STOCK PURCHASE AND SALE AGREEMENT
BETWEEN
NORD RESOURCES CORPORATION
AND
MIL (INVESTMENTS) S.A.
OCTOBER 16, 1996
THE SECURITIES TO WHICH THIS AGREEMENT RELATES HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED ("1933 ACT") AND MAY NOT BE OFFERED, SOLD
OR DELIVERED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF,
ANY U.S. PERSON (AS DEFINED HEREIN) PRIOR TO THE FORTY-FIRST DAY AFTER THE
CLOSING REFERRED TO HEREIN OR SUCH LATER DATE AS THEN MAY BE REQUIRED UNDER
REGULATION S (AS DEFINED HEREIN) UNDER THE 1933 ACT.
STOCK PURCHASE AND SALE AGREEMENT
STOCK PURCHASE AND SALE AGREEMENT ("Agreement") made this 16th day of
October, 1996, by and between NORD RESOURCES CORPORATION, a Delaware
corporation ("NRC" or the "Company"), having its principal place of business at
0000 Xxxxxxxxxx Xxxxxxx Xxxxx, Xxxxxx, Xxxx 00000 and MIL (INVESTMENTS) S.A., a
Luxembourg corporation (the "Investor"), having its principal place of business
at Xxxxxxxxx Xxxxx 00X, X-0000, Xxxxxxxxxx, Xxxxxxxxxx.
WHEREAS, NRC is a public company with its shares of common stock, $.01 par
value ("NRC Shares"), listed on the New York Stock Exchange ("NYSE") and NRC
desires to sell to Investor and Investor desires to purchase from NRC, 2,000,000
NRC Shares ("Purchase Shares") in reliance upon the transaction "safe harbor"
afforded by Regulation S ("Regulation S"), as promulgated by the Securities and
Exchange Commission ("SEC") under the Securities Act of 1933, as amended (the
"1933 Act"), subject to the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the premises and the mutual covenants
and conditions set forth herein and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, NRC and Investor
hereby agree as follows:
1. SALE OF PURCHASE SHARES. NRC hereby agrees to sell the Purchase
Shares to Investor and Investor hereby agrees to purchase the Purchase Shares
from NRC upon the terms and conditions set forth herein. The purchase price
("Purchase Price") for the Purchase Shares is $10,000,000 payable in full on the
Closing Date (as hereinafter defined) by wire transfer of federal funds to the
account of NRC as directed by NRC. All "$" references herein are to United
States dollars.
2. 1933 ACT - REGULATION S.
(a) The Purchase Shares are being offered and sold in an offshore
transaction pursuant to Regulation S.
(b) The Purchase Shares have not been and will not be registered
under the 1933 Act, except as provided for in Section 3 below. The Investor
acknowledges and agrees that from the date hereof until the forty-first (41st)
day after the Closing (as hereinafter defined) or such later date as then
required under Regulation S (the "Restricted Period"), the Purchase Shares may
not be offered, sold or delivered within the United States or to, or for the
account or benefit of, any U.S. Person (as defined in Rule 902(o) promulgated by
the SEC under the 1933 Act), unless the Purchase Shares are registered under the
1933 Act, or an exemption from the registration requirements of the 1933 Act is
available.
(c) Certificates representing the Purchase Shares during the
Restricted Period will contain a restrictive legend, the form of which is
annexed hereto as EXHIBIT A (subject to
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modification, upon prior consultation with Investor's counsel, in the event of a
change in Regulation S prior to the Closing Date), prohibiting the offer, sale
or delivery of the Purchase Shares within the United States or to, or for the
account or benefit of, any U.S. Person during the Restricted Period. NRC
represents and warrants that no instructions restricting the free
transferability of the Purchase Shares have been, or will be, lodged with the
transfer agent for the NRC Shares, other than a "stop transfer" instruction to
remain in force only until the end of the Restricted Period for resales into the
United States or to, or for the account or benefit of, any U.S. Person, and that
such Purchase Shares shall otherwise be freely transferable on the books and
records of the Company and such transfer agent. Upon surrender of the initial
certificates representing the Purchase Shares to NRC after expiration of the
Restricted Period, NRC shall promptly instruct its transfer agent to issue one
or more replacement certificates representing the Purchase Shares without any
restrictive legends thereon or "stop transfer" instructions applicable thereto,
in the name of the Investor and in such denominations as the Investor shall
specify. Nothing herein, however, shall affect in any way the Investor's
obligations and agreements to comply with all securities laws upon resale of the
Purchase Shares.
3. REGISTRATION RIGHTS. The Company, effective on Closing, hereby grants
to the Investor the registration rights and "piggy-back registration rights"
regarding the Purchase Shares as set forth on EXHIBIT B annexed hereto, all of
which are incorporated herein by this reference ("Registration Rights
Provisions") and modifies the provisions of the April 15 Agreements (as
hereinafter defined) in accordance with Section 1(b) of the Registration Rights
Provisions.
