CONSULTING AGREEMENT
This Consulting Agreement is entered into as of November 2, 2004
between DAVE MARGOLIN ("Consultant") and TRYCERA FINANCIAL, INC., a Nevada
Company ("Company"). In consideration of the mutual covenants set forth in
this Agreement, the parties agree as follows:
1. RETENTION AS CONSULTANT
Upon the terms and conditions set forth in this Agreement, Company
hereby agrees to retain Consultant, and Consultant agrees to act, as a
consultant to Company. During the term of this Agreement, Consultant shall
render to Company services of an advisory or consultative nature as the
management of Company may reasonably request, up to a maximum of 125 hours
in any calendar month, so that Company may have the benefit of his
experience, knowledge and advice regarding Company's continuation of the
business it is acquiring from Signature Credit Corporation of which
Consultant is the sole owner. Consultant shall make recommendations and
give advice to Company's management, and shall be available to consult with
management personnel and employees of Company, during normal business
hours. Company shall give Consultant written notice within twenty (20)
days thereafter of any failure by Consultant to satisfy his required duties
under this paragraph, and Consultant shall then have ten (10) days to cure
such failure. In the absence of such notice, or if there is such a
complete cure, Consultant will be deemed to have properly satisfied his
duties.
2. COMPENSATION
For his services to Company under Section 1 during the term of this
Agreement, Consultant shall receive from Company a consulting fee of $6,000
per month, payable twice per month. Except as set forth in Sections 3 and
4 below, no other compensation or benefits will given to Consultant for his
services, unless separately approved in a writing signed by the President
of Company.
3. BONUS
In addition to his fees under Section 2 above, Consultant will be paid
a performance bonus equal to twenty percent (20%) of the monthly Net Profit
received by Company from Covered Activities during the term of this
Agreement. For this purpose, "Covered Activities" means (a) inquiries by
potential customers into the Company's websites which Company acquired from
Signature Credit Corporation and (b) active direct marketing solicitations
by Company, through direct mailings, e-mails, phone calls or the like, to
potential customers to make purchases of products or services. "Covered
Activities" shall exclude other activities of Company, including (without
limitation) inquiries into Company's websites that were not acquired from
Signature Credit Corporation, direct sales at retail locations and sales to
third party distributors. For this purpose, "Net Profit" with respect to
Covered Activities occurring during any full or partial calendar month
shall mean: (a) gross cash revenues received by Company on account of such
Covered Activities, (b) less related refund payments, (c) less costs of the
Covered Activities, (d) less related fulfillment costs, (e) less the
following portions of Company's labor costs (including amounts paid to
Consultant), rent and other overhead expenses (i.e., phones, travel, etc.):
(i) 25% of Company's total rent and costs of dedicated customer service
telephone services, (ii) 100% of Company's product development costs,
including marketing materials, market research and design costs, and
(iii) 100% of any direct expenses for necessary travel, meals and other costs
to support the growth of Covered Activities. Such revenues and costs for the
Covered Activities in any specific full or partial month shall be promptly
reconciled by Company following 31 days after the last of such mailings,
and then Consultant's related bonus will be paid to Consultant
approximately two (2) weeks after such reconciliation. Such a bonus
payment, if applicable, will be based on Net Profits earned after the term
of this Agreement, provided that the related Covered Activities occur
during such term.
4. EXPENSES
Company shall reimburse Consultant for reasonable out of pocket
expenses incurred by Consultant in connection with Company's business, but
only if the incurring of any such expenses is approved in advance by an
executive officer of Company and Consultant provides Company with such
substantiating receipts or other documentation as Company may reasonably
require.
5. TERM
The term of this Agreement shall begin on the date set forth in the
first paragraph and shall continue until ninety (90) days after that date,
when it shall automatically terminate, unless the term is extended or
earlier terminated as follows:
(a) Company and Consultant may mutually elect to extend the term for
an additional ninety (90) days until one hundred eighty (180) days after
the date of this Agreement by giving written notice of such extension to
Consultant before the end of the original 90-day term.
(b) Either Company or Consultant may terminate the term of this
Agreement, by giving written notice of the termination to the other party,
if the other party commits a material breach of its obligations under this
Agreement, the Asset Purchase Agreement among Company, Consultant and
Signature Capital Corporation or the Stock Acquisition Agreement between
Company and Consultant, each of which is being entered into on the date of
this Agreement.
