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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) April 15, 1996
--------------
NORD RESOURCES CORPORATION
- -------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 0-6202-2 85-0212139
- ------------------ -------------------- -------------------
(State of other (Commission File (IRS Employer
jurisdiction of Number) Identification
incorporation) Number)
8150 Washington Village Drive
Dayton, Ohio 45458
------------------------------------------------ -------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (513) 433-6307
-------------------------
N/A
----------------------------------------------------------------
(Former name or former address, if changed since last report.)
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ITEM 5. OTHER EVENTS.
On April 15, 1996, Nord Resources Corporation (the "Corporation") entered
into a Stock Purchase and Sale Agreement ("Stock Purchase Agreement") with MIL
(Investments) S.A., a Luxembourg Corporation ("MIL"), whereby the Corporation
sold to MIL and MIL purchased from the Corporation 3,160,000 shares ("Purchase
Shares") of the Corporation's Common Stock, $.01 par value ("Common Stock") for
the purchase price of $7,900,000, or $2.50 per share. The closing price of
the Corporation's Common Stock on the New York Stock Exchange ("NYSE") on April
12, 1996 (the last full trading day prior to the closing of the Stock Purchase
Agreement) was $2.25 per share.
In connection with the Stock Purchase Agreement, the size of the
Corporation's Board of Directors (the "Board") was expanded to eight (8)
members and MIL was granted the right to designate three (3) members to the
Board (the "MIL Nominees") and the Board (excluding the members designated by
MIL) retained the right to designate the remaining five (5) members. Pursuant
to such right, MIL has designated Max Boulle and Marc Franklin as the MIL
Nominees. MIL has retained the right to designate a third MIL Nominee. The
Corporation has agreed to nominate and use its best efforts to obtain the
election of the MIL Nominees (which may include Max Boulle and Marc Franklin or
any other individuals designated by MIL) at each annual or special meeting of
stockholders called for the purpose of filling positions on the Board of
Directors through and including the annual meeting to be held in 2000. Such
actions shall include, without limitation, soliciting persons for the election
of directors (including the MIL Nominees) and recommending the MIL Nominees for
election to the Board in the same manner as all other nominees of the
Corporation for election as directors. If any MIL Nominee shall resign or be
removed or be unable to serve for any reason prior to the expiration of such MIL
Nominee's term as a director of the Corporation, MIL is required to notify the
Board of a replacement MIL Nominee and the Board is required to take all action
necessary to cause such replacement MIL Nominee to be elected or appointed to
fill the unexpired term of the withdrawing MIL Nominee. The Stock Purchase
Agreement provides that the size of the Board shall not be increased or
decreased without the approval of at least two (2) of the MIL Nominees.
The Stock Purchase Agreement further provides that MIL will vote all of the
Common Stock of the Corporation it owns and may own in the future for the five
(5) nominees designated by the Board through and including the annual meeting
to be held in 2000. Notwithstanding the foregoing, if MIL and its affiliates in
the aggregate own in excess of 50% of the then issued and outstanding shares of
Common Stock of the Corporation, MIL will be entitled to vote all of its shares
of Common Stock without
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regard to any restrictions contained in the Stock Purchase Agreement.
Furthermore, and notwithstanding anything to the contrary contained in the Stock
Purchase Agreement, if MIL and its affiliates in the aggregate at any time own
10% or more, but less than 15%, of the issued and outstanding shares of Common
Stock, MIL shall only be entitled to designate two (2) MIL Nominees; if MIL and
its affiliates own 5% or more, but less than 10%, of the issued and outstanding
shares of Common Stock, MIL shall only be entitled to designate one (1) MIL
Nominee; and, if MIL and its affiliates own less than 5% of the issued and
outstanding shares of Common Stock, MIL shall not be entitled to designate any
MIL Nominees.
Section 203 of the Delaware General Corporation Law ("DGCL") provides that
"... a corporation shall not engage in any business combination with any
interested stockholders for a period of three (3) years following such
stockholder becoming an interested stockholder, unless: (i) prior to such time
the Board of Directors of the corporation approved either the business
combination or the transaction which resulted in the stockholder becoming an
interested stockholder, ...." Section (c) (5) of Section 203 of the DGCL
defines an "interested stockholder" to mean any person that owns 15% or more of
the outstanding voting stock of a corporation. The term "business combination"
means any merger or consolidation of a corporation or any subsidiary with an
interested stockholder and other enumerated transactions. Prior to the
execution of the Stock Purchase Agreement, the Board unanimously adopted a
resolution approving the transactions contemplated by the Stock Purchase
Agreement and, in connection therewith, waived the provisions of Section 203 of
the DGCL with respect to MIL and its affiliates in connection with such
transactions and any future transactions between the Corporation and MIL or its
affiliates.
On April 15, 1996, the Corporation also entered into an agreement ("Loan
Agreement") with MIL, whereby MIL loaned the sum of $2,100,000 to the
Corporation ("Loan") and the Corporation executed and delivered to MIL an
unsecured promissory note ("Note") in favor of MIL evidencing the Loan. The
Note bears interest at the rate of 7% per annum. Interest accrues and is
payable together with the principal balance in full on April 15, 1997. The Note
provides that, in the event that the stockholders of the Corporation at the
annual meeting approve the conversion of the Loan into Common Stock (the "Loan
Conversion"), which approval is required under Rule 312.03(c) of the NYSE Listed
Company Manual ("NYSE Manual"), and the NYSE approves the listing of the
Conversion Shares (as defined below), the Loan will be converted into 840,000
shares of Common Stock of the Corporation ("Conversion Shares") and the Loan,
including all accrued interest thereon, will be cancelled. Thus, the conversion
price per share of Common Stock is approximately $2.50 per share. The closing
price of the Corporation's Common Stock on the NYSE on April 12, 1996 (the last
full trading day prior to the closing of the Loan Agreement) was $2.25 per
share.
