EXHIBIT 10.35
RESCISSION AGREEMENT
THIS RESCISSION AGREEMENT ("Agreement"), dated as of August 5, 2005 (the
"Effective Date") is by and between Xxxxxx X. Xxxxxx ("Xx. Xxxxxx"), and Nord
Resources Corporation, a California corporation ("NRC") (collectively, the
"Parties").
WITNESSETH
WHEREAS, on October 20, 2003, NRC granted to Xx. Xxxxxx a stock option (the
"Stock Option") to purchase three million (3,000,000) shares of NRC common stock
at two cents ($0.02) per share; and
WHEREAS, on June 29, 2004, Xx. Xxxxxx partially exercised the Stock Option
to receive one million seven hundred fifty thousand (1,750,000) shares of NRC
common stock (the "Option Shares") at an exercise price of two cents ($0.02) per
share (the "Option Exercise") by paying NRC Thirty-Five Thousand Dollars
($35,000) (the "Exercise Price");
WHEREAS, on April 4, 2005, the Parties made an oral agreement to rescind
the Option Exercise;
WHEREAS, this Agreement is intended to memorialize the Parties' oral
agreement on April 4, 2005, to rescind the Option Exercise; and
WHEREAS, the Parties agree to rescind the Option Exercise upon the terms
and conditions set forth herein.
NOW THEREFORE, in consideration of the promises and respective mutual
agreements herein contained, it is agreed by and between the Parties hereto as
follows:
ARTICLE 1
RESCISSION OF OPTION EXERCISE
1.1 Rescission of Option Exercise. Upon execution of this Agreement,
subject to the terms and conditions herein set forth, and on the basis of the
representations, warranties and agreements herein contained, the Parties agree
the Option Exercise is rescinded, effective June 29, 2004.
1.2 Cancellation of the Shares. The Parties agree that Xx. Xxxxxx has no
right or title to the Option Shares and that the Option Shares shall be
cancelled on the books and records of NRC. Xx. Xxxxxx agrees to deliver the
share certificate representing the Option Shares to NRC by July 20, 2005 for
cancellation.
1.3 Refund of Exercise Fund. NRC agrees to refund to Xx. Xxxxxx the
Exercise Price plus interest, calculated at the rate of 10% per annum commencing
on June 29, 2004; by executing a
1
convertible note (the "Note")in the amount of $35,000 in favor of Xx. Xxxxxx in
the form of Exhibit A, attached hereto, dated to be effective June 29, 2004.
1.4 Effect on Stock Option. In rescinding the Option Exercise, the Parties
agree that the Stock Option shall continue in full force and effect, pursuant to
its terms, just as though the Option Exercise never occurred.
ARTICLE 2
REPRESENTATIONS AND COVENANTS OF NRC AND XX. XXXXXX
2.1 NRC hereby represents and warrants that:
(a) The Note has been duly authorized by the appropriate corporate
action of NRC.
(b) NRC shall transfer title, in and to the Note to Xx. Xxxxxx free
and clear of all liens, security interests, pledges, encumbrances, charges,
restrictions, demands and claims, of any kind and nature whatsoever, whether
direct or indirect or contingent.
(c) As soon as practicable after the Effective Date, NRC shall deliver
to Xx. Xxxxxx the executed Note subject to no liens, security interests,
pledges, encumbrances, charges, restrictions, demands or claims in any other
party whatsoever, except as set forth in the legend on the certificate, which
legend shall provide substantially as follows:
THE SHARES (OR OTHER SECURITIES) REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THE SHARES MAY NOT BE
SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF
COUNSEL THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
(d) Xx. Xxxxxx acknowledges that the Note (and any shares of common
stock received pursuant to the Note (the "Conversion Shares"), unless such
shares are registered for sale with the SEC), will initially be "restricted
securities" (as such term is defined in Rule 144 promulgated under the
Securities Act of 1933, as amended ("Rule 144"), that the Note will include the
foregoing restrictive legend, and, except as otherwise set forth in this
Agreement, that the Note cannot be sold unless registered with the United States
Securities and Exchange Commission ("SEC") and qualified by appropriate state
securities regulators, or unless Xx. Xxxxxx obtains written consent from NRC and
otherwise complies with an exemption from such registration and qualification
(including, without limitation, compliance with Rule 144).
(e) The Company is obligated to register the Conversion Shares in any
registration statement filed by the Company with the Securities and Exchange
Commission after the Effective Date, so that holders of the Conversion Shares
shall be entitled to sell the same simultaneously with and upon the terms and
conditions as the securities sold for the account of the Company are being sold
pursuant to any such registration statement, subject to such lock-up
2
provisions as may be proposed by the underwriter of said registration statement
(the "Piggyback Registration Right").
(e) Xx. Xxxxxx acknowledges and agrees that NRC makes no other
representations or warranties with respect to the Shares or the NRC.
