EXHIBIT 10.23
AGREEMENT OF OPTION AND RIGHT OF FIRST REFUSAL
THIS AGREEMENT OF OPTION AND RIGHT OF FIRST REFUSAL (the "Option Agreement") is
dated effective as of the 14th day of October, 2004 ("Effective Date"), by and
between Nord Resources Corporation, a Delaware corporation (the "Optionee"), on
the one hand and Xxxxxx X. Xxxxxx, an individual residing in the county of
Orange, State of California ("Xxxxxx") and Xxxxxxx X. Xxxxxxx, an individual
residing in the county of Baltimore, State of Maryland ("Seymour", and
collectively with Xxxxxx, the "Optionors") on the other hand.
RECITALS
WHEREAS, since May 20, 2004, the Optionee has been pursuing an opportunity
(the "Opportunity") to acquire certain assets from ASARCO Incorporated, a New
Jersey corporation ("ASARCO"), which assets comprise the entire Tennessee Mines
Division zinc business as conducted by ASARCO and consisting of the Young, Xxxxx
and Xxx xxxxx, the Xxxxx Concentrator and the Middle Tennessee exploration
properties, including in all cases the operations, impoundments, processing and
other facilities incidental and ancillary to each of the foregoing
(collectively, the "TMD Assets");
WHEREAS, as a result of the development efforts of the Optionee, the
Optionee has been selected by ASARCO as the primary candidate it will negotiate
with for the acquisition of the TMD Assets, and as to which the Optionee has
received versions of a draft Asset Purchase Agreement (the "Purchase Agreement")
for negotiation and execution;
WHEREAS, the Optionee has entered into a bridge loan agreement with
Regiment Capital III, L.P., a Delaware limited partnership (the "Lender"),
pursuant to which the Optionee entered into, executed and delivered to Lender a
Promissory Note, a Security Agreement, a Pledge and Security Agreement, and
certain other documents (collectively, the "Loan Documents"), which Loan
Documents contain certain affirmative and negative covenants which with the
Optionee must abide during the pendency of the bridge loan, and which, among
other things, will restrict the Optionee from using its capital resources to
make an investment in, or conduct any business with respect to, the TMD
Opportunity without its prior written consent (and, as to which, the Lender has
advised this Board of Directors of the Optionee that it will not consent to the
Optionee undertaking the TMD Opportunity at this time or within the foreseeable
future);
WHEREAS, the Optionors have expressed their willingness to assume from the
Optionee all of its rights and interests in the Opportunity, including without
limitation under the Purchase Agreement (collectively, the "TMD Rights"), to
fund such further development expenses as are necessary to complete the
acquisition of and exploit commercially the TMD Opportunity independent of the
Optionee (the "Post-Development Expenses"), and to "reserve" the place of the
Optionee with respect to such
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TMD Opportunity until such time as the Lender may consent to its re-acquisition
of the TMD Rights from, and as further developed by, the Optionors; and
WHEREAS, the Optionee has assigned the TMD Rights to the Optionors pursuant
to an Agreement of Assignment and Assumption of the TMD Rights, dated of even
date herewith (the "Assignment Agreement") as consideration for Optionors' grant
to Optionee of a right of first refusal and an option to purchase the TMD Rights
from the Optionors upon the payment to the Optionors of the Post-Development
Expenses plus such premium for taking the risks of development of the TMD
Opportunity as the parties may mutually agree (and as established as fair and
reasonable to the Optionee by an independent person with experience in the
valuation of business opportunities in the mining industry generally)
("Premium").
NOW, THEREFORE, in consideration of the foregoing premises, and the
promises and covenants herein contained, and for the consideration set forth
herein and 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:
ARTICLE X.
XXXXX OF OPTION
1.1 GRANT OF OPTION. Optionors hereby grant Optionee an option (the "Option") to
acquire the TMD Rights, subject to and in accordance with the terms of this
Option Agreement.
1.2 CONSIDERATION. As consideration for the Option (the "Option Consideration"),
the Optionee agrees to assign all of the TMD Rights to the Optionors, and the
Optionors hereby agree to assume all of the obligations associated with the TMD
Rights pursuant to that certain Agreement of Assignment and Assumption of even
date herewith.
