EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made effective October 1, 2009,
between Trycera Financial, Inc., a corporation formed under the laws of the
State of Nevada with its principal place of business at 0000 Xxxxxxx Xxxxxx,
Xxxxx 000, Xxxxx Xxxxxx, XX 00000 ("TRYCERA"), and Xxx X. Xxxxx ("the
Employee").
WHEREAS, TRYCERA desires to engage the services of the Employee as Chief
Executive Officer and President, 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 on
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 be for a period of three (3)
years and shall end on or be renewable in additional two (2) year increments,
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 ninety (90) days before such anniversary date,
the term of this Agreement shall automatically be extended for two additional
years. The restrictive covenants in Sections 9, 10, and 12 hereof shall
survive the termination of this Agreement.
2. TITLE AND DUTIES.
The Employee shall be employed as Chief Executive Officer and President.
The Board shall appoint the Employee as an executive 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 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 be consistent
with the employee's position, or skills and ability as the Chief Executive
Officer and President. The effective date of this Agreement shall be the day
and year first above written (the "Effective Date").
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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 Employee
and the Board.
4. EXTENT OF SERVICES.
a. DUTY TO PERFORM SERVICES.
The Employee agrees to devote not less than (50) hours per week 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 outside business
ventures so long as such ventures are not engaged in business reasonably
similar to, or which may reasonably compete with, the business of TRYCERA,
unless a joint venture agreement has been signed with TRYCERA for outside
ventures. 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 monthly salary shall be Twenty Thousand Dollars
($20,000.00). The base salary shall be payable in equal installments in
accordance with TRYCERA's standard payroll practices. Payment or partial
payment or accrual of payment shall commence on "Effective Date" stated above.
The Employee's annual base salary shall be reviewed no less frequently than
quarterly for increases and bonuses 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
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then in effect except as part of an general program of salary adjustment by
TRYCERA applicable to all executive vice presidents and above.
b. COMPENSATION FOR ACCEPTING EMPLOYMENT
As a signing bonus for entering into this Agreement, and for any
services rendered, or contributions made, to TRYCERA prior to the Effective
Date of this Agreement, Employee shall receive the following compensation:
(i) Cash. A cash sum in the amount of Seventy-Five Thousand
Dollars ($75,000) shall be paid to Employee for services rendered from
February 9, 2009 through September 30, 2009.
(ii) Stock. A stock package consisting of Sixteen Million
(16,000,000) shares of 144 restricted common stock shall be payable to
Employee upon the execution of this Agreement.
(iii) Performance bonus. The Employee shall be eligible to
participate in any and all performance bonuses structured by Company's
Compensation Committee and/or Board and such bonus(es) shall be subject to
all applicable tax and payroll withholdings.
(iv) Stock option. The Employee shall be entitled to participate in
the Company's Stock Option plan as set forth by the Compensation Committee
and/or Board.
(v) 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. Failure to provide full medical, dental and
vision coverage under a PPO or equivalent plan to Employee that will fully
cover Employee, Employee's spouse and all Employee's dependents, during
the Employment Term, will constitute a material breach of this Agreement.
(vi) Vacation. The Employee shall be entitled to four (4) weeks of
paid vacation each year employed at Company. Employee shall take such
vacation at a time approved in advance by Employer, which approval will
not be unreasonably withheld but will take into account the staffing
requirements of Employer and the need for the timely performance of
Employee's responsibilities.
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c. REIMBURSEMENT OF BUSINESS EXPENSES.
TRYCERA shall promptly reimburse the Employee for all reasonable
pre-approved 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. Specifically, effective at the time of the
commencement of the payment of salary as provided in Section 5(a) above,
TRYCERA shall provide an expense allowance for Employee for personal or small
group entertainment and business lunches or dinners subject to written approval
by the Board.
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 unvested Shares or 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;
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(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 unvested Shares or 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.
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.
If Trycera exercises its right to terminate the Employee for Cause,
Trycera shall: (1) give the Employee written notice of termination at least
twenty (20) days before the date of such termination specifying in detail the
conduct constituting such Cause, and (2) deliver to the Employee a copy of a
resolution duly adopted by a majority of the entire membership of the Board,
excluding interested directors, after reasonable notice to the Employee and an
opportunity for the Employee to be heard in person by members of the Board,
finding that the Employee has engaged in such conduct.
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d. TERMINATION WITHOUT CAUSE OR CONSTRUCTIVE TERMINATION WITHOUT CAUSE.
Trycera may terminate the Employee's employment at any time without
Cause, provided that it gives written notice of termination at least ninety
(90) days before the date of such termination. 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) full and immediate vesting of sixty-six and two-thirds (66.66%)
of any unexercised stock options;
(vi) payment of amounts equal to any premiums for health insurance
continuation coverage under any Trycera health plan that is elected by the
Employee or his beneficiaries pursuant to Section 4980B of the Internal
Revenue Code, at a time or times mutually agreed to by the parties, but
only so long as the Employee is not eligible for coverage under a health
plan of another employer (whether or not he elects to receive coverage
under that plan); and
(vii) subject to limitations set forth below, a severance benefit in
an amount equal to one and one half (1.50) times the largest annual base
salary received by Employee under the Agreement if such termination occurs
on or before October 1, 2010, and one (1) time the largest annual base
salary received by Employee under the Agreement if such termination occurs
after October 1, 2010, but only if (x) Employee executes an agreement
releasing Trycera from any further liability under this Agreement, (y) the
period for revoking such release has expired, and (z) Employee has not
materially breached the Confidential Information Agreement.
