EXHIBIT 10.34
PURCHASE, SALE AND
OPTION AGREEMENT
This is a Purchase, Sale and Option Agreement (the "Agreement") between
Titanium Resources Group Ltd. ("TRG") and Nord Resources Corporation ("Nord"),
and is made effective as of August 3, 2005 (the "Effective Date"). In
consideration of the following terms, 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:
1. For US $200,000, plus the entire amount of the Fixed Dividend Payment
set forth in Section 9 below (collectively, the "Initial Price"), TRG hereby
purchases from Nord, and Nord hereby sells to TRG, (a) a separable and divided
2/15 interest in the B Share (the "B Share") issued to Nord by SRL Acquisition
No. 1 Limited ("SRL"), and (b) an Option (the "Option") to purchase all, but not
less than all, of the remaining 13/15 interest in the B Share for a price (the
"Exercise Price") of US $1,300,000 on or before December 15, 2005 (the
"Expiration Date"). In the event that Nord does not receive payment of the
Initial Price from TRG by 5:00 P.M., Pacific Time, on August 17, 2005, (the
"Initial Payment Date"), the offer to sell any portion of the B Share to TRG
shall be revoked, and this Agreement shall be null and void. Timely payment is a
condition of this offer and Nord shall have no obligation to accept any payment
made after any deadline set within this Agreement. Confirmation of the wire
transfer of the Initial Price by TRG to the location designated by Nord, shall
constitute receipt of payment of the Initial Price.
2. If the Option is not exercised and the Exercise Price not paid by 5:00
PM Pacific Time on the Expiration Date, then all rights of TRG in this
Agreement, save and except the 2/15 interest in the B Share as defined in this
Agreement and transferred to TRG after having made payment to Nord in the amount
of the Initial Price, shall immediately cease, including without limitation the
right to exercise the Option.
3. Upon payment of the full amount of the Initial Price by TRG to Nord,
Nord shall assign, transfer and convey to TRG a 2/15 interest in the B Share,
including the right to a proportionate share of any Fixed Dividend Payment (as
defined in Section 9 of this Agreement) which may be or become declared, due and
payable by SRL from and after the Initial Payment Date. Upon Nord's timely
receipt of payment by TRG of the Exercise Price as provided for in
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Section 6 below, and provided the Initial Payment has been timely received by
Nord, Nord shall assign, transfer and convey to TRG its remaining 13/15 interest
in the B Share.
4. Each party hereby agrees that it consents to any act of the other which
occurred prior to the Effective Date, to the extent such act required the
consent of the other (or any of the others affiliates or subsidiary companies),
in accordance with the Shareholder's Agreement or Memo and Articles of
Association of SRL, provided, however, that nothing in this Agreement shall be
deemed to constitute a consent by Nord to any act which is designed to impair,
destroy, alter or modify any of the rights, preferences, privileges,
restrictions or any other material term of, or arising out of the B Share, or
which would have the effect of doing any of the foregoing and further provided
that neither party has consented to any act of the other which in any way would
expose the consenting party to any claim or liability to any third party. Each
party indemnities and holds the other harmless against any such claims or
liability by any third party.
5. The parties agree that TRG's exercise of the Option and timely payment
of both the Initial Price and the Exercise Price shall: (a) constitute a
complete, full, and final termination of any and all agreements and obligations
of each party (or any of its affiliates, parent or subsidiary companies) to each
other; and (b) constitute a full and complete release of any and all claims or
causes of action that either party may have against the other for activities or
events which occurred before the Effective Date.
6. TRG may exercise the Option by sending signed, written notice of such
election to counsel for Nord, August Law Group, P.C., attn: ▇▇▇▇▇▇▇ ▇. August,
by telefacsimile at (▇▇▇) ▇▇▇-▇▇▇▇ at any time through and including the
Expiration Date. The Exercise Price shall be paid within five (5) business days
of the sending of such notice of election to exercise the Option.
7. Nord agrees that upon exercise of the Option and Nord's timely receipt
of the full amount of the Initial Price and the Exercise Price, SRL Acquisition
No. 1 Limited is authorized and directed to transfer Nord's B Share to TRG it
being appointed as attorney in fact for Nord to effectuate this transfer.
