Exhibit 10.30
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement"), is made and entered into
as of the 18th day of April, 2005 by and between NORD RESOURCES CORPORATION, a
Delaware corporation (the "Company") and XXXX X. XXXXX, an adult individual
residing in the county of Pima, State of Arizona (the "Executive").
WITNESSETH:
WHEREAS, the Executive has been serving as the Senior Vice President and
Chief Financial Officer of the Company, the parties hereto desire to continue
such employment, and the Company and Executive desire to enter into this
Agreement memorializing the terms of such employment, in each case subject to
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual promises
and agreements herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties,
intending to be legally bound, hereby agree as follows:
SECTION 1. DEFINITIONS.
Unless otherwise defined herein, the following terms shall have the
meanings indicated below:
(a) "Accrued Obligations" shall mean (i) all accrued but unpaid Base
Salary through the date of termination of Executive's employment, (ii)
any unpaid bonus in respect of any completed fiscal year which has
been declared by the Board prior to the date of termination of
Executive's employment, or (iii) any unpaid or unreimbursed permitted
expenses incurred in accordance with Section 6 below.
(b) "Affiliate" means any corporation which controls, is controlled by or
is under common control with, the Company.
(c) "Base Salary" shall mean the salary provided for in 4(a) below
including, without limitation, any increased salary granted to
Executive pursuant to 4(a) below.
(d) "Board" shall mean the Board of Directors of the Company.
(e) "Cause" shall mean (i) Executive's failure (except where due to a
Disability), neglect or refusal to perform his duties hereunder for a
period of forty-five (45) consecutive days, or ninety (90) days within
a single twelve-month period; (ii) any willful or intentional act of
Executive that has the effect of injuring the reputation or business
of the Company or any Affiliate in any material respect; (iii) any
determination or finding by the Board of consistent drunkenness by
Executive, or his illegal use of narcotics, which is or could
reasonably be expected to become, materially injurious to the
reputation or business of the
Company or any Affiliate, or which impairs, or could reasonably be
expected to impair, his judgment or the performance of Executive's
duties hereunder; (iv) a conviction of, or plea of guilty or nolo
contendere to, the commission of a felony by Executive; (v) the
commission by Executive of any act of fraud or embezzlement against
the Company or any Affiliate; or (vi) Executive's breach of any
material provision of this Agreement and/or the Confidentiality
Agreement.
(f) "Commencement Date" shall mean April 1, 2005.
(g) "Confidentiality Agreement" shall mean that certain Confidentiality,
Noncompetition and Nonsolicitation Agreement, in the form attached
hereto as Exhibit A.
(h) "Disability" shall mean any physical or mental disability or infirmity
that prevents the performance of Executive's duties for a period of
(i) ninety (90) consecutive days or (ii) one hundred twenty (120)
non-consecutive days during any twelve (12) month period. Such
Disability will entitle the Company to terminate Executive's
employment immediately by written notice. Any question as to the
existence, extent or potentiality of Executive's Disability upon which
Executive and the Company cannot agree shall be determined by a
qualified, independent physician selected by the Company and approved
by Executive (which approval shall not be unreasonably withheld). The
determination of any such physician shall be final and conclusive for
all purposes of this Agreement.
(i) "Good Reason" shall mean, without Executive's written consent (which
may be given or withheld in his sole discretion (i) a material breach
of this Agreement by the Company which is not cured within sixty (60)
days of the date of notice to the Company (as described herein); (ii)
if the Company (A) requires Executive to relocate his office to a
location outside of Pima County, Arizona and more than 25 miles from
Pima County, Arizona; or (B) reassigns Executive to a position of
lesser rank, or status or reduces or materially changes Executive's
responsibilities to the Company, or requires that Executive report to
or take direction from anyone other than the Board of Directors of
Company; or (iii) any reduction in the Base Salary, any cash bonus or
equity-based. compensation plan previously adopted, implemented or in
effect at the Company; and any reduction in the employee benefits
enjoyed by Executive, to the extent such reduction in benefits is not
borne equally by all employees who enjoy such benefits at the time or
thereafter.