The Employee shall be deemed to have earned and Trycera shall pay to
Employee 75% of the total severance benefit in Section 6(d)(vii) above within
thirty (30) days after all of the applicable conditions are satisfied. The
remaining 25% of the severance benefit will be deemed earned by Employee, and
Trycera shall pay to Employee such remaining 25% of the severance benefit
within thirty (30) days following the first anniversary of the Employee's
termination date unless the Employee materially breaches the Confidential
Information Agreement during the one year period following the Employee's
termination date, in which case such remaining 25% of the severance benefit
will be deemed unearned and will not be paid. All
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severance benefits paid to the Employee shall be paid subject to all legally
required payroll deductions and withholdings for sums owed by Trycera to the
Employee.
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:
(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.
f. MUTUAL TERMINATION.
The parties may mutually agree to terminate this Agreement at any
time.
7. MITIGATION AND OFFSET.
If the Employee's employment is terminated during the term of this
Agreement pursuant to TRYCERA, 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
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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.
9. CONFIDENTIALITY.
While employed by TRYCERA and thereafter, Employee shall not, directly or
indirectly, use any Confidential Information (as defined below) other than
pursuant to his employment by and for the benefit of TRYCERA or its
subsidiaries, or disclose any Confidential Information to anyone outside of
TRYCERA, whether by private communication, public address, publication or
otherwise, or disclose any Confidential Information to anyone within TRYCERA
who has not been authorized to receive such information, except as directed in
writing by an authorized representative of TRYCERA. The term "Confidential
Information" as used throughout this Agreement shall mean all trade secrets,
proprietary information, know-how, data, designs, specifications, processes,
customer lists, and other technical or business information (and any tangible
evidence, record, or representation thereof), whether prepared, conceived, or
developed by an employee of TRYCERA (including Employee) or received by TRYCERA
from an outside source, which is in the possession of TRYCERA (whether or not
the property of TRYCERA), which in any way relates to the business of TRYCERA
or its subsidiaries, which is maintained in confidence by TRYCERA, or which
might permit TRYCERA or its customers to obtain a competitive advantage over
competitors who do not have access to such trade secrets, proprietary
information, or other data or information. Without limiting the generality of
the foregoing, Confidential Information shall include:
(1) any idea, improvement, invention, innovation, development,
technical data, design, formula, device, pattern, concept, art, method,
process, machine, manufacturing method, composition of matter, computer
program, software, firmware, source code, object code, algorithm,
subroutine, object module, schematic, model, diagram, flow chart, user
manual, training or service manual, product specification, plan for a new
or revised product, compilation of information, or work in process, and
any and all revisions and improvements relating to any of the foregoing
(in each case whether or not reduced to tangible form); and
(2) the name of any customer or prospective customer, or any other
customer or prospective customer information, any sales plan, marketing
material, plan or survey, business plan or opportunity, product or
development plan or specification, business proposal, financial record, or
business record or other record or information relating to the business of
TRYCERA or any customer.
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Notwithstanding the foregoing, the term Confidential Information shall not
apply to information which (i) TRYCERA has voluntarily disclosed to the public
without restriction, (ii) has otherwise lawfully entered the public domain, or
(iii) the Employee is required to use or disclose pursuant to an order of law
(provided that employee shall provide notice to TRYCERA of such action).
Employee acknowledges that TRYCERA from time to time has in its possession
information which is claimed by customers and potential business partners or
affiliates to be proprietary and which TRYCERA has agreed to keep confidential.
Employee agrees that all such information shall be Confidential Information for
purposes of this Agreement.
10. NON-SOLICITATION, NONCOMPETITION AND CIRCUMVENT.
Effective on the date that his employment with TRYCERA terminates and for
a period of twenty-four (24) months thereafter, the Employee shall not directly
(a) employ or solicit for employment, or assist in any way in solicitation for
employment, any person employed by TRYCERA or any of its subsidiaries or
affiliates then or at any time within the preceding twenty-four (24) months; or
(b) solicit, or assist in any way in the solicitation of business from any of
TRYCERA's or its affiliates' clients or prospective clients, either for the
Employee's own benefit or the benefit of anyone other than TRYCERA, unless the
business being solicited is not competitive with the services or products
provided by TRYCERA or its affiliates. Clause (b) shall not apply unless the
business being solicited is in a line of business in which TRYCERA was already
engaged or already had under active consideration while the Employee was
employed by TRYCERA or is a natural extension of such a line of business with a
client that was an existing client of TRYCERA during that time.