4. NEW YORK STOCK EXCHANGE LISTING. NRC covenants and agrees to make
application to list the Purchase Shares with the NYSE immediately after the
Closing.
5. REPRESENTATIONS AND WARRANTIES OF NRC. NRC hereby represents and
warrants to Investor as of the date hereof and as of the date of the Closing
("Closing Date") as follows:
(a) NRC is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has full
corporate power and authority to conduct its business as now
being conducted and to own or lease the assets and properties it
now owns or holds under lease.
(b) Subject to Stockholder Approval (as hereinafter defined), NRC has
full corporate power and authority to execute and deliver this
Agreement and to issue the Purchase Shares and to consummate the
transactions contemplated on its part hereby.
(c) Prior to the date hereof, the Board of Directors of NRC has duly
approved this Agreement and has duly authorized the execution and
delivery of this Agreement and the consummation of the
transactions contemplated hereby. This Agreement has been duly
executed and delivered by NRC and constitutes the legal, valid
and binding obligation of NRC enforceable in
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accordance with its terms, subject to bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights and to general equity principles (collectively, the
"Enforceability Exceptions"). Upon Closing, the Purchase
Shares will have been duly authorized by NRC and validly issued,
fully paid and nonassessable.
(d) The authorized capital stock of NRC consists of 40,000,000 NRC
Shares as of the date of this Agreement, 19,838,408 NRC Shares
being issued and outstanding as of the date hereof and 1,915,113
NRC Shares being reserved for issuance as of the date hereof
upon the exercise of currently outstanding options, warrants and
other securities convertible into NRC Shares, all of which are
described in the Company's Form 10-K for the year ended December
31, 1995 ("Form 10-K") and the Company's Form 10-Q for the
quarter ended June 30, 1996 ("Form 10-Q"). All of the issued and
outstanding NRC Shares have been duly authorized and validly
issued and are fully paid and nonassessable. Except as disclosed
in the Form 10-K and Form 10-Q, as of the date of this Agreement,
there are no preemptive rights, options, warrants, calls,
commitments or agreements of any nature to which the Company or
any subsidiary or affiliate is a party or by which any of them is
bound calling for the issuance or sale of shares of any class of
capital stock of NRC or securities convertible into or
exchangeable for shares of such capital stock. As of the date of
this Agreement, neither the Company nor any of its subsidiaries
or affiliates is a party to or otherwise bound by any agreement,
instrument or commitment for the issuance, purchase or repurchase
of any shares of capital stock of the Company, or entitled to the
benefit of any option, right of first refusal or other elective
privilege to purchase any shares of capital stock of the Company.
Except as set forth in those documents entitled "Stock Purchase
and Sale Agreement" dated April 15, 1996 between the Company and
Investor and "Agreement dated April 15, 1996 between the Company
and Investor" (collectively, "April 15 Agreements"), as of the
date of this Agreement, neither NRC nor any of its subsidiaries
or affiliates has granted to any person (i) the right to cause
NRC to register any NRC Shares beneficially owned by such person
under the 1933 Act or (ii) the right to include any NRC Shares
beneficially owned by such person in any registration statement
filed by NRC under the 1933 Act.
(e) Neither the execution and delivery of this Agreement by NRC, nor
the consummation of the transactions herein contemplated in
accordance with the terms hereof, will, with or without notice
and/or the passage of time, or both, (i) violate or result in a
breach of or constitute a default under NRC's certificate of
incorporation or by-laws, (ii) violate any statute, ordinance,
rule, regulation, order or decree of any court or of any public
or governmental
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body, agency or authority applicable to the Company or any
subsidiary or affiliate of the Company or by which any of their
respective properties or assets may be bound, the violation of
which could result in or reasonably be expected to have a
material adverse effect on the business, financial condition or
results of operations of NRC and its subsidiaries, taken as a
whole (" Material Adverse Effect"), (iii) except as set forth in
Section 9(c) below, require any filing, declaration or
registration with, or permit, consent or approval of, or the
giving of any notice to, any public or governmental body, agency
or authority, the failure of which could result in a Material
Adverse Effect, or (iv) result in a violation or breach of, or
constitute a default (or give rise to any right of termination,
cancellation or acceleration) under any of the terms, conditions
or provisions of any note, bond, mortgage or other evidence of
indebtedness, indenture, license, permit, concession, agreement
or other instrument or obligation to which the Company or any
subsidiary or affiliate is a party, or by which any of them or
any of their respective properties or assets may be bound, which
could result in a Material Adverse Effect.
