RESCISSION AND SUBSTITUTION AGREEMENT AND RELEASE
Exhibit
10.36
RESCISSION
AND SUBSTITUTION AGREEMENT AND RELEASE
THIS RESCISSION AND SUBSTITUTION
AGREEMENT, made this 24th day of August, 2007 by and
between:
GLOBAL RESOURCE CORPORATION, a
Nevada corporation with its principal offices located at 000 Xxxxxxxxxx Xxxx,
Xxxx #0, Xxxx Xxxxxx, Xxx Xxxxxx 00000 (hereinafter "Global")
AND
BLACK DIAMOND FUND, LLLP, a
limited liability limited partnership organized undeer the laws of Minnesota
with principal offices located at 000 Xxxxxx Xxxxx, Xxxxx 00, Xxxxxxxxxx,
Xxxxxxxx (hereinafter "Black Diamond")
WITNESSETH
THAT:
WHEREAS,
Global engaged Westor Capital Group, Inc. ("Westor") to conduct a private
placement of its securities (the "Westor investment transaction"), such
"securities" consisting of 10% Convertible Debentures together with Class A
Common Stock Purchase Warrants, Class B Common Stock Purchase Warrants, and
Class C Common Stock Purchase Warrants;
WHEREAS,
such private placement offering was to have been completed within 45 days
following certain defined events which, in fact, occurred by April 26,
2007;
WHEREAS,
by the end of the 45 days thereafter only Black Diamond and one other fund had
invested, and Black Diamond had subscribed for $300,000 and had paid in 50% of
that ($150,000) and the private placement, as a whole, had not been completed as
between Global and Westor;
WHEREAS,
certain events occurred, including (1) the de-listing of Global's Common Stock
from the OTC Bulletin Board and its trading on the so-called Pink Sheets and (2)
the refusal of the trustee of the liquidating trusts to delay the distribution
of the Global shares held by it for a period of 6 months after effectiveness of
the registration statement, as a result of which Global violated certain
covenants and/or representations contained in the private placement documents or
related documents and Global determined not to extend the offering, but to
withdraw it, and Westor and the Escrow (Citizens Bank) were so
notified;
WHEREAS,
Black Diamond and the other fund, as the two investors, have notified Global of
what it believes to be misrepresentations and Global made an offer of rescission
to both Black Diamond and the other fund;
WHEREAS,
the parties have negotiated, have reached certain understandings, and desire to
formalize and evidence their understandings;
NOW, THEREFORE, intending to
be legally bound, and in consideration of the mutual promises and covenants
contained herein, the parties have agreed, and do hereby agree, as
follows:
ARTICLE
I
RESCISSION
AND SUBSTITUTION
The
parties hereby mutually rescind the entire Westor investment transaction. The
intent is: (i) to nullify and void, ab initio, the execution by
the parties of:
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a. The 10%
Secured Convertible Debenture;
b. The Class
A Common Stock Purchase Warrants;
c. The Class
B Common Stock Purchase Warrants;
d. The Class
C Common Stock Purchase Warrants;
e. The
Registration Rights Agreement;
f. The
Securities Purchase Agreement; and
g. All
other documents and instruments related to the Westor investment transaction;
and (ii) to return the parties to their original status as though such documents
had never been executed and none of such documents shall have any legal effect.
Global has previously repaid to Black Diamond the sum invested ($150,000)
together with interest at the rate of 9% (being the legal rate of interest on
judgments in the State of Illinois) from April 27, 2007 to the date of such
rescission repayment.
In
substitution and exchange for the rescinded investments, Global shall issue to
Black Diamond, the following:
a. One
Hundred Fifty Thousand (150,000) Common Stock Purchase Warrants, exercisable at
eighty cents ($.80) per share, at any time and from time to time until the
expiration date, at the option of the warrant holder. The expiration date shall
be December 31, 2009. In recognition of the fact that Black Diamond has been at
market risk during the period from April 17, 2007 to the date hereof, the
Warrants shall bear an issuance date of April 27, 2007. These warrants shall not
contain any anti-dilution or cashless exercise provisions.
b. One
Hundred Fifty Thousand (150,000) Common Stock Purchase Warrants, of which 50,000
shall be exercisable at one dollar and sixty-five cents ($1.65), 50,000 shall be
exercisable at one dollar and eighty-five cents ($1.85) and 50,000 shall be
exercisable at two dollars. The warrants shall be exercisable at any time and
from time to time until the expiration date, at the option of the warrant
holder. The expiration date shall be December 31, 2009. These warrants shall
contain a cashless exercise provision but shall not contain any anti-dilution
provisions. In recognition of the fact that Black Diamond has been at market
risk during the period from April 17, 2007 to the date hereof, the Warrants
shall bear an issuance date of April 27, 2007.
Global
shall include the shares underlying the foregoing 300,000 warrants in its SB-2
Registration Statement currently in preparation and, following effectiveness,
shall keep such Registration Statement current at all times until December 31,
2009. In the event that Global does not file the Registration Statement
including such shares with the SEC by September 30, 2007 Global shall issue to
Black Diamond 18,750 shares of its Common Stock as penalty. In the event that
Global has not secured effectiveness of the Registration Statement by February
29, 2008, Global shall issue to Black Diamond 18,750 shares of its Common Stock
as a penalty.
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ARTICLE
II
RELEASES,
COVENANTS NOT TO XXX AND CONSIDERATION THEREFOR
Black
Diamond hereby remises, releases and forever discharges Global, its subsidiaries
and affiliates, its past, present and future officers, directors, employees,
accountants, attorneys, agents and representatives and stockholders of and from
any and all debts, demands, actions, causes of action, suits, proceedings,
agreements, contracts, judgments, damages, accounts, reckonings, executions,
claims and liabilities whatsoever of every name and nature, whether known or
unknown, whether or not well founded in fact or in law, and whether in law or in
equity or otherwise, which Black Diamond ever had, now has, or which Black
Diamond's assignees, shareholders, members, partners and successors can, shall
or may have for or by reason of any matter, cause, or anything whatsoever,
arising, directly or indirectly, from the Westor investment transaction and/or
the documents rescinded above.
