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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)*
Nord Resources Corporation
(Name of Issuer)
Common Stock, par value $.01 per share
(Title of Class of Securities)
655555 10 0
(CUSIP Number)
James C. Colihan, Esq.
Coudert Brothers
1114 Avenue of the Americas
New York, New York 10036
(212)626-4680
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
October 16, 1996
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1 (b)(3) or (4), check the following box / /.
Check the following box if a fee is being paid with the statement / /. (A fee
is not required only if the reporting person: (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7)
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter disclosure
provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 1 of 41 Pages
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SCHEDULE 13D
CUSIP No. 655555 10 0 Page 2 of 24 Pages
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Jean-Raymond Boulle (foreign person - no IRS identification number issued)
2 Check the Appropriate Box If a Member of a Group*
a. / /
b. / /
3 SEC Use Only
4 Source of Funds*
N/A
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e) / /
6 Citizenship or Place of Organization
British
7 Sole Voting Power
Number of -0-
Shares
Beneficially 8 Shared Voting Power
Owned By 4,000,000
Each
Reporting 9 Sole Dispositive Power
Person -0-
With
10 Shared Dispositive Power
4,000,000
11 Aggregate Amount Beneficially Owned by Each Reporting Person
4,000,000
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares* / /
13 Percent of Class Represented By Amount in Row (11)
20.2%
14 Type of Reporting Person*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
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SCHEDULE 13D
CUSIP No. 655555 10 0 Page 3 of 24 Pages
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
MIL (Investments) S.A. (foreign person - no IRS identification
number issued)
2 Check the Appropriate Box If a Member of a Group*
a. / /
b. / /
3 SEC Use Only
4 Source of Funds*
N/A
5 Check Box If Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e) / /
6 Citizenship or Place of Organization
Luxembourg
7 Sole Voting Power
Number of -0-
Shares
Beneficially 8 Shared Voting Power
Owned By 4,000,000
Each
Reporting 9 Sole Dispositive Power
Person -0-
With
10 Shared Dispositive Power
4,000,000
11 Aggregate Amount Beneficially Owned by Each Reporting Person
4,000,000
12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares* / /
13 Percent of Class Represented By Amount in Row (11)
20.2%
14 Type of Reporting Person*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
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This Amendment No. 2 (this "Amendment") to the Schedule 13D filed on April 25,
1996, as amended by Amendment No. 1 thereto filed on July 11, 1996 (the
"Schedule 13D") on behalf of MIL (Investments) S.A., a Luxembourg corporation
("MIL"), and Mr. Jean-Raymond Boulle, a British citizen with a residential
address at Seaside Plaza, Batiment C, 6 avenue des Ligures, MC-98000 Monaco
("Mr. J.R. Boulle", together with MIL, the "Reporting Persons"), relates to the
Common Stock, par value $.01 per share ("Nord Common Stock"), of Nord Resources
Corporation, a Delaware corporation ("Nord"), and is being filed pursuant to
Rule 13d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"). Capitalized terms used but not otherwise defined herein shall have the
meanings ascribed to such terms in the Schedule 13D.
Item 1. Security and Issuer
This Amendment relates to 2,000,000 additional shares of Nord Common Stock
(the "Acquisition Shares") that MIL has agreed to acquire subject to certain
conditions (the "Closing Conditions") set forth in a Stock Purchase and Sale
Agreement (the "Stock Purchase Agreement") dated October 16, 1996 between Nord
and MIL. If the Acquisition Shares are acquired by MIL in accordance with the
terms of the Stock Purchase Agreement, the total number of shares of Nord Common
Stock beneficially owned by MIL would be 6,000,000, consisting of the
Acquisition Shares, 3,160,000 shares (the "Acquired Shares") of Nord Common
Stock acquired by MIL on April 15, 1996 pursuant to the Stock Purchase and Sale
Agreement between Nord and MIL dated April 15, 1996 (the "April 15 Agreement"),
and 840,000 shares (the "Conversion Shares") of Nord Common Stock acquired by
MIL through conversion of the Promissory Note on July 2, 1996 pursuant to the
Agreement between Nord and MIL dated April 15, 1996 related to the Promissory
Note (the "Note Agreement", together with the "April 15 Agreement", the "April
Agreements").
Item 3. Source and Amount of Funds or Other Consideration
Upon satisfaction of the Closing Conditions, MIL will purchase the
Acquisition Shares for an aggregate purchase price of $10,000,000 (the "Purchase
Price"). The Purchase Price will be paid in cash from MIL's working capital.
Item 4. Purpose of Transaction
MIL entered into the Stock Purchase Agreement pursuant to which MIL agreed,
subject to certain conditions, to purchase the Acquisition Shares for the
Purchase Price. Certain material provisions of the Stock Purchase Agreement are
summarized in Item 6 of this Statement.
(d) In connection with the execution and delivery of the Stock Purchase
Agreement, the Board of Directors of Nord, at a meeting held on October 23,
1996, resolved (i) that the current Board of Directors of Nord be reduced from
eight (8) to seven (7) members with MIL retaining the right to designate three
(3) members as provided for in the April Agreements, and (ii) to amend the April
15 Agreement such that the obligation of MIL to vote all of the Nord Common
Stock held by MIL for the nominees designated by the Board of Directors of Nord
(excluding MIL's nominees) for the Board of Directors of Nord be foreshortened
to expire after the annual
Page 4 of 41
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meeting in the year 1999 rather than the year 2000; provided, however, that such
resolutions will not be effective until the Closing Date (as defined below)
under the Stock Purchase Agreement.
Item 6. Contracts, Arrangements, Understandings or Relationships
with respect to Securities of the Issuer
Stock Purchase Agreement
Set forth below is a summary of certain material provisions of the Stock
Purchase Agreement. The summary is qualified in its entirety by reference to the
complete text of the Stock Purchase Agreement, a copy of which is attached
hereto as an exhibit and incorporated herein by reference.
Pursuant to the terms of the Stock Purchase Agreement, upon satisfaction of
the Closing Conditions, MIL has agreed to purchase the Acquisition Shares from
Nord for an aggregate purchase price of $10,000,000. Purchase by MIL of the
Acquisition Shares (the "Acquisition"), if it occurs, will be made in reliance
upon the transaction "safe harbor" afforded by Regulation S, as promulgated by
the Securities and Exchange Commission under the Securities Act of 1933, as
amended. The Closing Conditions include, among other things, (i) the approval
("Stockholder Approval") of the Nord stockholders (the "Stockholders"), (ii) the
making of all filings required and the expiration of any applicable waiting
period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended and the rules and regulations promulgated thereunder (the "HSR Act"),
(iii) the absence of any "Material Adverse Change" in Nord, as such term is
defined in the Stock Purchase Agreement and (iv) the trueness and correctness
of the representations and warranties made by Nord in the Stock Purchase
Agreement. The Stock Purchase Agreement may be terminated by either MIL or Nord
if the purchase by MIL shall not have occurred on or prior to January 15, 1997.
Nord has agreed to use its best efforts to take all actions necessary to hold a
special meeting on or about November 20, 1996, or the earliest possible date
thereafter which provides sufficient time between proxy mailing and the meeting
date, and to use its best efforts to obtain Stockholder Approval at such meeting
or any adjournment thereof. The Board of Directors of Nord has already
unanimously approved the transactions contemplated under the Stock Purchase
Agreement, and has unanimously resolved to recommend approval of the sale of the
Acquisition Shares by the Stockholders (in each case, with MIL's designees on
the Board of Directors of Nord not participating in such action). The closing
date (the "Closing Date") under the Stock Purchase Agreement will be within five
(5) business days after the later of Stockholder Approval or expiration of the
notice period under the HSR Act.
During the period from October 16, 1996 and continuing until the Meeting
Date or any adjournment or postponement thereof, Nord has agreed not to (i)
offer, sell, contract to sell or otherwise issue or dispose of any shares of
Nord Common Stock or any other securities of Nord, and any other securities that
are convertible into or exchangeable for or that represent the right to receive
shares of Nord Common Stock or any other securities of Nord, or (ii) to announce
or effect any stock split, stock dividend, stock combination, reverse stock
split, stock reclassification or reorganization with respect to shares of Nord
Common Stock or any other security of Nord.
Page 5 of 41
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Pursuant to the Stock Purchase Agreement and subject to the purchase by MIL
of the Acquisition Shares, MIL and Nord have agreed to amend the April
Agreements such that, upon acquisition by MIL of the Acquisition Shares will
have MIL two (2) demand registration rights (the "Demand Registration Rights")
and will have piggy-back registration rights ("Piggy-Back Registration Rights")
with respect to the Acquired Shares, the Conversion Shares and the Acquisition
Shares, collectively, if at the time MIL (or the successors or permitted assigns
of MIL) holds of record at least 500,000 shares of unregistered Nord Common
Stock.
