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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
SCHEDULE 13D
(Amendment No. )
Under the Securities Exchange Act of 1934
NORD RESOURCES CORPORATION
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(Name of Issuer)
Common Stock, par value $.01 per share
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(Title of Class of Securities)
655555100
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CUSIP Number
Stephen Seymour
Ronald Hirsch
c/o Ronald Hirsch
223 North Guadalupe
PMB #153
Santa Fe, NM 87501
TEL: (505) 995-8170
WITH A COPY TO: Charles J. Rennert
Berman Wolfe Rennert Vogel & Mandler, P.A.
100 Southeast 2nd Street, 35th Floor
Miami, FL 33131
TEL: (305) 577-4171
FAX: (305) 373-6036
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(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
October 11, 2000
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(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition that is the subject of this schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box. [ ]
Note: Schedules filed in paper format shall include a signed original
and five copies of the schedule, including all exhibits. See ss. 240.13d-7(b)
for other parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not
be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
(Page 1 of 28)
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SCHEDULE 13D
CUSIP NO. 655555100 PAGE 2 OF 28
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(1) Names of Reporting Persons and SS or IRS Identification No. of above
Person:
STEPHEN SEYMOUR
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(2) Check the Appropriate Box If a Member of a Group: (A) [ ] (B) [ ]
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(3) SEC Use Only:
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(4) Source of Funds:
PF
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(5) Check Box If Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e): [ ]
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(6) Citizenship or Place of Organization:
United States of America
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Number of (7) SOLE VOTING POWER: 0
Shares ----------------------------------------------
Beneficially
Owned by Each (8) SHARED VOTING POWER: 93,052
Reporting ----------------------------------------------
Person With:
(9) SOLE DISPOSITIVE POWER: 0
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(10) SHARED DISPOSITIVE POWER: 93,052
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(11) Aggregate Amount Beneficially Owned by Each Reporting Person:
93,052 shares of Common Stock
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(12) Check Box If Aggregate Amount in Row (11) Excludes Certain Shares: [ ]
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(13) Percent of Class Represented by Amount in Row (11):
.56%
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(14) Type of Reporting Person:
IN
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SCHEDULE 13D
CUSIP NO. 655555100 PAGE 3 OF 28
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(1) Names of Reporting Persons and SS or IRS Identification No. of above
Person:
Ronald Hirsch
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(2) Check the Appropriate Box If a Member of a Group: (A) [ ] (B) [ ]
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(3) SEC Use Only:
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(4) Source of Funds:
PF
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(5) Check Box If Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e): [ ]
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(6) Citizenship or Place of Organization:
United States of America
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Number of (7) SOLE VOTING POWER: 771,400
Shares --------------------------------------------
Beneficially
Owned by Each (8) SHARED VOTING POWER: 0
Reporting --------------------------------------------
Person With:
(9) SOLE DISPOSITIVE POWER: 771,400
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(10) SHARED DISPOSITIVE POWER: 0
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(11) Aggregate Amount Beneficially Owned by Each Reporting Person:
771,400 shares of Common Stock
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(12) Check Box If Aggregate Amount in Row (11) Excludes Certain Shares: [ ]
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(13) Percent of Class Represented by Amount in Row (11):
4.67%
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(14) Type of Reporting Person:
IN
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SCHEDULE 13D
CUSIP NO. 655555100 PAGE 4 OF 28
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Item 1. SECURITY AND ISSUER
This Schedule 13D relates to the shares of Common Stock, par value
$.01 per share (the "Shares"), of Nord Resources Corporation, a Delaware
corporation (the "Issuer"). The Issuer's principal executive offices are located
at 201 Third Street NW, 7e 1750, Albuquerque, New Mexico 87102.
Item 2. IDENTITY AND BACKGROUND
(a) This statement is being filed by:
(1) Stephen Seymour (an individual).
(2) Ronald Hirsch (an individual).
(b) The business address of:
(1) Stephen Seymour is 2201 Old Court Rd., Baltimore,
MD 21208.
(2) Ronald Hirsch is 223 North Guadalupe, PMB #153,
Santa Fe, NM 87501.
(c) The principal occupation of:
(1) Stephen Seymour is an investor.
(2) Ronald Hirsch is an investor.
(d) During the last five years, neither Mr. Seymour nor Mr.
Hirsch has been convicted in a criminal proceeding,
excluding traffic violations or similar misdemeanors.
(e) During the last five years, neither Mr. Seymour nor Mr.
Hirsch has been a party to a civil proceeding of a
judicial or administrative body or as a result of such
proceeding, was or is subject to a judgment, decree or
final order enjoining further violations of, or
prohibiting activities subject to federal or state
securities laws or finding any violations with respect to
such laws.
(f) Each of Messrs. Seymour and Hirsch are United States
citizens.
Item 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
The aggregate amount of funds expended to date by all the persons
listed in this Schedule 13D for the Shares of the Issuer owned by them,
exclusive of commissions paid to brokers, is approximately $480,000 which was
obtained from their personal funds.
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SCHEDULE 13D
CUSIP NO. 655555100 PAGE 5 OF 28
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Item 4. PURPOSE OF THE TRANSACTION
On May 18, 2000 Messrs. Hirsch and Seymour, along with Ray Jenner,
filed jointly a Schedule 13D (the "13D"). All terms not otherwise defined
herein shall have the meanings ascribed to them in the 13D. The 13D, among other
things, disclosed the filing of the Complaint and the possibility that Messrs,
Jenner, Hirsch and Seymour may seek representation on the Board of Directors of
the Issuer and that they may seek to change the number or term of directors and
may solicit proxies to obtain such representation.