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The Loan Agreement provides that the Corporation will use its best efforts
to obtain stockholder approval of the Loan Conversion. Pursuant to the Loan
Agreement, the Corporation agreed that from April 15, 1996 through and including
the date of the annual meeting or any adjournments or postponements thereof, the
Corporation would not (i) offer, sell, contract to sell or otherwise issue or
dispose of any shares of Common Stock or any other securities convertible into
or exchangeable for or that represent the right to receive Common Stock or any
other securities of the Corporation (other than pursuant to existing warrants,
options and other convertible securities), or (ii) announce or affect any stock
split, stock dividend, stock combination, reverse stock split, stock
reclassification or reorganization with respect to the Common Stock or any other
security of the Corporation.
MIL has agreed, pursuant to the Loan Agreement, to vote the Purchase Shares
in favor of the Loan Conversion subject, however, to submitting a written
request to the New York Stock Exchange to confirm that the Purchase Shares may
be so voted and, unless the New York Stock Exchange objects to MIL voting the
Purchase Shares, MIL shall vote the Purchase Shares in favor of the Loan
Conversion.
Under the Stock Purchase Agreement and Loan Agreement, the Corporation
granted MIL the right to demand registration under the Securities Act of 1933,
as amended ("1933 Act") of the Purchase Shares and Conversion Shares,
respectively. MIL was also granted "piggy-back" registration rights. Neither
the Stock Purchase Agreement, the Loan Agreement, nor any of the rights,
obligations and claims thereunder may be assigned by MIL, except that upon prior
notice to the Corporation, MIL may assign the Stock Purchase Agreement, Loan
Agreement and/or any rights, obligations or claims thereunder to Jean-Raymond
Boulle or to any entity controlled by Jean-Raymond Boulle, provided that Jean-
Raymond Boulle thereafter continues to remain in control of such entity (the
terms "controlled" and "control" having the meanings ascribed to them in Rule
12b-2 promulgated by the SEC under the Securities Exchange Act of 1934, as
amended).
The Board has unanimously approved and intends to recommend to the
stockholders of the Corporation that they approve the Loan Conversion. If the
Loan Conversion is approved, existing stockholders of the Corporation would
incur a dilution in their interest in the Corporation of approximately 4.2% and
MIL would own, in the aggregate, 4,000,000 shares of Common Stock, representing
approximately 20.2% of the issued and outstanding shares of Common Stock. MIL
is not restricted in any way from acquiring more shares of Common Stock or from
disposing of shares of Common Stock, except for compliance with relevant
securities laws.
The transactions engaged in pursuant to the Stock Purchase Agreement and
Loan Agreement were private placements in reliance upon the transaction "safe
harbor" afforded by Regulation S, as promulgated by the Securities and Exchange
Commission
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under the 1933 Act.
The Board believes that the investment by MIL, which is indirectly 100%
owned by Mr. Jean-Raymond Boulle, is of strategic importance to the Corporation
and its subsidiaries given Mr. Boulle's international experience in the mining
industry. Mr. Boulle is the founder, a major shareholder, and co-chairman of
Diamond Fields Resources, which is the owner of a 75% interest in the newly
discovered nickel deposit in Voisey Bay in Labrador, Canada.
The Corporation entered into the Stock Purchase Agreement, issued the
Purchase Shares and entered into and borrowed funds under the Loan Agreement in
order to obtain working capital. The Board believes that adding to the
Corporation's working capital will strengthen the Corporation's financial
position, enable the Corporation to finance its obligations at its 80% owned
kaolin subsidiary and help in developing a plan regarding the reopening of its
50% owned rutile mine in Sierra Leone. The issuance of the Purchase Shares and
the proposed issuance of the Conversion Shares were not done as a result of any
knowledge by the Board or management of the intention of any third party to
accumulate Common Stock of the Corporation or to make any third party's attempt
to gain control of the Corporation more difficult, time-consuming and/or
costly. However, the issuance of such shares could be viewed as having possible
anti-takeover effects.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits required to be filed by Item 6.01 of Regulation S-K.
Item No. Description
-------- -----------
10.1 Stock Purchase and Sale Agreement between Nord
Resources Corporation and MIL (Investments) S.A.,
dated April 15, 1996.
10.2 Agreement between Nord Resources Corporation and
MIL (Investments) S.A., dated April 15, 1996.
99.1 Press Release of Nord Resources Corporation dated
April 15, 1996
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
NORD RESOURCES CORPORATION
--------------------------------
(Registrant)
Date: April 25, 1996 s / Karl A. Frydryk
-------------------------------
Karl A. Frydryk, Secretary
EXHIBIT INDEX
Sequentially
Item No. Description Numbered Page
- -------- ----------- -------------
10.1 Stock Purchase and Sale
Agreement between Nord
Resources Corporation and
MIL (Investments) S.A., dated
April 15, 1996.
10.2 Agreement between Nord
Resources Corporation and
MIL (Investments) S.A., dated
April 15, 1996.
99.1 Press Release of Nord Resources
Corporation dated April 15, 1996.
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STOCK PURCHASE AND SALE AGREEMENT
BETWEEN
NORD RESOURCES CORPORATION
AND
MIL (INVESTMENTS) S.A.
APRIL 15, 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 MAY 25, 1996, EXCEPT IN ACCORDANCE
WITH REGULATION S UNDER THE 1933 ACT.
