<PAGE> 1
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
SCHEDULE 13D
(Amendment No. )
Under the Securities Exchange Act of 1934
NORD RESOURCES CORPORATION
- -------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, par value $.01 per share
- -------------------------------------------------------------------------------
(Title of Class of Securities)
655555100
- -------------------------------------------------------------------------------
CUSIP Number
Ray W. Jenner
Stephen Seymour
Ronald Hirsch
c/o Ray W. Jenner
9631 Desert Mountain Road NE
Albuquerque, New Mexico 87122
TEL: (505) 823-2480
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
- -------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
May 11, 2000
- -------------------------------------------------------------------------------
(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 30)
<PAGE> 2
SCHEDULE 13D
CUSIP NO. 655555100 PAGE 2 OF 30
- -------------------------------------------------------------------------------
(1) Names of Reporting Persons and SS or IRS Identification No. of above
Person:
RAY W. JENNER
----------------------------------------------------------------------
(2) Check the Appropriate Box If a Member of a Group: (A) [ ] (B) [ ]
----------------------------------------------------------------------
(3) SEC Use Only:
----------------------------------------------------------------------
(4) Source of Funds:
PF
----------------------------------------------------------------------
(5) Check Box If Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e): [ ]
----------------------------------------------------------------------
(6) Citizenship or Place of Organization:
CANADA
----------------------------------------------------------------------
Number of (7) SOLE VOTING POWER: 2,000
Shares ------------------------------------------------
Beneficially (8) SHARED VOTING POWER: 0
Owned by Each ------------------------------------------------
Reporting (9) SOLE DISPOSITIVE POWER: 2,000
Person With: ------------------------------------------------
(10) SHARED DISPOSITIVE POWER: 0
------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person:
2,000 SHARES OF COMMON STOCK
----------------------------------------------------------------------
(12) Check Box If Aggregate Amount in Row (11) Excludes Certain Shares: [ ]
----------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11):
.01%
----------------------------------------------------------------------
(14) Type of Reporting Person:
IN
----------------------------------------------------------------------
<PAGE> 3
SCHEDULE 13D
CUSIP NO. 655555100 PAGE 3 OF 30
- -------------------------------------------------------------------------------
(1) Names of Reporting Persons and SS or IRS Identification No. of above
Person:
STEPHEN SEYMOUR
----------------------------------------------------------------------
(2) Check the Appropriate Box If a Member of a Group: (A) [ ] (B) [ ]
----------------------------------------------------------------------
(3) SEC Use Only:
----------------------------------------------------------------------
(4) Source of Funds:
PF
----------------------------------------------------------------------
(5) Check Box If Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e): [ ]
----------------------------------------------------------------------
(6) Citizenship or Place of Organization:
UNITED STATES OF AMERICA
----------------------------------------------------------------------
Number of (7) SOLE VOTING POWER: 0
Shares ------------------------------------------------
Beneficially (8) SHARED VOTING POWER: 93,052
Owned by Each ------------------------------------------------
Reporting (9) SOLE DISPOSITIVE POWER: 0
Person With: ------------------------------------------------
(10) SHARED DISPOSITIVE POWER: 93,052
------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person:
93,052 SHARES OF COMMON STOCK
----------------------------------------------------------------------
(12) Check Box If Aggregate Amount in Row (11) Excludes Certain Shares: [ ]
----------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11):
.56%
----------------------------------------------------------------------
(14) Type of Reporting Person:
IN
----------------------------------------------------------------------
<PAGE> 4
SCHEDULE 13D
CUSIP NO. 655555100 PAGE 4 OF 30
- -------------------------------------------------------------------------------
(1) Names of Reporting Persons and SS or IRS Identification No. of above
Person:
RONALD HIRSCH
----------------------------------------------------------------------
(2) Check the Appropriate Box If a Member of a Group: (A) [ ] (B) [ ]
----------------------------------------------------------------------
(3) SEC Use Only:
----------------------------------------------------------------------
(4) Source of Funds:
PF
----------------------------------------------------------------------
(5) Check Box If Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e): [ ]
----------------------------------------------------------------------
(6) Citizenship or Place of Organization:
UNITED STATES OF AMERICA
----------------------------------------------------------------------
Number of (7) SOLE VOTING POWER: 771,400
Shares ------------------------------------------------
Beneficially (8) SHARED VOTING POWER: 0
Owned by Each ------------------------------------------------
Reporting (9) SOLE DISPOSITIVE POWER: 771,400
Person With: ------------------------------------------------
(10) SHARED DISPOSITIVE POWER: 0
------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person:
771,400 SHARES OF COMMON STOCK
----------------------------------------------------------------------
(12) Check Box If Aggregate Amount in Row (11) Excludes Certain Shares: [ ]
----------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11):
4.67%
----------------------------------------------------------------------
(14) Type of Reporting Person:
IN
----------------------------------------------------------------------
<PAGE> 5
SCHEDULE 13D
CUSIP NO. 655555100 PAGE 5 OF 30
- -------------------------------------------------------------------------------
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 3rd St NW, 7e 1750, Albuquerque, New Mexico 87102.
Item 2. IDENTITY AND BACKGROUND
(a) This statement is being filed by:
(1) Ray W. Jenner (an individual)
(2) Stephen Seymour (an individual)
(3) Ronald Hirsch (an individual)
(b) The business address of:
(1) Ray W. Jenner is 9631 Desert Mountain Rd. NE,
Albuquerque, NM 87122
(2) Stephen Seymour is 2201 Old Court Rd.,
Baltimore, MD 21208
(3) Ronald Hirsch is 223 North Guadalupe,
PMB #153, Santa Fe, NM 87501
(c) The principal occupation of:
(1) Ray W. Jenner was the Chief Financial Officer of the
Issuer from January 1998 to January 2000. Mr. Jenner is
currently a business consultant.
(2) Stephen Seymour is an investor.
(3) Ronald Hirsch is an investor.
(d) During the last five years, neither Mr. Jenner, 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. Jenner, 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 and Mr. Jenner is a Canadian citizen.
Item 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
<PAGE> 6
SCHEDULE 13D
CUSIP NO. 655555100 PAGE 6 OF 30
- -------------------------------------------------------------------------------
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 $484,500 which was
obtained from their personal funds.
