim, recoupment,
defense, or other right that Trycera may assert, or due to any other
employment or source of income obtained by the Employee.
8. ENTITLEMENT TO OTHER BENEFITS.
Except as expressly provided herein, this Agreement shall not be
construed as limiting in any way any rights or benefits the Employee, his
spouse, dependents or beneficiaries may have pursuant to any other employee
benefits plans or programs.
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9. CONFIDENTIALITY.
Employee agrees to enter into the form of Confidential Information and
Invention Assignment Agreement attached hereto as Exhibit A (the
"Confidential Information Agreement") upon commencing employment hereunder.
10. ARBITRATION.
Any dispute or controversy arising under or in connection with this
Agreement shall, if Trycera or the Employee so elects, be settled by
arbitration, in accordance with the Commercial Arbitration Rules procedures
of the American Arbitration Association. Arbitration shall occur before a
single arbitrator, provided, however, that if the parties cannot agree on
the selection of such arbitrator within thirty (30) days after the matter
is referred to arbitration, each party shall select one arbitrator and
those arbitrators shall jointly designate a third arbitrator to comprise a
panel of three arbitrators. The decision of the arbitrator shall be
rendered in writing, shall be final, and may be entered as a judgment in
any court in the State of California. Trycera and the Employee each
irrevocably consent to the jurisdiction of the federal and state courts
located in State of California for this purpose. The arbitrator shall be
authorized to allocate the costs of arbitration between the parties.
Notwithstanding the foregoing, Trycera, in its sole discretion, may bring
an action in any court of competent jurisdiction to seek injunctive relief
in order to avoid irreparable harm and such other relief as Trycera shall
elect to enforce the Employee's covenants in Section 9.
11. LEGAL EXPENSES.
Except as provided in Section 10 hereof, if any legal action or other
proceeding is brought for the enforcement of this Agreement, or because of
an alleged dispute, breach, default, or misrepresentation in connection
with any of the provisions of this Agreement, the successful or prevailing
party or parties will be entitled to recover reasonable attorneys' fees and
other costs incurred in that action or proceeding, in addition to any other
relief to which it or they may be entitled.
12. INDEMNIFICATION.
Trycera agrees that if the Employee is made a party, or is threatened
to be made a party, to any action, suit or proceeding, whether civil,
criminal, administrative, or investigative (a "Proceeding"), by reason of
the fact that he is or was a director, officer or employee or Trycera, or
is, or was, serving at the request of Trycera as a director, officer,
member, employee or agent of another corporation, partnership, limited
liability company, joint venture, trust or other enterprise, including
service with respect to employee benefit plans, whether or not the basis of
such Proceeding is the Employee's alleged action in an official capacity
while serving as a director, officer, member, employee or agent, the
Employee shall be Indemnified and held harmless by Trycera to the fullest
extent permitted or authorized by Trycera's articles of incorporation and
bylaws. To the extent consistent with the foregoing, this obligation to
indemnify the Employee and hold him harmless shall continue even if he has
ceased to be a director, officer, member, employee or agent of Trycera or
other such entity described above, and shall inure to the benefit of the
Employee's heirs, executors and administrators. Trycera shall advance to
the Employee all reasonable costs and expenses incurred by him in
connection with a Proceeding within twenty (20) days after receipt by
Trycera of a written request for such
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advance. Such request shall include an undertaking by the Employee to
repay the amount of such advance if it shall ultimately be determined that
the Employee is not entitled to be indemnified against such costs and
expenses.
Neither the failure of Trycera (including its Board, independent legal
counsel or stockholders) to have made a determination before such
Proceeding concerning payment of amounts claimed by the Employee under the
paragraph above that indemnification of the Employee is proper because he
has met the applicable standards of conduct, nor a determination by Trycera
(including its Board, independent legal counsel or stockholders) that the
Employee has not met such applicable standards of conduct, shall create a
presumption that the Employee has not met the applicable standards of
conduct.
Employee understands and acknowledges that Trycera may be required in
the future to undertake with the Securities and Exchange Commission to
submit in certain circumstances the question of indemnification to a court
for a determination of Trycera's right under public policy to indemnify
Employee.