Exercise of the Demand Registration Rights is subject to the further
limitations that (i) MIL must wait at least six (6) months between exercising
its Demand Registration Rights, and (ii) each Demand Registration Right must be
exercised with respect to at least 25% of the shares of Nord Common Stock then
owned by MIL which were originally purchased pursuant to the April Agreements
and the Stock Purchase Agreement. The Piggy Back Registration Rights are the
same as those granted to MIL in the April Agreements.
Nord has agreed to indemnify and hold MIL harmless against any losses
incurred or sustained by MIL which arise out of or result from a breach of any
representation, warranty or covenant of Nord contained in the Stock Purchase
Agreement; and MIL has agreed to indemnify and hold Nord harmless against any
losses incurred or sustained by Nord which arise out of or result from a breach
of any representation, warranty or covenant of MIL contained in the Stock
Purchase Agreement.
Neither the Stock Purchase Agreement nor any rights, obligations or claims
thereunder may be assigned, except that after Stockholder Approval of the
Acquisition and upon prior written notice to Nord, MIL shall have the right to
assign the Stock Purchase Agreement and the rights, obligations and claims
thereunder to J.R. Boulle, or to any entity controlled by J.R. Boulle, provided
that J.R. Boulle thereafter continues to remain in control of such entity. Any
partial assignment of the Stock Purchase Agreement and the rights, obligations
and claims thereunder in conjunction with the transfer of some, but not all of
the Acquisition Shares, shall not affect Nord's obligation with respect to the
Demand Registration Rights which shall be to effect no more than two (2)
registrations in the aggregate for all then-owned shares of Nord Common Stock
owned by MIL and such assignees collectively at the demand of MIL.
Item 7. Material to be filed as Exhibits
The following is filed herewith as an exhibit:
Exhibit 1 Stock Purchase and Sale Agreement between Nord and MIL dated
October 16, 1996.
Page 6 of 41
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SIGNATURES
After reasonable inquiry and to the best of their knowledge and belief, the
undersigned certify that the information set forth in this Statement is true,
complete and correct.
Dated: October 25, 1996
MIL (INVESTMENTS) S.A.
By: /s/ Ekkehart Kessel
Name: Ekkehart Kessel
Title: Administrateur
By: /s/ Edmond Van de Kelft
Name: Edmond Van de Kelft
Title: Administrateur
/s/ Jean-Raymond Boulle
JEAN-RAYMOND BOULLE
Page 7 of 41
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STOCK PURCHASE AND SALE AGREEMENT
BETWEEN
NORD RESOURCES CORPORATION
AND
MIL (INVESTMENTS) S.A.
October 16, 1996
THE SECURITIES TO WHICH THIS AGREEMENT RELATES HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED ("1933 ACT") AND MAY NOT BE OFFERED, SOLD
OR DELIVERED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF,
ANY U.S. PERSON (AS DEFINED HEREIN) PRIOR TO THE FORTY-FIRST DAY AFTER THE
CLOSING REFERRED TO HEREIN OR SUCH LATER DATE AS THEN MAY BE REQUIRED UNDER
REGULATION S (AS DEFINED HEREIN) UNDER THE 1933 ACT.
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STOCK PURCHASE AND SALE AGREEMENT
STOCK PURCHASE AND SALE AGREEMENT ("Agreement") made this 16th day of
October, 1996, by and between NORD RESOURCES CORPORATION, a Delaware corporation
("NRC" or the "Company"), having its principal place of business at 8150
Washington Village Drive, Dayton, Ohio 45458 and MIL (INVESTMENTS) S.A., a
Luxembourg corporation (the "Investor"), having its principal place of business
at Boulevard Royal 25B, L-2449, Luxembourg, Luxembourg.
WHEREAS, NRC is a public company with its shares of common stock, $.01 par
value ("NRC Shares"), listed on the New York Stock Exchange ("NYSE") and NRC
desires to sell to Investor and Investor desires to purchase from NRC, 2,000,000
NRC Shares ("Purchase Shares") in reliance upon the transaction "safe harbor"
afforded by Regulation S ("Regulation S"), as promulgated by the Securities and
Exchange Commission ("SEC") under the Securities Act of 1933, as amended (the
"1933 Act"), subject to the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the premises and the mutual covenants
and conditions set forth herein and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, NRC and Investor
hereby agree as follows:
1. Sale of Purchase Shares. NRC hereby agrees to sell the Purchase Shares
to Investor and Investor hereby agrees to purchase the Purchase Shares from NRC
upon the terms and conditions set forth herein. The purchase price ("Purchase
Price") for the Purchase Shares is $10,000,000 payable in full on the Closing
Date (as hereinafter defined) by wire transfer of federal funds to the account
of NRC as directed by NRC. All "$" references herein are to United States
dollars.
2. 1933 Act - Regulation S.
(a) The Purchase Shares are being offered and sold in an offshore
transaction pursuant to Regulation S.
(b) The Purchase Shares have not been and will not be registered under
the 1933 Act, except as provided for in Section 3 below. The Investor
acknowledges and agrees that from the date hereof until the forty-first (41st)
day after the Closing (as hereinafter defined) or such later date as then
required under Regulation S (the "Restricted Period"), the Purchase Shares may
not be offered, sold or delivered within the United States or to, or for the
account or benefit of, any U.S. Person (as defined in Rule 902(o) promulgated by
the SEC under the 1933 Act), unless the Purchase Shares are registered under the
1933 Act, or an exemption from the registration requirements of the 1933 Act is
available.
(c) Certificates representing the Purchase Shares during the
Restricted Period will contain a restrictive legend, the form of which is
annexed hereto as Exhibit A (subject to modification, upon prior consultation
with Investor's counsel, in the event of a change in Regulation
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S prior to the Closing Date), prohibiting the offer, sale or delivery of the
Purchase Shares within the United States or to, or for the account or benefit
of, any U.S. Person during the Restricted Period. NRC represents and warrants
that no instructions restricting the free transferability of the Purchase Shares
have been, or will be, lodged with the transfer agent for the NRC Shares, other
than a "stop transfer" instruction to remain in force only until the end of the
Restricted Period for resales into the United States or to, or for the account
or benefit of, any U.S. Person, and that such Purchase Shares shall otherwise be
freely transferable on the books and records of the Company and such transfer
agent. Upon surrender of the initial certificates representing the Purchase
Shares to NRC after expiration of the Restricted Period, NRC shall promptly
instruct its transfer agent to issue one or more replacement certificates
representing the Purchase Shares without any restrictive legends thereon or
"stop transfer" instructions applicable thereto, in the name of the Investor and
in such denominations as the Investor shall specify. Nothing herein, however,
shall affect in any way the Investor's obligations and agreements to comply with
all securities laws upon resale of the Purchase Shares.
3. Registration Rights. The Company, effective on Closing, hereby grants to
the Investor the registration rights and "piggy-back registration rights"
regarding the Purchase Shares as set forth on Exhibit B annexed hereto, all of
which are incorporated herein by this reference ("Registration Rights
Provisions") and modifies the provisions of the April 15 Agreements (as
hereinafter defined) in accordance with Section 1(b) of the Registration Rights
Provisions.
4. New York Stock Exchange Listing. NRC covenants and agrees to make
application to list the Purchase Shares with the NYSE immediately after the
Closing.
5. Representations and Warranties of NRC. NRC hereby represents and
warrants to Investor as of the date hereof and as of the date of the Closing
("Closing Date") as follows:
(a) NRC is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has full
corporate power and authority to conduct its business as now being
conducted and to own or lease the assets and properties it now
owns or holds under lease.
(b) Subject to Stockholder Approval (as hereinafter defined), NRC has
full corporate power and authority to execute and deliver this
Agreement and to issue the Purchase Shares and to consummate the
transactions contemplated on its part hereby.
(c) Prior to the date hereof, the Board of Directors of NRC has duly
approved this Agreement and has duly authorized the execution and
delivery of this Agreement and the consummation of the
transactions contemplated hereby. This Agreement has been duly
executed and delivered by NRC and constitutes the legal, valid and
binding obligation of NRC enforceable in accordance with its
terms, subject to bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium and similar laws of general
applicability
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relating to or affecting creditors' rights and to general equity
principles (collectively, the "Enforceability Exceptions"). Upon
Closing, the Purchase Shares will have been duly authorized by NRC
and validly issued, fully paid and nonassessable.