Item 4. PURPOSE OF THE TRANSACTION
Messrs. Jenner, Seymour and Hirsch have, over time, individually,
acquired shares of the Issuer. On April 26, 2000 they collectively filed a
Verified Complaint for Breach of Fiduciary Duties, Misrepresentations and Unfair
Trade Practices (the "Complaint") in the First Judicial District Court of the
State of New Mexico in and for Santa Fe County, a copy of which is attached to
this Schedule 13D as Exhibit 1. On May 3, 2000, Mr. Hirsch delivered a letter to
the Issuer clarifying certain issues related to the Complaint. A copy of this
letter is attached as Exhibit 2. As of May 11, 2000, Messrs. Jenner, Seymour and
Hirsch collectively formed the intent to seek to remove and replace certain
current members of the Board of Directors of the Issuer, due to, among other
things, their belief that the current assets of the Issuer are underutilized
resulting in a loss of value to the Issuer. In connection with this intention,
each or all of Messrs. Jenner, Seymour and Hirsch may seek representation on the
Board of Directors of the Issuer. Messrs. Jenner, Seymour and Hirsch also may
seek to change the number or term of directors and may solicit proxies to obtain
such representation.
In addition to the foregoing, while there are no specific plans or
proposals at this time, nothing would preclude one or more of the persons
filing this Schedule from proposing or seeking to effect any of the following
actions: the purchase of or disposition of securities of the Issuer; an
extraordinary corporate transaction involving the Issuer or any of its
subsidiaries; a sale or transfer of material amount of the assets of the Issuer
or any of its subsidiaries; material change in the present capitalization or
dividend policy of the Issuer; any other material change in the Issuer's
business or corporate structure; changes in the Issuer's charter or by-laws or
other actions that might impede the acquisition or control of the Issuer by any
other person; causing securities of the Issuer to be delisted from a national
securities exchange or to cease to be authorized to be quoted in an interdealer
quotation system of a registered national securities association; causing
securities of the Issuer to be eligible for termination of registration
pursuant to the Securities Exchange Act of 1934; or any other similar action.
The Complaint names the Issuer, Edgar Cruft, a Director ("Cruft"),
Geraldine Cruft, Leonard Lichter, a Director and outside counsel for the Issuer
("Lichter"), Terrence Lang, a Director ("Lang"), Evelyn Lang, James Askew, a
Director, Frank Waldron, a Director, and National City Bank, N.A. as defendants
(collectively, the "Defendants") to redress the following actions by the
Defendants.
The Complaint alleges that despite the Issuer's dire financial
circumstances from 1994 to the present due to sustained losses in its kaolin
business, the shut down of its rutile mine in Sierra Leone, and significant
on-going debt and maintenance obligations, Defendants Cruft, Lang, Lichter,
Askew and Waldron breached their fiduciary duties, made misrepresentations, and
engaged in unfair trade practices as officers and/or directors of the Issuer.
Geraldine Cruft and Evelyn Lang have been
<PAGE> 7
SCHEDULE 13D
CUSIP NO. 655555100 PAGE 7 OF 30
- -------------------------------------------------------------------------------
joined as defendants because they are beneficiaries or have community property
interests in certain trusts and/or retirement benefits that were improperly
funded by the Issuer. National City Bank has been joined as a defendant because
it is the trustee of the trusts that were alleged to have been improperly
funded, which contain approximately $2.4 million.
The Complaint further alleges that, within days of the shut down
of the Sierra Leone mine, Cruft sought to secure funding for his pension. The
original pension plan was set up in 1985 for Cruft, Lang and Richard
Steinberger, who was a Director and corporate secretary of the Issuer until
1993. In 1989, certain "rabbi trusts" ("trusts"), which were set up to provide
long term pension benefits were established for Cruft, Lang and Steinberger.
Initially, the only assets of the trusts were the cash surrender values of
certain split-dollar life insurance policies the Issuer had procured, which were
intended to fund the pension benefits over time.
Notwithstanding the substantial losses and cash shortages, the
Issuer had sustained and continued to sustain and the lack of corporate
obligations to immediately fund the trusts, the retirement plans for Cruft and
Lang were amended to permit lump sum distributions to them from their respective
trusts, which resulted in a lump sum payment to Lang in 1998 in the amount of
$877,800 and an additional contribution by the Issuer into his trust in 1999 of
$200,000, which has yet to be distributed. Cruft's trust was funded by the
Issuer in 1995, 1996 and 1997, which now contains in excess of $2.2 million and
has yet to be distributed.
The Complaint further alleges that the majority of the funding for
the trusts came from investment funds in the Issuer in 1996, received from
Jean-Raymond Boulle ("Boulle") or MIL (Investments) S.A.R.L. ("MIL"), a company
he owned and controlled (hereinafter Boulle and MIL shall be referred to
collectively as "Boulle"), which funds should have been devoted directly to
furthering the Issuer's operations and its continuation "as a going concern."
The Complaint alleges that Boulle's investment in the Issuer was negotiated and
facilitated by Lichter, Cruft and Lang to enable them to retain shared control
over the Issuer with Boulle and to divert a portion of Boulle's investment in
the Issuer to funding the trusts of Cruft and Lang, as well as their excessive
salaries, fees and expenses, notwithstanding the Issuer's critical lack of
operating cash and uncertain viability, all of which was known to Cruft, Lichter
and Lang as well as Boulle's representatives.
The Complaint further alleges that Cruft and Lang received
excessive salaries, bonuses and benefits unrelated to their performance, and
that the Issuer's Compensation Committee, never actually met or discussed
compensation as set forth in the Proxy Statements and never developed criteria
for performance review or written reports. The Complaint alleges that the
discussion in the Issuer's annual Proxy Statements as to officer compensation
was merely a ruse to provide shareholders with the appearance that officer
salaries were not excessive, were determined by specific criteria tied to
corporate performance, and competitive with similarly situated companies, all of
which was untrue and materially misleading.
