EXHIBIT 10.4
SETTLEMENT AGREEMENT
This Settlement Agreement made as of the 13th day of November, 2003 between:
NORD RESOURCES CORPORATION, a body corporate under the laws of the State of
Delaware ("Resources"), XXXXXX X. XXXXXX ("Xxxxxx") personally and in his
purported capacity as a director of NORD PACIFIC LIMITED, XXXXXX XXXXXXXX
("Xxxxxxxx") personally and in his purported capacity as a director and
officer of NORD PACIFIC LIMITED, XXXXX XXXXXX ("Xxxxxx") personally and in
his purported capacity as a director of NORD PACIFIC LIMITED, and XXXXXXX
XXXXXXXX ("Xxxxxxxx") personally and in his purported capacity as a
director of NORD PACIFIC LIMITED, of the first part
and
PGM VENTURES CORPORATION, a body corporate under the laws of the Province
of New Brunswick ("POM"), and 2034879 ONTARIO LIMITED, ("2034879"), a body
corporate under the laws of the Province of Ontario which is the
wholly-owned subsidiary of PGM, of the second part
WHEREAS:
A. Resources is the holder of 3,697,561 common shares (the "Resources Shares")
of Nord Pacific Limited, a New Brunswick corporation ("NPL");
B. NPL entered into to a joint venture agreement dated the 29th day of November,
2002, with PGM, Nord Australex (PNG) Limited and Simberi Gold Company Limited
(the "JV Agreement");
C. Resources has disputed the validity of the JV Agreement and claimed that the
JV Agreement was required to be approved by the shareholders of NPL in
accordance with the requirements of the Business Corporations Act (New
Brunswick) (the "Act") (the "Dispute");
D. By letter dated October 8, 2003 (the "Letter") written on NPL letterhead and
sent to PGM and others by Xxxxxx in his purported capacity as a director of NPL,
it was claimed that at a shareholder meeting of NPL held on June 28, 2003,
Xxxxxx, Anderson, Bailey, Xxxxxxxx (collectively, the "Individuals") and one
Xxxx Xxxxxxxxx ("Champagne") had been elected as directors of NPL, and that, at
a subsequent board of directors meeting, Xxxxxxxx and Champagne had been elected
as the officers of NPL. The Letter further challenged the validity of the JV
Agreement and the ability of the parties to enter into the JV Agreement;
E. Resources, the Individuals (personally and in their purported capacities as
directors and officers of NPL), PGM and 2034879, have agreed to settle the
Dispute and Resources and the Individuals (personally and in their purported
capacities as directors and officers of NPL) have agreed to withdraw their
objections to the IV Agreement (including as expressed in the Letter) on the
terms and conditions herein contained and the parties hereto have agreed to
enter into this
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agreement for the purpose of expressing their agreements in relation to issues
arising out of the matters hereinbefore recited and otherwise as herein
provided.
Now Therefore this Agreement Witnesses that in consideration of the sum of One
Dollar ($1.00) of lawful money of Canada paid by each of the parties hereto to
each of the other parties hereto (the receipt and sufficiency of which is hereby
acknowledged) and in further consideration of the mutual covenants and
agreements herein contained, the parties hereto covenant and agree as follows:
1. DEFINITIONS
1.1 In this agreement the following terms shall have the meanings indicated:
(a) "Business Day" means a day other than Saturday or Sunday and that is not a
holiday in either Ontario or New Mexico.
(b) "Closing Date" shall mean the day that is ten Business Days after delivery
to PGM of the fully-executed Release referred to in section 3.1.
(c) "Common Shares" means the common shares of PGM and includes any class of
share into which the Common Shares may be convened or reclassified and further
includes any class of share of PGM to which are attached voting rights.
2. REPRESENTATIONS AND WARRANTIES
2.1 Resources represents and warrants that, as of the date hereof, it has not
assigned, in whole or in part, to any person, firm, corporation or other legal
entity, or otherwise encumbered, any of the Resources Shares or any right to any
of Resources Shares, and that no other person, firm, corporation or other legal
entity has any right, option, or interest capable of becoming a right in respect
of the Resources Shares.
2.2 Resources and the Individuals further jointly and severally represent and
warrant that they have not assigned, in whole or in any part, to any person,
firm, corporation, or other legal entity any right to any of the claims advanced
by Resources and/or the Individuals in respect of, or in any way relating to,
the validity of or the ability of any party to enter into, the JV Agreement.
3. RELEASE BY RESOURCES AND THE INDIVIDUALS
3.1 Subject to section 3 herein, Resources and the Individuals (personally and
in their purported capacities as directors and officers of NPL) release PGM and
2034879 from and against any claims raised or which could have been raised with
respect to the authorization, approval, validity, ability to enter into,
execution or delivery of the JV Agreement, including without limiting the
generality of the foregoing, as a result of any failure or alleged failure by
NPL to comply with any requirements of the Act or other aspects of New Brunswick
law, and Resources and the Individuals (personally and in their purported
capacities as directors and officers of NPL) shall deliver to PGM a Release in
the form attached hereto as Exhibit A. duly
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executed by and on behalf of Resources and the Individuals (personally and in
their purported capacities as directors and officers of NFL).