2.2 Xx. Xxxxxx represents and warrants to NRC as follows:
(a) Xx. Xxxxxx has adequate means of providing for current needs and
contingencies, has no need for liquidity in the investment, and is able to bear
the economic risk of an investment in the Note offered by NRC of the size
contemplated. Xx. Xxxxxx represents that he is able to bear the economic risk of
the investment and at the present time could afford a complete loss of such
investment. Xx. Xxxxxx has had a full opportunity to inspect the books and
records of the NRC and to make any and all inquiries of NRC officers and
directors regarding the NRC and its business as he has deemed appropriate.
(b) Xx. Xxxxxx is acquiring the Note, and any Conversion Shares he may
receive, solely for his own account as principal, for investment purposes only
and not with a view to the resale or distribution thereof, in whole or in part,
and no other person or entity has a direct or indirect beneficial interest in
such Note or Conversion Shares.
(c) Xx. Xxxxxx will not sell or otherwise transfer the Note or the
Conversion Shares without registration under the Act or an exemption therefrom
and fully understands and agrees that he must bear the economic risk of holding
the Note and any Conversion Shares he may receive for an indefinite period of
time because, among other reasons, neither the Note nor the Conversion Shares
have been registered under the Act or under the securities laws of any state
and, therefore, cannot be resold, pledged, assigned or otherwise disposed of
unless they are subsequently registered under the Act and under the applicable
securities laws of such states or unless an exemption from such registration is
available.
ARTICLE 3
MISCELLANEOUS
3.1 Entire Agreement. This Agreement sets forth the entire agreement and
understanding of the parties hereto with respect to the transactions
contemplated hereby, and supersedes all prior agreements, arrangements and
understandings related to the subject matter hereof. No understanding, promise,
inducement, statement of intention, representation, warranty, covenant or
condition, written or oral, express or implied, whether by statute or otherwise,
has been made by any party hereto which is not embodied in this Agreement or the
written statements, certificates, or other documents delivered pursuant hereto
or in connection with the transactions contemplated hereby, and no party hereto
shall be bound by or liable for any alleged understanding, promise, inducement,
statement, representation, warranty, covenant or condition not so set forth.
3.2 Notices. Any notice, request, instruction, or other document required
by the terms of this Agreement, or deemed by any of the parties hereto to be
desirable, to be given to any other party
3
hereto shall be in writing and shall be given by personal delivery, overnight
delivery, or mailed by registered or certified mail, postage prepaid, with
return receipt requested, to the following addresses:
TO NRC: Nord Resources Corporation
Attn.: Xxxxxx X. Xxxxxxxx, President
0000 Xxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
TO Xx. Xxxxxx: Xxxxxx X. Xxxxxx
000 Xxxxx Xxxxx Xxxxxxx, #000
Xxxxxx Xxxxx, XX 00000
The persons and addresses set forth above may be changed from time to time by a
notice sent as aforesaid. If notice is given by facsimile, personal delivery, or
overnight delivery in accordance with the provisions of this Section, said
notice shall be conclusively deemed given at the time of such delivery. If
notice is given by mail in accordance with the provisions of this Section, such
notice shall be conclusively deemed given seven days after deposit thereof in
the United States mail.
3.3 Waiver and Amendment. Any term, provision, covenant, representation,
warranty or condition of this Agreement may be waived, but only by a written
instrument signed by the party entitled to the benefits thereof. The failure or
delay of any party at any time or times to require performance of any provision
hereof or to exercise its rights with respect to any provision hereof shall in
no manner operate as a waiver of or affect such party's right at a later time to
enforce the same. No waiver by any party of any condition, or of the breach of
any term, provision, covenant, representation or warranty contained in this
Agreement, in any one or more instances, shall be deemed to be or construed as a
further or continuing waiver of any such condition or breach or waiver of any
other condition or of the breach of any other term, provision, covenant,
representation or warranty. No modification or amendment of this Agreement shall
be valid and binding unless it be in writing and signed by all parties hereto.
3.4 Choice of Law. This Agreement and the rights of the parties hereunder
shall be governed by and construed in accordance with the laws of the State of
California including all matters of construction, validity, performance, and
enforcement and without giving effect to the principles of conflict of laws.
3.5 Jurisdiction. The parties submit to the jurisdiction of the Courts of
the County of Orange, State of California or a Federal Court empaneled in the
State of California for the resolution of all legal disputes arising under the
terms of this Agreement, including, but not limited to, enforcement of any
arbitration award.
4
3.6 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which shall
together constitute one and the same instrument.
3.7 Attorneys' Fees. Except as otherwise provided herein, if a dispute
should arise between the parties including, but not limited to arbitration, the
prevailing party shall be reimbursed by the non-prevailing party for all
reasonable expenses incurred in resolving such dispute, including reasonable
attorneys' fees exclusive of such amount of attorneys' fees as shall be a
premium for result or for risk of loss under a contingency fee arrangement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, as of
the date first written hereinabove.
NRC
NORD RESOURCES CORPORATION.
a Delaware corporation
------------------------------------------
By: Xxxxxx X Xxxxxxxx
Its: President
XX. XXXXXX
------------------------------------------
By: Xxxxxx X. Xxxxxx, an individual
5
EXHIBIT A
FORM OF CONVERTIBLE NOTE
6