The Complaint also alleges that in 1998, as a result of the shared
control of the Issuer by Cruft, Lichter, Lang and Boulle's representatives,
Boulle promoted the merger of one of his companies, America Mineral Fields Ltd.,
with the Issuer, which appeared to have virtually no
<PAGE> 8
SCHEDULE 13D
CUSIP NO. 655555100 PAGE 8 OF 30
- -------------------------------------------------------------------------------
tangible assets other than certain claimed rights to properties in war torn
countries in Africa, and no apparent economic benefit to the Issuer from such a
merger, for the purpose of obtaining the Issuer's interest in the Sierra Leone
mine and generating legal fees for Lichter. From 1990 through 1999, the Issuer
has paid Lichter's law firm legal fees in excess of $9 million.
The Complaint further alleges that, in order to further his own
personal interests, in January, 2000, Lichter used his position as a Director
and counsel to dominate and influence the entrenched Issuer Board, to cause the
Issuer's Board to fire the Issuer's Chief Financial Officer, Mr. Jenner, for
engaging law firms other than Lichter's firm in connection with certain Issuer
matters, despite the fact that such law firms engaged by Mr. Jenner possessed
considerable expertise in mining, securities and corporate law and their hourly
rates were substantially lower than the hourly rates of Lichter's firm.
The Complaint alleges that such reoccurring and continued
mismanagement and the resulting corporate waste to the Issuer caused by the
individual Defendants as described herein have (i) depressed the value of the
Issuer's stock over time, which continued devaluation and deterioration of
Nord's stock is collectively shared by all shareholders and (ii) forced the
Issuer to report that its auditors have attached a "going concern" qualification
due to its critical cash position, which has not been addressed by any
definitive prudent action by the Defendant directors to avoid the Issuer's
potential insolvency and the further devaluation of its stock. The Complaint
further alleges that the defendant directors have not sought additional capital
because such investment will certainly require new directors, who may
legitimately undermine and alter the individual defendants' control over the
Issuer.
The Complaint alleges that, due to the financial interests in
salaries, pensions, trusts, and attorneys' fees as described herein as well as
the continued complicity, entrenchment and dominance of the individual
Defendants as a majority of the Directors of the Issuer, Messrs. Jenner, Seymour
and Hirsch believe in good faith that demand on the Directors on behalf of the
Issuer would be futile because a majority of the Directors are incapable of
making an impartial or independent decision regarding the matters set forth
herein. In addition, any delay by the Directors as to the filing of this action
could result in the loss of such claims forever.
The Complaint filed by Messrs. Jenner, Seymour and Hirsch on
behalf of the Issuer and other similarly situated shareholders seeks injunctive
relief against Defendants Cruft, Geraldine Cruft, Lang, Evelyn Lang, National
City Bank and the Issuer to prohibit any further distributions of or from the
subject trusts, to prohibit the payment by the Issuer of further compensation or
other benefits to Defendants Cruft and/or Lang, and to prohibit the Issuer from
paying attorneys' fees to Defendant Lichter and/or his law firm to defend the
Defendants in this action. In their Complaint, Messrs. Jenner, Seymour and
Hirsch further demand judgment against Defendants Cruft, Geraldine Cruft,
Lichter, Lang, Evelyn Lang, Askew and Waldron, jointly and severally as
permitted, for recission, restitution, disgorgement of profits, constructive
trust, compensatory damages, punitive damages, pre and post judgment interest,
costs, attorneys' fees based on statute and/or bad faith and such other relief
deemed appropriate.
<PAGE> 9
SCHEDULE 13D
CUSIP NO. 655555100 PAGE 9 OF 30
- -------------------------------------------------------------------------------
Item 5. INTEREST IN SECURITIES OF THE ISSUER
(a) As of the close of business on May 11, 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:
PERCENT OF
NAME NO. OF SHARES OUTSTANDING
Ray W. Jenner 2,000 .01%
Stephen Seymour 93,052 .56%
Ronald Hirsch 771,400 4.67%
(b) Messrs. Jenner and Hirsch each may be deemed to have sole
voting and dispositive power of the Shares of the Issuer
beneficially owned by each of them. 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. Jenner, Seymour or 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.
<PAGE> 10
SCHEDULE 13D
CUSIP NO. 655555100 PAGE 10 OF 30
- -------------------------------------------------------------------------------
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 May 12, 2000, among
Ray W. Jenner, Stephen Seymour, and Ronald Hirsch.*
- ----------
* filed herewith
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: May 17, 2000 /s/ RAY W. JENNER
--------------------------
Ray W. Jenner
/s/ STEPHEN SEYMOUR
--------------------------
Stephen Seymour
/s/ RONALD HIRSCH
--------------------------
Ronald Hirsch
<PAGE> 11
SCHEDULE 13D
CUSIP NO. 655555100 PAGE 11 OF 30
- -------------------------------------------------------------------------------
EXHIBIT 1
FIRST JUDICIAL DISTRICT COURT
SANTA FE COUNTY
STATE OF NEW MEXICO
CASE NO. D-0101-CV-2000-1096
RAY W. JENNER, STEPHEN SEYMOUR
AND RONALD HIRSCH,
PLAINTIFFS,
VS.
EDGAR CRUFT, GERALDINE CRUFT,
LEONARD LICHTER, TERRENCE LANG,
EVELYN LANG, JAMES ASKEW,
FRANK WALDRON, NATIONAL CITY BANK,
N.A., AND NORD RESOURCES CORPORATION,
A DELAWARE CORPORATION,
DEFENDANTS.
VERIFIED SHAREHOLDERS' COMPLAINT FOR BREACH OF FIDUCIARY
DUTIES, MISREPRESENTATIONS AND UNFAIR TRADE PRACTICES
Plaintiffs Ray W. Jenner, Stephen Seymour and Ronald A. Hirsch sue
Defendants Edgar Cruft, Geraldine Cruft, Leonard Lichter, Terrence Lang, Evelyn
Lang, James Askew, Frank Waldron, National City Bank, N.A., and Nord Resources
Corporation and state and allege as follows:
I. PARTIES
1. Plaintiff Ray W. Jenner ("Jenner") is SUI JURIS, a current
shareholder of Nord Resources Corporation and a resident of Bernalillo County,
New Mexico.
2. Plaintiff Stephen Seymour ("Seymour") is SUI JURIS, a current
shareholder of Nord Resources Corporation and a resident of the State of
Maryland.
<PAGE> 12
SCHEDULE 13D
CUSIP NO. 655555100 PAGE 12 OF 30
- -------------------------------------------------------------------------------
3. Plaintiff Ronald A. Hirsch ("Hirsch") is SUI JURIS, a current
shareholder of Nord Resources Corporation and a resident of Santa Fe County, New
Mexico.