(d) The authorized capital stock of NRC consists of 40,000,000 NRC
Shares as of the date of this Agreement, 19,838,408 NRC Shares
being issued and outstanding as of the date hereof and 1,915,113
NRC Shares being reserved for issuance as of the date hereof upon
the exercise of currently outstanding options, warrants and other
securities convertible into NRC Shares, all of which are described
in the Company's Form 10-K for the year ended December 31, 1995
("Form 10-K") and the Company's Form 10-Q for the quarter ended
June 30, 1996 ("Form 10-Q"). All of the issued and outstanding NRC
Shares have been duly authorized and validly issued and are fully
paid and nonassessable. Except as disclosed in the Form 10-K and
Form 10-Q, as of the date of this Agreement, there are no
preemptive rights, options, warrants, calls, commitments or
agreements of any nature to which the Company or any subsidiary or
affiliate is a party or by which any of them is bound calling for
the issuance or sale of shares of any class of capital stock of
NRC or securities convertible into or exchangeable for shares of
such capital stock. As of the date of this Agreement, neither the
Company nor any of its subsidiaries or affiliates is a party to or
otherwise bound by any agreement, instrument or commitment for the
issuance, purchase or repurchase of any shares of capital stock of
the Company, or entitled to the benefit of any option, right of
first refusal or other elective privilege to purchase any shares
of capital stock of the Company. Except as set forth in those
documents entitled "Stock Purchase and Sale Agreement" dated April
15, 1996 between the Company and Investor and "Agreement dated
April 15, 1996 between the Company and Investor" (collectively,
"April 15 Agreements"), as of the date of this Agreement, neither
NRC nor any of its subsidiaries or affiliates has granted to any
person (i) the right to cause NRC to register any NRC Shares
beneficially owned by such person under the 1933 Act or (ii) the
right to include any NRC Shares beneficially owned by such person
in any registration statement filed by NRC under the 1933 Act.
(e) Neither the execution and delivery of this Agreement by NRC, nor
the consummation of the transactions herein contemplated in
accordance with the terms hereof, will, with or without notice
and/or the passage of time, or both, (i) violate or result in a
breach of or constitute a default under NRC's certificate of
incorporation or by-laws, (ii) violate any statute, ordinance,
rule, regulation, order or decree of any court or of any public or
governmental body, agency or authority applicable to the Company
or any subsidiary or affiliate of the Company or by which any of
their respective properties or assets may be bound, the violation
of which could result in or
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reasonably be expected to have a material adverse effect on the
business, financial condition or results of operations of NRC and
its subsidiaries, taken as a whole ("Material Adverse Effect"),
(iii) except as set forth in Section 9(c) below, require any
filing, declaration or registration with, or permit, consent or
approval of, or the giving of any notice to, any public or
governmental body, agency or authority, the failure of which could
result in a Material Adverse Effect, or (iv) result in a violation
or breach of, or constitute a default (or give rise to any right
of termination, cancellation or acceleration) under any of the
terms, conditions or provisions of any note, bond, mortgage or
other evidence of indebtedness, indenture, license, permit,
concession, agreement or other instrument or obligation to which
the Company or any subsidiary or affiliate is a party, or by which
any of them or any of their respective properties or assets may be
bound, which could result in a Material Adverse Effect.
(f) Subject to Stockholder Approval and compliance with Sections 9 and
10 below, NRC has the absolute right, power, and authority to sell
the Purchase Shares so as to vest in Investor complete and
absolute title to the Purchase Shares free and clear of any lien,
encumbrance, charge or claim and to execute, deliver and carry out
the terms and provisions of this Agreement without the approval or
consent of any third party. The Company, at Closing, will deliver
to the Investor good and valid title to the Purchase Shares, free
and clear of all liens, security interests, options, charges,
beneficial interests, claims and encumbrances of any kind, except
for restrictions on transfer imposed by this Agreement and under
applicable securities laws.
(g) There are no suits, actions, claims, proceedings or investigations
pending or, to the best knowledge of the Company, threatened
against, relating to or involving the Company or any subsidiary or
affiliate of the Company or any properties or rights of the
Company or any subsidiary or affiliate, before any court,
arbitrator or administrative or governmental body, domestic or
foreign, which if adversely determined would have a Material
Adverse Effect. There are no such suits, actions, claims,
proceedings or investigations pending or, to the best knowledge of
the Company, threatened challenging the validity or propriety of
the transactions contemplated by this Agreement.
(h) The Company is not an investment company, or a company controlled
by an investment company, within the meaning of the Investment
Company Act of 1940, as amended.
(i) The Company is a "reporting company" as defined in Rule 902 of
Regulation S. The Company is in full compliance with all filing
obligations under Section 13 of the Securities Exchange Act of
1934 as amended ("1934 Act").
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The Company has not offered the Purchase Shares to any person in
the United States, any identifiable groups of U.S. citizens
abroad, or to any U.S. Person. In connection with the transactions
contemplated by this Agreement, the Company has not conducted any
"directed selling efforts", as that term is defined in Rule 902 of
Regulation S, nor has the Company conducted any general
solicitation relating to the offer and sale of the Purchase Shares
to persons resident within the United States or elsewhere.
(j) The transactions contemplated hereby do not effect a "change of
control" under any material agreement to which NRC or any of its
subsidiaries or affiliates is a party.
6. Representations and Warranties of Investor. The Investor hereby
represents and warrants to NRC as of the date hereof and as of the Closing Date
as follows:
(a) The Investor is a corporation duly organized, validly existing and
in good standing under the laws of Luxembourg and has full
corporate power and authority to conduct its business as now being
conducted and to own or lease the assets and properties it now
owns or holds under lease.
(b) The Investor has full corporate power and authority to execute and
deliver this Agreement and to acquire the Purchase Shares and to
consummate the transactions contemplated on its part hereby.
(c) The Board of Directors (or equivalent) of the Investor has duly
approved this Agreement and has duly authorized the execution and
delivery of this Agreement and the consummation of the
transactions contemplated hereby. This Agreement has been duly
executed and delivered by the Investor and constitutes the legal,
valid and binding obligations of the Investor enforceable in
accordance with its terms, subject to the Enforceability
Exceptions.
(d) Neither the execution and delivery of this Agreement by Investor,
nor the consummation of the transactions herein contemplated,
will, with or without notice and/or the passage of time, or both,
(i) violate or result in a breach of or constitute a default under
its organizational documents, (ii) violate any statute, ordinance,
rule, regulation, order or decree of any court or of any public or
governmental body, agency or authority applicable to the Investor
or by which its properties or assets may be bound, the violation
of which could result in or reasonably be expected to have a
material adverse effect on the business, financial condition or
results of operation of Investor and its subsidiaries, taken as a
whole ("MIL Material Adverse Effect"), (iii) except as set forth
in Section 10(c) below, require any filing, declaration or
registration with, or permit, consent or approval of, or the
giving of any
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notice to, any public or governmental body, agency or authority,
the failure of which could result in a MIL Material Adverse
Effect, or (iv) result in violation or breach of, or constitute a
default (or give rise to any right of termination, cancellation or
acceleration) under any of the terms, conditions or provisions of
any note, bond, mortgage or other evidence of indebtedness,
indenture, license, permit, concession, agreement or other
instrument or obligation to which the Investor is a party, or by
which it or its properties or assets may be bound, which could
result in a MIL Material Adverse Effect.
(e) The Investor is neither a U.S. Person nor a Distributor (as
defined in Regulation 902(c) promulgated by the SEC under the 1933
Act).
(f) The Investor was outside of the United States at the time the
offer to sell the Purchase Shares was made to the Investor and the
Investor was outside the United States at the time the Investor
executed this Agreement and agreed to purchase the Purchase Shares
and covenants and agrees that it will be outside of the United
States at the time it pays the Purchase Price. The offer to sell
the Purchase Shares was directly communicated to the Investor. At
no time was the Investor presented with or solicited by any
leaflets, newspaper or magazine article, radio or television
advertisement or any other form of general advertising or
solicited or invited to attend a promotional meeting.
(g) The Investor has been advised that the sale of the Purchase Shares
to the Investor has not been registered under the 1933 Act or
registered or qualified under state securities laws, and that,
until the expiration of the Restricted Period, the Purchase Shares
may not be offered, sold or delivered in the United States or to,
or for the account or benefit of, any U.S. Person unless the
Purchase Shares are registered under the 1933 Act or an exemption
from the registration requirements of the 1933 Act is available.
The Investor acknowledges that no representation, warranty or
guaranty, express or implied, has been given to the Investor by
NRC or any officer, director, agent, or employee of, legal counsel
to, or any other person connected with, NRC regarding the
availability at any time of an exemption from registration under
the 1933 Act for any offer, sale or other transfer or disposition
of the Purchase Shares by the Investor; and the Investor further
understands and agrees that the availability of any such exemption
from registration must be determined solely by the Investor and
the Investor's own legal counsel based on the particular facts and
circumstances existing at the time of the proposed transaction.