Without admitting or denying any allegations of liability, fault
or wrongdoing on the part of any party thereto, on September 6, 2000, Messrs.
Jenner, Seymour and Hirsch and the Defendants and the Issuer entered into a
Settlement Agreement and Mutual Releases (the "Settlement Agreement"), a copy of
which is attached to this Schedule 13D as EXHIBIT 4. The Settlement Agreement
became effective on September 7, 2000, upon its approval by the Court overseeing
the Complaint, as evidenced by the Final Judgment of the United States District
Court for the District of New Mexico, a copy of which is attached to this
Schedule 13D as EXHIBIT 5.
Under the terms of the Settlement Agreement, the parties thereto
waived, released and discharged any and all claims against each other arising
out of or relating to the activities alleged in the Complaint. Under the
Settlement Agreement, Messrs. Jenner, Seymour and Hirsch dismissed the Complaint
with prejudice.
In exchange for such consideration by Messrs. Jenner, Seymour and
Hirsch: (1) Edgar Cruft, Terrence Lang and Leonard Lichter voluntarily resigned
as members of the Issuer's Board of Directors; (2) Mr. Hirsch was appointed to
the Issuer's Board of Directors; (3) Cruft, Lang, Lichter, Askew and Waldron
agreed to relinquish all their stock options in the Issuer without payment or
any other form of compensation; and (4) the Issuer agreed to reimburse Jenner,
Seymour and Hirsch for fees, expenses and costs incurred in connection with the
Complaint and the Schedule 13D in an amount not to exceed $100,000.00.
Additionally, under the Settlement Agreement, the Issuer shall no
longer pay fees and expenses related to Edgar Cruft's activities for or on
behalf of the Issuer. Further, Lichter agreed, on behalf of Spitzer & Feldman,
that the Issuer will not be responsible for paying any fees rendered or costs
incurred by Lichter and/or Spitzer & Feldman in connection with the Complaint
and/or the Schedule 13D, whether billed or unbilled. Lichter also remitted to
the Issuer all payments previously collected by Spitzer & Feldman from or on
behalf of the Issuer in connection with the Complaint and/or the Schedule 13D.
The Settlement Agreement does not change the obligations of the
Issuer under the trusts or cause the acceleration of any other of the Issuer's
obligation pertaining to retirement benefits for Cruft, Lang and Richard
Steinberger, who agreed to waive any such obligations or requirements.
As of October 11, 2000, the date the appeals period expired on the
effectiveness of the Settlement Agreement, Messrs. Seymour and Hirsch are no
longer acting as a group with anyone with respect to the Issuer. Messrs. Seymour
and Hirsch no longer have the intent to seek to remove and replace certain
members of the Board of Directors of the Issuer, nor do they have the collective
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SCHEDULE 13D
CUSIP NO. 655555100 PAGE 6 OF 28
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intent to seek representation on the Board of Directors of the Issuer or change
the number or term of directors. Mr. Hirsch currently serves as a member of the
Issuer's Board of Directors.
Item 5. INTEREST IN SECURITIES OF THE ISSUER
(a) As of the close of business on November 6, 2000, pursuant to
Rule 13d-3, the persons filing this Schedule 13D may be deemed
to beneficially own the following number of Shares outstanding
of the Issuer:
NAME NO. OF SHARES PERCENT OF OUTSTANDING
Stephen Seymour 93,052 .56%
Ronald Hirsch 771,400 4.67%
(b) Mr. Hirsch may be deemed to have sole voting and dispositive
power of the Shares of the Issuer beneficially owned by him.
Mr. Seymour may be deemed to have shared voting power and
shared dispositive power over 93,052 shares of the Issuer. In
connection with this shared voting and shared dispositive
power, Mr. Seymour is a trustee of two separate trusts, which
trusts hold 64,595 shares of the Issuer. Separate from the
trusts, Mr. Seymour together with his wife Sharon Seymour
JTWROS, owns 28,457 shares of the Issuer.
(c) Neither Messrs. Seymour nor Hirsch have transacted in Shares
during the 60 days preceding the date of this filing.
(d) No other person is known to have the right to receive or the
power to direct the receipt of dividends from, or the proceeds
from the sale of the Shares issuable by the Issuer.
(e) Not applicable.
Item 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER
None of the persons filing this Schedule is party to any agreement with
respect to any securities of the Issuer, including agreements with respect to
the transfer or voting of any such securities, finder's fees, joint ventures,
loans or option arrangements, puts or calls, guarantees of profits, division of
profits or loss, or the giving or withholding of proxies.
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SCHEDULE 13D
CUSIP NO. 655555100 PAGE 7 OF 28
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Item 7. MATERIAL TO BE FILED AS EXHIBITS
Exhibit 1. Verified Complaint for Breach of Fiduciary Duties,
Misrepresentations and Unfair Trade Practices (Case
No. D-0101-CV-2000-1096).**
Exhibit 2. Letter dated May 3, 2000 from Ronald Hirsch to the
Issuer.**
Exhibit 3. Joint Filing Agreement, dated November 6, 2000,
between Stephen Seymour, and Ronald Hirsch.*
Exhibit 4. Settlement Agreement and Mutual Releases by and among
Ray W. Jenner, Stephen Seymour, Ronald A. Hirsch,
Edgar Cruft, Geraldine Cruft, Leonard Lichter,
Terrence Lang, Evelyn Lang, James Askew, Frank
Waldron, National City Bank, N.A. and the Issuer,
dated September 6, 2000.*
Exhibit 5. Final Judgment of the United States District Court
for the District of New Mexico, filed September 7,
2000 (Case No. CIV-00-911-DJS).*
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* Filed herewith.