(f) Subject to Stockholder Approval and compliance with Sections 9
and 10 below, NRC has the absolute right, power, and authority to
sell the Purchase Shares so as to vest in Investor complete and
absolute title to the Purchase Shares free and clear of any lien,
encumbrance, charge or claim and to execute, deliver and carry
out the terms and provisions of this Agreement without the
approval or consent of any third party. The Company, at
Closing, will deliver to the Investor good and valid title to the
Purchase Shares, free and clear of all liens, security interests,
options, charges, beneficial interests, claims and encumbrances
of any kind, except for restrictions on transfer imposed by this
Agreement and under applicable securities laws.
(g) There are no suits, actions, claims, proceedings or
investigations pending or, to the best knowledge of the Company,
threatened against, relating to or involving the Company or any
subsidiary or affiliate of the Company or any properties or
rights of the Company or any subsidiary or affiliate, before any
court, arbitrator or administrative or governmental body,
domestic or foreign, which if adversely determined would have a
Material Adverse Effect. There are no such suits, actions,
claims, proceedings or investigations pending or, to the best
knowledge of the Company, threatened challenging the validity or
propriety of the transactions contemplated by this Agreement.
(h) The Company is not an investment company, or a company controlled
by an investment company, within the meaning of the Investment
Company Act of 1940, as amended.
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(i) The Company is a "reporting company" as defined in Rule 902 of
Regulation S. The Company is in full compliance with all filing
obligations under Section 13 of the Securities Exchange Act of
1934 as amended ("1934 Act"). The Company has not offered the
Purchase Shares to any person in the United States, any
identifiable groups of U.S. citizens abroad, or to any U.S.
Person. In connection with the transactions contemplated by this
Agreement, the Company has not conducted any "directed selling
efforts", as that term is defined in Rule 902 of Regulation S,
nor has the Company conducted any general solicitation relating
to the offer and sale of the Purchase Shares to persons resident
within the United States or elsewhere.
(j) The transactions contemplated hereby do not effect a "change of
control" under any material agreement to which NRC or any of its
subsidiaries or affiliates is a party.
6. REPRESENTATIONS AND WARRANTIES OF INVESTOR. The Investor hereby
represents and warrants to NRC as of the date hereof and as of the Closing Date
as follows:
(a) The Investor is a corporation duly organized, validly existing
and in good standing under the laws of Luxembourg and has full
corporate power and authority to conduct its business as now
being conducted and to own or lease the assets and properties it
now owns or holds under lease.
(b) The Investor has full corporate power and authority to execute
and deliver this Agreement and to acquire the Purchase Shares and
to consummate the transactions contemplated on its part hereby.
(c) The Board of Directors (or equivalent) of the Investor has duly
approved this Agreement and has duly authorized the execution and
delivery of this Agreement and the consummation of the
transactions contemplated hereby. This Agreement has been duly
executed and delivered by the Investor and constitutes the legal,
valid and binding obligations of the Investor enforceable in
accordance with its terms, subject to the Enforceability
Exceptions.
(d) Neither the execution and delivery of this Agreement by Investor,
nor the consummation of the transactions herein contemplated,
will, with or without notice and/or the passage of time, or both,
(i) violate or result in a breach of or constitute a default
under its organizational documents, (ii) violate any statute,
ordinance, rule, regulation, order or decree of any court or of
any public or governmental body, agency or authority applicable
to the Investor or by which its properties or assets may be
bound, the violation of which could result in or reasonably be
expected to have a material adverse effect on the business,
financial condition or results of operation of Investor and its
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subsidiaries, taken as a whole ("MIL Material Adverse Effect"),
(iii) except as set forth in Section 10(c) below, require any
filing, declaration or registration with, or permit, consent or
approval of, or the giving of any notice to, any public or
governmental body, agency or authority, the failure of which
could result in a MIL Material Adverse Effect, or (iv) result in
violation or breach of, or constitute a default (or give rise to
any right of termination, cancellation or acceleration) under
any of the terms, conditions or provisions of any note, bond,
mortgage or other evidence of indebtedness, indenture, license,
permit, concession, agreement or other instrument or obligation
to which the Investor is a party, or by which it or its
properties or assets may be bound, which could result in a MIL
Material Adverse Effect.
(e) The Investor is neither a U.S. Person nor a Distributor (as
defined in Regulation 902(c) promulgated by the SEC under the
1933 Act).
(f) The Investor was outside of the United States at the time the
offer to sell the Purchase Shares was made to the Investor and
the Investor was outside the United States at the time the
Investor executed this Agreement and agreed to purchase the
Purchase Shares and covenants and agrees that it will be outside
of the United States at the time it pays the Purchase Price. The
offer to sell the Purchase Shares was directly communicated to
the Investor. At no time was the Investor presented with or
solicited by any leaflets, newspaper or magazine article, radio
or television advertisement or any other form of general
advertising or solicited or invited to attend a promotional
meeting.