1.3 TERM. The term of the Option (the "Option Period") shall commence on the
date hereof and expire on the two (2) year anniversary of the Effective Date
unless extended by mutual written agreement of the parties hereto or in the
event of exercise of the Option by the Optionee.
1.4 EXERCISE OF TMD OPTION. The Option may be exercised at any time during the
Option Period by written notice from the Optionee to the Optionors specifying a
date for closing the transaction (the "Closing Date"), which shall occur at
least ninety (90) days but no more than two hundred seventy (270) days
subsequent to the date of notice. Within ten (10) business days from the date of
receipt of the written notice from the Optionee, Optionors shall engage a
valuation firm reasonably acceptable by Optionee ("Valuation Firm") to determine
the Premium and must deliver to Optionee a request for exercise price ("Request
for Exercise Price") within thirty (30) days from the date of engagement of the
Valuation Firm. The Request for Exercise Price shall set forth the amounts of
the Post-Development Expenses and the Premium and shall be accompanied
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by a fairness opinion rendered by the Valuation Firm that the amount of Premium
is fair from a financial point of view to the shareholders of Optionee. Within
ten (10) days of Optionee's receipt of the Request for Exercise Price and the
fairness opinion, Optionee shall notify Optionors in writing whether Optionee
accepts the determination of the Premium and the Purchase Price (as defined
below).
1.5 PURCHASE OF TMD RIGHTS. Upon the exercise of the Option, and subject to all
the conditions herein and the performance by each of the parties hereto of their
respective obligations hereunder, Optionee agrees to purchase from Optionors,
and Optionors agree to sell and deliver to Optionee, on the Closing Date, all of
the TMD Rights (the "Closing"). The purchase price (the "Purchase Price") for
the TMD Rights to be acquired upon exercise of the TMD Option shall be an amount
equal to the aggregate of the Post-Development Expenses and the Premium.
1.6 ASSUMPTION OF LIABILITIES. Upon exercise of the Option, Optionee shall
assume, discharge or be liable for any debts, liabilities or obligations of the
Optionors incurred in connection with its assumption of the duties and
obligations of the Optionee pursuant to the Assignment Agreement and the
development and commercial exploitation of the TMD Rights thereafter
(collectively, the "Obligations") including, without limitation, any (a)
Obligations of the Optionors to their creditors or equity owners; (b)
Obligations of the Optionors with respect to any transactions; or (c) taxes or
other Obligations of the Optionors incurred in connection with the grant of the
Option or sale of the TMD Rights pursuant to this Agreement.
ARTICLE 2
RIGHT OF FIRST REFUSAL
2.1 OPTIONEE'S RIGHT OF FIRST REFUSAL. Before any of the TMD Rights held by
Optionors may be sold or otherwise transferred (including transfer by gift or
operation of law), the Optionee or its assignee(s) shall have a right of first
refusal to purchase the TMD Rights on the terms and conditions set forth in this
Article 2 (the "Right of First Refusal").
22. NOTICE OF PROPOSED TRANSFER. The Optionors shall deliver to Optionee a
written notice (the "Notice") stating: (i) the Optionors' bona fide intention to
sell or otherwise transfer the TMD Rights; (ii) the name of each proposed
purchaser or other transferee ("Proposed Transferee"); and (iii) the bona fide
cash price or other consideration for which the Optionors propose to transfer
the TMD Rights (the "Offered Price"), and the Optionors shall offer the TMD
Rights at the Purchase Price to the Optionee or its assignee(s).
2.3 EXERCISE OF RIGHT OF FIRST REFUSAL. At any time within thirty (30) days
after receipt of the Notice, the Optionee and/or its assignee(s) may, by giving
written notice to the Optionors, elect to purchase all, but not less than all,
of the TMD Rights, at the Purchase Price to determined in accordance with
Section 1.5 above.