** Filed as an Exhibit to the Schedule 13D filed on May 18, 2000.
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I
hereby certify that the information set forth in this statement is true,
complete and correct.
Date: November 6, 2000 /s/ Stephen Seymour
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Stephen Seymour
/s/ Ronald Hirsch
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Ronald Hirsch
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SCHEDULE 13D
CUSIP NO. 655555100 PAGE 8 OF 28
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EXHIBIT 3
JOINT FILING AGREEMENT
Each of the undersigned hereby acknowledges and agrees, in compliance with the
provisions of Rule 13d-1(k)(1) promulgated under the Securities Exchange Act of
1934, as amended, that the Schedule 13D to which this Agreement is attached as
an Exhibit (the "Schedule 13D"), and any amendments thereto, will be filed with
the Securities and Exchange Commission jointly on behalf of each of the
undersigned. This Agreement may be signed by the undersigned in separate
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
Date: November 6, 2000 /s/ Stephen Seymour
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Stephen Seymour
/s/ Ronald Hirsch
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Ronald Hirsch
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SCHEDULE 13D
CUSIP NO. 655555100 PAGE 9 OF 28
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EXHIBIT 4
SETTLEMENT AGREEMENT AND MUTUAL RELEASES
THIS Settlement Agreement and Mutual Releases ("Settlement Agreement")
is entered into by Ray W. Jenner, Stephen Seymour and Ronald A. Hirsch as well
as Edgar Cruft, Geraldine Cruft, Leonard Lichter, Spitzer & Feldman, P.C.,
Terrence Lang, Evelyn Lang, James Askew, Frank Waldron, Nord Resources
Corporation and Nord Pacific Limited.
RECITALS
1. Ray W. Jenner ("Jenner") is a resident of the state of New Mexico
and a shareholder of Nord Resources Corporation ("Nord").
2. Stephen Seymour ("Seymour") is a resident of the state of Maryland
and a shareholder of Nord.
3. Ronald A. Hirsch ("Hirsch") is a resident of the state of New Mexico
and a shareholder of Nord.
4. Jenner, Seymour and Hirsch shall be referred to collectively as
"Shareholders."
5. Nord is a Delaware corporation with its principal place of business
in Albuquerque, New Mexico. Nord Pacific Limited ("Nord Pacific") is an
affiliate of Nord.
6. Edgar Cruft and his wife, Geraldine Cruft (hereinafter referred to
collectively as "Cruft"), are residents of the state of California. Edgar Cruft
is Chairman of the Board of Directors of Nord and a beneficiary of a certain
"rabbi trust" established by Nord to fund retirement benefits. Edgar Cruft is
also a Director of Nord Pacific.
7. Terrence Lang and his wife, Evelyn Lang (hereinafter referred to
collectively as "Lang"), are residents of the state of Ohio. Terrence Lang is a
Director of Nord and a beneficiary of a certain "rabbi trust" established by
Nord to fund retirement benefits. Terrence Lang is also a Director of Nord
Pacific.
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SCHEDULE 13D
CUSIP NO. 655555100 PAGE 10 OF 28
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8. Leonard Lichter ("Lichter") is a resident of the state of New York
and a Director of Nord. Lichter is a member of Spitzer & Feldman, P.C. ("Spitzer
& Feldman") which acted as legal counsel to Nord. Lichter is also a Director of
Nord Pacific.
9. James Askew ("Askew") is a resident of Australia and was a Director
of Nord, having resigned as of April 1, 2000.
10. Frank Waldron ("Waldron") is a resident of the state of South
Carolina and was a Director of Nord, having resigned as of April 1, 2000.
11. Edgar Cruft, Terrance Lang, Lichter, Askew and Waldron shall be
referred to collectively as the "Individual Directors."
12. A dispute has arisen among the Shareholders and Cruft, Lang,
Lichter, Askew, Waldron and Nord relating to the management of Nord by the
Individual Directors, which resulted in a derivative action filed in the First
Judicial District Court, Santa Fe County, State of New Mexico, known as RAY W.
JENNER, STEPHEN SEYMOUR AND RONALD HIRSCH V. EDGAR CRUFT, GERALDINE CRUFT,
LEONARD LICHTER, TERRENCE LANG, EVELYN LANG, JAMES ASKEW, FRANK WALDRON,
NATIONAL CITY BANK, N.A., AND NORD RESOURCES CORPORATION, Case No.
D-0101-CV-2000-1096, which was removed by Nord to the United States District
Court for the District of New Mexico, Case No. CIV-00911DJS (the "LAWSUIT").
13. Although the Defendants to the LAWSUIT have yet to file responses,
the parties now desire to fully and finally settle all claims associated with
the LAWSUIT, all activities, occurrences or transactions related to the
management of Nord and the legal services provided to Nord by Lichter and
Spitzer & Feldman for the purpose of avoiding the costs and risks of litigation
without any admission or concession of liability, fault or wrongdoing on the
part of any party.
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SCHEDULE 13D
CUSIP NO. 655555100 PAGE 11 OF 28
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AGREEMENT
In consideration of the mutual promises set forth in this Settlement
Agreement and for other valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree and promise as follows:
14. ADOPTION OF RECITALS
The parties hereby adopt the recitals set out above in paragraphs 1
through and including 13 as if fully set forth herein.
