CONTINUATION OF EMPLOYMENT AGREEMENT
AGREEMENT made as of this 27th day of May, 1997 by and between NORD
RESOURCES CORPORATION, a Delaware corporation (the "Company"), with an address
at 0000 Xxxxxxxxxx Xxxxxxx Xxxxx, Xxxxxx, Xxxx 00000, and XXXXXXX X. XXXX,
("Xxxx"), an individual residing at 000 Xxxx Xxxxxx Xxxxxx-Xxxxxxxxxxxx Xxxx,
Xxxxxx Xxxxxx, XX 00000.
WHEREAS, Lang has been the Senior Vice President-Finance of the Company
for many years;
WHEREAS, the Company desires to retain the services of Lang pursuant
hereto.
In consideration of the mutual covenants and agreements herein contained,
the parties hereby agree as follows:
1. EMPLOYMENT. The Company agrees to continue to employ Lang, and Lang
hereby agrees to continue 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 ("Term") of Lang's employment hereunder shall
commence on June 1, 1997 ("Effective Date") and shall continue through and
including December 31, 1997 ("Termination Date").
3. DUTIES AND OFFICES.
(a) During the Term, Lang shall continue to be the Senior Vice President-
Finance of the Company until a new Chief Financial Officer is hired.
Thereafter, his title will become "Senior Vice-President." He shall perform the
services as set forth in the Company's bylaws, which services shall be
commensurate with Lang's status. Lang shall perform his services subject only
to the direction and control of the Chief Executive Officer and the Board.
(b) During the Term, Lang shall devote his full working time and energies
to the business and affairs of the Company.
(c) Unless Lang otherwise agrees in writing, Lang's base for the
performance of his services shall be located in or around Dayton, Ohio (whether
or not the Company then maintains an office in Dayton), subject to reasonable
travel requirements.
4. COMPENSATION. During the Term, the Company shall pay Lang an
annual salary ("Salary") of $261,555 in equal semi-monthly installments, less
required withholding and other applicable taxes.
5. EXPENSES, BENEFITS AND PERQUISITES.
(a) The Company will pay or reimburse Lang for all travel and other
expenses reasonably incurred by Lang during the Term hereof in connection with
the performance of his duties hereunder upon presentment of written expense
receipts reflecting such expenses.
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(b) Lang will continue to receive substantially the same benefits as he
has previously been receiving from the Company.
(c) Lang shall be entitled to two weeks paid vacation during the Term.
6. DISABILITY. If Lang is unable to perform his services by reason of
illness or incapacity for a period of 90 consecutive days, the Company shall
have the right to terminate this Agreement and all benefits hereunder at any
time after the 90th day, provided that on the effective date of termination,
Lang is still disabled. Such termination shall not effect any rights which Lang
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 or under Sections 10 and 12 of this Agreement. During the period of
disability prior to termination, the Company shall pay Lang his Salary provided
for in this Agreement and shall comply with all other terms and conditions of
this Agreement.
7. DEATH OF LANG. In the event that Lang should die during the Term,
this Agreement and all benefits hereunder shall terminate. Such termination
shall not affect any rights which Lang, 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 or under Sections 10 and 12 of this Agreement.
8. DISCHARGE FOR CAUSE. The Board of Directors of the Company may
discharge Lang "For Cause" at any time. Such discharge shall be effected by
written notice to Lang which shall specify the reasons for Lang's discharge and
the effective date thereof. As used herein, the term
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"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 material matters, which directions are
consistent with all applicable laws, rules and regulations and orders to which
Lang or the Company are subject and the provisions of this Agreement, unless
cured within 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 Lang may have at the time of
termination pursuant to any insurance, retirement, pension, stock or option
award or any other benefit plan or arrangement with the Company or under Section
10 or 12 of this Agreement.
9. INDEMNIFICATION. The Company shall indemnify Lang 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 Lang as an officer and/or director
of the Company or any subsidiary at any time prior to the date hereof or during
the Term hereof.