(h) The Investor has not offered or sold, and agrees that it will not
offer or sell, any Purchase Shares directly or indirectly in the
United States or to, or for the benefit, or account of, any U.S.
Person prior to the expiration of the Restricted Period, unless
the offer and sale of such Purchase Shares is
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<PAGE>
registered under the 1933 Act and any applicable state securities
laws, or exemptions from the registration requirements thereof are
available; and that, thereafter, such Purchase Shares may be
offered or sold in the United States or to, or for the account or
benefit of, any U.S. Person only in compliance with the
registration requirements of the 1933 Act and any applicable State
Act, or pursuant to available exemptions from such registration
requirements, or in compliance with the provisions of Regulation
S. The Investor further represents and warrants that it will not,
through any short sale, long sale or other hedging transaction,
engage in any transaction with the Purchase Shares prior to the
expiration of the Restricted Period which would reduce the
Investor's risk of ownership or investment in the Purchase Shares.
7. Stockholder Approval.
(a) The parties acknowledge that, pursuant to Rule 312.03 of NYSE,
approval ("Stockholder Approval") of the NRC stockholders ("Stockholders") is
required for the sale of the Purchase Shares by NRC to the Investor and agree
that the obtaining of such approval is a precondition to Closing hereunder. NRC
agrees to use its best efforts to take all actions necessary to hold a special
meeting of Stockholders ("Special Meeting") on or about November 20, 1996, or
the earliest possible date thereafter which provides sufficient time between
proxy mailing and the meeting date ("Meeting Date"), and to use its best efforts
to obtain Stockholder Approval at such meeting or any adjournment thereof. Such
actions shall include, without limitation, soliciting proxies for approval of
the sale hereunder and, in connection therewith, recommending that Stockholders
vote in favor of the proposal seeking such approval. The Board of Directors of
NRC has heretofore unanimously approved the transactions contemplated under this
Agreement, and has unanimously resolved to recommend approval of the sale by
NRC's Stockholders (in each case, with Investor's designees on the Board not
participating in such action). NRC agrees to set the record date for the Special
Meeting for October 25, 1996. The parties acknowledge and understand that NRC
must submit a preliminary proxy statement to the SEC for review, which NRC
intends to do within five (5) business days after the date of this Agreement. In
the event the transaction with Investor is rejected by the Stockholders, this
Agreement shall be deemed terminated.
(b) During the period from the date hereof and continuing until the
earlier of the Closing Date or the date of termination of this Agreement
pursuant to Section 11 below, NRC shall not (i) offer, sell, contract to sell or
otherwise issue or dispose of any NRC Shares or any other securities of NRC,
(except that NRC may issue up to 1,000,000 NRC Shares pursuant to an offering
under Regulation S at a price no less than $5.00 per NRC Share) nor any other
securities that are convertible into or exchangeable for or that represent the
right to receive NRC Shares or any other securities of NRC (other than pursuant
to existing warrants, options and other convertible securities as set forth in
the Form 10-K), or (ii) announce or effect any stock split, stock dividend,
stock combination, reverse stock split, stock reclassification or reorganization
with respect to NRC Shares or any other security of NRC.
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8. Information for Proxy Statement. Concurrently herewith, Investor shall
provide information regarding its principals and affiliates to NRC and such
other information as NRC shall reasonably request (consistent with applicable
SEC disclosure requirements) so that NRC can include such information in its
proxy statement (the information so provided being referred to as the "Investor
Proxy Information").
9. Conditions to the Obligations of the Investor. The Obligations of the
Investor to consummate the transactions contemplated hereunder shall be subject
to the satisfaction of each of the following conditions at or prior to the
Closing, unless waived by the Investor in writing:
(a) Representations and Warranties True. All of the representations
and warranties of NRC contained in this Agreement shall be true and correct in
all material respects on the Closing Date and NRC shall have delivered separate
certificates to that effect at the Closing.
(b) Performance. NRC shall have performed and complied in all material
respects with all covenants and obligations under this Agreement which are
required to be performed or complied with by NRC on or prior to the Closing
Date.
(c) Approvals, Permits, Etc. All consents, authorizations, approvals,
exemptions, licenses or permits of, or registrations, qualifications,
declarations or filings with, any governmental body or agency thereof that are
required in connection with the sale and transfer of the Purchase Shares to the
Investor pursuant to this Agreement and the consummation of the transactions
contemplated hereby shall have been duly obtained or made in form and substance
reasonably satisfactory to the Investor and its counsel and shall be effective
at and as of the Closing Date. The foregoing shall include, without limitation,
any filings required and the expiration of any applicable waiting period under
the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the
rules and regulations promulgated thereunder (the "HSR Act"). NRC and Investor
agree as promptly as possible hereafter to file or cause to be filed,
respectively, an acquired person's and acquiring person's notification and
report form required by the HSR Act. NRC and Investor shall cooperate and use
their best efforts to expedite such compliance. The best efforts of NRC and
Investor shall include, but shall not be limited to, good faith response, in
cooperation with each other, to all appropriate requests for information,
documentary or otherwise, by any governmental agency pursuant to the HSR Act.
(d) Delivery of Closing Documents. NRC shall have delivered to the
Investor the documents referred to in Section 12(a) hereof, in form and
substance reasonably satisfactory to Investor and its counsel.
(e) Absence of Certain Events. No statute, rule or regulation shall
have been enacted or promulgated which would make any of the transactions
contemplated by this Agreement illegal or would otherwise prevent the
consummation thereof. No order, decree, writ or injunction shall have been
issued and shall remain in effect, by any court or governmental body or agency
thereof which restrains, enjoins or otherwise prohibits the consummation of the
transactions contemplated hereby, and no action, suit or proceeding before any
court or governmental body or
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agency thereof shall have been instituted by any person (or instituted or
threatened by any governmental body or agency thereof), and no investigation by
any governmental body or agency thereof shall have been commenced, with respect
to the transactions contemplated hereby.
(f) No Material Adverse Changes. Since the date hereof, no event shall
have occurred which has resulted in a "Material Adverse Change" in the Company.
For purposes hereof, a "Material Adverse Change" shall mean and be limited to
changed circumstances which materially and adversely affect the financial
condition, operations, assets and/or continued corporate viability of the
Company and its subsidiaries and affiliates, taken as a whole. The Investor
acknowledges that NRC experienced a loss from operations of approximately $5.7
million for the six-month period ended June 30, 1996, and that NRC may
experience additional losses from operations for periods subsequent to June 30,
1996 and through the Closing of a magnitude approximating the losses experienced
in the six-month period ended June 30, 1996, and the Investor agrees that losses
experienced during such six-month period and losses experienced subsequent to
June 30, 1996, to the extent that such losses do not materially exceed those
experienced in such six-month period, will not, for purposes of this Section 9,
be deemed to be a "Material Adverse Change".
10. Conditions to the Obligations of NRC. The obligations of NRC to
consummate the transactions contemplated hereunder shall be subject to the
satisfaction of each of the following conditions at or prior to the Closing,
unless waived by NRC in writing:
(a) Representations and Warranties True. All of the representations
and warranties of the Investor contained in this Agreement shall be true and
correct in all material respects on the Closing Date and the Investor shall have
delivered a certificate to that effect at the Closing.
(b) Performance. The Investor shall have performed and complied in all
material respects with all covenants and obligations under this Agreement which
are required to be performed or complied with by it on or prior to the Closing
Date.
(c) Approvals, Permits, Etc. All consents, authorizations, approvals,
exemptions, licenses or permits of, or registrations, qualifications,
declarations or filings with, any governmental body or agency thereof that are
required in connection with the sale and transfer of the Purchase Shares to the
Investor pursuant to this Agreement and the consummation of the transactions
contemplated hereby shall have been duly obtained or made in form and substance
reasonably satisfactory to NRC and its counsel and shall be effective at and as
of the Closing Date. The foregoing shall include, without limitation, any
filings required and the expiration of any applicable waiting period under the
HSR Act. NRC and Investor agree as promptly as possible hereafter to file or
cause to be filed, respectively, an acquired person's and acquiring person's
notification and report form required by the HSR Act. NRC and Investor shall
cooperate and use their best efforts to expedite such compliance. The best
efforts of NRC and Investor shall include, but shall not be limited to, good
faith response, in cooperation with each other, to all appropriate requests for
information, documentary or otherwise, by any governmental agency pursuant to
the HSR Act.
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<PAGE>
(d) Delivery of Closing Documents. NRC shall have received the
documents referred to in Section 12(a) hereof in form and substance reasonably
satisfactory to NRC and its counsel.