(j) "Term of Employment" shall mean the period specified in Section 2
below.
SECTION 2. ACCEPTANCE AND TERM OF EMPLOYMENT.
The Company agrees to employ Executive, and Executive agrees to serve the
Company, on the terms and conditions set forth herein. Unless sooner
terminated as provided in Section 7 hereof, the Term of Employment shall
commence on the Commencement Date and shall continue for the period ending
one day prior to the
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second (2nd) anniversary of the Commencement Date. Subject to Section 7
hereof, the Term of Employment shall be extended automatically, without
further action by either party, for successive periods of one additional
year, on the second (2nd) anniversary of the Commencement Date and on each
succeeding anniversary date thereafter unless, not later than ninety (90)
days prior to the end of the Term of Employment (including any prior
extension thereof), either the Company or Executive shall have notified the
other in writing of his or its intention not to renew this Agreement. Upon
notice of non-extension, Executive's employment hereunder shall terminate
at the close of business on the last day of the Term of Employment.
SECTION 3. POSITION, DUTIES AND RESPONSIBILITIES, PLACE OF PERFORMANCE.
(a) During the Term of Employment, Executive shall be employed and serve
as the Senior Vice President and Chief Financial Officer of the
Company, and shall have such duties as are typically associated with
such title. During the Term of Employment, Executive shall report
directly to the President.
(b) Executive's duties shall be comprised of such matters as are
customarily performed by someone serving in his position for a
publicly-traded holding including such matters as may be reasonably
directed by the Chief Executive Officer, President or Board of the
Company from time to time during the Term of Employment.
(c) Executive shall devote his full business time, attention, skill and
best efforts to the performance of his duties under this Agreement and
shall not engage in any other business or occupation during the Term
of Employment (provided, however, that it is anticipated that
Executive may enter into individual agreements with companies
affiliated with the Company with the Company's consent).
Notwithstanding the foregoing, nothing herein shall preclude Executive
from (i) serving, as a member of the board of directors or advisory
boards (or their equivalents in the case of a non-corporate entity) of
non-competing businesses and charitable organizations, (ii) engaging
in charitable activities and community affairs, and (iii) managing his
personal investments and affairs; provided, however, that the
activities set out in clauses (i), (ii) and (iii) above shall be
limited by Executive so as not materially to interfere, individually
or in the aggregate, with the performance of his duties and
responsibilities hereunder, or to compete, directly or indirectly with
the business of the Company or any Affiliate.
(d) Executive's principal place of employment shall be in Pima County,
Arizona, although Executive understands and agrees that he will be
required to travel from time to time for business reasons (including
as reasonably required to the Company's principal place of business in
Dragoon, AZ, or such other business locations as may be established by
the Company from time to time during the Term of Employment).
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SECTION 4. COMPENSATION.
During the Term of Employment, Executive shall be entitled to the following
compensation:
(a) Base Salary. Executive shall be paid an annualized Base Salary,
payable in accordance with the regular payroll practices of the
Company, of One Hundred and Seventy-five Thousand Dollars ($175,000),
reviewed bi-annually with such increases, if any, as may be approved
in writing by, and at the discretion of, the Board from time to time
during the Term of Employment. The Board shall review Executive's Base
Salary at least twice annually to determine increases, but in no event
decreases, in such Base Salary. The commencement of payment of the
Base Salary to Executive is contingent upon the Corporation's receipt
of at least $10 million in financing and Executive shall be
compensated pursuant to paragraph (b) "Interim Compensation" below.
(b) Interim Compensation. Until such time as the Company completes a
financing of at least $10,000,000 (Ten Million Dollars), Executive
shall be compensated pursuant to the Unanimous Consent of the Board of
Directors dated April 1, 2005 which reads as follows: "In lieu of cash
compensation during the interim period between this date and the
Corporation's receipt of financing, compensation will be in the form
of Common Shares of the Corporation issued at the rate of 20,000
shares per month on a pro-rata basis."
