CONTINUATION OF EMPLOYMENT AGREEMENT
AGREEMENT made as of this 27th day of May, 1997 by and between
NORD PACIFIC LIMITED, a Bermuda corporation (the "Company"), with an address
at 00 Xxxxxx Xxxxxx, Xxxxxxxx XX00, Xxxxxxx and X. XXXXXX XXXXXX ("Xxxxxx"),
an individual residing at 00 Xxxxxxxxx, Xxxxxxx, Xxx Xxxxxx.
W I T N E S S E T H :
In consideration of the mutual covenants and agreements herein
contained, the parties hereby agree as follows:
1. EMPLOYMENT. The Company (or a subsidiary of the Company)
agrees to employ, and does hereby employ Xxxxxx and Xxxxxx hereby accepts
such employment, for the Term (as defined below), with the duties and
compensation and upon the terms and conditions hereinafter set forth in this
Agreement.
2. TERM. The term of Xxxxxx'x employment shall commence on
June 1, 1997 ("Effective Date") and shall continue through and including May
31, 1999, unless earlier terminated as hereinafter provided for in this
Agreement. The Term shall thereafter be automatically extended from year to
year, unless termination notice is given by either party not less than ninety
(90) days prior to expiration of the then Term.
3. DUTIES AND OFFICES.
(a) Xxxxxx shall be the President and Chief Executive
Officer ("CEO") of the Company during the Term and shall perform the services
as set forth in the Company's bylaws and as the Company's Board of Directors
("Board") shall direct, which services shall be commensurate with Xxxxxx'x
status as CEO of the Company. Xxxxxx shall perform his services subject only
to the direction and control of the Board and will report only to the Board.
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(b) During the Term, Xxxxxx shall devote his full
working time and energies to the business and affairs of the Company,
provided however that the Company acknowledges that Xxxxxx will also be CEO
of Nord Resources Corporation ("NRC") and he shall be entitled to devote such
time and attention as he deems necessary to NRC and its affairs. Xxxxxx
agrees to use his best efforts, skills and abilities to promote the Company's
interest.
(c) The office for the performance of his services and
the head office of Hicor Corporation shall be located in Albuquerque, New
Mexico, Phoenix, Arizona or Santa Barbara, California, the final
determination thereof to be in the discretion of the Board of Directors.
4. COMPENSATION. During the Term, the Company shall pay
Xxxxxx an annual salary ("Salary") of $200,000 in equal semi-monthly
installments, less required withholding and other applicable taxes.
5. EXPENSES, BENEFITS AND PERQUISITES.
(a) The Company will pay or reimburse Xxxxxx for all
travel and other expenses reasonably incurred by Xxxxxx during the Term in
connection with the performance of his duties hereunder upon presentment of
written expense receipts reflecting such expenses.
(b) The Company will pay to Xxxxxx a living allowance
for his Australian expenses of $35,000 per year, which shall be intended to
fully reimburse him for all personal living expenses incurred by him while
located in the Sydney, Australia area.
(c) The Company and Xxxxxx recognize that Xxxxxx and his
spouse are entitled to retirement benefits from the Company and that he will
continue to accrue benefits thereunder. The Company will fund such
retirement funds on an on-going, current basis.
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(d) Xxxxxx will continue to receive substantially the
same benefits as he has previously been receiving from the Company.
(e) Xxxxxx shall be entitled to four weeks paid vacation
each calendar year, to be taken contemporaneously with his vacation from NRC.
The cost of the above may be shared by the Company with NRC and it is not
intended that the cost of items hereunder be duplicative of items provided by
NRC.
6. DISABILITY. If Xxxxxx is unable to perform his services
by reason of illness or incapacity for a period of 180 consecutive days, the
Company shall have the right to terminate this Agreement and all benefits
hereunder at any time after the 180th day, provided that on the effective
date of termination, Xxxxxx is still disabled. Such termination shall not
effect any rights which Xxxxxx may have at the time of termination pursuant
to any insurance, retirement, pension, stock or option award or other benefit
plan or arrangement with the Company. During the period of disability prior
to termination, the Company shall pay Xxxxxx the Salary provided for in this
Agreement and shall comply with all other terms and conditions of this
Agreement.