Black
Diamond shall not, directly, or indirectly, as an investor in the Westor
investment transaction, file, commence, initiate or instigate any formal or
informal investigation by any regulatory or administrative agency or body, or
any suit (at law or in Equity), arbitration, administrative proceeding, or any
other action or proceeding of any kind against Global, its past, present and
future officers, directors, employees, accountants, attorneys, agents,
consultants and representatives and stockholders.
Global
hereby remises, releases and forever discharges Black Diamond, their members,
managers and affiliates, their past, present and future officers, directors,
employees, accountants, attorneys, agents and representatives and stockholders
of and from any and all debts, demands, actions, causes of action, suits,
proceedings, agreements, contracts, judgments, damages, accounts, reckonings,
executions, claims and liabilities whatsoever of every name and nature, whether
known or unknown, whether or not well founded in fact or in law, and whether in
law or in equity or otherwise, which Global ever had, now has, or Global and/or
Global's assignees, shareholders, members, partners and successors can, shall or
may have for or by reason of any matter, cause, or anything whatsoever, arising,
directly or indirectly, from the Westor investment transaction and/or the
documents rescinded above.
Global
shall not, in connection with the Westor investment transaction, directly, or
indirectly, file, commence, initiate or instigate any suit (at law or in
Equity), arbitration, administrative proceeding, or any other action or
proceeding of any kind against Black Diamond, its past, present and future
officers, directors, employees, accountants, attorneys, agents, consultants and
representatives and stockholders.
The
parties acknowledge and agree that the foregoing releases and covenants are
related solely to the rescission of the Westor Investment Transaction and are in
consideration for each other, not separate or additional consideration
hereunder. No claim shall be made by either party that its release and/or
covenant constitutes consideration with respect to the substituted securities or
the exercise of the warrants.
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ARTICLE
III
ADDITIONAL
INVESTMENT
During
the period from the date hereof to October 31, 2007 Global shall advise Black
Diamond, within three (3) business days thereof, of the terms of each and every
financing offer (and any amendments thereto) made to Global by any third party
and each and every financing offer (and any amendments thereto) made by Global
to any third party, and Black Diamond shall have the right to participate in
such financing upon the same terms and conditions as the third party to the
dollar amount ($300,000) of its original, rescinded subscription under Article
I.
ARTICLE
IV
MISCELLANEOUS
1. THIRD PARTY BENEFICIARY. This
Agreement shall not confer any rights or remedies upon any person other than the
parties and their respective successors and permitted assigns.
2. CONTROLLING LAW; VENUE. This
Agreement and each of the other documents ancillary hereto shall be governed by,
and interpreted and construed in accordance with, the internal laws of the State
of Illinois (without regard to its conflicts of law principles). Venue for the
adjudication of any claim or dispute arising out of this Agreement or any of the
other ancillary documents shall be proper only in the state or federal courts of
the State of Illinois, and all parties to this Agreement and its ancillary
documents hereby consent to such venue.
3. EXPENSES. Each party shall be
responsible for its own costs and expenses) incurred in connection with this
Agreement and the transactions contemplated hereby.
4. PUBLIC DISCLOSURE. Black
Diamond acknowledges that Global is a reporting company under the Securities
Exchange Act of 1934 and must disclose this Agreement and the terms and
conditions hereof. Accordingly, Black Diamond authorizes Global to issue such
press release and file such periodic report as may be required.
5. ATTORNEY FEES. Should a party
default in the terms or conditions of this Agreement and suit be filed as a
result of such default, the prevailing party shall be entitled to recover all
costs incurred as a result of such default including all costs and reasonable
attorney fees, expenses and court costs through trial and appeal.
6. WAIVER OF BREACH. The waiver
by a party of a breach of any provision of this Agreement by another party shall
not operate or be construed as a waiver of any subsequent breach by the
breaching party.
7. BENEFIT OF AGREEMENT AND ASSIGNMENT.
The rights and obligations of the parties under this Agreement shall
inure to the benefit of, and shall be binding upon, the successors
and assigns of the parties. This agreement may not be assigned by either party
or by operation of law or otherwise.
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8. NOTICES. Any notice required or permitted to be
given under this Agreement shall be sufficient if in writing, and if sent by
certified mail, return receipt requested, to the principal office or residence
of the party being notified.
9. ENTIRE AGREEMENT. This instrument contains the
entire agreement of the parties and may be modified only be agreement in
writing, signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought. If any provision of this
Agreement is declared void, such provision shall be deemed severed from this
Agreement, which shall otherwise remain in full force and effect. The terms
herein may not be modified or waived orally, but only by an instrument in
writing signed by the party against which enforcement of the modification or
waiver (as the case may be) is sought.
10. ARBITRATION. Any controversy or claim arising
out of or relating to this Agreement shall be
settled by arbitration in Xxxx County, Illinois, in accordance with the
applicable rules, then obtaining, of the American Arbitration
Association.
11. COUNTERPARTS. 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 instrument.
IN WITNESS WHEREOF, the parties hereto,
intending to be legally bound, have executed this Agreement.
GLOBAL
RESOURCE CORPORATION
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By:
/s/ Xxxxx X. Xxxxxxx
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Xxxxx
X. Xxxxxxx, Pres./CEO
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BLACK
DIAMOND FUND, LLLP
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By:
/s/ signature
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Manager
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