During the term of this Agreement and for a period of twenty-four (24)
months following the term hereof, Employee shall not, directly or indirectly,
on his own behalf, or as owner, manager, stockholder, consultant, director,
officer, or employee of any business entity (except as a holder of not more
than 1% of the stock of a publicly held company) participate, directly or
indirectly, in any capacity, in any business that derives more than twenty
percent (20%) of its revenues from services or products which would compete
directly with a line of business in which TRYCERA was already engaged or
already had under active consideration while the Employee was employed by
TRYCERA or is a natural extension of such a line of business with a client that
was an existing client of TRYCERA during that time.
11. EMPLOYEE REPRESENTATION.
The Employee represents and warrants to TRYCERA that he is not now under
any obligation of a contractual or other nature to any person, business or
other entity that is inconsistent or in conflict with this Agreement or that
would prevent him from performing his obligations under this Agreement.
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12. OWNERSHIP AND ASSIGNMENT OF INTELLECTUAL PROPERTY.
Employee agrees that all originals and all copies of all manuscripts,
drawings, prints, manuals, diagrams, letters, notes, notebooks, reports,
models, records, files, memoranda, plans, sketches and all other documents and
materials containing, representing, evidencing, recording, or constituting any
Confidential Information (as defined in Section 9 above), however and whenever
produced (whether by Employee or others) during the course of his employment
with TRYCERA, shall be the sole property of TRYCERA.
Employee agrees that all Confidential Information and all other
discoveries, inventions, ideas, specifications, designs, concepts, research and
other information, processes, products, methods and improvements, or parts
thereof conceived, developed, or otherwise made by him, alone or jointly with
others and in any way relating to TRYCERA's present or proposed products,
programs or services or to tasks assigned to him during the course of his
employment, whether or not patentable or subject to copyright protection and
whether or not reduced to tangible form or reduced to practice, during the
period of his employment with TRYCERA, whether or not made during his regular
working hours, and whether or not made on TRYCERA's premises, and whether or
not disclosed by him to TRYCERA (hereinafter referred to as "Intellectual
Property"), together with all products or services which embody or emulate any
Intellectual Property, shall be the sole property of TRYCERA.
Employee agrees to, and hereby does, assign to TRYCERA all his right,
title and interest throughout the world in and to all Intellectual Property and
to anything tangible, which evidences, incorporates, constitutes, represents or
records any Intellectual Property. Employee agrees that all Intellectual
Property shall constitute works made for hire under the copyright laws of the
United States and hereby assigns and, to the extent any such assignment cannot
be made at present, Employee hereby agrees to assign to the Company all
copyrights, patents and other proprietary rights Employee may have in any
Intellectual Property, together with the right to file for and/or own wholly
without restriction United States and foreign patents, trademarks, and
copyrights. Employee agrees to waive, and hereby waives, all moral rights or
proprietary rights in or to any Intellectual Property and, to the extent that
such rights may not be waived, agrees not to assert such rights against the
Company or its licensees, successors, or assigns.
Employee hereby certifies that EXHIBIT A sets forth any and all
Confidential Information and intellectual property that Employee claims as his
own or otherwise intends to exclude from this Agreement because it was
developed by him prior to the date of this Agreement. Employee understands
that after execution of this Agreement he shall have no right to exclude
Confidential Information or Intellectual Property from this Agreement.
13. 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
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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 Utah. TRYCERA and the Employee each
irrevocably consent to the jurisdiction of the federal and state courts located
in State of Utah 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 Sections 9, 10, and 12 hereof.
14. LEGAL EXPENSES.
Except as provided in Section 13 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.
15. 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 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
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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.
16. 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.
17. 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:
Trycera Financial, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, Chairman
If to the Employee:
Xxx X. Xxxxx
XX Xxx 0000
Xxxxxxxx, XX 00000
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or to such other address or addresses as either party shall designate to the
other in writing from time to time by like notice.
18. AMENDMENT.
This agreement may be amended or modified only by a written instrument
executed by both TRYCERA and the Employee.
19. 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.
20. 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.
21. 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.
22. 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.
23. SEVERABILITY.
In case any TRYCERA hereof shall be held by a court or arbitrator with
jurisdiction over TRYCERA or the Employee to be invalid, illegal, or otherwise
unenforceable, such TRYCERA shall be restated to reflect as nearly as possible
the original intentions of TRYCERA and the Employee in accordance with
applicable law, and the validity, legality, and enforceability of the remaining
TRYCERA's shall in not way be affected or impaired thereby.
24. 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.
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25. GOVERNING LAW.
This Agreement and the rights and duties of the parties hereto shall be
construed and determined in accordance with the laws of the State of Utah
(without giving effect to any choice or conflict of law provisions), and any
and all actions to enforce the provisions of this Agreement shall be brought in
a court of competent jurisdiction in Salt Lake County, the State of Utah and in
no other place.
26. 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.
27. 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.
28. 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.
29. 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.
(Signature Page to Follow)
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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: October 2, 2009 By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx, Chairman
EMPLOYEE:
Date: October 1, 2009 By: /s/ Xxx X. Xxxxx
Xxx X. Xxxxx
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