Exhibit 10.51
SETTLEMENT AGREEMENT
BETWEEN AND AMONG:
NORD RESOURCES CORPORATION, a body corporate, with offices in Dragoon, Arizona
("NRC");
NORD PACIFIC LIMITED, a body corporate of the Province of New Brunswick, Canada,
with offices in Albuquerque, New Mexico ("NORD PACIFIC");
XXXX X. XXXXX, and individual residing in Albuquerque, New Mexico ("WE1CH");
XXXXXX X. XXXXX, an individual residing in Albuquerque, New Mexico;
XXXX XXXXXXX, an individual residing in St. Georges, South Australia
("XXXXXXX");
XXXXXXX XXXXXXX, an individual residing in Albuquerque, New Mexico ("LANSING");
XXXX XXXXXXXX, as trustee for the Retirement Trust of Xxxx X. Xxxxx and Xxxxxx
X. Xxxxx;
XXXXXX X. XXXXXX an individual residing in Laguna Beach, California ("XXXXXX");
XXXXXX XXXXXXXX an individual residing in Oro Valley, Arizona ("XXXXXXXX");
XXXXX XXXXXX an individual residing in Dragoon, Arizona ("XXXXXX"); and
XXXXXXX XXXXXXXX an individual residing in Xxxxxx, Arizona ("XXXXXXXX");
RECITALS:
WHEREAS:
X. Xxxx Resources Corporation commenced an action in the Court of Queen's Bench
of the Province of New Brunswick, Canada, Trial Division Judicial District of
Saint Xxxx, Court File No: SIMJ2S/03 (the "NB ACTION") against Nord Pacific
Limited, Xxxx X. Xxxxx, Xxxxxx X. Xxxxx, Xxxx Xxxxxxx, Xxxxxx Xxxxxxx and Xxxx
Xxxxxxxx as trustee for the Retirement Trust of Xxxx X. Xxxxx and Xxxxxx Xxxxx
(collectively, including Nord Pacific, the "NB DEFENDANTS").
B. NRC and Xxxxxx commenced Action No. CV-2002 in the Second Judicial District
Court in the State of New Mexico (the "NEW MEXICO ACTION") against Nord Pacific,
Xxxxx, Lansing and Xxxxxxx (collectively the "NEW MEXICO DEFENDANTS"), who filed
counterclaims (the "NEW MEXICO COUNTERCLAIMS") against NRC, Xxxxxx and Xxxx
Xxxxxxxxx (collectively the "NEW MEXICO COUNTER-DEFENDANTS").
X. Xxxx Pacific commenced Action No. CIV 03-0799 BB/ACT in the United States
District Court for the District of New Mexico (the "FEDERAL ACTION") against
NRC, Xxxxxx, Xxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxx and Xxxxxxxx (collectively the
"FEDERAL DEFENDANTS").
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D. NRC and the NB Defendants, as well as their respective principals, officers,
directors, subsidiaries, associates, affiliates, agents, predecessor and
successor corporations, heirs, assigns and administrators, as the case may be
("NB ASSOCIATED PARTIES"), wish to finally and completely resolve any and all
claims or counterclaims (including the New Mexico Counterclaims) that were made,
ought to have been made or could have been made in the NB Action, including but
not limited to any claim for costs in the Action (the "NB CLAIMS"), and to that
end acknowledge and agree that the Recitals herein are true and that they form
part of the terms of this Settlement Agreement.
X. Xxxx Pacific and the New Mexico Defendants and the New Mexico
Counter-Defendants other than Xxxx Xxxxxxxxx, as well as their respective
principals, officers, directors, subsidiaries, associates, affiliates, agents,
predecessor and, successor corporations, heirs, assigns and administrators, as
the case may be ("NEW MEXICO ASSOCIATED PARTIES"), wish to finally and
completely resolve any and all claims or counterclaims that were made (including
the NEW MEXICO COUNTERCLAIMS), ought to have been made or could have been made
in the New Mexico Action, including but not limited to any claim for costs in
the New Mexico Action and the New Mexico Counterclaims (the "NEW MEXICO
CLAIMS"), and to that end acknowledge and agree that the Recitals herein are
true and that they form part of the terms of this Settlement Agreement.
