UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): October 2, 2009
Trycera Financial, Inc.
(Exact Name of Registrant as Specified in its Charter)
Nevada 000-30872 33-0910363
(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
1656 Reunion Avenue, Suite 250, South Jordan, UT 84095
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (801) 446-8802
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
[ ] Written communications pursuant to Rule 425 under the Securities Act
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act
Item 1.01 Entry into a Material Definitive Agreement
On October 2, 2009, the Board of Directors, with the approval of the advisor to
the Board, approved employment contracts for Ray A. Smith and Bryan Kenyon.
The employment agreement for Mr. Smith supersedes the prior employment
agreement dated February 6, 2009, under which no compensation was paid or
accrued. Each of these full-time employment agreements is effective October 1,
2009, and is for a term of three years. Each is renewable in two-year
increments unless terminated prior to expiration of a term. Under the
agreements, Mr. Smith is employed as the President and Chief Executive Officer
and Mr. Kenyon is employed as the Chief Financial Officer and Chief Operations
Officer.
The base salary for each party is $240,000 per year, payable in month
increments of $20,000. As a signing bonus for entering into the agreements,
each party received 16,000,000 shares. The employees are also eligible for
performance bonuses and to participate in the Company's stock option plan.
Each is also entitled to participate in employee benefit plans, including
health and retirement plans created hereafter.
Each of the employment agreements is terminable upon the death or disability of
the employee, or for cause, and may be terminated by the Company without cause
which would require the Company to pay a severance benefit in an amount equal
to one and one-half of the largest annual base salary under the agreement if
terminated prior to October 1, 2010, and one times the largest annual base
salary if terminated thereafter.
Each agreement also contains provisions requiring the employee to maintain the
confidentiality of any confidential information. The agreements also include
provisions prohibiting the employee from soliciting any employees or clients of
the Company for 24 months after the termination of the agreement. The
employees are also prohibited from competing with the Company for a period of
24 months after the termination of the agreement.
Each agreement also includes an indemnification provision which requires the
Company to indemnify the employee against proceedings initiated or threatened
against him in his capacity as an officer, director, or employee of the Company
or for another entity in which he serves at the request of the Company. The
agreements also provide that the Company will advance the employee's expenses
in such instances provided that the employee shall furnish an undertaking to
repay such advances if it is ultimately determined that the employee was not
entitled to be indemnified.
Item 3.02 Unregistered Sales of Equity Securities
On October 2, 2009, we issued 16,000,000 shares of common stock each to Ray A.
Smith, and Bryan Kenyon pursuant to employment agreements entered into with
them as described above. The shares were issued without registration under the
Securities Act by reason of the exemption from registration afforded by the
provisions of Section 4(6) and Section 4(2) thereof, and Rule 506 promulgated
thereunder, as a transaction by an issuer not involving any public offering.
Messrs Smith and Kenyon were accredited investors as defined in Rule 501 of
Regulation D at the time of the acquisition. They delivered appropriate
investment representations with respect to the issuance and consented to the
imposition of restrictive legends upon the certificates representing the
shares. They were afforded the opportunity to ask questions of our management
and to receive answers concerning the terms and conditions of the transaction.
They did not enter into the transaction with us as a result of or subsequent to
any advertisement, article, notice, or other communication published in any
newspaper, magazine, or similar media or broadcast on television or radio, or
presented at any seminar or meeting. No commissions were paid in connection
with the transaction.
Item 5.01 Changes in Control of Registrant
On October 2, 2009, the number of directors was increased to three persons and
Ray A. Smith, our President, and Bryan Kenyon, our CFO, were added to the Board
of Directors. The Board also approved the employment agreements with Messrs
Smith and Kenyon as described above, each of which provides for the issuance of
16,000,000 shares of our common stock, representing approximately 77% of the
outstanding common stock of the Company. As a result of this transaction,
control of the Company has changed from Mr. Vance to Messrs Smith and Kenyon by
virtue of their combined stock ownership and appointments to the Board. Also,
as a result of the addition of the members to the Board of Directors, the
proxies held by Mr. Vance have expired.
Management is not aware of any transactions which may occur hereafter that
would change control of the Company from Messrs Smith and Kenyon.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers
On October 2, 2009, Ray A. Smith and Bryan Kenyon were added as directors and
Mr. Kenyon was added as the Chief Operations Officer. The following table sets
forth the name and ages of, and position or positions held by, and employment
background of Messrs Smith and Kenyon:
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Director
Name Age Position(s) Since Employment Background
Ray A. Smith 37 Director, 2009 Since April 2006 Mr. Smith has been
President and the President and a director of CRS
Chief Executive Corporation, a company offering credit
Officer enhancement, credit education, and
consumer financial assistance
services. From February 2002 until
April 2006, he was the President and
CEO of Comm 2020 which operated a
call center marketing credit services
and a credit card application
processing center for Visa and
MasterCard. Mr. Smith has served
as President of and been employed by
Trycera since February 2009.
Bryan Kenyon 38 Director, 2009 Mr. Kenyon was our Chief Financial
Chief Financial Officer from May 2004 until October
Officer and 2008 and our Chief Operating Officer
Chief Operations from April 2007 until October 2008.
Officer He. was reappointed as our CFO in
April 2009. From May 2002 until
February 2004, he was Director of
Financial Planning and Analysis for
Next Estate Communications, a
provider of prepaid MasterCard cards
and stored value solutions.
On April 14, 2008, the California Department of Corporations issued a desist
and refrain order against Mr. Smith, CRS Corporation and others alleging that
the parties had violated Section 25110 of the California Securities Act of 1968
by making general solicitations in connection with the sale of the common stock
by CRS Corporation. The alleged violation took place in or about September
2006.
Directors are elected for a term of one year and until their successors are
elected and qualified. Annual meetings of the stockholders, for the selection
of directors to succeed those whose terms expire, are to be held at such time
each year as designated by the Board of Directors. The Board of Directors has
not selected a date for the next annual meeting of shareholders. Officers are
elected by the Board of Directors, which is required to consider that subject
at its first meeting after every annual meeting of stockholders. Each officer
holds his office until his successor is elected and qualified or until his
earlier resignation or removal.
As disclosed under Item 1.01 above, the Company has entered into employment
agreements with Messrs Smith and Kenyon, which information is incorporated into
the response for this item.
On January 29, 2009, the Company entered into a consulting agreement with
Balius Consulting Group, LLC, an entity controlled by Bryan Kenyon, an officer
and director of the Company, and Steven Murphy, a former accounting consultant
to the Company. Balius has agreed to assist in the negotiation of outstanding
liabilities of the Company and to gather and organize the corporate and
financial records of the Company. The Company has agreed to pay any hourly fee
for work performed by Balius and to pay a bonus based upon the settlement
amount of the outstanding payables. The consulting agreement will terminate on
December 31, 2009, unless terminated by the Company earlier for cause or if
Messrs Kenyon or Murphy shall cease to provide the services for Balius.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the Registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
Trycera Financial, Inc.
Date: October 8, 2009 By /s/ Ray A. Smith
Ray A. Smith, President
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