10. DEFERRED COMPENSATION. The Company recognizes that Lang and his
spouse are currently entitled to benefits under the Restated Deferred
Compensation Agreement dated May 10, 1989 between the Company and Lang, as
amended by Amendment No. 1 thereto dated November 3, 1995 ("Retirement
Agreement"). As of the end of the Term, the Company will commence to make
payment to Lang of the $143,855 per year which, it is agreed, is the amount to
be paid to Lang under the Retirement Agreement and will continue to make such
payments to him or his spouse as required thereunder. The Company agrees to
fund the trust (the "Trust") created under that certain Trust Agreement dated
May 10, 1989, as restated July 7, l995 and as amended by Amendment No. 1
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thereto dated December 1, 1995 to fund the payments due Lang thereunder, by
depositing therein (i) on or before January 1, 1998 an additional $250,000, and
(ii) on or before January 1, 1999 an additional $250,000. The provisions of
this Section will survive termination of the provisions of this Agreement.
11. OPTIONS. Lang currently owns those options listed on Exhibit A hereto
("Lang Options"). All Lang Options (qualified and non-qualified) which expire
at a time when the "Market Price" is (x) below or (y) less than $1.00 above the
price at which such Lang Options are exercisable will be reissued to Lang by the
Company as non-plan, non-qualified options at the same exercise price, but not
less than the then "Market Price" with an expiration date of two (2) years after
such reissuance, provided that Lang is then or within ninety (90) days prior
thereto had been an employee or director of or consultant to the Company and/or
its affiliates. For purposes hereof, "Market Price" shall mean the closing
sale price of the shares for which the options are exercisable on the New York
Stock Exchange or such other exhange on which such shares are then traded on
such date.
EXISTING LOANS. Lang acknowledges that he is currently indebted to the
Company in the principal amount of $150,000, in the aggregate, pursuant to the
terms of those certain Executive Loan Agreements dated September 10, 1987 and
December 1, 1988 (collectively "Lang Loans"). The Company agrees to forgive the
principal of the Lang Loans in accordance with the following schedule, provided
Lang has not theretofore voluntarily completely terminated his involvement with
the Company as officer, director and/or consultant:
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FORGIVENESS DATE PRINCIPAL OF LOAN FORGIVEN
---------------- --------------------------
January 1, 1998 $ 50,000
January 1, 1999 $ 50,000
January 1, 2000 $ 50,000
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Total $150,000
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13. BOARD NOMINATIONS. Lang agrees, during the Term and thereafter, if
requested to do so, to continue to be a nominee for and serve on the Boards of
Directors of the Company and its affiliate, Nord Pacific Limited.
14. CONFIDENTIALITY AGREEMENT.
(a) (i) Lang 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
(D) trade secrets
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(all such information is hereinafter referred to as "Confidential Information").
(ii) Lang 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) Lang agrees that at any time during the Term upon the request
of the Board of Directors and upon the termination of this Agreement, Lang 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.
(b) In the event of the breach or threatened breach of the terms and
conditions of this Section 14 by Lang, the Company shall be entitled to a
temporary or preliminary restraining order and an injunction or other equitable
relief restraining and enjoining Lang from violating this Section 14. 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 Lang.
(c) In the event that any of the provisions of this Section 14 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 Lang, which may then be legal
and valid.
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15. 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, 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 Lang. 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 Lang in
good faith as a result of any claim or arbitration arising from this Agreement
shall be paid by the Company.
16. MISCELLANEOUS.
(a) 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.
(b) This Agreement shall be construed and enforced in accordance with the
laws of the State of New York.
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(c) 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.
(d) 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'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.
(e) The Company's waiver of a breach of any provision of this Agreement by
Lang shall not operate or be construed as a waiver of any subsequent breach of
this Agreement by the employee. No waiver shall be valid unless in writing and
signed by an authorized officer of the Company.
(f) Lang acknowledges that his services are unique and personal.
Accordingly Lang shall not assign his rights or delegate his duties or
obligations under this Agreement.
(g) Headings in this Agreement are for convenience only and shall not be
used to interpret or construe its provisions.
(h) 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 Lang has executed this Agreement all
as of the date first above set forth.
NORD RESOURCES CORPORATION
By: /s/ X. Xxxxxx Xxxxxx
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XXXXXXX X. XXXX
72521.7
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