(c) Bonuses. From time to time during the Term of Employment, the Board in
its sole discretion may, but shall not be obligated to, award
financial bonuses to Executive to reward exemplary service on behalf
of the Company. Any such award shall be declared by Board
authorization, which shall set the amount, timing and manner of
payment of any such bonuses.
(d) Incentive Stock Options. At such time as the Company shall adopt a
formal Incentive Stock Option Plan, the Executive shall be entitled to
participate therein.
SECTION 5. EMPLOYEE BENEFITS.
During the Term of Employment, Executive shall be entitled to participate
in all health, insurance, disability insurance, retirement and other
benefits provided to other senior executives of the Company pursuant to
Board authorization. Executive shall also be entitled to the same number of
holidays, vacation, sick days and other benefits as are generally allowed
to senior executives of the Company in accordance with Company policies in
effect from time to time.
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SECTION 6. REIMBURSEMENT OF BUSINESS EXPENSES.
Executive is authorized to incur reasonable expenses in carrying out his
duties and responsibilities under this Agreement and the Company shall
promptly reimburse him for all business expenses incurred in connection
with carrying out the business of the Company, subject to documentation in
accordance with the Company's policies as then in effect. Unless otherwise
agreed in advance by the Company, all domestic travel less than three hours
in duration for Company business shall be done at coach rates. Domestic
travel three hours or more in duration and international travel may, at the
Executive's discretion, be at business or first class rates, whichever
class is available.
SECTION 7. TERMINATION OF EMPLOYMENT.
(a) General. The Term of Employment shall terminate earlier than as
provided in Section 2 hereof upon the earliest to occur of: (i) a
termination of Executive's employment due to Executive's death, (ii) a
termination of Executive's employment by reason of a Disability, (iii)
a termination by the Company with or without Cause, or (iv) a
termination by Executive with or without Good Reason. In the event of
termination of Executive's employment for any reason, at the Company's
request, the Executive shall resign from the Board of Directors of the
Company to the extent he is then serving on it.
(b) Termination Due to Death or Disability. In the event Executive's
employment is terminated due to his death or Disability, Executive,
his estate or his beneficiaries, as the case may be, shall be entitled
to the Accrued Obligations, if any.
(c) Termination by the Company for Cause.
(i) A termination for Cause shall not take effect unless the
provisions of this subsection (i) are complied with. Executive
shall be given not less than fifteen (15) days written notice by
the Board of the intention to terminate him for Cause, such
notice to state in reasonable detail the particular act or acts
or failure or failures to act that constitute the grounds on
which the proposed termination for Cause is based. Executive
shall have fifteen (15) days after the date that such written
notice has been given to Executive in which to cure such conduct,
to the extent such cure is possible. If he fails to cure such
conduct, the termination shall be effective on the date
immediately following the expiration of the ten (10) day notice
period. If no such cure is reasonably possible by Executive
(i.e., in the case of a breach of the Confidentiality Agreement),
then such termination shall be effective immediately upon the
receipt of notice by the Executive.
(ii) In the event the Company terminates Executive's employment for
Cause, he shall be entitled only to the Accrued Obligations, and
the Company shall have no further liability to the Executive
hereunder.
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(d) Termination By The Company Without Cause. The Company may terminate
Executive's employment without Cause, effective upon Executive's
receipt of written notice of such termination. In the event
Executive's employment is terminated by the Company without Cause
(other than due to death or Disability), Executive shall be entitled
to:
(i) the Accrued Obligations, if any;
(ii) continuation of Base Salary for the greater of: (A) the remainder
of the Term of Employment (assuming (I) no termination of
Executive's employment had occurred, and (II) no additional
renewal of the Term of Employment occurs following the date of
termination) and (B) twelve (12) months (the "Severance Term"),
payable in accordance with the Company's then-existing payroll
practices; and
(iii) should Executive be eligible for and elect to continue his
health insurance pursuant to the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended ("COBRA") following the
date of such termination, payment of COBRA premiums until the
earlier of: (A) expiration of the Severance Term, or (b) the date
Executive commences employment with any person or entity and,
thus, is eligible for health insurance benefits at least as
favorable as those provided by the Company; and
(iv) Immediate vesting and/or issuance of all unvested stock options,
rights, grants or other equity.