4. Defendant Edgar Cruft ("Cruft") is SUI JURIS, a Director of
Nord Resources and a resident of the State of California.
5. Defendant Geraldine Cruft is SUI JURIS, the wife of Defendant
Cruft, a beneficiary of Defendant Cruft's retirement benefits and, upon
information and belief, may have a community property interest in and to such
benefits.
6. Defendant Leonard Lichter ("Lichter") is SUI JURIS, a Director
and outside counsel for Nord Resources Corporation and, upon information and
belief, a resident of the State of New York.
7. Defendant Terrence Lang ("Lang") is SUI JURIS, a Director of
Nord Resources Corporation and a resident of the State of Ohio.
8. Defendant Evelyn Lang is SUI JURIS, the wife of Defendant Lang,
a beneficiary of Defendant Lang's retirement benefits and, upon information and
belief, may have a community property interest in and to such benefits.
9. Defendant James Askew is SUI JURIS, a Director of Nord
Resources Corporation and, upon information and belief, a resident of Denver,
Colorado.
10. Defendant Frank Waldron is SUI JURIS, a Director of Nord
Resources Corporation and a resident of the State of South Carolina.
11. Upon information and belief, Defendant National City Bank,
N.A. ("National City Bank"), is a national banking association based in Ohio,
who acquired or merged with The Fifth Third Bank, the original Trustee for the
trusts described below.
<PAGE> 13
SCHEDULE 13D
CUSIP NO. 655555100 PAGE 13 OF 30
- -------------------------------------------------------------------------------
12. Defendant Nord Resources Corporation ("Nord") is a Delaware
corporation with its principal place of business in Albuquerque, New Mexico.
II. JURISDICTION AND VENUE
13. This is a derivative action brought by Plaintiffs on behalf of
Nord against the individual Directors of Nord described above (hereinafter
referred to as the "individual Defendants") based on breaches of fiduciary
duties, misrepresentations, and unfair trade practices. Geraldine Cruft and
Evelyn Lang have been joined as Defendants because they are beneficiaries or
have community property interests in certain trusts and/or retirement benefits
that were improperly funded by Nord. National City Bank has been joined as a
Defendant because it is the Trustee of the trusts that were improperly funded,
which contain approximately $2.4 million.
14. The Court has subject matter jurisdiction pursuant to N.M.
Const., Art. VI, Section 13.
15. Venue is appropriate in Santa Fe County because Plaintiff
Hirsch resides in Santa Fe, New Mexico, and his claims arose or accrued in Santa
Fe County.
III. STANDING AND DEMAND
16. Plaintiffs Seymour and/or Hirsch were shareholders of Nord at
the time of each wrongful act described below and are currently shareholders of
Nord. Plaintiff Jenner became a shareholder of Nord in 1999 and he is currently
a shareholder of Nord.
17. Plaintiffs, as shareholders of Nord, represent the interests
of other similarly situated shareholders and bring this action on their behalf
because they are also impacted by and share in the direct wrongs to Nord.
<PAGE> 14
SCHEDULE 13D
CUSIP NO. 655555100 PAGE 14 OF 30
- -------------------------------------------------------------------------------
18. At all times material to the acts described below, the
Defendants Cruft, Lichter and Lang were members of Nord's Board of Directors
("Directors"). Defendant Askew has been a Director since January, 1998 and
Defendant Waldron has been a Director since November, 1998. The individual
Defendants are presently Directors of Nord and continue to control the policies,
practices and actions of Nord. However, as recently as the Spring of 1999, the
New York Stock Exchange ("NYSE") questioned whether any of Nord's Directors were
independent, and shortly thereafter de-listed Nord from the NYSE. Also, at all
times material hereto, the Nord Board of Directors was adversely dominated and
in effect unchallenged by Defendants Lichter and/or Cruft and/or Lang and/or by
a particular shareholder or his interests, whose interest were represented by
Defendants Askew and Waldron.
19. Until June, 1997, Defendant Cruft, in addition to being a Nord
Director, was the acting full-time President and Chief Executive Officer of
Nord. However, since 1978, Defendant Cruft has resided and operated out of his
horse ranch near Santa Barbara, California or an office paid for by Nord near
Santa Barbara, California, even though Nord was headquartered either in Ohio or
New Mexico. Upon information and belief, Defendant Cruft has never devoted his
full time and attention to Nord, nor has he regularly visited Nord's main
assets, which were mines located in the United States and/or overseas, despite
his responsibilities as President and Chief Executive Officer of Nord and his
annual compensation, which did not bear a reasonable relationship to the
services rendered. As both an Officer and a Director of Nord and to maintain
control over Nord, Defendant Cruft, who personally benefitted by the improper
acts set forth herein, is not an Independent Director with respect to the
matters described herein.
20. At all times material hereto, Defendant Lichter, in addition
to being a Nord Director, was and is a principal of the law firm of Spitzer &
Feldman, P. C., who has received
<PAGE> 15
SCHEDULE 13D
CUSIP NO. 655555100 PAGE 15 OF 30
- -------------------------------------------------------------------------------
millions of dollars in attorneys' fees from Nord. Defendant Lichter has
improperly used his position as a Director of Nord to generate such fees and has
forced officers of Nord to use his law firm for the provision of legal services
resulting in the payment by Nord of excessive legal fees because other law firms
were more familiar and qualified and could perform the required legal work more
efficiently. In addition, upon information and belief, at all times material
hereto, Defendant Lichter as Nord's counsel, failed to advise or adequately
advise Nord's Directors as to proper corporate governance, which has resulted in
the Nord Board of Directors not being fully informed, engaging in careless acts
and failing to devote sufficient time to deliberation, adequate investigation
and procurement of sufficient information regarding Nord's affairs. As a
Director of and an attorney for Nord, which heightens his fiduciary duties to
Nord and its shareholders, and to maintain control of Nord, Defendant Lichter,
who has personally benefitted by the improper acts set forth herein, is not an
Independent Director with respect to the matters described herein.
21. Until January, 1998, Defendant Lang, in addition to being a
Nord Director, had been a Senior Vice-President of Finance and Chief Financial
Officer of Nord for many years. As both an Officer and Director of Nord,
Defendant Lang, who personally benefitted by the improper acts set forth herein,
is not an Independent Director with respect to the matters described herein.