(c) The term of this Agreement shall automatically terminate upon
Consultant's death.
The termination of this Agreement pursuant to this Section shall not
release either party from any accrued obligation to pay any sum to the
other party (whether then or thereafter payable) or operate to discharge
any liability incurred prior to the termination date. In addition, Company
obligations under Section 3 above shall survive the termination of this
Agreement.
6. INSURANCE
During the term of this Agreement, Consultant shall maintain for
himself personal medical insurance and general liability insurance.
Consultant agrees to waive any rights of subrogation that he, or his
insurers, may have against Company relating to such insurance coverage.
Consultant shall disclose to Company at the time of close proof of the
previously referenced insurance. Seller's insurance will be deemed
acceptable by Buyer unless Buyer notifies seller otherwise within 2 (two)
business days.
7. MISCELLANEOUS
(a) Governing Law. All questions with respect to the construction of
this Agreement and the rights and liabilities of the parties shall be
governed by the laws of the State of California, excluding its conflict of
laws rules.
(b) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the parties and their respective successors
and assigns. Consultant may not assign, delegate, or otherwise transfer
any of his rights, duties, or obligations under this Agreement without
Company's prior written consent and any such transfer in violation of this
paragraph shall be void.
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(c) Entire Agreement. This Agreement, together with the other two
agreements referred to in Section 5 above, contains all of the terms and
conditions agreed upon by the parties, and supersedes any prior agreements
or understandings, with respect to the subject matter of this Agreement.
(d) Amendment or Modification of Agreement. This Agreement may be
modified, altered or amended only by the written agreement of both the
parties.
(e) Attorneys' Fees and Costs. In any legal proceeding to enforce or
interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorney's fees and costs and necessary
disbursements in addition to any other relief to which it or he may be
entitled.
(f) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be a valid original agreement.
(g) Severability. If any provision of this Agreement or its
application to any person or circumstances is held to be unenforceable or
invalid by any court of competent jurisdiction, its other applications and
the remaining provisions of this Agreement will be interpreted so as best
reasonably to effect the intent of the parties.
(h) Notices. Any notice or other communication to a party pursuant to
this Agreement will be deemed to have been duly given if given personally
to the party or on the date of delivery in writing, addressed to the party,
at the following address:
If to Company: 170 Newport Center Drive
Suite 210
Newport Beach, CA 92660
If to Shareholder: 4423 West Coast Highway
Newport Beach, CA 92663
Either party may change its or his address for purposes of this paragraph
by giving the other party written notice of the new address in the manner
set forth above.
(i) Further Actions. Each party agrees to execute and deliver any
further documents and to do any additional acts reasonably required to
carry out the terms of this Agreement.
(j) Waivers. Any provision of this Agreement may be waived at any
time by the party entitled to the benefit thereof by a written instrument
executed by the party or by a duly authorized officer of the party. No
waiver of any of the provisions of this Agreement will be deemed, or will
constitute, a waiver of any other provision, whether or not similar, nor
will any waiver constitute a continuing waiver.
(k) Independent Contractor. Consultant is retained by Company only
for the purposes and to the extent set forth in this Agreement, and his
relationship to Company shall, during the term of this Agreement, be that
of an independent contractor. Consultant shall not be considered as having
employee status or as being entitled to participate in any plans,
arrangements or distributions by Company pertaining to any pension, stock,
bonus, profit sharing or similar benefits for Company's employees. Company
shall not withhold any of Consultant's compensation payments for income tax
purposes and shall not have any obligations with regard to Social Security
payments for Consultant, insurance or workers' compensation coverage for
Consultant, or any similar items. Consultant agrees to make his own
withholding and tax payments during the term of this Agreement. Nothing
contained in this Agreement shall be deemed or construed to constitute a
relationship of employer and employee.
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EXECUTED at Newport Beach, California as of the date first written
above.
COMPANY:
TRYCERA FINANCIAL, INC.,
a Nevada corporation
By: /s/ Matthew S. Kerper
Matthew S. Kerper, President
CONSULTANT:
/s/ Dave Margolin
Dave Margolin
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