EXHIBIT 10.25
SETTLEMENT AGREEMENT
AND
MUTUAL AND GENERAL RELEASE
This Settlement Agreement (the "Agreement") is made and entered into effective
as of the 31st day of October, 2004, by and between Nord Resources Corporation,
a Delaware corporation (the "Company") and Xxxxxx Xxxxxxxxxxx Xxxx & Landsdowne,
a New Mexico partnership ("SMDL"), directly as well as on behalf of their
respective employees, owners, shareholders, officers, directors, partners,
associates, attorneys, predecessors, successors, assigns, heirs, spouses, former
spouses, firms, brokers, appraisers, business entities and corporations, and
each and all of them, as appropriate in context (and as further specifically
referenced in the terms of this Agreement), and is based upon the following
Recitals:
RECITALS
WHEREAS, SMDL is in the business of providing legal services for
compensation, and has its principal place of business in the City of
Albuquerque, State of New Mexico;
WHEREAS, the Company has incurred indebtedness to SMDL in the principal
amount of One Hundred and Ten Thousand Two Hundred and Fifty-Five Dollars and
Twenty Eight Cents ($110,255.28) (the "Debt"), which is comprised of One Hundred
Thousand Five Hundred and Eighteen Dollars and Forty Nine Cents ($100,518.49)
for legal services rendered prior to the date hereof, plus simple interest
accruing thereupon at six percent (6%) per annum from May 2, 2003 through
November 1, 2004 in the amount of Nine Thousand Two Hundred and Seventeen
Dollars and Nineteen Cents ($9,217.19), plus Five Hundred and Nineteen Dollars
and Sixty Cents ($519.60) for payment by SMDL on behalf of the Company to third
party vendors for direct mail services;
WHEREAS, the Company is presently engaged in efforts to raise funds in the
aggregate amount of at least Fifteen Millions Dollars (the "Funding"); and
WHEREAS, the Company has requested, and SMDL has agreed, to accept in full
settlement of the Debt, monthly payments in the amount of Two Thousand Five
Hundred Dollars ($2,500) beginning November 1, 2004, payable on or before the
tenth day of each month, and accruing simple interest on the unpaid principle
amount at the rate of 6% per annum from November 1, 2004, with the balance to be
paid within fifteen (15) days following the closing by the Company of the
Funding, or, if earlier, November 1, 2005.
NOW, THEREFORE, in consideration of the terms, conditions and
covenants herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, SMDL and the Company
(collectively, the "Parties"), intending to be legally bound, hereby agree as
follows:
AGREEMENT
1. Nature of Agreement.
This Agreement constitutes a fully executed settlement instrument, accord
and satisfaction, and a general, specific and mutual release of all claims by
each of the Parties in connection with the Debt, and of all other claims of
whatever nature, whether or not expressly referred to in the Recitals, between
the Parties and their respective directors, officers, shareholders, partners,
employees, predecessors, successors, heirs, assigns, attorneys, parent
corporations, subsidiaries, divisions, or affiliated corporations or
organizations other than the express obligations of the Parties as set forth
herein.
2. Terms of Agreement.
2.1 Consideration. The Parties have agreed to the following consideration,
on the terms and conditions recited, for a full and complete
settlement of the Debt between them.
(a) Payment. The Company shall pay the Debt to SMDL as follows:
Monthly, in equal installments in the amount Two Thousand Five
Hundred Dollars ($2,500), payable by the tenth day of each month,
beginning November 1, 2004 and continuing thereafter. Interest on
the unpaid principal amount shall accrue from and after November
1, 2004 at the rate of six percent (6%) per annum. The balance of
the unpaid principle and all accrued but unpaid interest shall be
due and payable upon the earlier to occur of (i) within fifteen
(15) days following the closing of the Funding; and (ii) November
1, 2005.