(g) The Investor has been advised that the sale of the Purchase
Shares to the Investor has not been registered under the 1933 Act
or registered or qualified under state securities laws, and that,
until the expiration of the Restricted Period, the Purchase
Shares may not be offered, sold or delivered in the United States
or to, or for the account or benefit of, any U.S. Person unless
the Purchase Shares are registered under the 1933 Act or an
exemption from the registration requirements of the 1933 Act is
available. The Investor acknowledges that no representation,
warranty or guaranty, express or implied, has been given to the
Investor by NRC or any officer, director, agent, or employee of,
legal counsel to, or any other person connected with, NRC
regarding the availability at any time of an exemption from
registration under the 1933 Act for any offer, sale or other
transfer or disposition of the Purchase Shares by the Investor;
and the Investor further understands and agrees that the
availability of any such exemption from registration must be
determined solely by the Investor and the Investor's own legal
counsel based on the particular facts and circumstances existing
at the time of the proposed transaction.
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(h) The Investor has not offered or sold, and agrees that it will not
offer or sell, any Purchase Shares directly or indirectly in the
United States or to, or for the benefit, or account of, any U.S.
Person prior to the expiration of the Restricted Period, unless
the offer and sale of such Purchase Shares is registered under
the 1933 Act and any applicable state securities laws, or
exemptions from the registration requirements thereof are
available; and that, thereafter, such Purchase Shares may be
offered or sold in the United States or to, or for the account or
benefit of, any U.S. Person only in compliance with the
registration requirements of the 1933 Act and any applicable
State Act, or pursuant to available exemptions from such
registration requirements, or in compliance with the provisions
of Regulation S. The Investor further represents and warrants
that it will not, through any short sale, long sale or other
hedging transaction, engage in any transaction with the Purchase
Shares prior to the expiration of the Restricted Period which
would reduce the Investor's risk of ownership or investment in
the Purchase Shares.
7. STOCKHOLDER APPROVAL.
(a) The parties acknowledge that, pursuant to Rule 312.03 of NYSE,
approval ("Stockholder Approval") of the NRC stockholders ("Stockholders") is
required for the sale of the Purchase Shares by NRC to the Investor and agree
that the obtaining of such approval is a precondition to Closing hereunder. NRC
agrees to use its best efforts to take all actions necessary to hold a special
meeting of Stockholders ("Special Meeting") on or about November 20, 1996, or
the earliest possible date thereafter which provides sufficient time between
proxy mailing and the meeting date ("Meeting Date"), and to use its best
efforts to obtain Stockholder Approval at such meeting or any adjournment
thereof. Such actions shall include, without limitation, soliciting proxies for
approval of the sale hereunder and, in connection therewith, recommending that
Stockholders vote in favor of the proposal seeking such approval. The Board of
Directors of NRC has heretofore unanimously approved the transactions
contemplated under this Agreement, and has unanimously resolved to recommend
approval of the sale by NRC's Stockholders (in each case, with Investor's
designees on the Board not participating in such action). NRC agrees to set the
record date for the Special Meeting for October 25, 1996. The parties
acknowledge and understand that NRC must submit a preliminary proxy statement to
the SEC for review, which NRC intends to do within five (5) business days after
the date of this Agreement. In the event the transaction with Investor is
rejected by the Stockholders, this Agreement shall be deemed terminated.
(b) During the period from the date hereof and continuing until the
earlier of the Closing Date or the date of termination of this Agreement
pursuant to Section 11 below, NRC shall not (i) offer, sell, contract to sell or
otherwise issue or dispose of any NRC Shares or any other securities of NRC,
(except that NRC may issue up to 1,000,000 NRC Shares pursuant to an offering
under Regulation S at a price no less than $5.00 per NRC Share) nor any other
securities that are convertible into or exchangeable for or that represent the
right to receive NRC Shares or any other securities of NRC (other than pursuant
to existing warrants, options and other convertible securities
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as set forth in the Form 10-K), or (ii) announce or effect any stock split,
stock dividend, stock combination, reverse stock split, stock reclassification
or reorganization with respect to NRC Shares or any other security of NRC.
8. INFORMATION FOR PROXY STATEMENT. Concurrently herewith, Investor
shall provide information regarding its principals and affiliates to NRC and
such other information as NRC shall reasonably request (consistent with
applicable SEC disclosure requirements) so that NRC can include such information
in its proxy statement (the information so provided being referred to as the
"Investor Proxy Information").