<PAGE>
TABLE OF CONTENTS
PAGE #
1. SALE OF PURCHASE SHARES . . . . . . . . . . . . . . . . . . . . . . . 3
2. 1933 ACT - REGULATION S.. . . . . . . . . . . . . . . . . . . . . . . 4
3. BOARD REPRESENTATION. . . . . . . . . . . . . . . . . . . . . . . . . 5
5. REGISTRATION RIGHTS.. . . . . . . . . . . . . . . . . . . . . . . . . 6
7. REPRESENTATIONS AND WARRANTIES OF NRC.. . . . . . . . . . . . . . . . 7
8. REPRESENTATIONS AND WARRANTIES OF INVESTOR. . . . . . . . . . . . . . 13
9. DELIVERIES OF NRC.. . . . . . . . . . . . . . . . . . . . . . . . . . 17
10. DELIVERIES OF INVESTOR. . . . . . . . . . . . . . . . . . . . . . . . 18
11. INDEMNITY; SURVIVAL. . . . . . . . . . . . . . . . . . . . . . . . . 18
12. PUBLIC ANNOUNCEMENTS. . . . . . . . . . . . . . . . . . . . . . . . . 21
13. BROKERS AND FINDERS.. . . . . . . . . . . . . . . . . . . . . . . . . 21
14. ASSIGNABILITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
15. GOVERNING LAW; CONSENT TO JURISDICTION. . . . . . . . . . . . . . . . 22
16. ENTIRE AGREEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . 22
17. BINDING EFFECT. . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
18. NOTICES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
19. FURTHER ASSURANCES. . . . . . . . . . . . . . . . . . . . . . . . . . 24
20. SEVERABILITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
21. NO THIRD PARTY BENEFICIARIES. . . . . . . . . . . . . . . . . . . . . 24
22. HEADINGS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
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23. COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
STOCK PURCHASE AND SALE AGREEMENT
STOCK PURCHASE AND SALE AGREEMENT ("Agreement") made this 15th day of
April, 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 is 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
WHEREAS, NRC desires to sell to Investor and Investor desires to purchase
from NRC, 3,160,000 NRC Shares ("Purchase Shares"), representing approximately
19.9% of the issued and outstanding NRC Shares on a "before-issuance" basis
(i.e., computed in accordance with New York Stock Exchange ("NYSE") Rule
312.03(e)) 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; and
WHEREAS, the parties desire that the board of directors of NRC (the
"Board") be
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expanded to eight (8) members (not more nor less than eight) of which the
Investor will have the right to designate three (3) members to the Board and the
Board (excluding the members designated by Investor) will have the right to
designate the remaining five (5) members; and
WHEREAS, NRC and Investor desire to set forth herein their other agreements
and understandings.
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 $7,900,000. The Purchase Price
has been paid by wire transfer of immediately available funds to the account of
NRC at National City Bank, Dayton, Ohio, ABA# 042 200 279 (Account No.
767806130) simultaneously with the execution and delivery of this Agreement.
NRC hereby acknowledges receipt of the Purchase Price and Investor hereby
acknowledges receipt of the Purchase Shares. All "$" 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
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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 5 below. The Investor
acknowledges and agrees that from the date hereof until the forty-first (41st)
day after the date hereof (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, 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
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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. BOARD REPRESENTATION. Concurrently with the closing hereunder, the
Board of Directors of NRC has expanded its size to eight (8) members and has
elected the three (3) members designated by Investor as identified on EXHIBIT B
annexed hereto (the "Investor's Nominees"). NRC covenants and agrees to
nominate and to use its best efforts to obtain the election of the Investor's
Nominees (either those individuals listed on EXHIBIT B or any other
individual(s) subsequently designated in writing by Investor) at each annual or
special meeting of stockholders called for the purpose of filling positions on
the Board of Directors, or in any written consent executed in lieu of such a
meeting of stockholders, through and including the annual meeting of
stockholders to be held in the year 2000. Such actions shall include, without
limitation, soliciting proxies for the election of directors (including the
Investor's Nominees) and recommending the Investor's Nominees for election to
the Board of Directors in the same manner as all other nominees of the Company
for election as director. If, following election to the Board of Directors of
the Company, any Investor's Nominee shall resign or be removed or be unable to
serve for any reason prior to the expiration of his term as a director of the
Company ("Withdrawing Investor's Nominee"), the Investor shall within thirty
(30) days of such event notify the Board of Directors of the Company in writing
of a replacement Investor's Nominee and the Board of Directors of the Company
shall take all action necessary to cause such replacement Investor's Nominee to
be elected or appointed to fill the unexpired term of the Withdrawing
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Investor's Nominee and to recommend the replacement Investor's Nominee for
election to the Board of Directors in the same manner as all other nominees of
the Company for election as director at any subsequent annual or special meeting
of stockholders or pursuant to any written consent in lieu of such meeting. In
no event shall the size of the Board of Directors be increased above, or
decreased below, eight (8) without the approval of at least two (2) of the
Investor's Nominees. Investor covenants and agrees to vote all of the NRC
Shares it owns and may own in the future for the nominees designated by the
Board of Directors (excluding the Investor's Nominees) for the Board through and
including the annual meeting of stockholders to be held in the year 2000.
Notwithstanding anything to the contrary contained in this Section 3, (x) if
Investor and any assignees of Investor permitted under Section 14 hereof in the
aggregate at any time own in excess of fifty (50%) percent of the then issued
and outstanding NRC Shares, they shall be entitled to vote their NRC Shares for
Directors without regard to the restrictions contained hereinabove, and (y) if
Investor and any assignees of Investor permitted under Section 14 hereof in
the aggregate at any time own less than fifteen (15%) percent of the then issued
and outstanding NRC Shares, they collectively shall be entitled to designate the
following number of Directors:
NUMBER OF INVESTOR'S
PERCENTAGE OWNERSHIP NOMINEES
-------------------- ----------------------------
10% or more 2
5% to 10% 1
less than 5% 0
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4. WAIVER OF SECTION 203. Prior to the execution of this Agreement, the
Board has unanimously adopted a resolution approving the transactions
contemplated under this Agreement and, in connection therewith, waiving the
provisions of Section 203 of the Delaware General Corporation Law ("DGCL") as it
relates to the Investor and such transactions.