(e) Termination by the Executive for Good Reason. Executive may terminate
his employment for Good Reason by providing the Company thirty (30)
days' written notice, setting forth in reasonable specificity the
event(s) constituting Good Reason, within sixty (60) days of the
occurrence of such event. During such thirty (30) day notice period,
the Company shall have a cure right (if curable), and if not cured
within such period, Executive's termination will be effective upon the
expiration of such cure period (and, if not curable, then Executive's
termination shall be effective as of the date of the Company's receipt
of his notice therefor), and Executive shall be entitled to the same
payments and benefits as provided in Section 4(d) above for a
termination without Cause.
(f) Termination by Executive Without Good Reason. Executive may terminate
his employment without Good Reason by providing the Company thirty
(30) days' written notice in advance of such termination. In the event
of a termination of employment by Executive under this Section 4(f),
Executive shall have the same entitlements as are provided in Section
4(c)(ii) above for a termination by the Company for Cause. In the
event of termination of Executive' s employment under this subsection
(f), the Company may, in its sole and absolute discretion, at
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any time after notice of termination has been given by Executive,
terminate this Agreement, provided that the Company shall continue to
pay to Executive his then current Base Salary and continue benefits
provided pursuant to (c)5 for the duration of the unexpired notice
period.
(g) Termination Following a Change in Control.
(i) If at anytime following a Change in Control the Company shall
elect to terminate Executive's employment for any reason other
than those specified in Sections 7(b) or 7(c), it shall provide
written notice of such termination to the Executive. The
Executive may also terminate his employment with the Company
following a Change in Control by delivering written notice to the
Company within sixty (60) days following the occurrence of such
Change in Control. In either case, but subject to the execution
and delivery by Executive and the Company of a mutual and general
release of claims, the Company shall provide to Executive the
following:
(A) the Accrued Obligations, payable in a lump sum within 60
(sixty) days following termination of employment;
(B) an amount equal to three times his Base Salary, payable in a
lump sum within 60 days following termination of employment;
(C) if the Executive elects continuation of coverage of medical
and dental benefits under the Consolidated Omnibus Budget
Reconciliation Act of 1985 (COBRA), the Company will pay
100% such premiums for the first 18 months of coverage; and
(D) payment of premiums necessary for continuation of any
Supplemental Disability Policy or, at the election of the
Company, a lump sum amount equal to the aggregate premiums
to be paid thereon, in either case for a period of 18 months
following the effective date of termination; and
(E) Immediate vesting and/or issuance of all unvested stock
options, grants, rights or other equity.
Other than payment of such amounts and vesting of stock options,
grants, rights or other equity, the Company shall have no further
obligations under this Agreement.
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(ii) For purposes of this Agreement, a "Change in Control" shall be
deemed to have occurred if:
(A) any "person," as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934 (the "Exchange
Act") (other than the Company, any trustee or other
fiduciary holding securities under an employee benefit plan
of the Company, or any corporation owned directly or
indirectly by the shareholders of the Company in
substantially the same proportion as the ownership of stock
of the Company) is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing more
than 50% of the combined voting power of the Company's then
outstanding securities; or
(B) individuals who, as of the Effective Date, constituting
then-presiding Board of Directors (the "Incumbent Board"),
cease for any reason to constitute at least a majority of
the Board, provided that any person becoming a director
subsequent to the date hereof whose election, or nomination
for election by the Company's shareholders, was approved by
a vote of at least a majority of the directors then
comprising the then Incumbent Board (other than an election
or nomination of an individual whose initial assumption of
office is in connection with an actual or threatened
election contest relating to the election of the directors
of the Company, as such terms are used in Rule 14a-11 of
Regulation 14A under the Exchange Act) shall be, for
purposes of this Agreement, considered as though such person
were a member of the Incumbent Board; or
(C) a merger or consolidation of the Company with any other
corporation occurs, other than (I) a merger or consolidation
which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity)
more than 50% of the combined voting power of the voting
securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation
or (II) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in
which no "person" (as hereinabove defined) acquires more
than 50% of the combined voting power of the Company's then
outstanding securities; or
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(D) the consummation of the sale or disposition by the Company
of all or substantially all of the Company's assets or the
shareholders of the Company approve a plan of complete
liquidation of the Company.