9. CONDITIONS TO THE OBLIGATIONS OF THE INVESTOR. The Obligations of the
Investor to consummate the transactions contemplated hereunder shall be subject
to the satisfaction of each of the following conditions at or prior to the
Closing, unless waived by the Investor in writing:
(a) REPRESENTATIONS AND WARRANTIES TRUE. All of the representations
and warranties of NRC contained in this Agreement shall be true and correct in
all material respects on the Closing Date and NRC shall have delivered separate
certificates to that effect at the Closing.
(b) PERFORMANCE. NRC shall have performed and complied in all
material respects with all covenants and obligations under this Agreement which
are required to be performed or complied with by NRC on or prior to the Closing
Date.
(c) APPROVALS, PERMITS, ETC. All consents, authorizations,
approvals, exemptions, licenses or permits of, or registrations, qualifications,
declarations or filings with, any governmental body or agency thereof that are
required in connection with the sale and transfer of the Purchase Shares to the
Investor pursuant to this Agreement and the consummation of the transactions
contemplated hereby shall have been duly obtained or made in form and substance
reasonably satisfactory to the Investor and its counsel and shall be effective
at and as of the Closing Date. The foregoing shall include, without limitation,
any filings required and the expiration of any applicable waiting period under
the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the
rules and regulations promulgated thereunder (the "HSR Act"). NRC and Investor
agree as promptly as possible hereafter to file or cause to be filed,
respectively, an acquired person's and acquiring person's notification and
report form required by the HSR Act. NRC and Investor shall cooperate and use
their best efforts to expedite such compliance. The best efforts of NRC and
Investor shall include, but shall not be limited to, good faith response, in
cooperation with each other, to all appropriate requests for information,
documentary or otherwise, by any governmental agency pursuant to the HSR Act.
(d) DELIVERY OF CLOSING DOCUMENTS. NRC shall have delivered to the
Investor the documents referred to in Section 12(a) hereof, in form and
substance reasonably satisfactory to Investor and its counsel.
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(e) ABSENCE OF CERTAIN EVENTS. No statute, rule or regulation shall
have been enacted or promulgated which would make any of the transactions
contemplated by this Agreement illegal or would otherwise prevent the
consummation thereof. No order, decree, writ or injunction shall have been
issued and shall remain in effect, by any court or governmental body or agency
thereof which restrains, enjoins or otherwise prohibits the consummation of the
transactions contemplated hereby, and no action, suit or proceeding before any
court or governmental body or agency thereof shall have been instituted by any
person (or instituted or threatened by any governmental body or agency thereof),
and no investigation by any governmental body or agency thereof shall have been
commenced, with respect to the transactions contemplated hereby.
(f) NO MATERIAL ADVERSE CHANGES. Since the date hereof, no event
shall have occurred which has resulted in a "Material Adverse Change" in the
Company. For purposes hereof, a "Material Adverse Change" shall mean and be
limited to changed circumstances which materially and adversely affect the
financial condition, operations, assets and/or continued corporate viability
of the Company and its subsidiaries and affiliates, taken as a whole. The
Investor acknowledges that NRC experienced a loss from operations of
approximately $5.7 million for the six-month period ended June 30, 1996, and
that NRC may experience additional losses from operations for periods subsequent
to June 30, 1996 and through the Closing of a magnitude approximating the losses
experienced in the six-month period ended June 30, 1996, and the Investor agrees
that losses experienced during such six-month period and losses experienced
subsequent to June 30, 1996, to the extent that such losses do not materially
exceed those experienced in such six-month period, will not, for purposes of
this Section 9, be deemed to be a "Material Adverse Change".
10. CONDITIONS TO THE OBLIGATIONS OF NRC. The obligations of NRC to
consummate the transactions contemplated hereunder shall be subject to the
satisfaction of each of the following conditions at or prior to the Closing,
unless waived by NRC in writing:
(a) REPRESENTATIONS AND WARRANTIES TRUE. All of the representations
and warranties of the Investor contained in this Agreement shall be true and
correct in all material respects on the Closing Date and the Investor shall have
delivered a certificate to that effect at the Closing.
(b) PERFORMANCE. The Investor shall have performed and complied in
all material respects with all covenants and obligations under this Agreement
which are required to be performed or complied with by it on or prior to the
Closing Date.
(c) APPROVALS, PERMITS, ETC. All consents, authorizations,
approvals, exemptions, licenses or permits of, or registrations, qualifications,
declarations or filings with, any governmental body or agency thereof that are
required in connection with the sale and transfer of the Purchase Shares to the
Investor pursuant to this Agreement and the consummation of the transactions
contemplated hereby shall have been duly obtained or made in form and substance
reasonably satisfactory to NRC and its counsel and shall be effective at and as
of the Closing Date. The foregoing shall include, without limitation, any
filings required and the expiration of any applicable
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waiting period under the HSR Act. NRC and Investor agree as promptly as
possible hereafter to file or cause to be filed, respectively, an acquired
person's and acquiring person's notification and report form required by the HSR
Act. NRC and Investor shall cooperate and use their best efforts to expedite
such compliance. The best efforts of NRC and Investor shall include, but shall
not be limited to, good faith response, in cooperation with each other, to all
appropriate requests for information, documentary or otherwise, by any
governmental agency pursuant to the HSR Act.