(e) Absence of Certain Events. No statute, rule or regulation shall
have been enacted or promulgated which would make any of the transactions
contemplated by this Agreement illegal or would otherwise prevent the
consummation thereof. No order, decree, writ or injunction shall have been
issued and shall remain in effect, by any court or governmental body or agency
thereof which restrains, enjoins or otherwise prohibits the consummation of the
transactions contemplated hereby, and no action, suit or proceeding before any
court or governmental body or agency thereof shall have been instituted by any
person (or instituted or threatened by any governmental body or agency thereof),
and no investigation by any governmental body or agency thereof shall have been
commenced, with respect to the transactions contemplated hereby.
(f) Section 1 Payment. The payment to be made by the Investor pursuant
to Section 1 shall have been made by the Investor to NRC.
11 Termination.
(a) Reasons for Termination. This Agreement may be terminated at any
time prior to the Closing Date:
(i) by the mutual written consent of the Investor and NRC;
(ii) by either the Investor or NRC:
A. if any statute, rule or regulation has been enacted which
would make any of the transactions contemplated by this Agreement illegal or
would otherwise prevent the consummation thereof or if any court or governmental
body or agency thereof shall have issued any writ or injunction, or taken any
other action, restraining, enjoining or otherwise prohibiting the transactions
contemplated hereby and all appeals and means of appeal therefrom have been
exhausted;
B. if the Closing shall not have occurred on or prior to
January 15, 1997; provided, however, that the right to terminate this Agreement
pursuant to this Section 11(a) shall not be available to any party whose breach
of any representation or warranty or failure to perform or comply with any
covenant or obligation under this Agreement has been the cause of, or resulted
in, the failure of the Closing to occur on or before such date;
(iii) by the Investor, if any of the conditions specified in
Section 9 have not been met or waived prior to such time as such condition can
no longer be satisfied; or
(iv) by NRC, if any of the conditions specified in Section 10
shall not have been met or waived prior to such time as such condition can no
longer be satisfied.
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(b) Effect of Termination. In the event of termination of this
Agreement, this Agreement shall forthwith become null and void and there shall
be no liability on the part of any party hereto or their respective officers or
directors, except for Sections 13 (for any breach occurring prior to
termination), 14 and 15 hereof, which shall remain in full force and effect, and
except that nothing herein shall relieve any party hereto from liability for a
breach of this Agreement prior to the termination hereof.
12. Closing.
(a) The provisions of this Section 12(a) shall govern the procedures
whereby the Closing shall take place. NRC shall provide written notice to
Investor of the date on which Stockholder Approval occurs. Such notice shall
establish the time and place of the Closing (which shall be within five (5)
business days after the later of Stockholder Approval or expiration of the
notice period under the HSR Act) at which the following deliveries shall be made
by the parties, all of which shall be effected in a manner consistent with the
requirements of Regulation S:
(1) NRC. NRC shall make the following deliveries to Investor at
or before the Closing:
(A) Evidence reasonably satisfactory to Investor and its
counsel that Stockholder Approval has been obtained;
(B) An original executed and issued stock certificate
registered in the name of Investor and representing the
Purchase Shares, which shall contain the legend set forth
in Exhibit A hereto;
(C) A Secretary's certificate certifying resolutions of the
Board of Directors of NRC which, among other things,
approve the execution and delivery of this Agreement, the
actions required under Section 7 hereof and the carrying
out of the transactions contemplated hereby;
(D) The opinion of Spitzer & Feldman P.C., counsel to NRC, in
the form annexed hereto as Exhibit C.
(E) A certificate from an officer of NRC certifying as of the
Closing Date to the correctness in all material respects
of NRC's representations and warranties contained in this
Agreement.
(2) Investor. Investor shall:
(A) pay the Purchase Price to NRC, as set forth in Section 1
above.
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<PAGE>
(B) deliver to NRC (i) a secretary's certificate certifying
the resolutions of the board of directors of Investor
which, among other things approve the execution and
delivery of this Agreement and the carrying out of the
transactions contemplated hereby and (ii) a certificate
from an officer of Investor certifying as of the Closing
Date to the correctness in all material respects of
Investor's representations and warranties contained in
this Agreement.
(b) NRC hereby covenants and agrees to reserve, out of its authorized,
but unissued share capital, a total of 2,000,000 NRC Shares for issuance at
Closing, provided that such covenant shall lapse if the Stockholder Approval is
not given by the Stockholders or if NRC or Investor terminates this Agreement
pursuant to Section 11 above.
13. Indemnity; Survival.
(a) NRC hereby agrees to indemnify, defend, save and hold Investor
harmless from and against any and all damage, liability, loss, expense,
assessment, judgment or deficiency of any nature whatsoever (including, without
limitation, reasonable attorneys' fees, other costs and expenses incident to any
suit, action or proceeding) (collectively, "Losses") incurred or sustained by
Investor which arise out of or result from any breach of any representation,
warranty or covenant of NRC contained herein; provided however, that the
indemnity with respect to any representation and warranty shall terminate as of
the first date, if any, on which such representation or warranty ceases to
survive pursuant to subsection (d) hereof. Notwithstanding the above, the
Company shall have no liability hereunder regarding any matter as to which
Investor, its designated directors of the Company or Investor's principals
and/or representatives have actual knowledge.
(b) Investor hereby agrees to indemnify, defend, save and hold NRC
harmless from and against any and all Losses incurred or sustained by NRC which
arise out of or result from any breach of any representation, warranty or
covenant of Investor contained herein; provided, however, that the indemnity
with respect to any representation and warranty shall terminate as of the first
date, if any, on which such representation or warranty ceases to survive
pursuant to subsection (d) hereof.
(c)(i) Promptly after the assertion of any claim or the commencement
of any action or proceeding with respect to any Loss for which indemnity is
provided pursuant to this Section, the party seeking such indemnification shall
notify the indemnifying party of such assertion or proceeding; provided,
however, that the failure promptly to give such notice shall not affect any
indemnified party's rights hereunder except to the extent that such failure
shall adversely affect any indemnifying party or its rights hereunder in any
material respect. The indemnified party shall advise the indemnifying party of
all material facts relating to such assertion within the knowledge of the
indemnified party, and shall afford the indemnifying party the opportunity, at
the indemnifying party's sole cost and expense, to defend against such claims
for liability. In any such action or proceeding, the indemnified party shall
have the right to retain its own counsel, but the
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<PAGE>
fees and expenses of such counsel shall be at its own expense unless (A) the
indemnifying party and the indemnified party mutually agree to the retention of
such counsel or (B) the named parties to any such suit, action, or proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party, and, in the reasonable judgment of the indemnified party,
representation of the indemnifying party and the indemnified party by the same
counsel would be inadvisable due to actual or potential differing or conflicting
interests between them.
(ii) The indemnified party shall have the right to settle or
compromise any claim or liability subject to indemnification under this Section,
and to be indemnified from and against all Losses resulting therefrom, unless
the indemnifying party, within twenty (20) calendar days after receiving notice
of the claim or liability in accordance with (i) above notifies the indemnified
party that it intends to defend against such claim or liability and undertakes
such defense.
(iii) Except as otherwise provided in (ii) above, an indemnifying
party shall not be liable under this Section for any settlement effected without
its consent (which shall not be unreasonably withheld or delayed) of any claim
or liability or proceeding for which indemnity may be sought hereunder. The
indemnifying party may settle any claim without the consent of the indemnified
party provided that such settlement or release does not require any payment by,
or impose any liability or obligation on, the indemnified party or does not
materially adversely affect the rights, duties or obligations of the indemnified
party hereunder or otherwise.
(d) The representations and warranties of the parties contained herein
shall survive for one (1) year from the Closing Date. The expiration of any
representation or warranty or indemnification provided herein shall not affect
any claim thereon made by the giving of written notice by a party to the other
in the manner provided in subsection (c) above prior to the date of such
expiration. All covenants and agreements of the parties contained herein shall
survive indefinitely, except as otherwise expressly provided herein.
14. Public Announcements. The parties hereto agree to coordinate the
release of public information relating to this Agreement and, except as
otherwise required by applicable law, rule or regulation, will not release any
information without the prior written consent of the other party hereto.
15. Brokers and Finders. Investor and NRC each represents and warrants to
the other that it has dealt with no broker or finder in connection with this
transaction. This representation shall survive the closing hereunder.
16. Assignability. Neither this Agreement nor any rights, obligations or
claims hereunder may be assigned, except that after Stockholder Approval of this
transaction and upon prior written notice to NRC, the Investor shall have the
right to assign this Agreement and the rights, obligations and claims hereunder
to Jean-Raymond Boulle, or to any entity controlled by Mr. Boulle,
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provided that Mr. Boulle thereafter continues to remain in control of such
entity (the terms "controlled" and "control" shall have the meanings ascribed to
them in Rule 12b-2 promulgated by the SEC under the 1934 Act). Any partial
assignment of this Agreement and the rights, obligations and claims hereunder in
conjunction with the transfer of some, but not all of the Purchase Shares, shall
not affect NRC's obligation under Section 1 of the Registration Rights
Provisions which shall be to effect no more than two (2) registrations in the
aggregate for all then-owned shares of NRC owned by Investor (including, all NRC
Shares acquired under the April 15 Agreements) and such assignees collectively
at the demand of Investor.