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2.4 OPTIONORS' RIGHT TO TRANSFER. If the TMD Rights proposed in the Notice to be
transferred to a given Proposed Transferee are not purchased by the Optionee
and/or its assignee(s) as provided in this Article 2, then the Optionors may
sell or otherwise transfer the TMD Rights to that Proposed Transferee at the
Offered Price or at a higher price, provided that such sale or other transfer is
consummated within one hundred eighty (180) days after the date of the Notice,
that any such sale or other transfer is effected in accordance with any
applicable securities laws and that the Proposed Transferee agrees in writing
that the provisions of this Article 2 shall continue to apply to the TMD Rights
in the hands of such Proposed Transferee. If the TMD Rights described in the
Notice are not transferred to the Proposed Transferee within such period, a new
Notice shall be given to the Optionee, and the Optionee and/or its assignees
shall again be offered the Right of First Refusal before the TMD Rights held by
the Optionors may be sold or otherwise transferred.
2.5 TERMINATION OF RIGHT OF FIRST REFUSAL. The Right of First Refusal shall
terminate as to the TMD Rights upon the exercise of the TMD Option as provided
in Article 1 hereof.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS AND WARRANTIES OF THE OPTIONEE. Optionee hereby represents
and warrants to the Optionors, as of the date hereof, as follows:
(a) Optionee is a corporation duly organized, validly existing and in good
standing under the laws of the state of Delaware and has all requisite power and
authority to carry on its business as it is presently being conducted, to enter
into this Option Agreement and to carry out and perform the provisions hereof;
and
(b) the individuals signing this Option Agreement on behalf Optionee are
the duly elected executive officers of Optionee so indicated, and have full
power and authority to enter into and execute this Option Agreement for and on
behalf of the Optionee; and
(c) Optionee is not bound by or subject to any contract, agreement, court
order or judgment, administrative ruling, law, regulation or any other item
which prohibits or restricts such party from entering into and performing this
Option Agreement in accordance with its terms, or requiring the consent of any
third party prior to the entry into or performance of this Option Agreement in
accordance with its terms by such party.
3.2 REPRESENTATIONS AND WARRANTIES OF THE OPTIONORS. Optionors hereby represent
and warrant to the Optionee, as of the date hereof, as follows:
(a) Optionors have full power and capacity to enter into, execute and
perform this Option Agreement, which Option Agreement, once executed by
Optionors, shall be
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the valid and binding obligation of such party, enforceable against such party
by any court of competent jurisdiction in accordance with its terms;
(b) Optionors are not bound by or subject to any contract, agreement, law,
court order or judgment, administrative ruling, regulation or any other item
which prohibits or restricts such party from entering into and performing this
Option Agreement in accordance with its terms, or requiring the consent of any
third party prior to the entry into or performance of this Option Agreement in
accordance with its terms by such party; and
(c) During the Option Period, the Optionors shall not:
(i) mortgage, pledge, subject to lien, charge or encumbrance or grant
a security interest in any of the TMD Rights; or
(ii) cancel any debt or claim or sell or transfer any of the TMD
Rights except in the ordinary course of business and without first complying
with Article 2 ("Right of First Refusal") hereof.
3.3 Survival of Representations and Warranties. The representations and
warranties contained in and made pursuant to this Option Agreement shall survive
until the first anniversary of the termination of the Option Period.
ARTICLE 4
INDEMNIFICATION
Each party hereby agrees to indemnify and hold harmless the other, together with
such party's officers, directors, partners, shareholders, employees, agents and
representatives, as applicable, (collectively, the "Indemnified parties"), from
and against any loss, cost, damage, claim, charge, set-off, encumbrance or other
obligation or liability (a "Liability") resulting from or arising out of any
material breach of such party's duties, obligations or requirements hereunder
including, without limitation, any and all claims from third parties against any
Indemnified party as a result thereof (a "Third-party Claim"). Such
indemnification shall cover, without limitation, the right to reimbursement of
reasonable attorneys' fees, expenses and costs of litigation, arbitration,
mediation and/or settlement. Payment to the Indemnified parties, and any of
them, shall be made upon notice to the party or parties from whom
indemnification may properly be sought hereunder (the "Indemnifying party") that
a Liability has arisen (or, to the extent that notice has been previously
delivered, that such Liability is continuing), together with any invoice or
other demand for payment to any party, including an attorney defending against
or prosecuting the same, and the Indemnifying party shall promptly furnish
payment thereon as directed in such notice. This Section 5 shall survive
termination and/or expiration of this Assignment Agreement and the TMD Rights
granted herein.