15. RESIGNATIONS AND APPOINTMENT OF NEW DIRECTOR(S)
As a material inducement to the Shareholders to enter into this
Settlement Agreement and contemporaneous with the approval of this Settlement
Agreement by the Court overseeing the LAWSUIT, Edgar Cruft, Terrence Lang and
Lichter agree to resign as members of Nord's Board of Directors and Nord
Pacific's Board of Directors, and the remaining Nord Director, Dr. Pierce
Carson, shall appoint Ronald A. Hirsch and two others to Nord's Board of
Directors. The failure by Nord to appoint the two others to Nord's Board of
Directors shall in no way affect the appointment of Ronald A. Hirsch to Nord's
Board of Directors. The resignations and the appointments shall be in a written
form acceptable to Nord and the Shareholders and delivered to Patricia Salazar
Ives in trust as counsel for Nord by Monday, August 7, 2000.
16. NORD EXPENSES AND SHAREHOLDER EXPENSES
Upon approval of this Settlement Agreement by the Court overseeing the
LAWSUIT, Nord shall no longer pay fees and expenses related to Edgar Cruft's
activities for or on behalf of Nord, including the costs associated with the Los
Olivos, California office. Also, upon approval of this Settlement Agreement by
the Court overseeing the LAWSUIT, Nord agrees to reimburse the Plaintiffs to the
LAWSUIT for their reasonable attorneys' fees and costs, including, but not
limited to, the costs associated with the Schedule 13D filed with the Securities
and Exchange Commission
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SCHEDULE 13D
CUSIP NO. 655555100 PAGE 12 OF 28
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("Schedule 13D") in an amount not to exceed $50,000.00. Nord further agrees to
reimburse Nord and the Individual Directors for their reasonable attorneys' fees
and costs in an amount not to exceed $50,000.00 upon approval of the Court
overseeing the LAWSUIT, which shall be distributed first to Simons, Cuddy and
Friedman, LLP; next to Stutzman & Bromberg, P.C.; and then only the remaining
balance to Spitzer & Feldman, P.C. not to exceed the amount of its Statements
pertaining to the LAWSUIT.
17. STOCK OPTIONS
As a further material inducement to enter into this Settlement
Agreement and upon approval of this Settlement Agreement by the Court overseeing
the LAWSUIT, Cruft, Lang, Lichter, Askew and Waldron relinquish and cancel all
their stock options in Nord and in Nord Pacific without payment or any other
form of compensation and will undertake such other action in furtherance thereof
as directed by or in a manner acceptable to Nord and to Nord Pacific.
18. RABBI TRUSTS
In connection with the Nord Resources Corporation Trust Agreement for
Key Executives as Restated July 7, 1995 ("Trust Agreement") and as Amended on
December 1, 1995 ("Amended Trust Agreement") and any other retirement plans and
the "Rabbi Trusts" established thereunder for the benefit of Cruft, Lang,
Richard Steinberger and his wife, the parties hereto agree that this Settlement
Agreement shall in no way change the obligations of Nord under the Trust
Agreement or the Amended Trust Agreement or any other retirement plans and the
"Rabbi Trusts," nor shall it cause the acceleration of any funding requirements
as a result of the change in management described in paragraph 16 above, as well
as any other Nord obligations pertaining to the retirement benefits for Cruft,
Lang, Richard Steinberger and his wife, each of whom expressly waive any such
obligations or requirements as evidenced by their execution of a waiver in the
form attached hereto as Exhibit "A."
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SCHEDULE 13D
CUSIP NO. 655555100 PAGE 13 OF 28
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19. ORDER AND EFFECTIVE DATES OF PERFORMANCE
Upon full execution of this Settlement Agreement, the parties to the
LAWSUIT will jointly present this Settlement Agreement to the Court for approval
and dismissal of the LAWSUIT with prejudice. The form of Order(s) to effectuate
approval of the Settlement Agreement and dismissal of the LAWSUIT with prejudice
shall be approved by the parties to the LAWSUIT prior to presentment.
Contemporaneously with such approval and dismissal with prejudice by the Court,
the resignations of Edgar Cruft, Lichter and Terrence Lang from Nord's Board of
Directors and from Nord Pacific's Board of Directors shall become effective, the
appointment of Hirsch to Nord's Board of Directors shall become effective and
the stock options referred to in paragraph 17 above shall be relinquished,
cancelled or otherwise disposed of consistent with Nord's directions. This
Settlement Agreement shall only become effective upon the occurrence of each and
every event described above in this paragraph.
20. MUTUAL RELEASES OF CLAIMS
Upon the delivery of this Settlement Agreement with all required
signatures, the approval of the Court overseeing the LAWSUIT, the appointment
and resignations described in paragraph 15 above, the relinquishment and/or
cancellation of the stock options described in paragraph 17 above, and the
dismissal of the Complaint with prejudice, the parties contemporaneously
mutually release all claims as set forth below in consideration of the
settlement memorialized herein:
a. Jenner, Seymour and Hirsch and Nord Pacific (hereinafter referred to
collectively as "First Releasors" in this Release) waive, release, relinquish,
and discharge Nord, the Individual Directors, Geraldine Cruft, Evelyn Lang and
Spitzer & Feldman, as well as their representatives, agents, attorneys,
employees, servants, directors, officers, subsidiaries, parents, successors and
assigns (hereinafter referred to collectively as "First Releasees" in this
Release) from all claims, counterclaims, cross-claims, and causes of actions
which First Releasors and each of them have
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SCHEDULE 13D
CUSIP NO. 655555100 PAGE 14 OF 28
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asserted, or which First Releasors and each of them could have asserted against
First Releasees in the LAWSUIT, or in any other action which First Releasors and
each of them could have brought against First Releasees based on First
Releasees' conduct or activities prior to the effective date of this Settlement
Agreement. In addition, First Releasors and each of them are hereby settling and
fully extinguishing all claims existing or potential, known or unknown, which
have been made, which could be made, or which might be made against First
Releasees and/or each of them, and First Releasors and each of them do hereby
forever release, acquit and discharge First Releasees of and from any and all
manner of claims, actions, demands, rights, damages, costs, losses, expenses,
compensation and liability whatsoever, which First Releasors and each of them
may now have or which may hereafter accrue to them and/or each of them against
First Releasees, including, but not limited to, the LAWSUIT and/or any activity
and/or transaction and/or occurrence with or involving the First Releasors and
each of them and/or the management of Nord and/or the legal services provided to
Nord by Lichter and Spitzer & Feldman through the effective date of this
Settlement Agreement.