17. Governing Law; Consent to Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of New York without regard
to the conflicts-of-laws principles thereof. Each of the parties hereby
irrevocably (a) submits to the exclusive jurisdiction of, and agrees that any
action, suit or other proceeding at law, in equity or otherwise, shall only be
brought in the Supreme Court, New York County, or Federal District Court for the
Southern District of New York, for the purpose of any such suit, action or other
proceeding arising out of or based upon this Agreement or the transactions
contemplated hereby ("Action"); (b) waives, to the extent not prohibited by
applicable law, rule or regulation, and agrees not to assert, by way of motion,
as a defense or otherwise, in any such Action, any claim that any such person is
not subject personally to the jurisdiction of the aforementioned courts, that
its property is exempt or immune from attachment or execution, that any such
action brought in the aforementioned court is brought in an inconvenient forum,
that the venue of any such action brought in the aforementioned court is
improper, or that this Agreement, or the transactions contemplated hereby cannot
be enforced in or by such court, and (c) consents to service of process in any
such Action by recognized international courier service. Nothing herein shall
affect the right to serve process in any other manner permitted by law.
18. Entire Agreement. This Agreement embodies the entire understanding and
agreement of the parties hereto in relation to the subject matter hereof, and no
promise, condition, representation or warranty, express or implied, not herein
set forth shall bind any party hereto. None of the terms and conditions of this
Agreement may be changed, modified, waived or canceled orally or otherwise
except by a writing signed by the parties hereto, specifying such change,
modification, waiver or cancellation. A waiver at any time of compliance with
any of the terms and conditions of this Agreement shall not be considered a
modification, cancellation or waiver of such terms and conditions of any
preceding or succeeding breach thereof unless expressly so stated.
19. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
20. Notices. Any notice or other communication required or desired to be
given shall be in writing and shall be sent by facsimile with confirming copy by
recognized international courier service. Each such notice shall be deemed given
upon delivery by such courier service to the
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following respective addresses, which any party may change as to such party upon
ten (10) days' notice to the other party:
To NRC: 8150 Washington Village Drive
Dayton, Ohio 45458
Facsimile No.: (513) 435-7285
With a copy to: Spitzer & Feldman P.C.
405 Park Avenue
New York, NY 10022-4405
Attn: Kenneth Gliedman, Esq.
Facsimile No.: (212) 838-7472
To Investor: Boulevard Royal 25B
L-2449
Luxembourg, Luxembourg
Attn: Ms. Martine Doyle
Facsimile No.: 011-352-222413
With a copy to: Coudert Brothers
1114 Avenue of the Americas
New York, NY 10036-7703
Attn: James C. Colihan, Esq.
Facsimile No.: (212) 626-4120
21. Further Assurances. At any time and from time to time after the
execution and delivery hereof, the parties agree to cooperate with each other,
to execute and deliver such other documents, instruments of transfer or
assignment, and do all such further acts and things as may be reasonably
required to carry out the transactions contemplated hereunder.
22. Severability. The invalidity or unenforceability of any particular
provision of this Agreement or portions hereof, shall not affect the other
provisions or portions hereof, and this Agreement shall be construed in all
respects as if any such invalid or unenforceable provisions or portions hereof
were omitted.
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23. No Third Party Beneficiaries. Nothing in this Agreement will be
construed as giving any person, firm, corporation or other entity, other than
the parties hereto and their successors and permitted assigns, any right, remedy
or claim under or in respect of this Agreement or any provision hereof.
24. Headings. The headings in this Agreement are included for convenience
of reference only and shall not in any way affect the meaning or interpretation
of this Agreement.
25. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument. This Agreement may be
executed by facsimile, each facsimile being deemed an original hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
NORD RESOURCES CORPORATION
By: /s/ Edgar Cruft
MIL (INVESTMENTS) S.A.
By: /s/ Ekkehart Kessel
Administrator
By: /s/ E. Van de Kelft
Administrator
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EXHIBIT A
TO
STOCK PURCHASE AND SALE AGREEMENT
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE: (I) HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED ("1933
ACT") OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
JURISDICTION; AND (II) MAY NOT BE OFFERED, SOLD OR DELIVERED WITHIN THE UNITED
STATES, OR TO OR FOR THE ACCOUNT OR BENEFIT OF ANY U.S. PERSON (AS DEFINED
BELOW) WITHIN FORTY (40) DAYS AFTER THE DATE OF THIS CERTIFICATE, EXCEPT IN
ACCORDANCE WITH REGULATION S PROMULGATED BY THE UNITED STATES SECURITIES AND
EXCHANGE COMMISSION UNDER THE 1933 ACT ("REG S"). "U.S. PERSON" SHALL HAVE THE
MEANING ASCRIBED TO IT IN REGULATION 902(O) UNDER REG S.
<PAGE>
EXHIBIT B TO STOCK PURCHASE AND SALE AGREEMENT
REGISTRATION AND "PIGGY-BACK" REGISTRATION RIGHTS
ALL DEFINED TERMS USED HEREIN WHICH ARE NOT OTHERWISE DEFINED SHALL HAVE
THE MEANINGS ASCRIBED TO THEM IN THE STOCK PURCHASE AND SALE AGREEMENT TO
WHICH THIS EXHIBIT IS ATTACHED.
1. Demand Registration. (a) Subject to Section 1(b) and Section 3 below, at
any time after the date hereof if at the time Investor (or the successors and
permitted assigns of Investor, who for purposes of this Exhibit B shall be
deemed to be included within the term "Investor") shall hold of record
collectively at least 500,000 shares of unregistered NRC Stock, Investor (or, if
there are one or more permitted assignees of Investor, persons holding a
majority, in the aggregate, of the Purchase Shares and NRC Shares acquired by
Investor under the April 15 Agreements) shall have the right to cause NRC to
effect a registration under the 1933 Act of such Purchase Shares and such NRC
Shares for an underwritten public offering of all or part of such Purchase
Shares and such NRC Shares (the Purchase Shares and such NRC Shares being
(collectively referred to as "Registrable Securities") by delivering written
notice of its demand to cause NRC to effect such a registration to NRC,
specifying the number of shares of Registrable Securities to be included in such
registration and the intended method of distribution thereof (the "Demand
Registration Request"). NRC shall, as expeditiously as possible under the
circumstances, use its best efforts to effect the registration under the 1933
Act and to effect any notification, registration or qualification under any
applicable state securities law of the Registrable Securities which NRC has been
so requested to register in the Demand Registration Request for disposition in
accordance with the intended method of disposition stated in the Demand
Registration Request (except that NRC shall not be obligated to list any of its
securities
<PAGE>
on any additional stock exchange or register or comply with any laws, rules or
regulations of any foreign government or agency) and all to the extent necessary
to permit the sale or other disposition by Investor of Registrable Securities to
be so registered in accordance with the method of distribution set forth in the
Demand Registration Request.
(b) The demand registration rights granted in Section 1(a) above shall
only be exercised concurrently with, and not in addition to, the exercise by
Investor of the demand registration rights granted to Investor by NRC pursuant
to the April 15 Agreements. Notwithstanding anything to the contrary contained
in this Exhibit B or in the April 15 Agreements (including Section 1(b)(i) of
Exhibit C to each of the April 15 Agreements), Investor shall have the right to
exercise its demand registration rights under this Section 1 (and under Section
1 of each of the April 15 Agreements) on two occasions in the aggregate, subject
to the following limitations: (i) Investor must wait at least six (6) months
between exercising its demand registration rights, and (ii) each Demand
Registration Request by Investor must be for at least 25% of the shares of
Common Stock then owned by Investor which were originally purchased pursuant to
the April 15 Agreements or this Agreement in the aggregate.
(c) Subject to Section 3 below, NRC may elect to include in any
registration statement and offering made pursuant to this Section 1 authorized
unissued NRC Shares or NRC Shares held by NRC as treasury shares; provided, that
such NRC Shares shall be permitted to be included in such registration only to
the extent that it is pursuant to and subject to the terms of the underwriting
agreement or arrangements entered into by the Investor exercising the demand
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<PAGE>
registration rights granted under this Section 1.