X. Xxxx Pacific and the Federal Defendants other than Xxxx Xxxxxxxxx, as well as
their respective principals, officers, directors, subsidiaries, associates,
affiliates, agents, predecessor and, successor corporations, heirs, assigns and
administrators, as the case may be ("Federal ASSOCIATED PARTIES"), wish to
finally and completely resolve any and all claims or counterclaims that were
made, ought to have been made or could have been made in the Federal Action,
including but not limited to any claim for costs in the Federal Action (the
"FEDERAL CLAIMS"), and to that end acknowledge and agree that the Recitals
herein are true and that the' form part of the terms of this Settlement
Agreement.
G. All the parties hereto acknowledge and agree that there is valid
consideration supporting this Settlement Agreement, including the inducement to
Allied Gold Limited ("ALLIED"):
(a) to enter into an arrangement agreement (the "ARRANGEMENT AGREEMENT")
under which Allied would exchange shares of Allied for all of the shares of the
Corporation and Nord Pacific shareholders and NRC would be entitled to benefit
therefrom as a shareholder, and
(b) to enter into a credit facility agreement (the "CREDIT AGREEMENT")
contemplating whereunder Allied would obtain notes of Nord Pacific convertible
into shares of Nord Pacific in exchange for certain advances to be made to Nord
Pacific to pay certain costs and expenses of Nord Pacific including historic
costs of Nord Pacific;
(collectively the Arrangement Agreement and the Credit Agreement are
hereinafter referred to as the "ALLIED AGREEMENTS");
NOW THEREFORE the parties hereto agree to the following TERMS:
1. The terms of this Settlement Agreement shall be disclosed by press release
mutually agreed by NRC and Nord Pacific and may be described in documents
required to be filed by Nord Pacific or which relate to the Arrangement
Agreement.
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2. It is expressly acknowledged by each of the parties hereto that there is no
admission of liability on the part of the NB Defendants for any of the NB Claims
and there is no admission liability on the part of the New Mexico Defendants for
the New Mexico Claims or the Federal Defendants for the Federal Claims and in
each case such liability is denied.
3. All parties acknowledge that the directors of Nord Pacific are Xxxxxxx, Xxxxx
and Lansing.
4. In order to allow the Board of Directors of Nord Pacific to immediately
approve and for Nord Pacific to enter into this Settlement Agreement and the
Allied Agreements, each of Hirsch, Anderson, Xxxxxx and Xxxxxxxx who were
purported to be elected on June 28, 2003 agree to resign effective immediately
from any position they may have on the Board of Directors of Nord Pacific and
from any office or employment they may have in Nord Pacific and to release Nord
Pacific from any claims in respect thereof, NRC and Xxxxxx shall forthwith
petition the Court of Queen's Bench of the Province of New Brunswick, Canada,
Trial Division Judicial District of Saint Xxxx, to declare that the directors of
Nord Pacific are Xxxxxxx, Lansing and Xxxxx and that Xxxx Xxxxxxxxx is not a
director thereof and Nord Pacific shall support NRC in this regard.
5. NRC shall cause its counsel to take all action necessary to withdraw the NB
Action without costs. The NB Defendants hereby authorize the solicitors for NRC
to execute on their behalf and to file all documents necessary to achieve the
same and shall consent to any order of the New Brunswick Court: (i) terminating
the New Brunswick court's interim order; and (ii) declaring that the existing
directors of Nord Pacific are Xxxxx, Lansing and Xxxxxxx and that Xxxx Xxxxxxxxx
is not a director thereof;
6. NRC represents and warrants that it has delivered to PGM Ventures Corporation
('PGM") an executed copy of release and withdrawal of the letter of October 9,
2003 in a form which has been agreed upon between NRC and PGM.
7. Upon the Board of Directors of Nord Pacific approving and ratifying this
Settlement Agreement and the entry into of the Allied Agreements:
(a) Each of Nord Pacific and NRC shall provide to each other corporate
resolutions evidencing that this Settlement Agreement has been approved and
shall immediately use their best efforts to complete documentation of the
matters set forth herein.
(b) Nord Pacific shall cause its counsel to promptly file with the Second
Judicial District Court in the State of New Mexico an order dismissing the New
Mexico Action and the New Mexico Counterclaims without costs and to promptly
file with the United States District Court for the District of New Mexico an
order dismissing the Federal Actions without costs. The New Mexico Defendants
hereby authorize the solicitors for Nord Pacific to execute on their behalf and
to file all documents necessary to achieve the same.