(b) SMDL's Waiver and Release. Upon execution of this Agreement and
except for the obligations of the Company expressly created by
this Agreement, including without limitation the obligation
referred to in Section 2.1(a) above, SMDL waives, releases and
discharges the Company and its, directors, officers,
shareholders, employees, agents, predecessors, successors, heirs,
assigns, attorneys, parent corporations, subsidiaries, divisions,
or affiliated corporations or organizations as to any claims of
SMDL against the Company, or of any obligations of the Company to
SMDL, to any successor in interest or related party of SMDL, or
to any party, entity or person claiming any interest by or
through SMDL (whether directly or by operation of law or any
legal proceeding), in consideration for the release by the
Company of any claims against SMDL, its partners, employees and
agents and for the other consideration provided by the Company in
this Agreement. SMDL hereby waives, releases and discharges any
and all claims and potential claims against the Company, its,
directors, officers, shareholders, employees, and agents and
extends a full, complete and unqualified release to the Company
its, directors, officers, shareholders, employees, and agents as
to all
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claims and potential claims, other than the obligations of the
Company expressly created by this Agreement.
(c) The Company's Waiver and Release. Upon execution of this
Agreement and except for the obligations of the SMDL expressly
created by this Agreement, the Company waives, releases and
discharges SMDL, its partners, employees and agents from any
claim or obligation to the Company, to any successor in interest
or related party to the Company, or to any party, entity or
person claiming any interest by or through the Company (whether
directly or by operation of law or any legal proceeding), in
consideration for the release by SMDL of any claims against the
Company, its, directors, officers, shareholders, employees, and
agents, and for the other consideration provided by SMDL in this
Agreement. The Company hereby waives, releases and discharges any
other claims and potential claims against SMDL, its partners,
employees and agents, and extends a full, complete and
unqualified release to SMDL, its partners, employees and agents
as to all claims and potential claims, other than the obligations
of SMDL expressly created by this Agreement.
2.2 Representations and Warranties.
(a) The Parties each represent and warrant to the other, as to itself
only, and as of the date hereof, that it has not assigned,
conveyed or transferred, or purported to assign, convey or
transfer to any person, firm or corporation, either voluntarily
or involuntarily, any claim, cause of action, or right based on,
or arising out of, or in connection with any matter, fact, or
anything described or referred to in the Recitals. To the extent
any Party has assigned or transferred any claim, cause of action,
or right based on or arising out of these matters, whether
voluntarily or involuntarily, or otherwise breached this
warranty, said Party agrees to defend, indemnify and hold
harmless the other Party and its predecessors, successors,
assigns, representatives, trustees, directors, officers, spouses,
former spouses, agencies, shareholders, beneficiaries, agents,
employees, insurers, receivers, attorneys, and each of them, from
and against any claim, demand, debt, liability, account,
obligation, cost, damage expense, lien, action or cause of action
(including payment of legal fees and costs) based on or arising
out of, or in connection with, any such transfer, conveyance or
assignment, or the purported or claimed transfer, conveyance or
assignment.
(b) Each Party further hereby represents and warrants to the other
Party that the persons signing this Agreement are the lawful
representatives of such Party, have full power and authority to
execute and deliver this Agreement to the other, and that such
Party has full power and authority to enter into and perform this
Agreement, which Agreement
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constitutes the full agreement of the Parties with respect
thereto, and is the valid and obligation of such Party,
enforceable against it in accordance with its terms.
2.3. Attorneys Fees and Costs. The Parties each hereby agree that each will
bear their own costs and attorneys' fees incurred in connection with
all matters reserved by this Agreement, except as otherwise provided
in Section 3, hereof.
3. Remedies in the Event of a Breach.
In the event of a breach of this Agreement, all legal and equitable
remedies may be employed to enforce the terms hereof, including, but not limited
to, temporary restraining orders and preliminary injunctions, the support for
which will be based on this Agreement and declarations or other prima facie
proof of a violation of the terms hereof. In the event of a violation of this
Agreement, the prevailing party will be entitled to recover from the losing
party the prevailing party's reasonable attorney's fees and costs incurred in
connection therewith.