This Release, however, specifically excepts and does not release Nord
from any direct claims that Jenner could individually assert on his behalf
against Nord arising out of or pertaining to his employment with and/or his
termination by Nord, nor does it release Nord from its obligations to reimburse
Jenner, Seymour and Hirsch as set forth in paragraph 16 above. In addition, this
Release specifically excepts and does not release any objections and/or defenses
and/or claims Nord Pacific may or could assert arising out of or related to
Lichter's and Spitzer & Feldman's unpaid or unbilled charges for legal services
rendered on behalf of Nord Pacific unrelated to the LAWSUIT and/or the Schedule
13D.
b. Nord, the Individual Directors, Geraldine Cruft, Evelyn Lang and
Spitzer & Feldman (hereinafter referred to collectively as "Second Releasors" in
this Release) waive, release, relinquish,
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SCHEDULE 13D
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and discharge Jenner, Seymour, Hirsch and Nord Pacific as well as their
representatives, agents, attorneys, employees, servants, successors and assigns
(hereinafter referred to collectively as "Second Releasees" in this Release)
from all claims, counterclaims, cross-claims, and causes of actions which Second
Releasors and each of them have asserted, or which Second Releasors and each of
them could have asserted against Second Releasees in the LAWSUIT, or in any
other action which Second Releasors and each of them could have brought against
Second Releasees based on Second Releasees' conduct or activities prior to the
effective date of this Settlement Agreement. In addition, Second Releasors and
each of them are hereby settling and fully extinguishing all claims existing or
potential, known or unknown, which have been made, which could be made, or which
might be made against Second Releasees and/or each of them, and Second Releasors
and each of them do hereby forever release, acquit and discharge Second
Releasees of and from any and all manner of claims, actions, demands, rights,
damages, costs, losses, expenses, compensation and liability whatsoever, which
Second Releasors and each of them may now have or which may hereafter accrue to
each of them against Second Releasees, including, but not limited to, the
LAWSUIT and/or the Schedule 13D and/or any activity and/or transaction and/or
occurrence with or involving the Second Releasors and each of them. This
release, however, specifically excepts and does not release Jenner from any
claims or defenses that Nord could assert against Jenner arising out of or
pertaining to his employment with and/or termination by Nord.
c. Nord waives, releases, relinquishes, and discharges the Individual
Directors, Geraldine Cruft, Evelyn Lang and Spitzer & Feldman as well as their
representatives, agents, attorneys, employees, servants, directors, officers,
subsidiaries, parents, successors and assigns (hereinafter referred to
collectively as "Third Releasees" in this Release) from all claims,
counterclaims, cross-claims, and causes of actions which Nord asserted or could
have asserted against Third Releasees in the LAWSUIT, or in any other action
which Nord could have brought
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SCHEDULE 13D
CUSIP NO. 655555100 PAGE 16 OF 28
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against Third Releasees based on Third Releasees' conduct or activities prior to
the effective date of this Settlement Agreement. In addition, Nord is hereby
settling and fully extinguishing all claims existing or potential, known or
unknown, which have been made, which could be made, or which might be made
against Third Releasees and/or each of them, and Nord does hereby forever
release, acquit and discharge Third Releasees of and from any and all manner of
claims, actions, demands, rights, damages, costs, losses, expenses, compensation
and liability whatsoever, which Nord may now have or which may hereafter accrue
to Nord against Third Releasees, including, but not limited to, the LAWSUIT
and/or any activity and/or transaction and/or occurrence with or involving Nord
and/or the management of Nord and/or the legal services provided to Nord by
Lichter and Spitzer & Feldman through the effective date of this Settlement
Agreement.
This Release, however, specifically excepts and does not release any
objections and/or defenses and/or claims that Nord may or could assert arising
out of or related to Lichter's and Spitzer & Feldman's unpaid or unbilled
charges for legal services rendered on behalf of Nord unrelated to the LAWSUIT
and/or the Schedule 13D.
d. The Individual Directors, Geraldine Cruft, Evelyn Lang and Spitzer &
Feldman (hereinafter referred to collectively as "Fourth Releasors" in this
Release) waive, release, relinquish and discharge Nord as well as its
representatives, agents, attorneys, employees, servants, directors, officers,
subsidiaries, parents, successors and assigns (hereinafter referred to
collectively as "Fourth Releasees" in this Release) from all claims,
counterclaims, cross-claims, and causes of actions which Fourth Releasors and
each of them could have asserted against Fourth Releasees in the LAWSUIT, or in
any other action which Fourth Releasors and each of them could have brought
against Nord based on Nord's conduct or activities prior to the effective date
of this Settlement Agreement. In addition, Fourth Releasors and each of them are
hereby settling and fully extinguishing all claims existing or potential, known
or unknown, which have been made, which could be made, or which
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might be made against Nord, and Fourth Releasors and each of them do hereby
forever release, acquit and discharge Nord of and from any and all manner of
claims, actions, demands, rights, damages, costs, losses, expenses, compensation
and liability whatsoever, which Fourth Releasors and each of them may now have
or which may hereafter accrue to each of them against Nord, including, but not
limited to, the LAWSUIT and/or any activity and/or transaction and/or occurrence
with or involving Nord and the Fourth Releasors and each of them.