(d) DELIVERY OF CLOSING DOCUMENTS. NRC shall have received the
documents referred to in Section 12(a) hereof in form and substance reasonably
satisfactory to NRC and its counsel.
(e) ABSENCE OF CERTAIN EVENTS. No statute, rule or regulation shall
have been enacted or promulgated which would make any of the transactions
contemplated by this Agreement illegal or would otherwise prevent the
consummation thereof. No order, decree, writ or injunction shall have been
issued and shall remain in effect, by any court or governmental body or agency
thereof which restrains, enjoins or otherwise prohibits the consummation of the
transactions contemplated hereby, and no action, suit or proceeding before any
court or governmental body or agency thereof shall have been instituted by any
person (or instituted or threatened by any governmental body or agency thereof),
and no investigation by any governmental body or agency thereof shall have been
commenced, with respect to the transactions contemplated hereby.
(f) SECTION 1 PAYMENT. The payment to be made by the Investor
pursuant to Section 1 shall have been made by the Investor to NRC.
11 TERMINATION.
(a) REASONS FOR TERMINATION. This Agreement may be terminated at any
time prior to the Closing Date:
(i) by the mutual written consent of the Investor and NRC;
(ii) by either the Investor or NRC:
A. if any statute, rule or regulation has been
enacted which would make any of the transactions contemplated by this Agreement
illegal or would otherwise prevent the consummation thereof or if any court or
governmental body or agency thereof shall have issued any writ or injunction, or
taken any other action, restraining, enjoining or otherwise prohibiting the
transactions contemplated hereby and all appeals and means of appeal therefrom
have been exhausted;
B. if the Closing shall not have occurred on or prior
to January 15, 1997; provided, however, that the right to terminate this
Agreement pursuant to this Section 11(a) shall not be available to any party
whose breach of any representation or warranty or
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failure to perform or comply with any covenant or obligation under this
Agreement has been the cause of, or resulted in, the failure of the Closing to
occur on or before such date;
(iii) by the Investor, if any of the conditions specified in
Section 9 have not been met or waived prior to such time as such condition can
no longer be satisfied; or
(iv) by NRC, if any of the conditions specified in Section
10 shall not have been met or waived prior to such time as such condition can no
longer be satisfied.
(b) EFFECT OF TERMINATION. In the event of termination of this
Agreement, this Agreement shall forthwith become null and void and there shall
be no liability on the part of any party hereto or their respective officers or
directors, except for Sections 13 (for any breach occurring prior to
termination), 14 and 15 hereof, which shall remain in full force and effect, and
except that nothing herein shall relieve any party hereto from liability for a
breach of this Agreement prior to the termination hereof.
12. CLOSING.
(a) The provisions of this Section 12(a) shall govern the procedures
whereby the Closing shall take place. NRC shall provide written notice to
Investor of the date on which Stockholder Approval occurs. Such notice shall
establish the time and place of the Closing (which shall be within five (5)
business days after the later of Stockholder Approval or expiration of the
notice period under the HSR Act) at which the following deliveries shall be made
by the parties, all of which shall be effected in a manner consistent with the
requirements of Regulation S:
(1) NRC. NRC shall make the following deliveries to Investor at
or before the Closing:
(A) Evidence reasonably satisfactory to Investor and its
counsel that Stockholder Approval has been obtained;
(B) An original executed and issued stock certificate
registered in the name of Investor and representing the
Purchase Shares, which shall contain the legend set
forth in EXHIBIT A hereto;
(C) A Secretary's certificate certifying resolutions of the
Board of Directors of NRC which, among other things,
approve the execution and delivery of this Agreement,
the actions required under Section 7 hereof and the
carrying out of the transactions contemplated hereby;
(D) The opinion of Xxxxxxx & Xxxxxxx P.C., counsel to NRC,
in the form annexed hereto as EXHIBIT C.
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(E) A certificate from an officer of NRC certifying as of
the Closing Date to the correctness in all material
respects of NRC's representations and warranties
contained in this Agreement.
(2) INVESTOR. Investor shall:
(A) pay the Purchase Price to NRC, as set forth in
Section 1 above.
