EXHIBIT 10.126
THIS ACQUISITION AGREEMENT made as of the 4th day of June, 1999.
A M O N G:
NORD RESOURCES CORPORATION
a corporation incorporated pursuant to the laws of
the State of Delaware
("Nord Resources") OF THE FIRST PART
- and -
NORD COPPER CORPORATION.
a corporation incorporated pursuant to the laws of
the State of Delaware
("Nord Copper") OF THE SECOND PART
-and-
SUMMO USA CORPORATION
a corporation incorporated pursuant to the laws of the
State of Colorado
("Summo") OF THE THIRD PART
WHEREAS Summo executed and delivered and is a party to the
Arimetco Agreement (as hereinafter defined) and among other
things, Summo seeks to sell, transfer and assign and Nord Copper
seeks to assume and purchase the Arimetco Agreement, all on and
subject to the terms and conditions herein contained;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of
the mutual covenants, agreements and premises herein contained
and other good and valuable consideration (the receipt and
sufficiency whereof being hereby acknowledged by each party), the
parties hereto do hereby covenant and agree as follows:
DEFINITIONS AND SCHEDULES
1.1 Definitions. In this Agreement:
"Act" has the meaning ascribed thereto in subsection 2.3(b).
"Agreement", "this Agreement", "hereto" and "herein" means
this Agreement and all schedules attached hereto, as may be
amended from time to time.
"Arimetco" means Arimetco Inc.
"Arimetco Agreement" means the agreement to purchase the
▇▇▇▇▇▇▇ Camp Mine and the related assets between Summo and
Arimetco, dated September 18, 1998, as amended February 24,
1999 and May 26, 1999.
"Best Knowledge" means such knowledge as the Party would
have after due inquiry of the matter in question.
"Business Day" means a day other than a Saturday or a Sunday
or any other day which is a statutory holiday in the State
of Colorado.
"Closing" means the consummation of the Transaction as
herein contemplated.
"Closing Date" means June 4, 1999 or such other date as the
Parties may agree upon.
"Consent Order" means the Consent Order negotiated between
Summo, the Arizona Department of Environmental Quality and
the State of Arizona Attorney General, or a similarly
acceptable document to Nord Copper, which documents the
manner in which Summo (or Nord Copper) will proceed with
operation of the ▇▇▇▇▇▇▇ Camp Mine, while addressing and
remedying the deficiencies for which the project has been
deemed to be out of compliance.
"Contract" means any agreement, indenture, contract, bond,
debenture, security agreement, lease, deed of trust,
license, option, instrument or other legally binding
commitment, whether written or oral.
"Direct Claim" has the meaning ascribed thereto in
subsection 6.3.
"Encumbrances" means any and all claims, liens, security
interests, mortgages, pledges, charges, options, equity
interests, encumbrances, proxies, voting agreements, voting
trusts, leases, tenancies, easements or other interests of
any nature or kind whatsoever, howsoever created.
"Financial Statements" has the meaning ascribed thereto in
subsection 3.1(t).
"Indemnified Party" has the meaning ascribed thereto in
subsection 6.3.
"Indemnifying Party" has the meaning ascribed thereto in
subsection 6.3.
"Intellectual Property" means any and all intellectual
property prepared by or on behalf of Summo with respect to
the ▇▇▇▇▇▇▇ Camp Mine including without limitation all
feasibility studies and the intellectual property listed on
Schedule A.
"▇▇▇▇▇▇▇ Camp Mine" means the property located in Cochise
County, comprising 88 unpatented lode claims, 64 patented
lode claims and approximately 510 acres of fee simple lands,
all as more particularly described in the Arimetco Agreement
"Laws" means all applicable federal, state, municipal or
local laws, statutes, by-laws or ordinances in effect on the
Closing Date.
"Losses" means any and all claims, demands, debts, suits,
actions, obligations, proceedings, losses, damages,
liabilities, deficiencies, costs and expenses (including,
without limitation, all reasonable legal and other
professional fees and disbursements, interest, penalties and
amounts paid in settlement).
"Nord Copper" means Nord Copper Corporation.
"Nord Resources" means Nord Resources Corporation.
"Nord Resources Stock" means 1,600,000 common shares of Nord
Resources Stock.