2. "Piggy-Back" Registrations. If at any time NRC proposes to register any
of its equity securities under the 1933 Act on a registration statement for
purposes of a sale by NRC of such equity securities for its own account, whether
in connection with a public offering by NRC, a public offering by stockholders,
or both, including, without limitation, by means of any shelf registration
pursuant to Rule 415 under the 1933 Act or any similar rule or regulation (other
than a registration on Form S-8 or any successor or similar form then in effect
and other than a registration pursuant to Section 1 hereof), each such time NRC
shall give prompt written notice (the "NRC Notice") of its intention so to do to
Investor if Investor holds of record any Registrable Securities. Subject to
Section 3, upon the written request of Investor given within fifteen (15) days
of the receipt of any such NRC Notice (which request shall specify the
Registrable Securities held of record intended to be disposed of by Investor and
the intended method of distribution thereof ("Investor's Notice")), NRC will use
its best efforts to effect the registration under the 1933 Act, and to include
in such registration statement the number of shares of Registrable Securities
set forth in the Investor's Notice then owned by Investor, as well as to include
such Registrable Securities in any notifications, registrations or
qualifications under any state securities laws which shall be made or obtained
with respect to the equity securities being registered by NRC, in each case to
the extent necessary to permit the sale or other disposition of the Registrable
Securities to be so registered in accordance with the method of distribution set
forth in the Investor's Notice. Investor shall have the right to withdraw a
request to include Registrable Securities in any registration statement to be
filed pursuant to this Section 2 by giving written notice to NRC of its election
to withdraw such request at least ten (10) days
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prior to the proposed filing date of such registration statement.
3. Allocation of Securities Included in Registration Statement. If the
managing underwriter for any offering pursuant to Section 1 or Section 2 above
shall advise NRC and Investor in writing that the inclusion in any registration
effected pursuant to Section 1 or Section 2 of some or all of the Registrable
Securities, NRC Shares or NRC equity securities sought to be registered pursuant
thereto creates a substantial risk that the proceeds or the price per unit NRC
or Investor will derive from such registration will be reduced or that the
number of securities to be registered (including NRC Shares, NRC equity
securities and the Registrable Securities sought to be registered) is too large
a number to be reasonably sold, NRC will include NRC Shares, or NRC equity
securities, or Registrable Securities, as the case may be, in such registration
to the extent which NRC is so advised can be sold in such offering based on the
following priorities:
(a) if such registration is pursuant to Section 1 above, a first
priority shall be given to the Registrable Securities held by
Investor; a second priority shall be given to NRC Shares sought to
be registered by NRC; and a third priority shall be given to any
other equity securities as to which NRC may in the future grant
registration rights; or
(b) if such registration is pursuant to Section 2 above, a first
priority shall be given to NRC Shares sought to be registered by
NRC; a second priority
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shall be given to the Registrable Securities held by Investor
requested to be included in such registration; and a third
priority shall be given to any other equity securities as to which
NRC may in the future grant registration rights.
4. Indemnification.
(a) In the event NRC effects any registration under the 1933 Act of
any Registrable Securities pursuant to this Exhibit B, NRC shall indemnify, to
the extent permitted by law, and hold harmless Investor and any underwriter, any
officer, director, employee or agent of Investor or underwriter, and each other
person, if any, who controls Investor or underwriter within the meaning of
Section 15 of the 1933 Act, against any losses, claims, damages or liabilities,
joint or several, or actions in respect thereof ("Claims"), to which each such
indemnified party becomes subject, under the 1933 Act or otherwise, insofar as
such Claims arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the registration statement or
prospectus or any amendment or supplement thereto or any document filed under a
state securities or blue sky law (collectively, "Registration Documents") or
insofar as such Claims arise out of or are based upon the omission or alleged
omission to state in any Registration Document a material fact required to be
stated therein or necessary to make the statements made therein not misleading,
and will reimburse any such indemnified party for any legal or other expenses
reasonably incurred by such indemnified party in investigating or defending any
such Claim; provided, however, that NRC shall not be liable to any such
indemnified party in any such case to the extent such Claim arises out of or is
based upon an untrue statement or alleged untrue statement of a material fact or
omission or alleged
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<PAGE>
omission of a material fact made in any Registration Document in reliance upon
and in conformity with written information furnished to NRC by or on behalf of
such indemnified party specifically for use in such Registration Document.
(b) In connection with any registration statement in which Investor is
participating pursuant to this Exhibit B, Investor shall indemnify, to the
extent permitted by law, and hold harmless NRC, each of its directors, each of
its officers who have signed the registration statement, each other person, if
any, who controls NRC within the meaning of Section 15 of the 1933 Act, and each
underwriter, and each other person, if any, who controls the underwriter within
the meaning of Section 15 of the 1933 Act, against any Claims to which each such
indemnified party may become subject under the 1933 Act or otherwise, insofar as
such Claims arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Document, or
insofar as any Claims arise out of or are based upon the omission or alleged
omission to state in any Registration Document a material fact required to be
stated therein or necessary to make the statements made therein not misleading,
and will reimburse any such indemnified party for any legal or other expenses
reasonably incurred by such indemnified party in investigating or defending any
such claim; provided, however, that such indemnification or reimbursement shall
be payable only if, and to the extent that, any such Claim arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Registration Document in reliance upon and in
conformity with written information furnished to NRC by the Investor
specifically for use in such Registration Document and, provided further, that
such indemnification or
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reimbursement shall not apply if any such Claim arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged omission
in such written information as a result of NRC's failure or refusal to address
any comments made by Investor under Section 5(a).
(c) Any person entitled to indemnification under Sections 4(a) or 4(b)
above shall notify promptly the indemnifying party in writing of the
commencement of any Claim if a claim for indemnification in respect thereof is
to be made against an indemnifying party under this Section 4, but the omission
of such notice shall not relieve the indemnifying party from any liability which
it may have to any indemnified party otherwise than under Section 4(a) or 4(b),
except to the extent that such failure shall adversely affect any indemnifying
party or its rights hereunder. In case any action is brought against the
indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate in, and, to the
extent that it chooses, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party; and, after notice from the indemnifying
party to the indemnified party that it so chooses, the indemnifying party shall
not be liable for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; provided, however, that (i) if the indemnifying party
fails to take reasonable steps necessary to defend diligently the Claim within
twenty (20) days after receiving notice from the indemnified party that the
indemnified party believes it has failed to do so; (ii) if the indemnified party
who is a defendant in any action or proceeding which is also brought against the
indemnifying party reasonably shall have concluded
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that there are legal defenses available to the indemnified party which are not
available to the indemnifying party; or (iii) if representation of both parties
by the same counsel is otherwise inappropriate under applicable standards of
professional conduct, the indemnified party shall have the right to assume or
continue its own defense as set forth above (but with no more than one firm of
counsel for all indemnified parties in each jurisdiction, except to the extent
any indemnified party or parties reasonably shall have concluded that there are
legal defenses available to such party or parties which are not available to the
other indemnified parties or to the extent representation of all indemnified
parties by the same counsel is otherwise inappropriate under applicable
standards of professional conduct) and the indemnifying party shall be liable
for any reasonable expenses therefor; provided, that no indemnifying party shall
be subject to any liability for any settlement of a Claim made without its
consent (which may not be unreasonably withheld, delayed or conditioned). If the
indemnifying party assumes the defense of any Claim hereunder, such indemnifying
party shall not enter into any settlement without the consent of the indemnified
party if such settlement attributes liability to the indemnified party (which
consent may not be unreasonably withheld, delayed or conditioned).
(d) If for any reason the foregoing indemnity is unavailable, or is
insufficient to hold harmless, an indemnified party, then the indemnifying party
shall contribute to the amount paid or payable by the indemnified party as a
result of any Claim in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party on the one hand and the indemnified
party on the other from such offering of securities. If, however, the allocation
provided in the immediately preceding sentence is not permitted by
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applicable law, or if the indemnified party failed to give the notice required
by Section 4 (c) above, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the indemnifying party and the indemnified party as well as any other
relevant equitable considerations. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the indemnifying party or by the indemnified
party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid or
payable in respect of any Claim shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such Claim. Notwithstanding the foregoing, the
Investor and any controlling person thereof, if any, shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Registrable Securities sold by it and distributed to the public were offered
to the public exceeds the amount of any damages which the Investor has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The provisions of this Section 4 shall be in addition to any other
rights to indemnification or contribution which any indemnified party may have
pursuant to law
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or contract and shall remain operative and in full force and effect regardless
of any investigation made or omitted by or on behalf of any indemnified party
and shall survive the transfer of the Registrable Securities by any such party.