7. DEATH OF XXXXXX. In the event that Xxxxxx should die
during the Term, this Agreement and all benefits hereunder shall terminate.
Such termination shall not affect any rights which Xxxxxx, his spouse or
estate may have at the time of his death pursuant to any insurance or other
death benefit, retirement, pension, stock or option award or any other
benefit plan or arrangement with the Company.
8. DISCHARGE FOR CAUSE. The Board of Directors of the
Company may discharge Xxxxxx For Cause at any time. Such discharge shall be
effected by written notice to Xxxxxx which shall specify the reasons for
Xxxxxx'x discharge and the effective date thereof. As used herein, the term
"For Cause" shall mean only chronic alcoholism, drug addiction, criminal
dishonesty or willful violation of direct written instructions from the Board
of Directors of the Company relating to a material matter which directions
are consistent with all applicable laws, rules
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and regulations and orders to which Xxxxxx or the Company are subject and the
provisions of this Agreement unless cured within ten (10) days after notice.
Upon termination pursuant to this Section 8, this Agreement and all benefits
hereunder shall terminate, except that such termination shall not effect any
right that Xxxxxx may have at the time of termination pursuant to any
insurance or other death benefit, retirement, pension, stock or option award
or any other benefit plan or arrangement with the Company.
9. INDEMNIFICATION. The Company shall indemnify Xxxxxx to
the fullest extent permitted by law and the certificate of incorporation and
bylaws of the Company from and against any loss, claim, liability and/or
expense incurred for, or by reason of, or arising out of, acts of Xxxxxx as
an officer and/or director of the Company or any subsidiary.
10. ADDITIONAL COMPENSATION. In recognition of the value of
Xxxxxx'x services to the Company and as a further inducement for Xxxxxx to
enter into this Agreement, the Company has agreed:
(a) contemporaneously herewith, to issue to Xxxxxx
non-plan, non-qualified options ("1997 Options") to purchase 100,000 shares
of the Company's common stock at (THE AVERAGE OF THE BID AND ASKED PRICE ON
THE DATE PRECEDING THE DATE OF SIGNING) per share, which options shall expire
on May 31, 2002. 50,000 of the 1997 Options shall be exercisable commencing
on June 1, 1998 and the other 50,000 shall be exercisable commencing June 1,
1999.
(b) On June 1, 1998 the Company will issue non-plan,
non-qualified options ("1998 Options"; 1997 Options and 1998 Options being
hereinafter referred to collectively as "Xxxxxx Options") to purchase an
additional 100,000 shares of the Company, at the "Market Price" as of the
date of issuance of the 1998 Options, which 1998 Options will expire on May
31, 2003. 50,000 of the 1998 Options will be exercisable commencing June 1,
1999 and the other 50,000 of the 1998 Options will be exercisable commencing
June 1, 2000. For purposes hereof, Market Price shall mean the average of
the closing bid and asked price of the Company's
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shares on the NASDAQ National Market (or such other market on which the
Company's shares are then listed) on the date of such issuance.
11. NONCOMPETITION AND CONFIDENTIALITY AGREEMENT.
(a) During the Term and for a period of one year after
such expiration, Xxxxxx will not, without the prior written consent of the
Company, directly or indirectly own, manage, operate, control or participate
in the ownership, management, operation or control of, or be connected as a
stockholder, partner, joint venturer or otherwise with, or accept employment
of any kind with, any business which, or any business or organization any
part of which, competes with the businesses of the Company or any of its
subsidiaries or affiliates as such businesses are now conducted or may be
conducted at any time during the Term, in any geographical area in which such
businesses are conducted during the term of this Agreement, provided,
however, that nothing contained herein will prohibit or restrict Xxxxxx from
fully performing his duties as CEO of NRC or owning shares or being a
director of NRC. Notwithstanding the terms hereof, if this Agreement is
terminated prior to the expiration of its then current term by the Company
other than For Cause, the provisions of this Section 11 shall not be
applicable to any period after such termination.