(B) deliver to NRC (i) a secretary's certificate certifying
the resolutions of the board of directors of Investor
which, among other things approve the execution and
delivery of this Agreement and the carrying out of
the transactions contemplated hereby and (ii) a
certificate from an officer of Investor certifying as
of the Closing Date to the correctness in all material
respects of Investor's representations and warranties
contained in this Agreement.
(b) NRC hereby covenants and agrees to reserve, out of its
authorized, but unissued share capital, a total of 2,000,000 NRC Shares for
issuance at Closing, provided that such covenant shall lapse if the Stockholder
Approval is not given by the Stockholders or if NRC or Investor terminates this
Agreement pursuant to Section 11 above.
13. INDEMNITY; SURVIVAL.
(a) NRC hereby agrees to indemnify, defend, save and hold Investor
harmless from and against any and all damage, liability, loss, expense,
assessment, judgment or deficiency of any nature whatsoever (including, without
limitation, reasonable attorneys' fees, other costs and expenses incident to any
suit, action or proceeding) (collectively, "Losses") incurred or sustained by
Investor which arise out of or result from any breach of any representation,
warranty or covenant of NRC contained herein; PROVIDED HOWEVER, that the
indemnity with respect to any representation and warranty shall terminate as of
the first date, if any, on which such representation or warranty ceases to
survive pursuant to subsection (d) hereof. Notwithstanding the above, the
Company shall have no liability hereunder regarding any matter as to which
Investor, its designated directors of the Company or Investor's principals
and/or representatives have actual knowledge.
(b) Investor hereby agrees to indemnify, defend, save and hold NRC
harmless from and against any and all Losses incurred or sustained by NRC which
arise out of or result from any breach of any representation, warranty or
covenant of Investor contained herein; provided, however, that the indemnity
with respect to any representation and warranty shall terminate as of the first
date, if any, on which such representation or warranty ceases to survive
pursuant to subsection (d) hereof.
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(c)(i) Promptly after the assertion of any claim or the
commencement of any action or proceeding with respect to any Loss for which
indemnity is provided pursuant to this Section, the party seeking such
indemnification shall notify the indemnifying party of such assertion or
proceeding; provided, however, that the failure promptly to give such notice
shall not affect any indemnified party's rights hereunder except to the extent
that such failure shall adversely affect any indemnifying party or its rights
hereunder in any material respect. The indemnified party shall advise the
indemnifying party of all material facts relating to such assertion within the
knowledge of the indemnified party, and shall afford the indemnifying party the
opportunity, at the indemnifying party's sole cost and expense, to defend
against such claims for liability. In any such action or proceeding, the
indemnified party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at its own expense unless (A) the
indemnifying party and the indemnified party mutually agree to the retention of
such counsel or (B) the named parties to any such suit, action, or proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party, and, in the reasonable judgment of the indemnified party,
representation of the indemnifying party and the indemnified party by the same
counsel would be inadvisable due to actual or potential differing or conflicting
interests between them.
(ii) The indemnified party shall have the right to settle or
compromise any claim or liability subject to indemnification under this Section,
and to be indemnified from and against all Losses resulting therefrom, unless
the indemnifying party, within twenty (20) calendar days after receiving notice
of the claim or liability in accordance with (i) above notifies the indemnified
party that it intends to defend against such claim or liability and undertakes
such defense.
(iii) Except as otherwise provided in (ii) above, an indemnifying
party shall not be liable under this Section for any settlement effected without
its consent (which shall not be unreasonably withheld or delayed) of any claim
or liability or proceeding for which indemnity may be sought hereunder. The
indemnifying party may settle any claim without the consent of the indemnified
party provided that such settlement or release does not require any payment by,
or impose any liability or obligation on, the indemnified party or does not
materially adversely affect the rights, duties or obligations of the indemnified
party hereunder or otherwise.
(d) The representations and warranties of the parties contained
herein shall survive for one (1) year from the Closing Date. The expiration of
any representation or warranty or indemnification provided herein shall not
affect any claim thereon made by the giving of written notice by a party to the
other in the manner provided in subsection (c) above prior to the date of such
expiration. All covenants and agreements of the parties contained herein shall
survive indefinitely, except as otherwise expressly provided herein.
14. PUBLIC ANNOUNCEMENTS. The parties hereto agree to coordinate the
release of public information relating to this Agreement and, except as
otherwise required by applicable law, rule or
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regulation, will not release any information without the prior written consent
of the other party hereto.
15. BROKERS AND FINDERS. Investor and NRC each represents and warrants to
the other that it has dealt with no broker or finder in connection with this
transaction. This representation shall survive the closing hereunder.