22. Defendants Askew and Waldron became Directors of Nord as Board
Representatives of Jean-Raymond Boulle ("Boulle") or MIL (Investments)
S.A.R.L.("MIL"), a company he owned and controlled (hereinafter Boulle and MIL
shall be referred to collectively as "Boulle"), who sought to invest in and
become a major shareholder of Nord as, INTER ALIA, a first step in gaining
control of Nord, which proposal was, upon information and belief, rejected
<PAGE> 16
SCHEDULE 13D
CUSIP NO. 655555100 PAGE 16 OF 30
- -------------------------------------------------------------------------------
by Defendants Cruft, Lichter and Lang to avoid giving up or losing their control
over Nord as well as the personal benefits derived from such control as
described herein.
23. Upon information and belief, Defendants Cruft, Lichter and
Lang ultimately agreed to share control of Nord with Boulle through his
representatives on the Board of Directors of Nord ("Representatives") to enable
them to continue to receive personal benefits from Nord. As a result of this
agreement, there were no Independent Directors on Nord's Board and no Directors
representing the public shareholders. In addition, a subsequent Boulle proposal
to inject needed additional capital into Nord if Defendants Cruft, Lichter and
Lang would resign was rejected by Defendants Cruft, Lichter and Lang to
perpetuate their control and the receipt of personal benefits. Although Boulle
is no longer a shareholder of Nord, Boulle's Representatives, Defendants Askew
and Waldron are still Nord Directors and act in concert with Directors Cruft,
Lichter and Lang, resulting in a majority of Directors who are not independent
and who collectively facilitate the continued payment of excessive salaries,
pensions, other benefits and legal fees as well as the other improper acts
described herein.
24. The individual Directors have not adopted or implemented a
definitive strategy or business plan to acquire and develop assets, take
advantage of existing opportunities, including raising capital, and move Nord
into the future as a viable on-going business. They have, however, engaged in a
pattern of self-serving behavior over the years that has been repeatedly
financed by the selling off of Nord's assets, which has resulted in the
continued deterioration of the value of Nord's stock to the detriment of Nord
and its shareholders. Upon information and belief, during this period, the
individual Directors have owned less than one-half of one percent of Nord's
outstanding shares, which is confirmed by Nord's most recent Proxy Statement.
Nord and its shareholders, however, have taken the brunt of the harm that has
come
<PAGE> 17
SCHEDULE 13D
CUSIP NO. 655555100 PAGE 17 OF 30
- -------------------------------------------------------------------------------
about because of the lack of strategic and planned management and direction by
the individual Defendants, who, as Directors, have merely reacted to corporate
affairs with an eye towards their personal enrichment. In addition, upon
information and belief, the individual Directors failed to devote sufficient
time to deliberation and adequate investigation of Nord's affairs or to obtain
sufficient information to make fully informed decisions as to Nord's affairs.
25. Such reoccurring and continued mismanagement and the resulting
corporate waste to Nord caused by the individual Defendants as described herein
have depressed the value of Nord's stock over time from a high of in excess of
$20 per share during 1990 to approximately $5 per share in 1995 to a current
price of approximately 20 to 25 CENTS per share, which continued devaluation and
deterioration of Nord's stock is collectively shared by all shareholders. In
addition, despite the substantial value of Nord's strategic mining assets, Nord
has recently been forced to report in its Form 10-K filing through 1999 that its
auditors have attached a "going concern" qualification due to Nord's critical
cash position, which has yet to prompt any definitive prudent action by the
Directors to avoid Nord's potential insolvency and the further devaluation of
Nord's stock. Furthermore, upon information and belief, the individual Directors
have refused to seek additional capital because such investment will certainly
require new Nord Directors, who may legitimately undermine and alter the
individual Defendants' control over Nord.
26. Due to the financial interests in salaries, pensions, trusts,
and attorneys' fees as described herein as well as the continued complicity,
entrenchment and dominance of the individual Defendants as a majority of Nord
Directors, Plaintiffs are under the good faith belief that demand on the
Directors on behalf of Nord would be futile because a majority of Nord Directors
are incapable of making an impartial or independent decision regarding the
matters set
<PAGE> 18
SCHEDULE 13D
CUSIP NO. 655555100 PAGE 18 OF 30
- -------------------------------------------------------------------------------
forth herein. In addition, any delay by the Directors as to the filing of this
action could result in the loss of such claims forever. Plaintiffs have had to
engage counsel and agree to pay reasonable attorneys' fees and costs to bring
this action. Plaintiffs, therefore, have had to engage counsel to prosecute this
action and have agreed to pay reasonable attorneys' fees and costs.
IV. BACKGROUND
27. In 1994, Nord was engaged in two businesses involving the
production and sale of kaolin, a white clay, which can be used as a filler for
pigments, and rutile, a titanium oxide mineral used in pigments as a brightener.
The kaolin business sustained losses in 1994 of approximately $4.7 million.
Nord's kaolin business, which was burdened with debt, had consistently sustained
increasing losses since 1989 with no expectation of an immediate turn around.
The rutile business, however, did generate profits of approximately $3.8 million
in 1994. Also, as of December 31, 1994, Nord's balance sheet showed debt in the
approximate amount of $28.6 million and cash of only $8.9 million. Nord's
viability at this time was heavily dependent on its rutile business, which was
undergoing considerable expansion financed by debt in the amount of $44 million,
fifty percent (50%) of which was guaranteed by Nord.
28. On or about January 20, 1995, Nord's fifty percent (50%) owned
rutile mine in Sierra Leone, Africa, which was Nord's only source of rutile, was
attacked by rebel forces and shut down. Nord's cash flow was cut off and its
debt was in default although certain lenders had agreed to conditional short
term forbearance. Nord's political risk insurance in the amount of approximately
$15.7 million was wholly inadequate to cover the $77 million value of its
investment in the Sierra Leone mine. In addition, Nord was forced to bear
significant on-going debt payments and holding costs for the mine, which
amounted to approximately $36 million from 1995 through 1999.