This Release, however, specifically excepts and does not release Nord
from its obligations to Cruft and Lang under the Trust Agreement, the Amended
Trust Agreement and any other retirement plans and the Rabbi Trusts established
thereunder, except as provided in Exhibit "A" hereto, or the obligation to pay
reasonable attorneys' fees and expenses in connection with this LAWSUIT as set
forth in paragraph 16 above or to pay Spitzer & Feldman's unpaid or unbilled
reasonable charges to Nord and Nord Pacific for other legal services rendered on
behalf of Nord and Nord Pacific.
e. In connection with the Mutual Releases set forth in Paragraphs a, b,
c and d above, the parties acknowledge that claims or facts in addition to or
different from those which are now known or believed to exist may hereafter be
discovered with respect to the LAWSUIT and/or the Schedule 13D and/or any
activity and/or transaction and/or occurrence with or involving the parties
hereto and/or each or any combination of them, including the management of Nord
and legal services provided to Nord by Lichter and Spitzer & Feldman. However,
it is the intention of the parties to fully and forever settle and release all
claims against one another, including, but not limited to, those pertaining
and/or related to the LAWSUIT and/or the Schedule 13D and/or claims arising out
of or relating to any activity and/or transaction and/or occurrence with or
involving the parties, and/or each or any combination of them, including the
management of Nord and the legal services provided to Nord by Lichter and
Spitzer & Feldman.
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f. Nothing contained in Paragraphs a, b, c and d above shall be
construed or interpreted as releasing, affecting, or in any way limiting future
claims, which arise after the date of this Settlement Agreement and/or which
concern the parties' rights and obligations under this Settlement Agreement.
21. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
In return for the promises in this Settlement Agreement as well as the
other consideration identified herein, including, but not limited to, the
appointment and resignations described in paragraph 15 above, Jenner, Seymour
and Hirsch represent and warrant the following to Nord, Nord Pacific, Cruft,
Lang, Lichter, Askew, Waldron and Spitzer & Feldman:
a. that each is correctly described in this Settlement Agreement;
b. that before executing this Settlement Agreement, each has become
fully informed of the terms, contents, conditions and effect of this Settlement
Agreement;
c. that each is fully and duly authorized and legally competent to
execute this Settlement Agreement;
d. that no promise or representation of any kind has been made to each
of them, or anyone acting on their behalf, except as is expressly stated in this
Settlement Agreement;
e. that each understands that this Settlement Agreement constitutes the
entire Settlement Agreement among the parties, contains a full, final and
complete release of the parties, and that the promises and obligations set forth
in this Settlement Agreement are the only benefits each shall ever receive in
connection with the matters set forth herein, including, but not limited to, the
LAWSUIT and/or any activity and/or transaction and/or occurrence with or
involving the parties hereto and/or the management of Nord by the Individual
Directors and the legal services provided by Lichter and Spitzer & Feldman to
Nord; and
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f. that before executing this Settlement Agreement, each has been
advised by independent counsel with respect to the transactions governed by this
Settlement Agreement as well as the terms of this Settlement Agreement.
22. REPRESENTATIONS AND WARRANTIES OF NORD, NORD PACIFIC, CRUFT, LANG,
LICHTER, ASKEW, WALDRON AND SPITZER & FELDMAN
In return for the promises in this Settlement Agreement as well as the
other consideration identified herein, including, but not limited to, the
dismissal of the LAWSUIT with prejudice, Nord, Nord Pacific, Cruft, Lang,
Lichter, Askew, Waldron and Spitzer & Feldman represent and warrant the
following to Jenner, Seymour and Hirsch:
a. that they are correctly described in this Settlement Agreement;
b. that before executing this Settlement Agreement, they have become
fully informed of the terms, contents, conditions and effect of this Settlement
Agreement;
c. that they are fully and duly authorized and legally competent to
enter into and execute this Settlement Agreement;
d. that no promise or representation of any kind has been made to
either of them, or anyone acting on their behalf, except as is expressly stated
in this Settlement Agreement;
e. that each understands that this Settlement Agreement constitutes the
entire agreement among the parties, contains a full, final and complete release
of each party, and that the promises and obligations set forth in this
Settlement Agreement are the only benefits each shall ever receive in connection
with the matters set forth herein, including, but not limited to, the LAWSUIT
and/or any activity and/or transaction and/or occurrence with or involving the
parties hereto; and
f. that before executing this Settlement Agreement, each has been
advised by independent counsel with respect to the transactions governed by this
Settlement Agreement as well as the terms of this Settlement Agreement.
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23. TERMINATION AND CANCELLATION
All covenants, agreements, representations and warranties made herein
by the parties, notwithstanding any investigation or lack thereof by the
parties, shall be deemed to be material to the parties and to have been relied
on by the parties and are intended to survive the termination or cancellation of
this Settlement Agreement.
24. GOOD FAITH PERFORMANCE
The parties shall act in good faith in performing and satisfying the
terms and conditions of this Settlement Agreement.
25. GOVERNING LAW AND CONSTRUCTION
This Settlement Agreement is deemed to be a contract governed by and
enforceable under the laws of the State of New Mexico, and shall be construed
and interpreted in accordance with the rules of interpretation and construction
generally applicable to contracts in the State of New Mexico.
26. NOTICES
Notices or other communications which any party desires or requires to
give another party shall be given in writing, shall be deemed to have been given
if hand delivered, if mailed by United States certified mail, prepaid, or
delivered by Federal Express or a comparable courier to the parties at the
addresses noted below, or at such other address a party may designate in
writing:
Ronald M. Greenspan
c/o Law Offices of Ronald M. Greenspan, LLC
As Agents for Jenner, Seymour and Hirsch
142 Lincoln Avenue, Suite 400
Santa Fe, New Mexico 87501
Cassels Brock & Blackwell L.L.P.