5. REGISTRATION RIGHTS. The Company hereby grants to the Investor the
registration rights and "piggy-back registration rights" regarding the Purchase
Shares as set forth on EXHIBIT C annexed hereto, all of which are incorporated
herein by this reference.
6. NEW YORK STOCK EXCHANGE LISTING. NRC covenants and agrees to make
application to list the Purchase Shares with the NYSE immediately after the
closing under this Agreement.
7. REPRESENTATIONS AND WARRANTIES OF NRC. NRC hereby represents and
warrants to Investor as of the date hereof 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) 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
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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 relating to
or affecting creditors' rights and to general equity principles
(collectively, the "Enforceability Exceptions"). The Purchase
Shares have been duly authorized by NRC and are validly issued,
fully paid and nonassessable.
(d) The authorized capital stock of NRC consists of 25,000,000 NRC
Shares, 15,838,408 NRC Shares being issued and outstanding as of
the date hereof and 1,915,113 NRC Shares being reserved for
issuance upon the exercise of currently outstanding options,
warrants and other securities convertible into NRC Shares, all of
which are described in the Form 10-K (as defined below). 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, 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.
Neither NRC nor any of its subsidiaries or affiliates has
heretofore 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, 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
reasonably be expected to
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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) 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) 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 has
delivered 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) NRC has delivered to Investor a copy of its Annual Report on Form
10-K for the year ending December 31, 1995 (including exhibits
and any amendments thereto) filed with the SEC ("Form 10-K"). As
of their respective dates, neither the Form 10-K nor, to the best
of knowledge of the executive officers of NRC, any other
securities law filing made by NRC with the SEC since January 1,
1994, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements made therein, in light of the
circumstances in which they were made, not misleading in any
material respect. Except as disclosed in the Form 10-K, since
December 31, 1995, (i) there has not been any change, or any
development involving a prospective change, which has had or
could reasonably be expected to have a Material Adverse Effect,
(ii) NRC and its subsidiaries have conducted their business only
in, and have not engaged in any transaction other than in the
ordinary course and consistent with past practices prior to such
date, and (iii) there has been no material change in any
accounting principles or practices of NRC. Other than the
business of NRC disclosed in the Form 10-K, NRC is not engaged in
any other business that is material to its financial condition or
results of operations. The Form 10-K discloses all
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defaults under contracts, agreements and instruments to which NRC
or its subsidiaries are a party, where such defaults could have a
Material Adverse Effect.
(h) 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.
(i) Neither the Company nor any subsidiary or affiliate of the
Company is in violation of or in default in any respect under,
the applicable statutes, ordinances, rules, regulations, orders
or decrees of all federal, state, local and foreign governmental
bodies, agencies and authorities having, asserting or claiming
jurisdiction over any of them or over any part of their
operations or assets, except for such violations and defaults
which individually or in the aggregate would not have a Material
Adverse Effect.
(j) 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.
(k) 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"). 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.
(l) 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.
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8. REPRESENTATIONS AND WARRANTIES OF INVESTOR. Investor hereby
represents and warrants to NRC as of the date hereof as follows:
(a) 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) 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 Investor and constitutes the legal,
valid and binding obligations of 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) 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 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
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<PAGE>
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) 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 paid 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 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
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<PAGE>
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.
(i) Investor has received from NRC the Form 10-K and has had access
to the books and records, officers, employees and properties of
NRC and its subsidiaries and affiliates and has conducted its own
due diligence in connection with the transaction contemplated by
this Agreement.
9. DELIVERIES OF NRC. Concurrently herewith, NRC has delivered to
Investor the following:
(i) An original executed and issued stock certificate
registered in the name of Investor and representing all of
the Purchase Shares, which contains the legend set forth in
EXHIBIT A annexed hereto;
(ii) A secretary's certificate, certifying resolutions of the
Board which, among other things: (i) approve the execution
and delivery of this Agreement and the carrying out of the
transactions contemplated hereby; (ii) waive the provisions
of Section 203 of the DGCL relating to the Investor and
the transactions contemplated hereby; and (iii) expand the
Board to eight (8) members and appoint the Investor's
Nominees to the Board of Directors; and
(iii) An opinion of Spitzer & Feldman P.C. counsel to NRC, in form
and substance satisfactory to Investor.
10. DELIVERIES OF INVESTOR. Concurrently herewith, Investor has delivered
to NRC the following:
(a) The Purchase Price by wire transfer of federal funds to the
account
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<PAGE>
identified in Section 1 above by NRC; and
(b) A secretary's certificate (or equivalent) certifying the
resolutions of the board of directors (or equivalent) of Investor
which, among other things: (i) approve the execution and delivery
of this Agreement and the carrying out of the transactions
contemplated hereby; and (ii) approve the purchase of the
Purchase Shares.
11. 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.
(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.
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<PAGE>
(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 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
14
<PAGE>
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 date hereof. 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.
12. 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.
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<PAGE>
13. BROKERS AND FINDERS. Investor and NRC each represent and warrant to
the other that it has dealt with no broker or finder in connection with this
transaction. This representation shall survive the closing hereunder.
14. ASSIGNABILITY. Neither this Agreement nor any rights, obligations or
claims hereunder may be assigned, except that upon prior written notice to NRC,
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, 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 EXHIBIT C which shall be to effect one (1) and only one (1) registration in
the aggregate for all then-owned Purchase Shares at the demand of Investor.
15. 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
16
<PAGE>
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 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.
16. 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 cancelled 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.
17. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
17
<PAGE>
18. 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 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
19. 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.
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<PAGE>
20. SEVERABILITY. The invalidity or unenforceability of any particular
provision of this Agreement or portions thereof, shall not affect the other
provisions or portions thereof, and this Agreement shall be construed in all
respects as if any such invalid or unenforceable provisions or portions thereof
were omitted.
21. 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.
22. 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.
23. 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
NORD RESOURCES CORPORATION
By:
----------------------------------------
19
<PAGE>
MIL (INVESTMENTS) S.A.
By:
----------------------------------------
Ekehart Kessel, Administrator
By:
----------------------------------------
Edmond Van de Kleft, Administrator
20
<PAGE>
AGREEMENT
BETWEEN
NORD RESOURCES CORPORATION
AND
MIL (INVESTMENTS) S.A.
APRIL 15, 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
CONVERSION DATE REFERRED TO HEREIN.
21
<PAGE>
TABLE OF CONTENTS
PAGE #
1. THE LOAN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2. 1933 ACT - REGULATION S.. . . . . . . . . . . . . . . . . . . . . . 3
3. ANNUAL STOCKHOLDER MEETING. . . . . . . . . . . . . . . . . . . . . 4
4. INFORMATION FOR PROXY STATEMENT.. . . . . . . . . . . . . . . . . . 5
5. REGISTRATION RIGHTS.. . . . . . . . . . . . . . . . . . . . . . . . 5
7. REPRESENTATIONS AND WARRANTIES OF NRC.. . . . . . . . . . . . . . . 6
8. REPRESENTATIONS AND WARRANTIES OF LENDER. . . . . . . . . . . . . . 10
9. DELIVERIES OF NRC; LOAN CONVERSION. . . . . . . . . . . . . . . . . 12
10. OBLIGATIONS OF LENDER . . . . . . . . . . . . . . . . . . . . . . . 15
11. INDEMNITY; SURVIVAL. . . . . . . . . . . . . . . . . . . . . . . . 16
12. PUBLIC ANNOUNCEMENTS. . . . . . . . . . . . . . . . . . . . . . . . 18
13. BROKERS AND FINDERS.. . . . . . . . . . . . . . . . . . . . . . . . 18
14. ASSIGNABILITY. . . . . . . . . . . . . . . . . . . . . . . . . . . 19
15. GOVERNING LAW; CONSENT TO JURISDICTION. . . . . . . . . . . . . . . 19
16. ENTIRE AGREEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . 20
17. BINDING EFFECT. . . . . . . . . . . . . . . . . . . . . . . . . . . 20
18. NOTICES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
19. FURTHER ASSURANCES. . . . . . . . . . . . . . . . . . . . . . . . . 21
20. SEVERABILITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
21. NO THIRD PARTY BENEFICIARIES. . . . . . . . . . . . . . . . . . . . 22
22. HEADINGS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
23. COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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<PAGE>
A G R E E M E N T
AGREEMENT ("Agreement") made this 15th day of April, 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 "Lender"),
having is 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
WHEREAS, NRC desires to borrow from Lender, and Lender desires to loan to
NRC, the sum of $2,100,000 (the "Loan"), subject to the terms and conditions set
forth herein; and
WHEREAS, NRC and Lender desire to set forth herein their other agreements
and understandings.
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 Lender
hereby agree as follows:
1. THE LOAN. (a) Lender hereby agrees to make the Loan to NRC and NRC
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<PAGE>
hereby agrees to borrow the amount of the Loan. The Loan has been made to
NRC's account at National City Bank, Dayton, Ohio, ABA# 042 200 279 (Account No.
767806130) simultaneously with the execution and delivery of this Agreement,
receipt of which is acknowledged by NRC, and NRC has executed an unsecured
promissory note in favor of Lender ("Note") evidencing the Loan, the form of
Note being annexed hereto as EXHIBIT A. Lender hereby acknowledges receipt of
the Note. The Note provides that, if not converted as described below, it will
bear interest at the rate of seven (7%) percent per annum, with the principal
and interest due and payable in full on April 15, 1997. Interest on the Loan
will accrue from the date of issuance, until paid, unless the Loan is converted
pursuant hereto. The Note provides that, in the event that the stockholders of
NRC (the "Stockholders") at the next annual meeting of Stockholders, approve
("Stockholder Approval") the conversion of the Loan into NRC Shares ("Loan
Conversion"), as required under Rule 312.00 of NYSE, and the NYSE approves
("NYSE Approval") the listing of the Conversion Shares (as defined below), the
Loan, immediately upon the latter of such Stockholder Approval or NYSE Approval,
as the case may be, will be converted into 840,000 NRC Shares ("Conversion
Shares") and the Loan, including all accrued interest thereon, will be
cancelled. The Loan Conversion will occur on the Conversion Date (as defined
under Section 9(b) below), provided that in no event shall the Conversion Date
be later than April 15, 1997. All references hereinafter to the "Conversion
Shares" assume that the Loan Conversion has taken place in accordance with the
terms of this Section 1 and Section 9(b).
(b) All amounts paid, transferred or issued to Lender pursuant to
this Agreement and the Note (including, without limitation in connection with
the Loan Conversion) shall be made free and clear of, and without any deduction
or withholding on account of, taxes imposed
2
<PAGE>
by the United States of America. If NRC is required to make any deduction or
withholding on account of any such tax, then;
(i) the amount to be paid, transferred or issued to Lender
shall be increased to the extent necessary to ensure that after the making of
that deduction or withholding, Lender receives on a net after tax basis what it
would have received had no such withholding been required or made;
(ii) NRC shall indemnify Lender on an after tax basis against
any such tax and all claims, liabilities and related costs and expenses of
Lender in connection with the imposition or assertion of any such tax; and
(iii) Notwithstanding anything to the contrary contained in
this Section 1(b), if the Note is assigned in whole or in part and such
deduction or withholding is required from the amount to be paid, transferred or
issued pursuant to this Agreement or the Note (including, without limitation,
in connection with the Loan Conversion) to the assignee whereas it would not
have been required had it been paid, transferred or issued to the original
Lender, the provisions of this Section 1(b) shall not apply.
