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 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 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.
(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 Pacific Limited
("NPL") and he shall be entitled to devote such time and attention as he deems
necessary to NPL 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
the Company 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 $150,000 in equal semi-monthly installments, less required
withholding and other applicable taxes, provided, however, that when the
Company's 50%-owned affiliate, Sierra Rutile Limited achieves positive cash flow
from operations, as determined by the accountants of
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Sierra Rutile Limited, for three (3) consecutive months, Xxxxxx'x Salary shall
increase to $225,000 per year effective at the end of such third month.
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 and Xxxxxx recognize that Xxxxxx and his spouse are
entitled to retirement benefits from NPL and that he will continue to accrue
benefits thereunder. The Company shall adopt a plan pursuant to which Xxxxxx
will receive comparable benefits from the Company. For purposes thereof, Xxxxxx
shall be credited with his prior years of service with NPL and the Company.
(c) Xxxxxx will receive benefits substantially the same as those benefits
as he has previously been receiving from NPL.
(d) Xxxxxx shall be entitled to four weeks paid vacation each calendar
year, to be taken contemporaneously with his vacation from NPL.
The cost of the above may be shared by the Company with NPL and it is not
intended that the cost of items hereunder be duplicative of items provided by
NPL.
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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 and regulations and orders to which Xxxxxx or the Company
are subject and the provisions of this Agreement unless
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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, 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, contemporaneously herewith (subject to
shareholder approval, which approval will be sought by the Company at the next
meeting of its shareholders subsequent to the scheduled June annual general
meeting) to issue to Xxxxxx non-plan, non-qualified options to purchase 600,000
shares of the Company's common stock, which options shall expire on May 31, 2002
and be exercisable on or after the dates and at the exercise prices set forth
hereinbelow:
EXERCISABLE ON OR AFTER NUMBER OF OPTIONS PER SHARE EXERCISE PRICE
----------------------- ----------------- ------------------------
Upon issuance 200,000 $4.00
1 year from issuance 200,000 $5.00
2 years from issuance 200,000 $6.00
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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 NPL or owning
shares or being a director in NPL. 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,
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(B) exploration activities, including, but not limited to,
prospects, joint ventures, mining and acquisition opportunities and similar
matters,
(C) customers, and
(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
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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 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
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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) 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.
(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 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.
(e) 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
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by the employee. No waiver shall be valid unless in writing and signed by an
authorized officer of the Company.
(f) 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.
(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.
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 RESOURCES CORPORATION
By:
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/s/ X. XXXXXX XXXXXX
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X. XXXXXX XXXXXX
71206.8
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