(g) No Duty to Mitigate Losses. Executive shall have no duty to find new
employment following the termination of his employment under
circumstances which require the Company to pay any amount to executive
pursuant to this Section 7. Any salary or remuneration received by
Executive from a third party for the providing of personal services
(whether by employment or by functioning as an independent contractor)
following the termination of his employment with the Company shall not
reduce the Company's obligation to make a payment to Executive (or the
amount of such payment) pursuant to the terms of said Section 7, other
than as specifically set forth in Section 7(d)(iii) with respect to
health insurance.
(i) Expiration of the Term of Employment. Notwithstanding anything herein
to the contrary, in no event shall any termination by reason of
expiration of the Term of Employment pursuant to Section 2 hereof
constitute a termination without Cause hereunder and, upon such
expiration, Executive shall have the same entitlements as are provided
in Section 4(c)(ii) above for a termination by the Company for Cause.
Notwithstanding the foregoing, in no event shall a notice of
nonrenewal of the Term of Employment by Executive pursuant to Section
2 hereof in and of itself constitute Cause.
(h) Release. Notwithstanding any provision herein to the contrary, the
Company may require, prior to payment of any amount or provision of
any benefit pursuant to Sections 7 (d) or 7(e) or 7(g) of this
Agreement, that Executive execute a complete and mutual release of the
Company and its affiliates and related parties in such form as is
reasonably required by the Company, and any waiting periods contained
in such release shall have expired.
SECTION 8. CONFIDENTIALITY AGREEMENT; ASSIGNMENT OF INTELLECTUAL PROPERTY
RIGHTS.
(a) As a condition to his employment pursuant to this Agreement, Executive
shall sign the Confidentiality Agreement. Executive hereby represents
and warrants to the Company that he will comply with all obligations
under the Confidentiality Agreement and further agrees that the
provisions of the Confidentiality Agreement shall survive any
termination of this Agreement or of Executive's employment or
subsequent service relationship with the Company, if any.
(b) Executive agrees that during the Employment Term he will promptly
disclose, in writing, all information, ideas, concepts, improvements,
discoveries and inventions, whether patentable or not, and whether or
not reduced to practice, which are conceived, developed, made or
acquired by the Company, either individually, or jointly with others,
and which relate to the business, products or
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services of the Company, or any of its subsidiaries or affiliates,
irrespective of whether such information, idea, concept, improvement,
discovery or invention was conceived, developed, discovered or
acquired by Executive on the job, or elsewhere (collectively, the
"Inventions"). The Company and Executive have agreed as follows
regarding the Inventions:
(i) All Inventions are, and shall be, the property of the
Company. In this context, all drawings, memoranda, notes,
records, files, correspondence, manuals, models,
specifications, computer programs, maps and all other
writings, or materials of any time embodying any such
Inventions are and shall be the sole and exclusive property
of the Company.