4. Liquidated Damages.
THE COMPANY AND SMDL, DESIRING TO AVOID LITIGATION BETWEEN THEM AS TO THE
DAMAGES SUFFERED IN THE EVENT OF A BREACH OF THIS AGREEMENT BY THE COMPANY, WISH
TO ESTABLISH LIQUIDATED DAMAGES IN THE EVENT THE COMPANY DEFAULTS UPON ITS
PAYMENT OBLIGATIONS HEREUNDER. ACCORDINGLY, THE COMPANY AND SMDL EACH HEREBY
AGREE THAT, IF THE COMPANY COMMITS SUCH A DEFAULT, SMDL SHALL RECEIVE FROM THE
COMPANY, IN ADDITION TO ALL AMOUNTS OTHERWISE OWED HEREUNDER, INCLUDING WITHOUT
LIMITATION, THE AMOUNT OF THE DEBT STILL OWING AT THE TIME OF THE DEFAULT AND
OTHER AMOUNTS OWED UNDER THIS AGREEMENT, AS LIQUIDATED DAMAGES AND NOT AS A
PENALTY, THE SUM OF THIRTY THOUSAND TWO HUNDRED AND FORTY NINE DOLLARS AND
NINETY NINE CENTS ($30,249.99) PLUS SIMPLE INTEREST AT SIX PERCENT (6%) PER
ANNUM FROM THE DATE OF SUCH DEFAULT UNTIL PAID.
5. Successors.
This Agreement is binding upon and shall inure to the benefit of the
Parties and each party's respective successors, assigns, heirs, spouses, agents
and personal representatives.
6. Interpretation.
The Parties acknowledge and agree that they have been given the opportunity
to independently review this Agreement with legal counsel prior to acceptance
and
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agreement to the particular language and provisions. In the event of an
ambiguity in, or dispute regarding the interpretation of same, the
interpretation of this Agreement shall not be resolved by any rule of
interpretation providing for interpretation against the party who causes the
uncertainty to exist or against the drafts.
7. Counterparts; Integration; Facsimile.
This Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument. This Agreement constitutes the entire
agreement and understanding among the parties hereto and supersede any and all
prior agreements and understandings, oral or written, relating to the subject
matter hereof. A facsimile of an original signature on any document or
instrument, including this Agreement, shall be deemed an original signature for
all purposes.
8. Terms Mutually Independent.
Each provision of this Agreement is independent of each other provision,
except that this Agreement shall only be effective upon full performance as to
the recited consideration and the extension of the full, complete, mutual,
general and specific releases.
9. Waiver, Modification and Amendment
No provisions of this Agreement may be waived unless in writing and signed
by all Parties. Waiver of any one provision shall not be deemed to be a waiver
of any other provision. This Agreement may be modified or amended only by a
later writing signed by the Parties.
10. Related Documents
The Parties authorize, entrust and direct their attorneys of record to
execute all documents necessary and to take all actions necessary to accomplish
and carry out the terms of this Agreement, and the Parties agree to execute all
documents reasonably required in order to effectuate the terms of this
Agreement.
11. Construction and Jurisdiction
This Agreement shall be construed in accordance with the laws of the State
of New Mexico. In the event of any breach of this Agreement, or other proceeding
required to enforce the terms or declare the rights of the parties, said dispute
shall be the subject of binding arbitration under the Commercial Rules of the
American Arbitration Association and shall be venued in Bernalillo County, New
Mexico.
12. Titles and Captions
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Paragraph titles and captions contained in this Agreement are inserted only
as a matter of convenience and for reference and in no way define, limit, extend
or describe the scope of this Agreement or the intent of any provision.
13. Notices
All notices required under this Agreement shall be deemed effective if
served by telecopier or, in the option of the sender, by Federal Express or
other overnight delivery system, and shall be forwarded to the Parties as
follows:
If to the Company: Nord Resources Corporation
0000 Xxxxx Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
President
Tel: (000) 000-0000
Fax: (000) 000-0000
With a Copy (which shall)
not constitute notice) to: August Law Group, P.C.
The Atrium Building
00000 Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxxxx X. August, Esq.
Telecopier: (000) 000-0000
It of SMDL: Shuler, Messersmith, Xxxx &
Landsdowne
0000 Xxxxxxxxx., XX
Xxxxx 0000
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed on the date and year written below.
SHULER, MESSERSMITH, XXXX &
LANDSDOWNE
Dated: November 10, 2004 By: /s/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
Title: Partner
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NORD RESOURCES CORPORATION
Dated: November 11, 2004 By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: President
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