EXECUTIVE 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 Richard A. Smith, 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 Richard A. Smith
(“Smith”) as its COO 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 3rd, 2009.
2.
Position and Duties. The Executive shall serve as Chief
Operating Officer (“COO”) of the Company and shall have
such responsibilities and authority as the Chief Executive Officer
and/or the Board of Directors may assign to the Executive from time
to time. 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 San Diego,
California, 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
Executive Employment Agreement – Richard
A. Smith
time require 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 – Richard
A. Smith
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.
5.1
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.
6.1
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 – Richard
A. Smith
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) &nbs