"Parties" means collectively, the parties to this Agreement.
"Person" means any individual, partnership, company,
corporation, unincorporated association, joint venture,
trust, the Crown or any other agency or instrumentality
thereof or any other judicial entity or person, government
or governmental agency, authority or entity howsoever
designated or constituted.
"Summo" means Summo USA Corporation.
"Survival Period" has the meaning ascribed thereto in
subsection 5.1.
"Third Party Claim" has the meaning ascribed thereto in
subsection 6.3.
"Threshold" has the meaning ascribed thereto in subsection 6.3.
"Time of Closing" means 11:00 a.m. (Tucson time) on the
Closing Date or if the Transaction is not completed at such
time, then such other time on the Closing Date on which the
Transaction is completed.
"Transaction" means the sale, transfer and assignment of the
Arimetco Agreement and the Intellectual Property from Summo
to Nord Copper as contemplated by this Agreement.
1.2 Disclosure. Any fact or circumstance or combination of
facts and/or circumstances disclosed in this Agreement or in any
schedules hereto shall be deemed to be disclosed for all purposes
of this Agreement.
1.3 Act. Any reference in this Agreement to any act, by-law,
rule or regulation or to a provision thereof shall be deemed to
include a reference to any act, by-law, rule or regulation or
provision enacted in substitution or amendment thereof.
1.4 Colorado Time. Except where otherwise expressly provided in
this Agreement any reference to time shall be deemed to be a
reference to Colorado time.
1.5 Gender and Extended Meanings. In this Agreement words and
personal pronouns relating thereto shall be read and construed as
the number and gender of the party or parties referred to in each
case require and the verb shall be construed as agreeing with the
required word and pronoun. For greater certainty and without
limitation, in this Agreement the word "shall", has the same
meaning as the word "will".
1.6 Section Headings. The division of this Agreement into
sections is for convenience of reference only and shall not
effect the interpretation or construction of this Agreement.
1.7 Business Day. In the event that the date for the taking of
any action under this Agreement falls on a day which is not a
Business Day, then such action shall be taken on the next
following Business Day.
ACQUISITION AGREEMENT
2.1 Transfer of Arimetco Agreement. Subject to the terms and
conditions hereof, on the Closing Date at the Time of Closing,
Summo shall sell, transfer and assign to Nord Copper and Nord
Copper shall purchase and assume from Summo, all the right, title
and interest of Summo in and to the Arimetco Agreement and the
Intellectual Property, free and clear of all Encumbrances other
than as provided in this Agreement, in exchange for the Nord
Resources Stock. Nord Resources does hereby undertake and agree
to use its good faith commercial best efforts to have the Nord
Resources Stock registered for trading with the Securities &
Exchange Commission as and by way of the filing of a registration
statement at such time and as and when Nord Resources next
registers a new issue of securities all in accordance with that
form of Registration Rights Agreement attached hereto as Schedule
B. For greater certainty and without limitation, Nord Copper does
hereby covenant and agree to pay to Cochise County,
contemporaneous with Closing, the sum of US$310,000 on account of
monies owing to Arimetco under the Arimetco Agreement, including
the sum of US$60,000, US$30,000 of which became due on March 17,
1999 and of which US$30,000 became due on April 17, 1999.
2.2 Closing. Closing shall occur at the Time of Closing on the
Closing Date at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇ or at such other
place or other time and date as the Parties may agree.
2.3 Deliveries at Closing. At Closing,
(a) Summo Deliveries.
Summo will deliver to Nord Copper the following:
(a) Executed and acknowledged (where necessary) originals of all
of the agreements referred to in section 7.1;
(b) An executed Registration Rights Agreement in the form of
Schedule B;
(c) Certificates of good standing for Summo from the Secretary
of State of the States of Colorado and Arizona; and
(d) The other documents referred to in section 7.1.
(b) Nord Copper and Nord Resources Deliveries.