2. 1933 ACT - REGULATION S.
(a) The Conversion Shares are being offered and, if issued, will be
sold in an offshore transaction pursuant to Regulation S ("Regulation S")
promulgated by the Securities and Exchange Commission ("SEC") under the 1933
Act.
(b) The Conversion Shares have not been and will not be registered
under the 1933 Act, except as provided for in Section 5 below. Lender
acknowledges and agrees that from the Conversion Date until the forty-first
(41st) day after the Conversion Date (the "Restricted Period"), the Conversion
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
3
<PAGE>
under the 1933 Act), unless the Conversion Shares are registered under the 1933
Act, or an exemption from the registration requirements of the 1933 Act is
available.
(c) Certificates representing the Conversion Shares during the
Restricted Period will contain a restrictive legend, the form of which is
annexed hereto as EXHIBIT B, prohibiting the offer, sale or delivery of the
Conversion Shares within the United States or to, or for the account or benefit
of, any U.S. Person during the Restricted Period.
3. ANNUAL STOCKHOLDER MEETING. (a) NRC agrees to use its best efforts
to take all actions necessary to hold its annual meeting of Stockholders
("Annual Meeting") on June 4, 1996, or the earliest possible date thereafter
which provides at least thirty (30) days 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 Loan
Conversion and, in connection therewith, recommending that Stockholders vote in
favor of the proposal seeking such approval. The Board of Directors of NRC have
heretofore unanimously approved the transactions contemplated under this
Agreement, including the Loan Conversion, and has unanimously resolved to
recommend approval of the Loan Conversion by NRC's Stockholders. NRC agrees to
set the record date for the annual meeting for April 16, 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 two (2) business days after
the date of this Agreement.
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<PAGE>
(b) During the period from the date hereof and continuing until the
Meeting Date or any adjournment or postponement thereof, NRC shall not (i)
offer, sell, contract to sell or otherwise issue or dispose of any NRC Shares or
any other securities of NRC, and 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.
4. INFORMATION FOR PROXY STATEMENT. Concurrently herewith, Lender shall
provide information regarding its principals and affiliates as well as its
nominees to the Board (as provided for in the Stock Agreement (as defined
below)) 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 "Lender Proxy Information").
5. REGISTRATION RIGHTS. NRC hereby grants to Lender the registration
rights and "piggy-back registration rights" regarding the Conversion Shares as
set forth on EXHIBIT C annexed hereto, all of which are incorporated herein by
reference.
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<PAGE>
6. NEW YORK STOCK EXCHANGE.
(a) NRC covenants and agrees to make application to list the
Conversion Shares with the NYSE immediately after Stockholder Approval has been
obtained.
(b) Promptly following the date hereof, NRC, in conjunction with
counsel for Lender, shall request in writing that the NYSE confirm that the
3,160,000 NRC Shares ("Other Shares") issued to Lender by NRC pursuant to that
certain Stock Purchase and Sale Agreement dated April 15, 1996 ("Stock
Agreement") may be voted by Lender at the Annual Meeting in favor of the Share
Conversion. Unless the NYSE objects to the Lender voting its Other Shares,
Lender shall vote the Other Shares in favor of the Share Conversion.
7. REPRESENTATIONS AND WARRANTIES OF NRC. NRC hereby represents and
warrants to Lender as of the date hereof, and, except as to subsections (d),
(g), (h) and (i) below, as of the Conversion 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) NRC has full corporate power and authority to execute and deliver
this Agreement and to execute the Note and, subject to obtaining
the Stockholder Approval and NYSE Approval, to issue the
Conversion 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
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<PAGE>
approved this Agreement and the Note and has duly authorized the
execution and delivery of this Agreement and the Note and the
consummation of the transactions contemplated hereby. This
Agreement and the Note have been duly executed and delivered by
NRC and constitute the legal, valid and binding obligations of
NRC enforceable in accordance with their respective terms,
subject to bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles (collectively, the "Enforceability Exceptions"). The
Conversion Shares have been duly authorized by NRC and, subject
to the satisfaction of the conditions set forth in Section 9(b)
below, will be validly issued, fully paid and nonassessable.
(d) The authorized capital stock of NRC consists of 25,000,000 NRC
Shares, 15,838,408 NRC Shares being issued and outstanding as of
the date hereof (which amount is being increased concurrently
herewith by the Other Shares) and 1,915,113 NRC Shares being
reserved for issuance upon the exercise of currently outstanding
options, warrants and other securities convertible into NRC
Shares, all of which are described in the Form 10-K (as defined
below). 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, 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. Neither NRC nor any of its
subsidiaries or affiliates has heretofore 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 or the Note
by NRC, nor the consummation of the transactions contemplated
herein
7
<PAGE>
or therein, 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 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) 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, NYSE Approval and compliance
with Section 9(b) below, NRC has the absolute right, power, and
authority to sell the Conversion Shares so as to vest in Lender
complete and absolute title to the Conversion 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. At the
Conversion Closing (as defined below), the Company will deliver
to the Lender good and valid title to the Conversion 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) NRC has delivered to Lender a copy of its Annual Report on Form
10-K for the year ending December 31, 1995 (including exhibits
and any amendments thereto) filed with the SEC ("Form 10-K"). As
of their respective dates, neither the Form 10-K nor, to the best
of knowledge of the executive officers of NRC, any other
securities law filing made by NRC with the SEC since January 1,
1994, contained any untrue statement of a material fact or
omitted to state a material
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<PAGE>
fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances in which
they were made, not misleading in any material respect. Except
as disclosed in the Form 10-K, since December 31, 1995, (i) there
has not been any change, or any development involving a
prospective change, which has had or could reasonably be expected
to have a Material Adverse Effect, (ii) NRC and its subsidiaries
have conducted their business only in, and have not engaged in
any transaction other than in the ordinary course and consistent
with past practices prior to such date, and (iii) there has been
no material change in any accounting principles or practices of
NRC. Other than the business of NRC disclosed in the Form 10-K,
NRC is not engaged in any other business that is material to its
financial condition or results of operations. The Form 10-K
discloses all defaults under contracts, agreements and
instruments to which NRC or its subsidiaries are a party, where
such defaults could have a Material Adverse Effect.
