Exhibit 10.2
E XECUTIVE
EMPLOYMENT AGREEMENT
This Executive Employment Agreement
(“Agreement”) is made and entered into effective as of
this 3rd day of March 2009 by and between TriCord Hurricane
Holdings, Inc., a Nevada Corporation, hereafter (the
“Company”), and Michael A. Crosby, hereafter (the
“Executive”). The Company and Executive shall
each be referred to individually as a “Party” and
collectively as the “Parties”).
RECITALS
WHEREAS
, the Company elected Michael A. Crosby
(“Crosby”) as its President and CEO upon execution of
the merger agreement (“Merger Agreement”) between Aria
International Incorporated and TriCord Hurricane Holdings, Inc.
(“TriCord”); and
WHEREAS
, Board of Directors of the Company (the
“Board”) recognizes that the contributions made by
Executive in Aria International Incorporated upon its inception
have been substantial; and
WHEREAS
, the Board now desires to enter into
this Agreement upon completion of the merger with TriCord to ensure
the continued growth and success of the Company and to assure
itself for the continued employment of the Executive and to provide
in the Executive’s employment arrangement with the Company
which the Board has determined will reinforce and encourage the
continued attention and dedication to the Company of the Executive
as a member of the Company’s management, as is deemed to be
in the best interest of the Company and its members; and
WHEREAS
, the Executive is willing to commit
himself to serve the Company, on the terms and conditions herein
provided; and
WHEREAS
, in order to effect the foregoing the
Company and the Executive wish to enter into this Agreement on the
terms and conditions set forth below. Accordingly, in
consideration of the promises and the respective covenants and
conditions of the parties herein contained, and intending to be
legally bound hereby, the parties hereto agree as
follows:
AGREEMENT
1.
Employment. The Company hereby agrees to employ the
Executive, and the Executive hereby agrees to serve the Company,
commencing on March 3, 2009.
2.
Position and Duties.
The Executive shall serve as
President and CEO of the Company and shall have such
responsibilities and authority as may from time to time be assigned
to the Executive by the Board of Directors. The Executive shall
devote substantially all his working time and efforts to the
business and affairs of the Company.
3.
Place of Performance.
In connection with the
Executive’s employment with the Company, Executive shall be
allowed to work from the corporate offices in Arlington, Virginia,
as necessary and any other required travel on the Company’s
business to an extent substantially consistent with present
business travel obligations. The Company may from time to
time require
Executive Employment Agreement –
Michael A. Crosby
Executive to travel temporarily to other
locations in connection with the Company’s business.
Upon approval, Company shall reimburse Executive for any
reasonable expenses related to such home and/or outside
offices.
4.
Compensation and Related
Matters.
4.1
Base Salary . The Company shall pay to the Executive an
annual base salary of two hundred fifty thousand dollars
($250,000.00) per year divided into twenty-six pay bi-weekly
periods of nine thousand six hundred fifteen dollars and
thirty-eight cents ($9,615.38) per paid period (“Base
Salary”). Executive acknowledges and understands that
the Company is in a developmental stage and currently does not have
sufficient funds necessary to pay all of Executive’s salary.
Therefore, Executive agrees to defer payment as necessary
until such time as the Company has sufficient capital to pay any
and all accrued salary.
4.2
Other Compensation
. Compensation of the Executive by base
salary payments shall not be deemed exclusive and shall not prevent
the Executive from participating in any other compensation or
benefit plan of the Company. The salary payments (including any
increased salary payments) hereunder shall not in any way limit or
reduce any other obligation of the Company hereunder, and no other
compensation, benefit or payment hereunder shall in any way limit
or reduce the obligation of the Company to pay the
Executive’s base salary hereunder.
4.3
Milestone Equity Incentive
. The Company has agreed to issue
to Executive warrants to purchase common stock in the Company upon
the successful achievement of certain revenue milestones in
accordance with the Merger Agreement. In accordance with the
terms of the Merger Agreement, if the gross revenue booked by
TriCord within the first 12 months of the closing of the Merger is
equal to or greater than $20,000,000 but less than $30,000,000,
TriCord shall issue Executive employees warrants to purchase an
additional 7,601,258 shares of its common stock at the purchase
price of ten cents ($0.10) per share (the “Milestone 1
Warrant Shares”). Further, if the gross revenue booked
by TriCord within the first 18 months of the closing of the Merger
is equal to or greater than $30,000,000, TriCord shall issue
Executive a warrant to purchase an additional 7,601,258 shares for
a combined total of 15,202,516 Shares of its common stock at the
purchase price of ten cents ($0.10) per share (the “Milestone
2 Warrant Shares”).
4.4
Changes to Compensation
. Executive's compensation may be
changed only by mutual agreement of Executive and the Board of
Directors of the Company. Any such agreement shall be
evidenced by a written amendment of this Agreement, which, among
other things, shall specify with particularity any change in
Executive's compensation and the date or dates when each such
change shall become effective. Executive's performance shall
be reviewed by the Board of Directors of the Company on a periodic
basis (but not less than once in each fiscal year during the term
of this Agreement) and the Board of Directors may award such
bonuses to Executive as the Board of Directors determines in its
sole discretion may be appropriate or desirable based on
Executive's performance. In addition, Executive shall be
eligible to receive options in any Company approved equity
compensation plan and as may be recommended, from time to time, by
the Company’s Board of Director’s. All such
options, if any, shall automatically vest in the event the Company
terminates the employment of Executive other than for cause (as
defined in Section 6.3 below).