13. ASSIGNABILITY AND BINDING NATURE.
This Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors, heirs (in the case of the
Employee) and assigns. No rights or obligations may be assigned or
transferred by Trycera except that such rights or obligations may be
assigned or transferred pursuant to a merger or consolidation in which
Trycera is not the continuing entity, or the sale or liquidation of all or
substantially all of the assets of Trycera, provided that the assignee or
transferee is the successor to all or substantially all of the assets of
Trycera and such assignee or transferee assumes the liabilities,
obligations, and duties of Trycera, as contained in this Agreement, either
contractually or as a matter of law. Trycera further agrees, that in the
event of a sale of assets or liquidation as described in the foregoing
sentence, it shall take whatever action it is legally entitled to take in
order to Cause the assignee or transferee to expressly assume the
liabilities, obligations, and duties of Trycera under this Agreement.
Notwithstanding any such assignment, Trycera shall not be relieved from
liability under this Agreement. No rights or obligations of the Employee
under this Agreement may be assigned or transferred by the Employee, other
than his right to receive compensation and benefits, provided such
assignment or transfer is otherwise permitted by law.
14. NOTICES.
All notices required or permitted hereunder shall be in writing and
shall be deemed effective: (1) upon personal delivery; (2) upon deposit
with the United States Postal Service, by registered or certified mail,
postage prepaid; or (3) in the case of delivery by nationally recognized
overnight delivery service, when received, addressed as follows:
If to Trycera to:
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
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With a copy (which shall not constitute notice) to:
Xxxxxx X. Xxxxx
Attorney at Law
00 Xxxx 000 Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
If to the Employee, to:
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
or to such other address or addresses as either party shall designate to
the other in writing from time to time by like notice.
15. AMENDMENT.
This agreement may be amended or modified only by a written instrument
executed by both Trycera and the Employee.
16. PRONOUNS.
Whenever the context might require, any pronouns used herein shall
include the corresponding masculine, feminine or neuter forms, and the
singular forms of nouns and pronouns shall include the plural, and vice
versa.
17. CAPTIONS.
The captions appearing herein are for convenience of reference only
and in no way define, limit or affect the scope or substance of any section
hereof.
18. TIME.
All references herein to periods of days are to calendar days, unless
expressly provided otherwise. Where the time period specified herein would
end on a weekend or holiday, the time period shall be deemed to end on the
next business day.
19. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between Trycera and
the Employee and supersedes all prior agreements and understandings,
whether written or oral relating to the subject matter hereof.
20. SEVERABILITY.
In case any provision hereof shall be held by a court or arbitrator
with jurisdiction over Trycera or the Employee to be invalid, illegal, or
otherwise unenforceable, such provision shall be restated to reflect as
nearly as possible the original intentions of Trycera and the Employee in
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accordance with applicable law, and the validity, legality, and
enforceability of the remaining provisions shall in not way be affected or
impaired thereby.
21. WAIVER.
No delays or omission by Trycera or the Employee in exercising any
right hereunder shall operate as a waiver of that or any other right. A
waiver or consent given by Trycera or the Employee or any one occasion
shall be effective only in that instance and shall not be construed as a
bar or waiver of any right on any other occasion.
22. GOVERNING LAW.
This Agreement shall be construed, interpreted, and enforced in
accordance with the laws of the State of California, without regard to its
conflicts of laws principles.
23. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of both
Trycera and the Employee and their respective successors and assigns,
including any entity with which or into which Trycera might be merged or
that might succeed to its assets or business or any entity to which Trycera
might assign its rights and obligations hereunder; provided, however, that
the obligations of the Employee are personal and shall not be assigned or
delegated by him.
24. WITHHOLDING.
Trycera may make any appropriate arrangements to deduct from all
benefits provided hereunder any taxes reasonably determined to be required
to be withheld by any government or government agency. The Employee shall
bear all taxes on benefits provided hereunder to the extent that no taxes
are withheld, irrespective of whether withholding is required.
25. COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which together shall
constitute one and the same instrument.
26. FULL KNOWLEDGE.
By their signatures, the parties acknowledge that they have carefully
read and fully understand the terms and conditions of this Agreement, that
each party has had the benefit of separate counsel, or has been advised to
obtain separate counsel, and that each party has freely agreed to be bound
by the terms and conditions of this Agreement.
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IN WITNESS WHEREOF, Trycera and the Employee have executed this
Agreement effective as of the day and year first written above.
TRYCERA: Trycera Financial, Inc.
Date: May 25, 2004 By: /s/ Xxxx Xxxx
Chairman Compensation Committee
EMPLOYEE:
Date: May 26, 2004 /s/ Xxxxx X. Xxxxxx