(h) 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.
(i) Neither the Company nor any subsidiary or affiliate of the
Company is in violation of or in default in any respect under,
the applicable statutes, ordinances, rules, regulations, orders
or decrees of all federal, state, local and foreign governmental
bodies, agencies and authorities having, asserting or claiming
jurisdiction over any of them or over any part of their
operations or assets, except for such violations and defaults
which individually or in the aggregate would not have a Material
Adverse Effect.
(j) 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.
(k) The Company is a "reporting company" as defined in Rule 902 of
9
<PAGE>
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"). The Company has not offered the
Conversion 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 Conversion Shares to persons
resident within the United States or elsewhere.
(l) 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.
8. REPRESENTATIONS AND WARRANTIES OF LENDER. Lender hereby represents
and warrants to NRC as of the date hereof and as of the Conversion Date, as
follows:
(a) Lender 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) Lender has full corporate power and authority to execute and
deliver this Agreement and to make the Loan and to consummate the
transactions contemplated on its part hereby.
(c) The Board of Directors (or equivalent) of the Lender 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 Lender and constitutes the legal, valid
and binding obligations of Lender enforceable in accordance with
its terms, subject to the Enforceability Exceptions.
(d) Neither the execution and delivery of this Agreement by Lender,
nor the consummation of the transactions herein contemplated,
will, with
10
<PAGE>
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 Lender 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 Lender and its subsidiaries,
taken as a whole ("MIL Material Adverse Effect"), (iii) 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 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 Lender 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 Lender is neither a U.S. Person nor a Distributor (as
defined in Regulation 902(c) promulgated by the SEC under the
1933 Act).
(f) Lender was outside of the United States at the time the offer to
sell the Conversion Shares was made to the Lender and the Lender
was outside the United States at the time the Lender executed
this Agreement and will be outside the United States on the
Conversion Date. The offer to sell the Conversion Shares was
directly communicated to the Lender. At no time was the Lender
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 Lender has been advised that the sale of the Conversion
Shares to the Lender 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 Conversion
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 Conversion Shares are registered under the 1933 Act or an
exemption from the registration requirements of the 1933 Act is
available. The Lender acknowledges that no representation,
warranty or guaranty, express or implied, has
11
<PAGE>
been given to the Lender 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 Conversion Shares by the Lender;
and the Lender further understands and agrees that the
availability of any such exemption from registration must be
determined solely by the Lender and the Lender's own legal
counsel based on the particular facts and circumstances existing
at the time of the proposed transaction.
(h) The Lender has not offered or sold, and agrees that it will not
offer or sell, any Conversion 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 Conversion Shares is registered
under the 1933 Act and any applicable state securities laws, or
exemptions from the registration requirements thereof are
available; and that, thereafter, such Conversion 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 pursuant to the requirements of
Regulation S. The Lender further represents and warrants that it
will not, through any short sale, long sale or other hedging
transaction, engage in any transaction with the Conversion Shares
prior to the expiration of the Restricted Period which would
reduce the Lender's risk of ownership or investment in the
Conversion Shares.
(i) Lender has received from NRC the Form 10-K and has had access to
the books and records, officers, employees and properties of NRC
and its subsidiaries and affiliates and has conducted its own due
diligence in connection with the transaction contemplated by this
Agreement.
(j) The Lender Proxy Information does not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
made therein, in light of the circumstances in which they were
made, not misleading in any material respect.
9. DELIVERIES OF NRC; LOAN CONVERSION. (a) Concurrently herewith, NRC
shall
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<PAGE>
deliver to Lender the following:
(i) An original executed Note;
(ii) A secretary's certificate, certifying resolutions of the Board
which, among other things, approve the execution and delivery
of this Agreement, the actions required under Section 3 hereof
and the carrying out of the transactions contemplated hereby;
and
(iii) an opinion of Spitzer & Feldman P.C., counsel to NRC, in form
and substance acceptable to Lender.
(b) The provisions of this Section 9(b) shall govern the procedures
whereby the Loan Conversion shall take place.
(i) NRC shall provide written notice to Lender of the date on which
the latter of the Stockholder Approval or the NYSE Approval occurs. Such notice
shall establish the time and place (the "Conversion Closing") 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.
(A) NRC. NRC shall make the following deliveries to Lender at the
Conversion Closing:
(1) An original executed and issued stock certificate registered in
the name of Lender and representing the Conversion Shares, which
shall contain the legend set forth in EXHIBIT A hereto;
(2) A certificate, duly executed by the Chairman, Senior Vice
President-Finance or Secretary of NRC as to the absence of any
Event of
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<PAGE>
Default (as defined in the Note); and
(3) Evidence reasonably satisfactory to Lender and its counsel that
Stockholder Approval and NYSE Approval have been obtained.
(B) LENDER. Lender shall deliver the original executed Note, duly marked
"cancelled" to NRC at the Conversion Closing.