(c) The parties hereby agree:
(i) The 4,000,000 shares in Nord Pacific Limited issued to Xxxx Xxxxxxxx in
trust for Xxxx X. Xxxxx ("XXXXX") and Xxxxxx X. Xxxxx in satisfaction of the
debt of an amount
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U.S.$517,311.40 by resolution of the Board of Directors of Nord Pacific dated
March 31, 2003 are accepted as having been validly issued;
(ii) The 400,000 shares issued to Xxxxx by resolutions of the Board of
Directors of Nord Pacific dated February 25, 2002 and December 16, 2002 are
accepted as having been validly issued;
(iii) The 400,000 shares issued to Lansing by resolutions of the Board of
Directors of Nord Pacific dated February 25, 2002 and December 16, 2002 are
accepted as having been validly issued;
(iv) The 400,000 shares issued to Xxxxxxx by resolutions of the Board of
Directors of Nord Pacific dated February 25, 2002 and December 16, 2002 are
accepted as having been validly issued;
(v) Nord Pacific shall acknowledge its indebtedness to Nord Resources
Corporation, which indebtedness shall be subordinated to all other creditors
pursuant to a Subordination Agreement (in substantially the form of
Subordination Agreement set forth as a Schedule to the Credit Facility
Agreement), in an amount of Australian $280,000 upon the NB Action being
withdrawn or dismissed without costs and the interim order of the court therein
dated June 26, 2003 being terminated, and the Board of Nord Pacific thereby
warrants that it shall pass a resolution to authorize such indebtedness and the
Arrangement Agreement shall contemplate that the arrangement thereunder shall
convert such indebtedness at a rate of Australian $0.20 per share into 1,400,000
shares of Allied;
(vi) NRC and its NB Associated Parties, on the one hand, and the NB
Defendants and their NB Associated Parties, on the other hand, hereby release
and forever, discharge each other from any and all actions, causes of action,
claims and demands for damages, loss or injury, howsoever arising and in any way
relating to the NB Action, including the NB Claims;
(vii) Nord Pacific and its New Mexico Associated Parties, on the one hand,
and the New Mexico Defendants, other than Xxxx Xxxxxxxxx, and their New Mexico
Associated Parties, on the other hand, hereby release and forever discharge each
other from any and all actions, causes of action, claims and demands for
damages, loss or injury, howsoever arising and in any way relating to the New
Mexico Action or the New Mexico Counterclaims, including the New Mexico Claims;
(viii) Nord Pacific and its Federal Associated Parties, on the one hand,
and the Federal Defendants, other than Xxxx Xxxxxxxxx, and their Federal
Associated Parties, on the other hand, hereby release and forever discharge each
other from any and all actions, causes of action, claims and demands for
damages, loss or injury, howsoever arising and in any way relating to the
Federal Action, including the Federal Claims;
(ix) All agree not to make any claim or take any proceedings against any
other person, corporation or entity who might claim contribution or indemnity
under the provisions of any legislation, regulations or under law from any party
to this Settlement Agreement;
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(x) Nord Pacific will re-convey to NRC the 20% carried interest held by
Nord Pacific in NRC's Xxxxxxx Camp copper property located near Dragoon, Arizona
and NRC shall assume any and all obligations with respect to such property,
past, present or future and shall indemnify and save harmless Nord Pacific and
its subsidiaries, directors, officers and shareholders, past, present or future
in respect to any claims, obligations or liabilities in respect of such
property;
(xi) NRC and Nord Pacific release each other from any financial obligations
associated with the joint office cost sharing agreement for the Albuquerque
office at 000 Xxxxx Xxxxxx X.X. Xxxxxxxxxxx, Xxx Xxxxxx;
(xii) NRC thereby agrees to accept that the balance of the shares issued by
resolutions of the Board of Directors of Nord Pacific dated February 25, 2002
and December 16, 2002 being the 1.1 million Nord Pacific shares to certain Nord
Pacific employees and consultants (other than Xxxxx, Lansing and Xxxxxxx), the
issuance of 150,000 Nord Pacific shares to Warrama Consulting Pty. Ltd. and
Xxxxxxx Xxxxxx and the future issuance of an additional 1,431,482 Nord Pacific
shares to Xxxxxx Xxxxxx and that NRC releases the recipients of such shares and
the NB Defendants from any claim in respect thereof.