Executive Employment Agreement –
Michael A. Crosby
4.5
Expenses . In addition to Section 4.1, During the term of the
Executive’s employment hereunder, the Executive shall be
entitled to receive prompt reimbursement for all reasonable
expenses incurred by the Executive in performing services
hereunder, including, but not limited to, all expenses of travel
and living expenses while away from home on business or at the
request of and in the service of the Company, provided that such
expenses are incurred and accounted for in accordance with the
policies and procedures established by the Company and that a copy
of all receipts are provided to the Company.
4.6
Vacation Benefits
. Executive shall be entitled to 15
workdays of paid vacation days per year during the term of the
Agreement. No more that 10 adjoining workdays of vacation may
be taken in any one calendar month or consecutive period. It
is understood that all vacations shall be taken during the year
earned, or may be accrued and taken during the next successive
year. Accumulation of unused vacation days shall not exceed
more than 10 additional workdays in addition to Executives normal
vacation accrual in any given year. Executive agrees that
such vacation shall be taken only at such times as the Company
shall from time to time determine. Executive shall be
entitled to a reasonable time off, also at full salary, for
sickness or matters of personal emergency in accordance with the
Company’s benefit plans.
4.7
Other Benefits . Executive shall be entitled to all health
benefits, insurance, and other similar benefits in accordance with
the Company’s benefit plans. The Executive shall be entitled
to participate in or receive benefits under any employee benefit
plan or arrangement made available by the Company in the future to
its officers and key management employees, subject to and on a
basis consistent with the terms, conditions and overall
administration of such plans and arrangements. Nothing paid
to the Executive under any plan or arrangement presently in effect
or made available in the future shall be deemed to be in lieu of
the salary payable to the Executive pursuant to Section 4.1.
5.
Term.
5.1
Initial Term . The employment of the Executive by the
Company as provided in paragraph 1 above will commence on the date
thereof and end after two (2) years from the Effective Date, unless
sooner terminated as hereinafter provided in paragraph 6 or unless
renewed as provided in paragraph 5.2 herein.
5.2
Renewal of Term of
Agreement. At the
end of this Agreement, this Agreement shall be automatically
renewed for an additional one (1) year terms, unless the Company
notifies the Executive of its intent not to renew the Agreement,
such written notice to be delivered at least ninety (90) days prior
to the end of the Agreement. Upon notice of non-renewal, the
Executive shall be entitled to the protection of this Agreement for
the remaining term of the Agreement, subject to all other
provisions of this Agreement.
6.
Termination.
6.1
Death . The Executive’s employment hereunder shall
terminate upon the fifth (5th) anniversary of this Agreement or
upon his death.
6.2
Disability . If, as a result of the Executive’s incapacity
Executive becomes physically or mentally incapacitated and is
therefore unable for a period of three (3) consecutive
Executive Employment Agreement –
Michael A. Crosby
months or for an aggregate of four (4)
months in any twelve (12) consecutive month period to perform
Executive’s duties (such incapacity is hereinafter referred
to as “Disability”). Any question as to the existence
of the Disability of Executive as to which Executive and the
Company cannot agree shall be determined in writing by a qualified,
independent physician mutually acceptable to Executive and the
Company. If Executive and the Company cannot agree as to a
qualified independent physician, each shall appoint such a
physician and those two physicians shall select a third who shall
make such determination in writing. The determination of Disability
made in writing to the Company and Executive shall be final and
conclusive for all purposes of the Agreement.
6.3
Termination for Cause
. This Agreement shall immediately be
terminated and neither party shall have any obligation hereunder if
the Executive’s employment is terminated for cause.
Termination for cause shall arise where termination results
from:
(a)
theft or dishonesty in the conduct of the
Company’s business;
(b)
commission of an act involving moral
turpitude;
(c)
any act of gross negligence, corporate
waste, disloyalty or unfaithfulness by Executive to the
Company
(d)
deliberate and continual refusal to
perform employment duties on substantially a full-time basis;
or
(e)
breach of any of the fiduciary duties
owed to the Company by Executive.
(f)
deliberate and continual refusal to act
in accordance with any specific written instructions of a majority
of the Board of Directors of the Company,