<PAGE> 19
SCHEDULE 13D
CUSIP NO. 655555100 PAGE 19 OF 30
- -------------------------------------------------------------------------------
29. For the year ending December 31, 1994, Nord's financial
statements contained an auditor's disclaimer raising "...substantial doubt about
the company's ability to continue as a going concern." In 1995, Nord's sales of
kaolin declined and its losses increased to approximately $10.3 million.
30. Within days of the rebel attack that shut down the Sierra
Leone mine, Defendant Cruft sought to secure funding for his pension. The
original pension plan was set up in 1985 for Defendant Cruft, Defendant Lang and
Richard Steinberger, who was a Nord Director and corporate secretary until 1993.
In 1989, certain "rabbi trusts" ("trusts"), which were set up to provide long
term pension benefits and allow Nord creditors to attach the assets of such
trusts, were established for Defendant Cruft, Defendant Lang and Richard
Steinberger. Initially, the only assets of the trusts were the cash surrender
values of certain split-dollar life insurance policies Nord had procured, which
were intended to fund the pension benefits over time.
31. Notwithstanding the substantial losses and cash shortages Nord
had sustained and continued to sustain and the lack of corporate obligations to
immediately fund the trusts, the retirement plans for Defendants Cruft and Lang
were amended to permit lump sum distributions to them from their respective
trusts, which resulted in a lump sum payment to Defendant Lang in 1998 in the
amount of $877,800 and an additional contribution by Nord into his trust in 1999
of $200,000, which has yet to be distributed. Defendant Cruft's trust was funded
by Nord in 1995, 1996 and 1997, which now contains in excess of $2.2 million and
has yet to be distributed. However, despite the same purported obligation to
Richard Steinberger, his trust was never funded by Nord.
32. Upon information and belief, the majority of the funding for
the trusts came from Boulle's investment in Nord in 1996, which funds should
have been devoted directly to
<PAGE> 20
SCHEDULE 13D
CUSIP NO. 655555100 PAGE 20 OF 30
- -------------------------------------------------------------------------------
furthering Nord's operations and its continuation "as a going concern." However,
upon information and belief, Boulle's investment in Nord was negotiated and
facilitated by Defendants Lichter, Cruft and Lang to enable them to retain
shared control over Nord with Boulle and to divert a portion of Boulle's
investment in Nord to funding the trusts of Defendants Cruft and Lang, as well
as their excessive salaries, fees and expenses, notwithstanding Nord's critical
lack of operating cash and uncertain "on-going" viability, all of which was
known to Defendants Cruft, Lichter and Lang as well as Boulle's Representatives.
33. In addition, the funding for Defendants Cruft and Lang's
trusts was based on officer compensation unrelated to and in excess of the
performance criteria required to be set forth in Nord's annual Proxy Statements,
which improperly increased the funding or value of their trusts. For example,
the 1996 Proxy Statement of April 30, 1996, a copy of which is attached hereto,
states in pertinent part as to "Compensation and Performance":
Executive officers are rewarded based upon corporate
performance and individual performance. Corporate
performance is evaluated by reviewing the extent to which
strategic and business plan goals are met, including such
facts as operating profits or loss and performance
relative to competitors.
34. By the end of December 1995, Nord's annual losses had
increased from the prior year to $10.3 million. Nord's debt in the amount of $22
million in connection with the Sierra Leone mine was in default and the Sierra
Leone mine, which was Nord's primary source of profitable revenue, had been
under the control of rebel forces for most of 1995 and remained inoperable up
until Nord's fifty percent (50%) interest was sold in September, 1999.
35. Under such dire and deteriorating corporate circumstances and
performance, Defendant Cruft was actually given a raise because he had not
received "...a raise since May
<PAGE> 21
SCHEDULE 13D
CUSIP NO. 655555100 PAGE 21 OF 30
- -------------------------------------------------------------------------------
1989" according to Nord's 1996 Proxy Statement. This was untrue because in 1990,
Defendant Cruft began receiving in effect an additional $120,000 a year in base
compensation.
36. Also, upon information and belief, Nord's "Compensation
Committee," who, according to Nord's required annual Proxy Statements sets
annual officer compensation based on corporate performance, never actually met
or discussed compensation as set forth in the Proxy Statements and never
developed a criteria for performance review or written reports. The discussion
contained in Nord's annual Proxy Statements as to officer compensation was
merely a ruse to provide shareholders with the appearance that officer salaries
were not excessive, were determined by specific criteria tied to corporate
performance, and competitive with similarly situated companies, all of which was
untrue and misleading.
37. As a result of such misleading statements and the failure to
implement any meaningful performance review, Defendants Cruft and Lang, who had
received salaries in excess of those paid to executives of similarly sized
companies, continued to receive excess compensation from Nord to the detriment
of Nord and its shareholders, who have not been paid dividends since at least
1995. Furthermore, the compensation paid to Defendants Cruft and Lang by Nord
was primarily a base salary not geared to bonuses based on incentives tied to
performance, which also improperly increased the funding of the retirement
benefits for both Defendants Cruft and Lang.
38. In addition to the retirement plan funded through his trust,
Defendant Cruft, who retired as President and Chief Executive Officer of Nord in
June, 1997, receives $50,000 annually for services rendered to Nord amounting to
12.5% of the time he supposedly devoted to Nord as a "full time" officer and is
also compensated for additional time spent on behalf of Nord in excess of this
12.5% figure. Defendant Cruft, as does Defendant Lang, receives debt
<PAGE> 22
SCHEDULE 13D
CUSIP NO. 655555100 PAGE 22 OF 30
- -------------------------------------------------------------------------------
forgiveness by Nord in the amount of $50,000 annually, which commenced in 1997.
Defendant Cruft also receives an expense and travel budget, stock options, tax
preparation, medical and health insurance and his California office, secretary
and other office related expenses are paid by Nord. Nord also has given
Defendant Cruft a luxury BMW 750 sedan. The compensation and/or benefits awarded
to Defendant Cruft as described in this paragraph is unacceptably generous based
on Nord's condition and size and/or the services rendered.
39. In addition, in 1998, as a result of the shared control of
Nord by Defendants Cruft, Lichter, Lang and Boulle's Representatives, Boulle
promoted the merger of one of his companies, America Mineral Fields Ltd., with
Nord. At this time, upon information and belief, America Mineral Fields Ltd.
appeared to have virtually no tangible assets other than certain claimed rights
to properties in war torn countries in Africa and Nord was still experiencing
financial difficulties.