As Agents for Nord Pacific Limited
Scotia Plaza, Suite 2100
40 King Street West
Toronto, Canada M5H3C2
Attention: Cathy I. Mercer
<PAGE> 21
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Jay Vogelson
c/o Stutzman & Bromberg, P.C.
As Agents for Cruft, Lichter, Lang, Askew,
Waldron and Spitzer & Feldman, P.C.
2323 Bryan Street, Suite 2200
Dallas, Texas 75201-2689
Patricia Salazar Ives
c/o Simons, Cuddy & Friedman, LLP
As Agents for Nord Resources Corporation
1701 Old Pecos Trail
Santa Fe, New Mexico 87505
27. BINDING EFFECT
This Settlement Agreement shall be binding on and inure to the benefit
of the parties as well as their representatives, attorneys, successors,
assignees, agents, officers, directors and employees.
28. MODIFICATION AND HEADINGS
This Settlement Agreement shall not be amended, modified, or
terminated, nor shall any obligations hereunder be waived (expressly, by
implication in fact, or by estoppel), except by written instrument signed by
each of the parties to this Settlement Agreement. The headings used in this
Settlement Agreement are for reference purposes only and shall not be deemed to
limit, amplify or modify the text hereof.
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29. DEFAULT AND ENFORCEMENT OF AGREEMENTS
In the event any party fails to perform and satisfy any of its
obligations arising out of or related to this Settlement Agreement or in any way
breaches the representations and warranties made herein, the non-defaulting
party or parties shall be entitled to enforce such obligations or bring an
action on the representations and warranties made herein in any court of
competent jurisdiction in the State of New Mexico. The parties further agree
that the prevailing party shall be entitled to recover costs and reasonable
attorneys' fees in connection with such action or efforts to enforce such
obligations.
30. INTEGRATION OF AGREEMENTS
This Settlement Agreement supercedes and incorporates all
representations, promises, statements and agreements, whether oral or written,
made in connection with the subject matter of this Settlement Agreement and the
negotiation thereof, and no such representations, promises, statements and
agreements not written herein have been made or shall be binding and/or
enforceable against any party.
31. EXECUTION OF DOCUMENTS
In addition to the documents identified in paragraph 18 above, each
party shall promptly execute and deliver to each other party such additional
instruments, assignments, conveyances, and other documents and do such other and
further acts as may be reasonably necessary or proper to effectuate the purpose
and intent of this Settlement Agreement.
32. COUNTERPARTS
This Settlement Agreement and the other attachments hereto may be
executed in one or more counterparts, each of which shall be deemed as original
but all of which together shall constitute one and the same instrument. The
delivery of a facsimile signature contained in one or more counterparts
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shall be deemed an original signature, with the understanding that the original
signature pages will be exchanged immediately upon receipt.
33. SEVERABILITY
Whenever possible, each provision of this Settlement Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Settlement Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Settlement Agreement.
34. PRESS RELEASE
The parties agree that only Nord shall issue a Press Release regarding
this settlement, the contents of which shall require approval by Seymour, Jenner
and Hirsch as well as Lichter.
35. D & O COVERAGE
Nord and Nord Pacific will purchase D & O liability insurance from an
insurance carrier for the Individual Directors for each of the next six (6)
years from the effective date of this Settlement Agreement.
EXECUTED in multiple originals, each of equal dignity, on the dates
noted below.
NORD RESOURCES CORPORATION NORD PACIFIC LIMITED
By: /s/ W. Pierce Carson By: /s/ W. Pierce Carson
---------------------------- ----------------------------
W. Pierce Carson, President and W. Pierce Carson, President and Chief
Chief Executive Officer Executive Officer
Date: September 6, 2000 Date: September 6, 2000
SPITZER & FELDMAN, P.C. /s/ Edgar Cruft
----------------------------
By: /s/ Ronald J. Offenkrantz Edgar Cruft
---------------------------- Date: August 10, 2000
Ronald J. Offenkrantz, Member
Date: August 22, 2000 /s/ Geraldine Cruft
----------------------------
Geraldine Cruft
Date: August 10, 2000
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/s/ Terrance Lang /s/ Frank Waldron
---------------------------- ----------------------------
Terrence Lang Frank Waldron
Date: August 9, 2000 Date: August 15, 2000
/s/ Evelyn Lang /s/ Leonard Lichter
---------------------------- ----------------------------
Evelyn Lang Leonard Lichter
Date: August 9, 2000 Date: August 22, 2000
/s/ James Askew /s/ Stephen Seymour
---------------------------- ----------------------------
James Askew Stephen Seymour
Date: August 9, 2000 Date: July 11, 2000
/s/ Ray W. Jenner
----------------------------
Ray W. Jenner
Date: July 11, 2000
/s/ Ronald Hirsch
----------------------------
Ronald A. Hirsch
Date: July 18, 2000
* Notary blocks omitted
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EXHIBIT 5
FINAL JUDGMENT
THIS MATTER having come before the Court upon the Joint Motion to
Approve Settlement Agreement and Mutual Release filed by Plaintiffs Ray W.