3.2 Resources and the Individuals (personally and in their purported capacities
as directors and officers of NPL) shall in all respects and at all times support
the N Agreement including exercising their voting rights (if any) in respect of
the Resources Shares in favour of approving the N Agreement at any meeting of
the shareholders of NPL that may be called at any time after the Closing Date
for the purposes of considering and/or approving the JV Agreement or any part
thereof,
3.3 The Letter is hereby withdrawn.
4. AGREEMENTS OF PGM
4.1 PGM shall pay to Resources on the Closing Date, by certified cheque or wire
transfer in same day immediately available funds, the amount of Xxx Xxxxxxx
Xxxxxxxx Xxxxxx Xxxxxx Dollars (US$1 00,000).
4.2 PGM shall, for no additional consideration, issue to Resources on the
Closing Date, Three Hundred Thousand (300,000) Common Shares.
5. NOTICE
5.1 All notices, requests, demands or other communications by the terms hereof
required or permitted to be given by one party to another shall be given in
writing by telecopier, personal delivery or by registered mail, postage prepaid,
addressed to such other party or delivered to such other party as follows:
(a) to Resources and the Individuals at:
Nord Resources Corporation
Tucson Xxxxxx
0000 X. Xxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: 000-000-0000
(b) to PGM at:
000 Xxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Fax: 000-000-0000
Attention: Xxxxx Xxxxxx, President
with a copy to counsel for PGM at:
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Xxxxx & Company
1 First Canadian Place
000 Xxxx Xxxxxx Xxxx
X. 5600, X.X. Xxx 000 Xxxxxxx, XX
X0X 0X0
Fax: 000-000-0000
Attention: Xxxxxx Xxxxx
or such other address as may be given by any of them to the others in writing
from time to time and such notices, requests, demands or other communications
shall be deemed to have been received when transmitted or delivered, or, if
mailed, seventy-two (72) hours after 12:01 a.m. on the day following the day of
the mailing hereof; provided that if any such notice, request, demand or other
communication shall have been mailed and if regular mail service shall be
interrupted by strikes or other irregularities, such notices, requests, demands
or other communications shall be deemed to have been received seventy-two (72)
hours after 12:01 a.m. on the day following the resumption of normal mail
service.
6. GENERAL
6.1 This agreement supersedes any and all prior oral or written agreements
between the parties hereto with respect to the JV Agreement
6.2 This agreement may not be assigned by any party hereto without the prior
written consent of the other parties hereto.
6.3 This agreement may be executed in counterparts, each of which when executed
by any of the parties shall be deemed to be an original and such counterparts
shall together constitute one and the same instrument, and a facsimile signature
of any party to this agreement shall constitute the valid and binding signature
of such party with the same effect as if it were an original signature endorsed
on this agreement.
6.4 Time shall in an respects be of the essence hereof.
6.5 This agreement shall be governed by the laws of the Province of Ontario and
shall be interpreted and construed in accordance therewith. Each of the parties
hereto irrevocably and unconditionally attorns to the jurisdiction of the
Ontario Superior Court of Justice, judicial district of Toronto, for any dispute
arising out of the formation, interpretation or execution of the obligations
herein.
6.6 This agreement shall enure to the benefit of and be binding upon the parties
hereto and, as applicable, their respective heirs, executors, administrators,
successors, permitted assigns and other legal representatives.
IN WITNESS WHEREOF the parties hereto have executed this agreement the day and
year first above written.
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NORD RESOURCES CORPORATION
Per:
---------------------------------- -----------------------------------
Date A.S.O. (I have authority to bind
the Corporation)
PGM VENTURES CORPORATION
Per:
------------------------------------- -----------------------------------
Date A.S.O. (I have authority to bind
the Corporation)
2034879 ONTARIO LIMITED
Per:
------------------------------------- -----------------------------------
Date A.S.O. (I have authority to bind
the Corporation)
------------------------------------- ----------------------------------------
Witness XXXXXX X. XXXXXX
------------------------------------- (personally, and in my purported
Date capacity as a director of Nord Pacific
Limited)
/s/ Xxxxxx Xxxxxxxx
------------------------------------- ----------------------------------------
Witness XXXXXX XXXXXXXX
------------------------------------- (personally, and in my purported
Date capacity as a director of Nord Pacific
Limited)
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/s/ Xxxxx Xxxxxx
------------------------------------- ----------------------------------------
Witness XXXXX XXXXXX
------------------------------------- (personally, and in my purported
Date capacity as a director of Nord Pacific
Limited)
/s/ Xxxxxxx Xxxxxxxx
------------------------------------- ----------------------------------------
Witness XXXXXXX XXXXXXXX
------------------------------------- (personally, and in my purported
Date capacity as a director of Nord Pacific
Limited)