16. ASSIGNABILITY. Neither this Agreement nor any rights, obligations or
claims hereunder may be assigned, except that after Stockholder Approval of this
transaction and upon prior written notice to NRC, the Investor shall have the
right to assign this Agreement and the rights, obligations and claims hereunder
to Xxxx-Xxxxxxx Xxxxxx, or to any entity controlled by Xx. Xxxxxx, provided that
Xx. Xxxxxx thereafter continues to remain in control of such entity (the terms
"controlled" and "control" shall have the meanings ascribed to them in
Rule 12b-2 promulgated by the SEC under the 1934 Act). Any partial assignment
of this Agreement and the rights, obligations and claims hereunder in
conjunction with the transfer of some, but not all of the Purchase Shares,
shall not affect NRC's obligation under Section 1 of the Registration Rights
Provisions which shall be to effect no more than two (2) registrations in the
aggregate for all then-owned shares of NRC owned by Investor (including, all
NRC Shares acquired under the April 15 Agreements) and such assignees
collectively at the demand of Investor.
17. GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement shall be
governed by and construed in accordance with the laws of New York without regard
to the conflicts-of-laws principles thereof. Each of the parties hereby
irrevocably (a) submits to the exclusive jurisdiction of, and agrees that any
action, suit or other proceeding at law, in equity or otherwise, shall only be
brought in the Supreme Court, New York County, or Federal District Court for the
Southern District of New York, for the purpose of any such suit, action or other
proceeding arising out of or based upon this Agreement or the transactions
contemplated hereby ("Action"); (b) waives, to the extent not prohibited by
applicable law, rule or regulation, and agrees not to assert, by way of motion,
as a defense or otherwise, in any such Action, any claim that any such person is
not subject personally to the jurisdiction of the aforementioned courts, that
its property is exempt or immune from attachment or execution, that any such
action brought in the aforementioned court is brought in an inconvenient forum,
that the venue of any such action brought in the aforementioned court is
improper, or that this Agreement, or the transactions contemplated hereby cannot
be enforced in or by such court, and (c) consents to service of process in any
such Action by recognized international courier service. Nothing herein shall
affect the right to serve process in any other manner permitted by law.
18. ENTIRE AGREEMENT. This Agreement embodies the entire understanding
and agreement of the parties hereto in relation to the subject matter hereof,
and no promise, condition, representation or warranty, express or implied, not
herein set forth shall bind any party hereto. None
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of the terms and conditions of this Agreement may be changed, modified, waived
or canceled orally or otherwise except by a writing signed by the parties
hereto, specifying such change, modification, waiver or cancellation. A waiver
at any time of compliance with any of the terms and conditions of this Agreement
shall not be considered a modification, cancellation or waiver of such terms and
conditions of any preceding or succeeding breach thereof unless expressly so
stated.
19. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
20. NOTICES. Any notice or other communication required or desired to be
given shall be in writing and shall be sent by facsimile with confirming copy by
recognized international courier service. Each such notice shall be deemed
given upon delivery by such courier service to the following respective
addresses, which any party may change as to such party upon ten (10) days'
notice to the other party:
TO NRC: 0000 Xxxxxxxxxx Xxxxxxx Xxxxx
Xxxxxx, Xxxx 00000
Facsimile No.: (000) 000-0000
WITH A COPY TO: Xxxxxxx & Xxxxxxx P.C.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxxx Xxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
TO INVESTOR: Xxxxxxxxx Xxxxx 00X
X-0000
Xxxxxxxxxx, Xxxxxxxxxx
Attn: Xx. Xxxxxxx Xxxxx
Facsimile No.: 000-000-000000
WITH A COPY TO: Coudert Brothers
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
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21. FURTHER ASSURANCES. At any time and from time to time after the
execution and delivery hereof, the parties agree to cooperate with each other,
to execute and deliver such other documents, instruments of transfer or
assignment, and do all such further acts and things as may be reasonably
required to carry out the transactions contemplated hereunder.
22. SEVERABILITY. The invalidity or unenforceability of any particular
provision of this Agreement or portions hereof, shall not affect the other
provisions or portions hereof, and this Agreement shall be construed in all
respects as if any such invalid or unenforceable provisions or portions hereof
were omitted.
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23. NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement will be
construed as giving any person, firm, corporation or other entity, other than
the parties hereto and their successors and permitted assigns, any right, remedy
or claim under or in respect of this Agreement or any provision hereof.
24. HEADINGS. The headings in this Agreement are included for convenience
of reference only and shall not in any way affect the meaning or interpretation
of this Agreement.
25. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument. This Agreement may be
executed by facsimile, each facsimile being deemed an original hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
NORD RESOURCES CORPORATION
By: /s/ Xxxxx X. Cruft
-------------------------------------
MIL (INVESTMENTS) S.A.
By: /s/ E. Vander Kelft
-------------------------------------
Administrator
By: /s/ X. Xxxxxx
-------------------------------------
Administrator
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