(xiii) NRC will release all business records belonging to Nord Pacific in
its possession including those which are being held at Xxxxxxx Camp.
(xiv) NRC will remove all information pertaining to Nord Pacific from its
website and shall not reintroduce such information in the future.
8. It is further agreed that each of NRC and Nord Pacific will fully disclose to
each other all communications between themselves and Allied relating to the
Arrangement Agreement.
9. This Agreement may be executed by facsimile in counterparts each of which
when executed and delivered shall together constitute one and the same
instrument.
10. This Agreement is governed by the law of the Province of New Brunswick,
Canada
IN WITNESS WHEREOF we have hereunto set our hands this 19th day of December,
2003.
NORD, RESOURCES CORPORATION N0RD PACIFIC LIMITED
Per: /s/ Xxxxxx X. Xxxxxx Per: /s/ Xxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxxx Name: Xxxx X. Xxxxx
Title: Chairman and CEO Title: President and CEO
Per: /s/ Xxxxxx X. Xxxxxxxx Per: /s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxx X. Xxxxxxxx Name: Xxxxxxxx Xxxxxx
Title: President Title: Secretary
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/s/ Xxxx X. Xxxxx /s/ Witness
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XXXX X. XXXXX WITNESS
/s/ Xxxxxx X. Xxxxx /s/ Witness
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XXXXXX X. XXXXX WITNESS
/s/ Xxxx Xxxxxxx /s/ X. Xxxxxxx
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XXXX XXXXXXX WITNESS
/s/ Xxxxxxx Xxxxxxx /s/ Xxxxxx X. Xxxxxx
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XXXXXXX XXXXXXX WITNESS
/s/ Xxxx Xxxxxxxx /s/ Witness
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XXXX XXXXXXXX, WITNESS
as trustee for the Retirement Trust
of Xxxx X. Xxxxx and Xxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxxx /s/ Witness
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XXXXXX X. XXXXXX WITNESS
/s/ Xxxxxx X. Xxxxxxxx /s/ Xxxxxxx X. Xxxxxxxx
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XXXXXX XXXXXXXX WITNESS
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XXXXX XXXXXX WITNESS
/s/ Xxxxxxx Xxxxxxxx /s/ Xxxx Xxxxxxxx
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XXXXXXX XXXXXXXX WITNESS
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PROMISSORY NOTE
Australian $280,000 Dated: December 20, 2003
Pursuant to the Settlement Agreement dated December 19, 2003, (the
"SETTLEMENT AGREEMENT") between Nord Pacific Limited (the "BORROWER"), Nord
Resources Corporation, Xxxx X. Xxxxx, Xxxxxx X. Xxxxx, Xxxx Xxxxxxx, Xxxxxxx
Xxxxxxx, Xxxx Xxxxxxxx as trustee for the Retirement Trust of Xxxx X. Xxxxx and
Xxxxxx X. Xxxxx; Xxxxxx X. Xxxxxx, Xxxxxx Xxxxxxxx, Xxxxx Xxxxxx and Xxxxxxx
Xxxxxxxx, the Borrower hereby provides evidence of the recognition of
indebtedness to be provided pursuant to the Settlement Agreement, as follows.
FOR VALUE RECEIVED, the Borrower, having its principal office and place of
business at 0000 Xxx Xxxxx, XX. Xxxxx 000, Xxxxxxxxxxx, XX 00000, Albuquerque,
New Mexico promises to pay to or to the order of Nord Resources Corporation (the
"LENDER") prior to the distribution of any assets of the Borrower to its
shareholders (which shall include any return of capital, dividend or repurchase
of its own shares by the Borrower), or on such earlier date as the Borrower
shall by written notice to the Lender advise, the principal sum of Two Hundred
Eighty Thousand Australian Dollars (A$280.000) in lawful money of Australia with
no interest thereon. This agreement is governed by the laws of New Brunswick.
NORD PACIFIC LIMITED
Witness: /s/ Witness By: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, President