5. NRC Requirements With Respect to Registration. If and whenever NRC is
required by the provisions hereof to use its best efforts to register any
Registrable Securities under the 1933 Act, NRC shall, as expeditiously as
possible under the circumstances:
(a) Prepare and file with the SEC a registration statement and any
amendments or supplements thereto with respect to such Registrable Securities
and use its best efforts to cause such registration statement to become and
remain effective; provided, however, that before filing with the SEC a
registration statement or a prospectus or any amendments or supplements thereto,
NRC will (i) furnish to counsel selected by Investor copies of all such
documents proposed to be filed, which documents will be subject to the review of
such counsel (if the Registrable Securities to be included in a registration
statement are to be included pursuant to Section 2 above, such counsel shall
provide its comments, if any, within three (3) days after receipt of such
documents and such comments may or may not be addressed by NRC in its sole and
absolute discretion and the failure by counsel to timely deliver comments shall
be deemed to mean that counsel has no comments), and (ii) notify Investor of any
stop order issued or threatened by the SEC and take all reasonable actions
required to prevent the entry of such stop order or to remove it if entered.
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(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement current and to comply with
the provisions of the 1933 Act, and any regulations promulgated thereunder, with
respect to the sale or disposition of all Registrable Securities covered by the
registration statement required to effect the distribution of the securities,
including any period then permitted under Rule 415 promulgated by the SEC
pursuant to the 1933 Act, but in no event shall NRC be required to do so for a
period of more than two (2) years following the effective date of the
registration statement (not including any period in which sales of Registrable
Securities cannot be made thereunder).
(c) Promptly notify the Investor of the effectiveness of such
registration statement.
(d) Furnish to the Investor copies (in reasonable quantities) of such
registration statement and each amendment and supplement thereto; summary,
preliminary, final, amended or supplemented prospectuses, in conformity with the
requirements of the 1933 Act and any regulations promulgated thereunder; and
other documents as reasonably may be requested by Investor in order to
facilitate the disposition of the securities, but only while NRC is required
under the provisions hereof to keep the registration statement current.
(e) Use its best efforts to register or qualify the Registrable
Securities covered by such registration statement under such other securities or
blue sky laws of such jurisdictions of the United States as the Investor shall
reasonably request, and do any and all other acts and things which may be
reasonably requested to enable Investor to consummate the
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disposition of the Registrable Securities in such jurisdictions.
(f) Use its best efforts to cause such securities to be registered to
be listed on each securities exchange on which similar securities issued by NRC
are then listed.
(g) Enter into such customary agreements (including an underwriting
agreement in customary form) and take all such other actions as Investor or the
underwriters retained by Investor, if any, reasonably request in order to
expedite or facilitate the disposition of such securities to be registered,
including customary indemnification.
(h) Notify Investor at any time when a prospectus relating to any such
Registrable Securities covered by such registration statement is required to be
delivered under the 1933 Act, of the happening of any event as a result of which
the prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then existing, and promptly
prepare and furnish to Investor a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to the purchasers of
such Registrable Securities, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing.
(i) As soon as practicable after the effective date of the
registration
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statement, and in any event within eighteen (18) months thereafter, make
generally available to Investor an earnings statement (which need not be
audited) covering a period of at least twelve (12) consecutive months beginning
after the effective date of the registration statement which earnings statement
shall satisfy the provisions of Section 11(a) of the 1933 Act, including, at
NRC's option, Rule 158 thereunder. To the extent that NRC files such information
with the SEC in satisfaction of the foregoing, NRC need not deliver the above
referenced earnings statement to Investor.
(j) Upon request, deliver promptly to counsel of Investor copies of
all correspondence between the SEC and NRC, its counsel or auditors and all
memoranda relating to discussions with the SEC or its staff with respect to the
registration statement and permit Investor to do such investigation at
Investor's sole cost and expense, upon reasonable advance notice, with respect
to information contained in or omitted from the registration statement as it
deems reasonably necessary. Investor agrees that it will use its best efforts
not to interfere unreasonably with NRC's business when conducting any such
investigation.
(k) Provide a transfer agent and registrar located in the United
States for all such Registrable Securities covered by such registration
statement not later than the effective date of such registration statement.
(l) Pay all Registration Expenses incurred in connection with a
registration of Registrable Securities requested pursuant to this Exhibit B,
whether or not such
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registration statement shall become effective; provided that Investor shall pay
all underwriting discounts, commissions and transfer taxes, if any, relating to
the sale or disposition of Investor's Registrable Securities pursuant to a
registration statement requested pursuant to Section 1 above. As used herein,
"Registration Expenses" means any and all reasonable and customary expenses
incident to performance of or compliance with the registration rights set forth
herein, including, without limitation, (i) all SEC and stock exchange
registration and filing fees, (ii) all fees and expenses of complying with state
securities or blue sky laws (including reasonable fees and disbursements of
counsel for the underwriters in connection with blue sky qualifications of the
Registrable Securities but no other expenses of the underwriters or their
counsel), (iii) all printing, messenger and delivery expenses, and (iv) the
reasonable fees and disbursements of counsel for NRC and NRC's independent
public accountants.
6. Specific Performance. NRC acknowledges that there is no adequate remedy
at law for failure by it to comply with the provisions of Section 1 through
Section 5 and that such failure would not be adequately compensable in damages,
and therefore agrees that its agreements contained in Section 1 through Section
5 may be specifically enforced.
7. Relation to Agreement. This Exhibit B shall be deemed to constitute a
part of the Agreement for all purposes, all of the provisions of which shall be
applicable with respect to this Exhibit B.
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Exhibit C
November___, 1996
MIL (Investments) S.A.
Boulevard Royal 25B
L-2449
Luxembourg, Luxembourg
Ladies and Gentlemen:
We have acted as counsel to Nord Resources Corporation (the "Company") in
connection with its issuance of 2,000,000 Shares ("Purchase Shares") of common
stock, $.01 par value ("Common Stock") to you ("Investor") pursuant to a Stock
Purchase and Sale Agreement dated October ___, 1996 ("Agreement") in a private
placement under Regulation S ("Regulation S") promulgated by the Securities and
Exchange Commission under the Securities Act of 1933, as amended. As counsel, we
have reviewed the Agreement.
We have also reviewed the Articles of Incorporation and Bylaws of the
Company together with all amendments thereto. In addition, we have examined the
originals, or certified or conformed copies of resolutions of the Board of
Directors of the Company and such other documents, records, agreements and
instruments and have made such inquiry into the affairs of the Company as we
have deemed necessary or appropriate as a basis for the opinions expressed
below.
In rendering the opinions expressed below, we have assumed the genuineness
of all signatures, the authenticity of all documents submitted to us as
originals and the conformity with the original documents of all documents
submitted to us as copies. With respect to certain matters of fact material to
our opinion, we have relied upon representations and certificates of officers of
the Company and on certificates of public officials.
Based on the foregoing, we are of the opinion that:
(1) The Company has been duly incorporated and is validly existing as
a corporation under the laws of the State of Delaware;
<PAGE>
MIL (Investments), S.A November , 1996
Page 2
(2) The Company's execution and delivery of the Agreement, and the
issuance and sale of the Purchase Shares, have been duly authorized by all
necessary corporate action on the part of the Company.
(3) The Company's execution and delivery of the Agreement, and the
issuance and sale of the Purchase Shares, was approved by the Board of
Directors of the Company on October 2, 1996.
(4) The Agreement has been duly executed and delivered by NRC and is
the legal, valid and binding obligation of NRC enforceable in accordance
with its terms, except that enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, or similar laws
affecting generally the enforcement of creditors' rights or other equitable
principles regardless of whether such enforcement is considered in a
proceeding in equity or at law. In addition, we express no opinion as to
the availability of specific performance and other equitable remedies.
(5) The Purchase Shares are validly issued, fully paid and
non-assessable and the holders thereof will have no personal liability as
such under the laws of the State of Delaware, which is the jurisdiction in
which the Company is incorporated, or under the laws of the State of Ohio
in which the principal place of business of the Company is located.
(6) Based upon the representations of the Company and Investor as set
forth in the Agreement, no registration under the Securities Act of 1933,
as amended, is required for the issuance, sale and delivery by the Company
of the Purchase Shares to Investor in reliance upon the exemption provided
for in Regulation S, Rule 903.
Our opinions are based on laws, regulations and written interpretation
thereof in effect as of the date hereof, and we undertake no obligation to
update our opinion or to advise you of subsequent changes of fact, laws,
regulations or applicable interpretations.
We are licensed to practice law only in the State of New York, and we
express no opinion regarding any matter governed or purported to be governed by
the laws of any jurisdiction other than the State of New York, the United States
of America and the general corporate laws of the States of Delaware and Ohio.
Leonard Lichter, a principal in our firm, is a director of the Company.
This opinion is being rendered solely for Investor's benefit in connection
with the transactions contemplated by the Agreement and may not be relied upon
by Investor in connection with any other transactions or distributed to any
other person or entity without our prior written consent.
Very truly yours,
<PAGE>
MIL (Investments), S.A November , 1996
Page 3
SPITZER & FELDMAN P.C.
KG:rm