40. There was no apparent economic benefit to Nord from such a
merger. However, Boulle was interested in Nord's interest in the Sierra Leone
mine and Defendant Lichter was interested in generating legal fees.
41. Although the merger never materialized, Nord, who was facing
serious cash shortages at the time, paid investment bankers and Defendant
Lichter and his law firm approximately $1 million in connection with Boulle's
proposed merger plans.
42. Nord's financial circumstances did not warrant the payment of
such fees, which would not have occurred if Nord's Board was independent.
However, Defendant Lichter was accustomed to generating excessive legal fees
from Nord, who had paid Defendant Lichter's firm over $9 million in fees from
1990 to 1999, which was a disproportionate cost to Nord relative to its size.
<PAGE> 23
SCHEDULE 13D
CUSIP NO. 655555100 PAGE 23 OF 30
- -------------------------------------------------------------------------------
43. To further his own personal interests, in January, 2000,
Defendant Lichter used his position, as a Director and counsel to dominate and
influence the entrenched Nord Board, to cause Nord's Board to fire Nord's Chief
Financial Officer, Plaintiff Jenner, for engaging law firms other than Defendant
Lichter's firm in connection with certain Nord matters. The law firms engaged by
Plaintiff Jenner possessed considerable expertise in mining, securities and
corporate law and their hourly rates were substantially lower than the hourly
rates of Defendant Lichter's firm, which was substantially less burdensome to
Nord. In addition, upon information and belief, Nord will now waste additional
resources in the face of Mr. Jenner's claims for damages arising out of his
alleged wrongful discharge.
44. Based on the deliberate bad faith wrongs to Nord, the
dishonesty described above and an insured suing an insured as set forth in
paragraph 4(1) of Nord's Directors, Officers and Corporate Insurance Policy, the
individual Defendants should be excluded from coverage and any form of
indemnification provided by Nord or by statute. In addition, payment of fees by
Nord to defend the individual Defendants in this action would evidence further
and continued breaches of fiduciary duties and corporate waste and/or
mismanagement.
COUNT I (BREACH OF FIDUCIARY DUTY)
45. Plaintiffs Jenner, Seymour and Hirsch reaver and reallege
paragraphs 1 through and including 44 above as if fully set forth herein.
46. The individual Defendants, as Directors and/or as counsel,
owed a fiduciary duty of loyalty and care to Nord and its shareholders to
protect their interests by discharging such duty in good faith. As fiduciaries,
the individual Defendants are prohibited from using their corporate power for
their individual advantage.
<PAGE> 24
SCHEDULE 13D
CUSIP NO. 655555100 PAGE 24 OF 30
- -------------------------------------------------------------------------------
47. The individual Defendants have knowingly participated in
continuous breaches of their fiduciary duties to Nord and its shareholders as
set forth in paragraphs 18-26, 28, 31-33, 35-38 and 40-43 above by, among other
things, controlling and dominating Nord's Board of Directors for their personal
benefit and to exclude and/or avoid nomination of independent directors; by
permitting Nord to issue and circulate deceptive annual Proxy Statements; by
amending the retirement plans to fund certain trusts and permit lump sum
payments when Nord could not afford such funding; by committing Nord to pay
excessive retirement benefits to Defendants Cruft and Lang and their spouses; by
committing Nord to pay excessive salaries to Defendant Cruft and Lang
inconsistent with their performance and/or the size of Nord; by committing Nord
to pay excessive legal fees to Defendant Lichter and his law firm; by not
causing Nord to acquire political risk insurance to cover the full investment in
the Sierra Leone mine; by not establishing and/or implementing compensation
criteria tied to performance; by promoting a merger for the benefit of certain
Directors or the interests they represented; by deliberately failing to provide
proper guidance as to corporate governance or to abide by proper corporate
governance; and by firing the former Chief Financial Officer Plaintiff Jenner
for seeking more qualified and more affordable legal assistance.
48. Plaintiffs justifiably relied on the individual Defendants not
to breach their fiduciary duties to Nord and its shareholders and not to engage
in a systematic self-serving manipulation of corporate affairs to their personal
advantage and to the detriment of Nord and its shareholders.
49. The individual Defendants' breaches of their fiduciary duties
amount to gross negligence and/or waste of corporate resources and/or
self-dealing and/or mismanagement and not the high degree of fidelity, loyalty
and trust required by Directors and counsel.
<PAGE> 25
SCHEDULE 13D
CUSIP NO. 655555100 PAGE 25 OF 30
- -------------------------------------------------------------------------------
50. Defendants Geraldine Cruft and Evelyn Lang are beneficiaries
of such breaches as they pertain to retirement benefits and, upon information
and belief, have a community property interest in such benefits. Defendant
National City Bank is the Trustee of the trusts, which contain improper funds
arising out of such breaches of fiduciary duty.
51. As a direct and proximate result of such breaches and the
reckless disregard for Nord's rights and the rights of Nord's shareholders, Nord
and its shareholders have been damaged in an amount to be determined at trial.
52. The conduct of the individual Defendants was wrongful,
malicious, wanton and deliberate, which warrants and justifies an award of
exemplary or punitive damages.
WHEREFORE, Plaintiffs Jenner, Seymour and Hirsch on behalf of Nord
and other similarly situated shareholders seek injunctive relief against
Defendants Cruft, Geraldine Cruft, Lang, Evelyn Lang, National City Bank and
Nord to prohibit any further distributions of or from the subject trusts, to
prohibit the payment by Nord of further compensation or other benefits to
Defendants Cruft and/or Lang, and to prohibit Nord from paying attorneys' fees
to Defendant Lichter and/or his law firm to defend the Defendants in this
action. Plaintiffs further demand judgment against Defendants Cruft, Geraldine
Cruft, Lichter, Lang, Evelyn Lang, Askew and Waldron, jointly and severally as
permitted, for recission, restitution, disgorgement of profits, constructive
trust, compensatory damages, punitive damages, pre and post judgment interest,
costs, attorneys' fees based on statute and/or bad faith and such other relief
the Court deems appropriate.
COUNT II (FRAUD AND DECEIT)
53. Plaintiffs Jenner, Seymour and Hirsch reaver and reallege
paragraphs 1 through and including 44 above as if fully set forth herein.