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8. This Agreement is governed by the laws of the State of Texas, and any
action arising out of this Option Agreement shall be brought in a court of
competent jurisdiction in Dallas County, Texas.
9. Simultaneously with TRG's payment of the $200,000 to Nord as provided in
Section 1 of this Agreement, TRG agrees that it shall pay to Nord all accrued
and unpaid Fixed Dividends (as such term is defined in SRL'S Articles of
Association, attached as an Exhibit to the Sales and Purchase Agreement, dated
June 15, 1999, by and among Nord, M.I.L. (Investments) S.A.R.L., and SRL), plus
accrued interest at the rate of LIBOR rate plus six percent (6%) (the "Fixed
Dividend Payment"). TRG represents and warrants to Nord that as of August 17,
2005, the Fixed Dividend Payment due and owing to Nord will be US$100,002.41,
and other than the Fixed Dividend Payment, there is no other outstanding
amounts, payments, monies or other obligations due and owing to Nord from SRL by
virtue of or arising out of Nord's ownership of the B Share or the agreements,
documents or instruments pertaining thereto to which Nord is a party or by which
it is bound or governed. The parties hereto acknowledge and agree that,
notwithstanding anything contained in this Agreement, Nord's rights, privileges
and preferences in respect of the B Share, including without limitation its
right to receive Fixed Dividends thereupon, is separate and distinct from, and
shall not be construed as consideration for, the purchase of the Option as
provided in Section 1 of this Agreement, nor shall the amount of the Fixed
Dividend Payment, or any other Fixed Dividend or other amount which may be or
become due and payable to Nord by virtue of its ownership of any portion of the
B Share from and after the Effective Date to the date the Option is exercised,
be reduced as a result of TRG's purchase of the Option and/or the subsequent
exercise of the Option and purchase of the B Share.
10. Nord hereby represents and warrants to TRG that, as of the Effective
Date, Nord is the sole owner and holder of the B Share and that other than
pursuant to that certain Security Agreement and Pledge and Security Agreement,
dated as of October 18, 2004 respectively, by and between Nord and Regiment
Capital, III, L.P. ("Regiment") whereby Nord has granted Regiment an interest in
the B Share as security for Nord's payment and performance of its obligations to
Regiment under that certain Promissory Note by Nord in favor of Regiment, dated
as of October 18, 2004, the B Share is unencumbered and has not been pledged,
assigned, hypothecated or otherwise transferred or conveyed, in whole or in
part, to any party other than as expressly provided herein. Nord covenants to
TRG that, until the Expiration Date, Nord shall not
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pledge, assign, hypothecate, encumber, or otherwise transfer or convey, in whole
or in part, to any party, the B Share.
11. By entering into this Agreement, TRG agrees to be bound by all the
terms and conditions of the Shareholders Agreement, by and among MIL
(Investments) S.A.R.L. and SPV, and Nord Resources Corporation and SRL
Acquisition No. 1 Limited (the "Shareholders Agreement"), and agrees to execute
all documents necessary to effect the purposes of, and as required by, the
Shareholders Agreement, including but not limited to a deed or such other
document confirming to the parties to the Shareholders Agreement that TRG agrees
to be bound by the Shareholders Agreement as a Shareholder in respect of any B
Share, or a fraction thereof, transferred to TRG by Nord.
12. Each party represents that it has the authority to enter into this
Agreement. Each party shall take all such steps as necessary to effect the terms
of this Agreement.
13. This Agreement supersedes any prior understandings or written or oral
agreements between the parties respecting the subject matter of this Agreement
and may not be amended unless in writing signed by the parties hereto.
14. 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.
AGREED:
TITANIUM RESOURCES GROUP LTD. NORD RESOURCES CORPORATION
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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By: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Vice-Chairman Its: Chairman & CEO
August 5, 2005 August 4, 2005
SRL ACQUISITION NO. 1 LTD.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
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By: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Its: Director
August 5, 2005