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ARTICLE 5
GENERAL PROVISIONS
5.1 NOTICES. All notices, requests, demands and other communications required or
permitted to be given hereunder shall be in writing and shall be deemed to have
been duly given on the date of personal service or transmission by fax if such
transmission is received during the normal business hours of the addressee, or
on the first business day after sending the same by overnight courier service or
by telegram, or on the third business day after mailing the same by first class
mail, or on the day of receipt if sent by certified or registered mail,
addressed as follows:
If to Optionee: Nord Resources Corporation
0000 Xxxxx Xxxxx Xxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxxx
President
with a copy (which shall
not constitute notice) to: August Law Group, P.C.
00000 Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxxx X. August, Esq.
President
If to Xxxxxx: Xxxxxx X. Xxxxxx
000 Xxxxx Xxxxx Xxxxxxx, #000
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
If to Seymour: Xxxxxxx Xxxxxxx
0000 Xxxx Xxxxxx Xxxx
Xxxxxxxxx Xxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
or to such other address or addresses as such Parties may indicate by written
notice sent n accordance with this Section 16(a).
5.2 BINDING AGREEMENT; ASSIGNMENT. This Option Agreement shall constitute the
binding agreement of the Parties hereto, enforceable against each of them in
accordance
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with its terms. This Option Agreement shall inure to the benefit of each of the
Parties hereto, and their respective heirs, personal representatives, successors
and assigns. This Option Agreement may not be assigned by either Party, whether
by operation of law or by contract, without the prior, written consent of the
other Party hereto.
5.3 ENTIRE AGREEMENT. This Option Agreement constitutes the entire and final
agreement and understanding among the Parties with respect to the subject matter
hereof and the transactions contemplated hereby, and supersedes any and all
prior oral or written agreements, statements, representations, warranties or
understandings by any Party, all of which are merged herein and superseded
hereby.
5.4 GOVERNING LAW; VENUE. This Option 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 within such
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 Option Agreement, the Parties hereby agree to accept the exclusive
jurisdiction of the Courts of the State of Arizona. In the event 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.
5.5 SPECIFIC PERFORMANCE; REMEDIES CUMULATIVE. The Parties hereby agree with
each other that, in the event of any breach of this Option Agreement by any
Party where such breach may cause irreparable harm to any other Party, or where
monetary damages may not be sufficient or may not be adequately quantified, then
the affected Party or Parties shall be entitled to specific performance,
injunctive relief or such other equitable remedies as may be available to it,
which remedies shall be cumulative and non-exclusive, and in addition to such
other remedies as such Party may otherwise have at law or in equity.
5.6 SEVERABLE PROVISIONS. Should any provision of this Option Agreement, be
declared illegal or unenforceable by any court of competent jurisdiction, and
cannot be modified to be enforceable, such provision shall immediately become
null and void, leaving the remainder of this Agreement in full force and effect.
5.7 AMENDMENT. This Option Agreement may not be changed or amended, except by a
writing signed by each of the parties hereto.
5.8 ENTIRE AGREEMENT. This Option Agreement sets forth the entire agreement
between the Parties with respect to any and all matters described herein, and
fully supersedes any prior agreements or understandings between the Parties with
respect to any such matters.
[SIGNATURE PAGE FOLLOWS IMMEDIATELY]
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IN WITNESS WHEREOF, the parties hereto have executed this Option Agreement
as of the date first above written.
OPTIONEE
NORD RESOURCES CORPORATION ATTEST
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxx Xxxxxxxxx
--------------------------------- ------------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxxx Xxxxxxxxx
Title: President Title: Secretary
Date: Sept 07, 2005 Date: 9/07/05
OPTIONORS
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------- ------------------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxxx
Date: Sept 6, 2005 Date:
----------------------------------
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