<PAGE> 26
SCHEDULE 13D
CUSIP NO. 655555100 PAGE 26 OF 30
- -------------------------------------------------------------------------------
54. As described in paragraphs 33, 35, 36 and 37 above, Nord's
annual Proxy Statements contain representations as to compensation for Defendant
Cruft and the criteria for officer compensation for Defendants Cruft and Lang
that were misleading and false because Defendant Cruft had in effect received
raises since 1990 and there was no disclosure that such compensation criteria
had not been developed, implemented, or tied to performance. Any allegations set
forth above as to this Count based on information and belief are alleged as such
because Plaintiffs do not presently possess such information, which is believed
to be within the dominion and control of certain Defendants.
55. Plaintiffs and other similarly situated shareholders relied on
such representations regarding Defendant Cruft's raise and the appropriateness
and fairness of officer compensation, including such compensation for Defendants
Cruft and Lang, and voted on Nord affairs based on the overall perceived
accuracy of the representations contained in Nord's annual Proxy Statements.
56. In connection with such misrepresentations, Nord paid
Defendants Cruft and Lang excessive compensation, which caused direct and
proximate harm to Nord and its shareholders in an amount to be determined at
trial.
57. The conduct of the individual Defendants was wrongful,
malicious, wanton and deliberate and in reckless disregard for the rights of
Nord and its shareholders, which warrants and justifies an award of exemplary or
punitive damages.
WHEREFORE, Plaintiffs Jenner, Seymour and Hirsch on behalf of Nord
and other similarly situated shareholders demand judgment against Defendants
Cruft, Geraldine Cruft, Lichter, Lang, Evelyn Lang, Askew and Waldron, jointly
and severally as permitted, for recission, restitution, disgorgement of profits,
constructive trust, compensatory damages,
<PAGE> 27
SCHEDULE 13D
CUSIP NO. 655555100 PAGE 27 OF 30
- -------------------------------------------------------------------------------
punitive damages, pre and post judgment interest, costs, attorneys' fees based
on statute and/or bad faith and such other relief as the Court deems
appropriate.
COUNT III (UNFAIR TRADE PRACTICES)
58. Plaintiffs Jenner, Seymour and Hirsch reaver and reallege
paragraphs 1 through and including 44 and 47 above as if fully set forth herein.
59. Plaintiffs Jenner, Seymour and Hirsch assert this claim
pursuant to Sections 57-12-1 et seq., N.M.S.A. 1978 (1995 Repl.), of the Unfair
Practices Act.
60. The acts described in paragraphs 18-26, 28, 31-33, 35-38,
40-43 and 47 above constitute prohibited unfair or deceptive trade practices
and/or unconscionable trade practices as between the individual Defendants and
Nord to Nord's detriment as well as to the detriment of the Plaintiffs and other
similarly situated shareholders.
61. As a direct and proximate result of Defendants' reckless
disregard for Nord's rights and the rights of Nord's shareholders as well as the
wrongful, malicious, wanton and/or deliberate acts described above, Nord, the
Plaintiffs and similarly situated shareholders have been damaged in an amount to
be determined at trial.
WHEREFORE, Plaintiffs Jenner, Seymour and Hirsch seek injunctive
relief pursuant to ss.57-12-10 of the Unfair Practices Act against Defendants
Cruft, Geraldine Cruft, Lang, Evelyn Lang, National City Bank to prohibit any
further distributions of or from the subject trusts, to prohibit the payment by
Nord of further compensation or other benefits to Defendants Cruft and/or Lang,
and to prohibit Nord from paying attorneys' fees and/or costs to Defendant
Lichter and/or his law firm to defend the Defendants in this action. Plaintiffs
further demand judgment against Defendants Cruft, Geraldine Cruft, Lichter,
Lang, Evelyn Lang, Askew and Waldron, jointly and severally as permitted, for
recission, restitution, disgorgement of profits,
<PAGE> 28
SCHEDULE 13D
CUSIP NO. 655555100 PAGE 28 OF 30
- -------------------------------------------------------------------------------
constructive trust, compensatory damages, treble damages, interest, costs,
attorneys' fees and such other relief the Court deems appropriate.
Respectfully submitted,
LAW OFFICES OF RONALD M. GREENSPAN, LLC
/s/ Ronald M. Greenspan
------------------------------------------
Ronald M. Greenspan
142 Lincoln Avenue, Suite 400
Santa Fe, New Mexico 87501
(505) 982-2333
Attorneys for Plaintiffs
<PAGE> 29
SCHEDULE 13D
CUSIP NO. 655555100 PAGE 29 OF 30
- -------------------------------------------------------------------------------
EXHIBIT 2
RONALD A. HIRSCH
223 North Guadalupe
PMB #153
Santa Fe, New Mexico 87501
(505) 995-8170
(505) 995-8172 (fax)
.
May 3, 2000
VIA HAND DELIVERY
Board of Directors
Nord Resources Corporation
201 Third Street NW, Suite 1750
Albuquerque, NM 87102
Re: Derivative Claims Against Nord Directors
Gentlemen:
In connection with the Derivative Lawsuit we filed against certain
directors of Nord Resources Corporation and in response to Nord's Press Release
of April 28, 2000, Stephen Seymour and I want to make it clear that individually
we have been substantial shareholders of Nord for many years, are currently
shareholders of Nord and have sustained considerable losses because of the
depressed value of our respective Nord holdings. We filed the Lawsuit to stop
the long standing pattern of self-serving mismanagement and corporate waste
caused by the specific acts of fraud and fiduciary breaches described in the
Lawsuit and to recover damages from the individual directors on behalf of Nord.
Contrary to Nord's public statements, the Lawsuit does not contain a personal
claim by Mr. Jenner for wrongful termination.
Sincerely,
Ronald A. Hirsch
<PAGE> 30
SCHEDULE 13D
CUSIP NO. 655555100 PAGE 30 OF 30
- -------------------------------------------------------------------------------
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: May 15, 2000 /s/ RAY W. JENNER
--------------------------
Ray W. Jenner
/s/ STEPHEN SEYMOUR
--------------------------
Stephen Seymour
/s/ RONALD HIRSCH
--------------------------
Ronald Hirsch