(ii) Executive hereby specifically sells, assigns and transfers
to the Company all of his worldwide right, title and
interest in and to all such Inventions, and any United
States or foreign applications for patents, inventor's
certificates or other industrial rights that may be filed
thereon, including divisions, continuations,
continuations-in-part, reissues and/or extensions thereof,
and applications for registration of any names and marks
included therewith. Both during the Employment Term and
thereafter, Executive shall assist the Company and its
nominees at all times in the protection of such Inventions,
both in the United States and all foreign countries,
including but not limited to, the execution of all lawful
oaths and all assignment documents, not inconsistent with
this Agreement, requested by the Company, or its nominee in
connection with the preparation, prosecution, issuance or
enforcement of any applications for United States or foreign
letters patent, including divisions, continuations,
continuations-in-part, reissue, and/or extensions thereof,
and any application for the registration of names and marks
included therewith.
(iii) Moreover, if during the Employment Term, Executive creates
any original work of authorship which is the subject matter
of copyright relating to the Company's business, products,
or services, whether such work is created solely by
Executive or jointly with others, the Company shall be
deemed the author of such work if the work is prepared by
Executive in the scope of his employment; or, if the work is
not prepared by Executive within the scope of his
employment, but is specifically ordered by the Company as a
contribution to a collective work, as a part of a motion
picture or other audiovisual work, as a translation, as a
supplementary work, as a compilation or as an instructional
text, then the work shall be considered to be a work made
for hire and the Company shall be the author of the work. In
the event such work is neither prepared by the Executive
within the scope of his employment or is not a
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work specially ordered and deemed to be a work made for
hire, then Executive hereby agrees to assign, and by these
presents, does assign, to the Company an undivided one-half
interest in and to all of Executive's worldwide right, title
and interest in and to the work and all rights or copyright
therein, including but not limited to, the execution of all
formal assignment documents requested by the Company or its
nominee, not inconsistent with this Agreement, and the
execution of all lawful oaths and applications for
registration of copyright in the United States and foreign
countries.
SECTION 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF EXECUTIVE.
Executive represents and covenants to the Company as follows:
(a) Executive is entering into this Agreement voluntarily and that his
employment hereunder and compliance with the terms and conditions
hereof will not conflict with or result in the breach by him of any
agreement or understanding to which he is a party or by which he may
be bound;
(b) he has not, and in connection with his employment with the Company
will not, violate any non-solicitation or other similar covenant or
agreement by which he is or may be bound; and
(c) he has not, and in connection with his employment with the Company he
will not use any confidential or proprietary information he may have
obtained in connection with his employment by any prior employer.
SECTION 10. TAXES.
The Company may withhold from any payments made under this Agreement all
applicable taxes, including but not limited to income, employment and
social insurance taxes, as required by law.
SECTION 11: EXCISE TAXES
Anything in this Agreement to the contrary notwithstanding, if any payment
or benefit to which the Executive is entitled from the Company (the
"Payments," which will include the vesting of stock awards or other benefit
or property) is more likely than not to be subject to the tax imposed by
section 4999 of the Internal Revenue Code of 1986, as amended (or any
successor provision to that section), the Payments shall be reduced to the
extent required to avoid application of such tax. The Executive will be
entitled to select the order in which Payments are to be reduced in
accordance with the preceding sentence. Determination of whether Payments
would result in the application of the tax imposed under Section 4999, and
the amount of reduction that is necessary so that no such tax is applied,
shall be made, at the Company's expense, by the independent accounting firm
employed by the Company immediately prior to the
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occurrence of any change in control of the Company which will result in the
imposition of such tax.
SECTION 12. SUCCESSORS AND ASSIGNS; NO THIRD-PARTY BENEFICIARIES.
(A) THE COMPANY. This Agreement shall inure to the benefit of and be
enforceable by, and may be assigned by the Company to, any purchaser
of all or substantially all of the Company's business or assets, any
successor to the Company or any assignee thereof (whether direct or
indirect, by purchase, merger, consolidation or otherwise). The
Company will require any such purchaser, successor or assignee to
expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to
perform it if no such purchase, succession or assignment had taken
place.