(b) (i) Xxxxxx acknowledges that during his
employment with the Company or any of its subsidiaries, he may have access to
secret and confidential information, including but not limited to some or all
of the following:
(A) product and business plans, budgets, sales
forecasts, design plans, research and engineering data,
inventions, methods, systems and processes,
(B) exploration activities, including, but not
limited to, prospects, joint ventures, mining and acquisition
opportunities and similar matters,
(C) customers, and
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(D) trade secrets
(all such information is hereinafter referred to as "Confidential Information").
(ii) Xxxxxx agrees that (except as authorized
in writing by the Company or required pursuant to legal or administrative
process) he will not reveal, divulge or make known to any person, firm or
corporation any Confidential Information.
(iii) Xxxxxx agrees that at any time during
the Term upon the request of the Board of Directors and upon the termination
of this Agreement, Xxxxxx will deliver all Confidential Information together
with copies thereof in his possession to the Company. In addition, if after
the Term he shall discover any Confidential Information in his possession, he
shall forthwith deliver the same together with all copies thereof to the
Company.
(c) In the event of the breach or threatened breach of
the terms and conditions of this Section 11 by Xxxxxx, the Company shall be
entitled to a temporary or preliminary restraining order and an injunction or
other equitable relief restraining and enjoining Xxxxxx from violating this
Section 11. In addition to the equitable relief provided above, the Company
shall have the right to pursue all other remedies available at law to the
Company for such breach or threatened breach, including recovery of damages
from Xxxxxx.
(d) In the event that any of the provisions of this
Section 11 shall be deemed unenforceable, invalid, or overbroad, in whole or
in part for any reason, then any court of competent jurisdiction is hereby
authorized, requested and instructed to reform such provision or provisions
to provide for the maximum confidentiality restraints upon the activities of
Xxxxxx, which may then be legal and valid.
12. DISPUTE RESOLUTION. Any controversy or claim arising out
of or relating to this Agreement and the obligations and responsibilities of
the parties hereto or the breach or alleged breach by any of the parties of
their respective obligations hereunder shall be settled by arbitration in the
City of New York, New York
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by one arbitrator in accordance with the then governing Rules of the American
Arbitration Association. The written decision of the arbitrator shall be
final and binding upon the Company and Xxxxxx. Judgment upon the award
rendered may be entered and enforced in any court of competent jurisdiction.
Notwithstanding the above, either party shall be entitled to seek and obtain
injunctive or similar relief from a court of competent jurisdiction where
appropriate pending arbitration. Both parties hereby submit to the exclusive
jurisdiction of the courts of the State of New York or Federal courts
situated in New York County, New York for such purpose and for purposes of
enforcing any arbitration award. All legal fees and expenses reasonably
incurred by Xxxxxx in good faith as a result of any claim or arbitration
arising from this Agreement shall be paid by the Company.
13. MISCELLANEOUS.
(a) Xxxxxx'x Change of Control Agreement with the
Company dated April 2, 1992 shall remain in full force and effect.
(b) This Agreement contains the entire understanding
between the parties hereto concerning the subject matter hereof. This
Agreement may only be amended by an instrument in writing executed by the
parties hereto.
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(c) This Agreement shall be construed and enforced in
accordance with the laws of the State of New York.
(d) This Agreement and the rights and obligations of the
parties hereto shall bind and inure to the benefit of the successor or
successors of the Company, whether by merger, consolidation or otherwise.
(e) Any notice to be given pursuant to the terms of this
Agreement shall be in writing and delivered by hand or sent by registered or
certified mail to such party at such party's address set forth above or to
such other address or to the attention of such other person as either party
has specified by prior written notice to the other party.
(f) The Company's waiver of a breach of any provision of
this Agreement by Xxxxxx shall not operate or be construed as a waiver of any
subsequent breach of this Agreement by Xxxxxx. No waiver shall be valid
unless in writing and signed by an authorized officer of the Company.
(g) Xxxxxx acknowledges that his services are unique and
personal. Accordingly, Xxxxxx shall not assign his rights or delegate his
duties or obligations under this Agreement.
(h) Headings in this Agreement are for convenience only
and shall not be used to interpret or construe its provisions.
(i) 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 agreement.
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IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed by its officers thereunto duly authorized, and Xxxxxx has
executed this Agreement all as of the date first above set forth.
NORD PACIFIC LIMITED
By:
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X. XXXXXX XXXXXX
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