(ii) Upon satisfaction by each party of the foregoing conditions and
deliveries, the Loan Conversion shall be deemed to have occurred without the
need for any further action by either party. The date on which such Loan
Conversion shall occur is referred to herein as the "Conversion Date".
Notwithstanding anything to the contrary herein, if an Event of Default shall
have occurred on or prior to the Conversion Date, the Loan Conversion shall not
occur unless Lender provides a further written notice to NRC at the Conversion
Closing pursuant to which Lender elects to proceed with the Loan Conversion
notwithstanding such Event of Default.
(iii) NRC represents and warrants that no instructions restricting
the free transferability of the Conversion Shares have been, and NRC covenants
and agrees that no such restrictions 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 Conversion
Shares shall otherwise be freely transferable on the books and records of NRC
and such transfer agent. Upon surrender of the initial certificates
representing the Conversion 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 Conversion Shares without any
restrictive legends thereon or "stop transfer" instructions applicable thereto,
in the name of Lender and in such denominations as Lender shall specify.
Nothing herein, however, shall affect in any way Lender's obligations and
agreements to comply with all securities laws upon resale of the Conversion
Shares.
(c) The parties hereto acknowledge and agree that the failure of either
party to comply timely with its obligations and agreements under Section 9(b) of
this Agreement will cause irreparable harm and injury to the other party for
which there is no adequate remedy at law. Therefore, either party, in addition
to any rights and/or remedies it may have at law, may specifically enforce the
terms and provisions of Section 9(b) of this Agreement.
14
<PAGE>
(d) NRC hereby covenants and agrees to reserve, out of its authorized but
unissued share capital, a total of 840,000 NRC Shares, unless and until (i) the
rejection by the Stockholders of the Loan Conversion, (ii) the refusal of the
NYSE to list the Conversion Shares, or (iii) the election by Lender to not
proceed with conversion following an Event of Default.
10. OBLIGATIONS OF LENDER. Concurrently herewith, Lender shall deliver to
NRC the following:
(a) The Loan by wire transfer of federal funds to the account
identified in Section 1 above by NRC; and
(b) A secretary's certificate certifying the resolutions of the board
of directors of Lender which, among other things approve the
execution and delivery of this Agreement and the carrying out
of the transactions contemplated hereby.
11. INDEMNITY; SURVIVAL.
(a) NRC hereby agrees to indemnify, defend, save and hold Lender
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
Lender 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
15
<PAGE>
or warranty ceases to survive pursuant to subsection (d) hereof.
(b) Lender 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 Lender 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 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
16
<PAGE>
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, or impose any liability or obligation on, by 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 date hereof. 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
17
<PAGE>
expiration. All covenants and agreements of the parties contained herein shall
survive indefinitely, except as otherwise provided herein.
12. 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.
13. BROKERS AND FINDERS. Lender and NRC each represent and warrant to the
other that it has dealt with no broker or finder in connection with this
transaction. This representation shall survive the closing hereunder.
14. ASSIGNABILITY. Neither this Agreement nor any rights, obligations or
claims hereunder may be assigned, except that upon prior written notice to NRC,
Lender 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, 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
Conversion Shares, shall not affect NRC's obligation under Section 1 of EXHIBIT
C hereto.
18
<PAGE>
15. 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
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.
16. 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 cancelled 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
19
<PAGE>
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.
17. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
18. 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 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 LENDER: 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
20
<PAGE>
Attn: James C. Colihan, Esq.
Facsimile No.: (212) 626-4120
19. 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.
20. SEVERABILITY. The invalidity or unenforceability of any particular
provision of this Agreement or portions thereof, shall not affect the other
provisions or portions thereof, and this Agreement shall be construed in all
respects as if any such invalid or unenforceable provisions or portions thereof
were omitted.
21. 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.
22. 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.
23. COUNTERPARTS. This Agreement may be executed in any number of
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<PAGE>
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
NORD RESOURCES CORPORATION
By:
-----------------------------------------
MIL (INVESTMENTS) S.A.
By:
-----------------------------------------
Ekehart Kessel, Administrator
By:
-----------------------------------------
Edmond Van de Kleft, Administrator
<PAGE>
NORD RESOURCES CORPORATION ANNOUNCES
$10,000,000 CASH INFUSION
Press Release
DAYTON, Ohio, April 15, 1996 -- Nord Resources Corporation (NYSE:NRD)
announced today that it has issued 3,160,000 shares of its common stock to MIL
(Investments) S.A., a Luxembourg company owned by Mr. Jean-Raymond Boulle, for
a purchase price of $7,900,000 ($2.50 per share). In addition, MIL
(Investments) S.A. has lent $2,100,000 to the Company. The loan will be
converted into a further 840,000 shares of the Company, provided the Company's
shareholders approve of the conversion of the loan at the Company's next annual
shareholders meeting. MIL (Investments) S.A. has the right to nominate three
directors to the board of Nord.
Mr. Boulle is the founder, a major shareholder, and co-chairman of Diamond
Fields Resources which is the owner of a 75% interest in the newly discovered
nickel deposit in Voisey's Bay in Labrador, Canada and which is currently the
subject of a C$4.6 billion bid by Inco Limited.
Jean-Raymond Boulle said that "I am pleased to have the opportunity to
invest in Nord Resources Corporation and to be involved in the future
development of the Company, including the recommencement of the rutile mine in
Sierra Leone."
Dr. Edgar F. Cruft, President of the Company, added that "Mr. Boulle's
experience and record speak for themselves. His involvement with the Company,
both as an investor and as a participant are a great addition to the Company. I
look forward to a long and close working relationship with him."
CONTACT: Terence H. Lang, Senior Vice President-Finance, or Susan A. Baker,
Director of Investor Relations, both of Nord Resources Corporation, 513-433-6307