(B) EXECUTIVE. Executive's rights and obligations under this Agreement
shall not be transferable by Executive by assignment or otherwise,
without the prior written consent of the Company; provided, however,
that if Executive shall die, all amounts then payable to Executive
hereunder shall be paid in accordance with the terms of this Agreement
to Executive's devisee, legatee or other designee or, if there be no
such designee, to Executive's estate.
SECTION 13. WAIVER AND AMENDMENTS.
Any waiver, alteration, amendment or modification of any of the terms of
this Agreement shall be valid only if made in writing and signed by the
parties hereto; provided, however, that any such waiver, alteration,
amendment or modification is consented to on the Company's behalf by the
Board. No waiver by either of the parties hereto of their rights hereunder
shall be deemed to constitute a waiver with respect to any subsequent
occurrences or transactions hereunder unless such waiver specifically
states that it is to be construed as a continuing waiver.
SECTION 14. SEVERABILITY..
If any covenants or such other provisions of this Agreement are found to be
invalid or unenforceable by a final determination of a court of competent
jurisdiction (a) the remaining terms and provisions hereof shall be
unimpaired and (b) the invalid or unenforceable term or provision hereof
shall be deemed replaced by a term or provision that is valid and
enforceable and that comes closest to expressing the intention of the
invalid or unenforceable term or provision hereof.
SECTION 15. GOVERNING LAW; VENUE.
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of Arizona applicable to the performance and
enforcement of contracts made wholly within the state, without giving
effect to the law of conflicts of laws applied thereby. In the event that
any dispute shall occur between the parties arising out of or resulting
from the construction, interpretation, enforcement or any other aspect of
this
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Agreement, the parties hereby agree to accept the exclusive jurisdiction of
the Courts of the State of Arizona. In the event that either party shall be
forced to bring any legal action to protect or defend its rights hereunder,
then the prevailing party in such proceeding shall be entitled to
reimbursement from the non-prevailing party of all fees, costs and other
expenses (including, without limitation, the reasonable expenses of its
attorneys) in bringing or defending against such action..
SECTION 16. NOTICES.
(a) Every notice or other communication relating to this Agreement shall
be in writing, and shall be mailed to or delivered to the party for
whom it is intended at such address as may from time to time be
designated by it in a notice mailed or delivered to the other party as
herein provided, provided that, unless and until some other address be
so designated, all notices or communications by Executive to the
Company shall be mailed or delivered to the Company at its principal
executive office, and all notices or communications by the Company to
Executive may be given to Executive personally or may be mailed to
Executive at Executive's last known address, as reflected in the
Company's records.
(b) Any notice so addressed shall be deemed to be given: (i) if delivered
by hand or sent by facsimile or e-mail (and subject to an electronic
receipt or other proof of transmission thereof, on the date of such
delivery or transmission; (ii) if mailed by courier or by overnight
mail, on the first business day following the date of such mailing;
and (iii) if mailed by registered or certified mail, on the third
business day after the date of such mailing.
SECTION 17. SECTION HEADINGS.
The headings of the sections and subsections of this Agreement are
inserted for convenience only and shall not be deemed to constitute a
part thereof, affect the meaning or interpretation of this Agreement
or of any term or provision hereof.
SECTION 18. ENTIRE AGREEMENT.
This Agreement, together with any exhibits attached hereto,
constitutes the entire understanding and agreement of the parties
hereto regarding the employment of Executive. This Agreement
supersedes all prior negotiations, discussions, correspondence,
communications, understandings and agreements between the parties
relating to the subject matter of this Agreement.
SECTION 19. SURVIVAL OF OPERATIVE SECTIONs.
Upon any termination of Executive's employment, the provisions of
Sections 7 through 19 of this Agreement shall survive to the extent
necessary to give effect to the provisions thereof.
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SECTION 20. COUNTERPARTS; FACSIMILES.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Facsimiles containing original
signatures shall be deemed for all purposes to be originally-signed
copies of the documents which are the subject of such facsimiles.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date and year first above written.
THE COMPANY:
NORD RESOURCES CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
President and Chief Operating
Officer
THE EXECUTIVE:
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
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