Jenner, Stephen Seymour and Ronald Hirsch, and the Defendants, Edgar Cruft,
Geraldine Cruft, Leonard Lichter, Terrence Lang, Evelyn Lang, James Askew, Frank
Waldron, and Nord Resources Corporation (collectively "the Defendants"),
pursuant to Rule 23.1, FED.R.CIV.P. The Court having considered the record and
otherwise being fully advised, finds and orders as follows:
1. On April 25, 2000, Plaintiffs filed a Verified Shareholders'
Complaint for Breach of Fiduciary Duties, Misrepresentation and Unfair Trade
Practices against the Defendants and National City Bank, N.A. ("NCB"). The case
was filed as a shareholders derivative action by the Plaintiffs, individually
and on behalf of Nord Resources Corporation ("Nord") on April 26, 2000. The
Complaint alleged various causes of action against directors of Nord. The case
was removed by Nord to the United States District Court for the District of New
Mexico on June 23, 2000.
2. On August 8, 2000, NCB filed a Motion to Dismiss for Lack of
Personal Jurisdiction. Pursuant to extensions of time and pursuant to the Order
Granting Motion to Stay All Proceedings with the Exception of Settlement
Proceedings entered on August 11, 2000, none of the other Defendants have filed
an answer to the Complaint.
3. On August 9, 2000, the Plaintiffs and the Defendants (together "the
Parties") filed a Joint Motion to Approve Settlement Agreement and Mutual
Releases stating that the Parties had reached a full and complete resolution of
the matter, the terms and conditions of which were set forth in the Agreement
attached to the Motion as Exhibit A. The Parties tendered the Agreement for
approval by the Court.
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4. Attached as Exhibit C to the Joint Motion was the Affidavit of W.
Pierce Carson ("Carson") the independent director of Nord, who also is its chief
executive officer and is not a defendant in the case. Carson therein stated that
he had reviewed the terms of the Agreement and is of the opinion that the
Agreement is in the best interest of Nord. Carson further stated that in view of
Nord's poor financial condition and its future prospects, it is his business
judgment that the pursuit of litigation among the parties to the case is not in
Nord's best interest, will unnecessarily drain resources needed to pursue
business opportunities, and that the terms agreed upon will enable Nord to
pursue new directions and opportunities that are available to it. In addition,
Carson stated that Nord does not have the ability to pay its operating expenses
on a going forward basis and is awaiting financing, which is conditioned upon
resolution of this lawsuit and judicial approval of the settlement.
5. The Parties requested in the Joint Motion that, due to the cost and
time involved in a direct mailing, notice of the proposed compromise reflected
in the terms of the Agreement be communicated to Nord's shareholders by the
issuance of the Press Release attached to the Joint Motion as Exhibit B, which
release was intended to give public notice without causing a burdensome
expenditure of funds by Nord. Since Nord is a publicly hold company subject to
the jurisdiction of the U.S. Securities and Exchange Commission, the Parties
maintained that the proposed Press Release would be released in a manner
expected to give adequate public notice of the proposed compromise without
requiring Nord to incur the substantial cost of notifying all its shareholders
individually. The Parties also expressed their belief that the proposed press
release was the most effective way to give notice because many of Nord's shares
are held by brokerage firms in street name and there was no assurance that the
beneficial owners of those shares would actually and timely receive any other
form of notice.
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6. On August 9, 2000, the Court held a hearing on the Joint Motion. At
the hearing, each of the Parties appeared through counsel, with the exception of
defendants Askew and Waldron; however, Jay Vogelson, counsel for other
Defendants, stated that he was authorized to advise that they agreed to the
terms of the Settlement Agreement. The Parties proposed that the Notice be
posted on Nord's website, faxed to Nord's shareholders and faxed to brokerage
firms and various news media. Carson also appeared at the hearing and answered
questions from the court regarding the proposed Press Release and Notice.
8. On August 10, 2000, the Court issued the Order Authorizing Notice
and Setting Hearing on Settlement Motion ordering that notice of the proposed
Settlement Agreement and Mutual Releases be given to the shareholders of Nord by
the immediate issuance of the Press Release and that a hearing be held on
September 7, 2000 at 1:30 p.m., at which time the Court would consider the Joint
Motion and written objections filed not later than five (5) days prior to the
hearing.
9. A hearing was held at the appointed time. Nord represented to the
Court that the Press Release had been issued as ordered and that no one had
responded to Nord that they had any objection to the proposed Settlement
Agreement. No other person or entity appeared or otherwise notified Nord or the
Court of any objection to the Settlement Agreement.
10. The Settlement Agreement and Mutual Releases includes the following
terms and conditions:
(a) The resignation of Edgar Cruft, Terence Lang and Leonard
Lichter as members of Nord's Board of directors and Nord's subsidiary, Nord
Pacific's Board of Directors;
(b) The appointment of Ronald A. Hirsch to Nord's Board of
Directors;
(c) The appointment of two new members to Nord's Board of
Directors;
(d) Payment of Plaintiff's legal fees, of an amount not to
exceed $50,000.00, by Nord.
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(e) Payment of the director defendants and Nord's legal fees,
of an amount not to exceed $50,000.00, by Nord.
(f) Members Cruft, Lang, Lichter, Askew and Waldron will
relinquish and cancel all of their stock options in Nord and Nord Pacific;
(g) Dismissal of this lawsuit with prejudice;
(h) Execution of a document entitled "Settlement Agreement and
Mutual Releases," by all parties with the exception of NCB;
11. The Court finds that the Press Release was properly issued and that
Notice of the proposed settlement was properly provided, and that there were no
objections to the proposed settlement and dismissal of this lawsuit. The Court
further finds that the Settlement Agreement and Mutual Releases is fair and
equitable, and in the best interests of Nord and its shareholders.
It is herewith ORDERED that the Settlement Agreement and Mutual
Releases is approved and that the case is dismissed with prejudice and all costs
of court to be paid by the party incurring the same.
Signed this 7th day of September, 2000,
/s/ Bruce Black
---------------------------
Bruce Black
UNITED STATES DISTRICT JUDGE