Nord Copper and Nord Resources will deliver to Summo the following:
(a) A certificate or certificates representing the Nord
Resources Stock in Summo's name and bearing the following legend:
"The shares represented by this Certificate have
not been registered under the Securities Act of
1933, as amended (the "Act"), or under the
securities laws of any other state or
jurisdiction, and are "restricted securities" as
that term is defined in Rule 144 under the Act and
may not be sold, transferred, assigned, pledged or
hypothecated except pursuant to an effective
registration statement or an opinion of counsel
reasonably satisfactory to Nord Resources
Corporation to the effect that registration under
the Act (and applicable state securities laws) is
not required."
(b) Executed and acknowledged (where necessary) originals of all
of the agreements referred to in section 8.1.
(c) An executed Registration of Rights Agreement in the form of
Schedule B.
(d) Certificates of good standing for Nord Resources from the
Secretary of State of the State of Delaware and for Nord Copper
from the Secretary of State of the State of Delaware.
(e) The other documents referred to in section 7.1.
COVENANTS, REPRESENTATIONS AND WARRANTIES OF SUMMO
3.1 Covenants, Representations and Warranties. Summo hereby
covenants, represents and warrants to Nord Copper as follows and
acknowledges and confirms that Nord Copper is relying upon such
covenants, representations and warranties in connection with the
Transaction:
(a) Incorporation and Organization. Summo is duly incorporated
and validly subsisting under the laws of the State of Colorado
and has the corporate power to own or lease its properties and to
carry on its business as it is now being conducted and to
execute, deliver and perform its obligations under this
Agreement. Summo has all requisite corporate power and authority
to enter into this Agreement and to perform its obligations
hereunder.
(b) Acts of Bankruptcy. Summo is not insolvent, has not
proposed a compromise or arrangement to its creditors generally,
has not taken any proceeding with respect to a compromise or
arrangement, has not taken any proceeding to have itself declared
bankrupt or wound-up, has not taken any proceeding to have a
receiver appointed of any part of its assets and at present, no
encumbrancer or receiver has taken possession of any of its
property and no execution or distress is enforceable or levied
upon any of its property and no petition for a receiving order in
bankruptcy is filed against it.
(c) Corporate and Shareholder Authority. All requisite
corporate and shareholder actions have been taken by Summo to
authorize the valid execution and delivery of this Agreement and
the consummation of the Transaction. Summo has obtained all
consents, approvals and authorizations of, and has effected all
filings with, regulatory authorities that are required in
connection with the consummation of the Transaction.
(d) Agreement Enforceable. This Agreement constitutes a valid
and legally binding obligation of Summo enforceable against Summo
in accordance with its terms.
(e) No Violations. The execution and delivery of this Agreement
and all other agreements contemplated herein by Summo and the
observance and performance of the terms and provisions of this
Agreement and any such agreements; (i) does not and will not
require Summo to obtain or make any consent, authorization,
approval, filing or registration under any law, by-law, rule,
regulation, judgment, order, writ, injunction or decree which is
binding upon Summo other than as contemplated in this Agreement;
(ii) does not and will not constitute a violation or breach of
the charter documents or by-laws of Summo; (iii) does not and
will not constitute a violation or breach of applicable Laws, a
provision of any Contract to which Summo is a party or by which
Summo is bound or any Law, rule, regulation, judgment, order,
writ, injunction or decree applicable to Summo; (iv) does not and
will not constitute a default (nor would with the passage of time
or the giving of notice or both or otherwise, constitute a
default) under any Contract, to which Summo is a party or by
which Summo is bound; and (v) does not and will not result in the
creation or imposition of an Encumbrance on the Arimetco
Agreement, any of the assets covered thereby or the Intellectual
Property, other than as specified in the Arimetco Agreement.
(f) Litigation. There is not pending, or, to the Best Knowledge
of Summo, threatened or contemplated any suit, action, legal
proceeding, litigation or governmental investigation of any sort
relating to Summo or the Arimetco Agreement nor is there any
present state of facts or circumstances which can be reasonably
anticipated to be a basis for any such suit, action, legal
proceeding, litigation or governmental investigation nor is there
presently outstanding against Summo any judgment, decree,
injunction, rule or order of any court, governmental department,
commission, agency, instrumentality or arbitrator, other than
ongoing U.S. Bankruptcy proceedings of Arimetco, pursuant to
which Summo has entered into the Arimetco Agreement.
(g) Exclusive Rights to Dispose. Summo has the exclusive right
to dispose of good and marketable title to the Arimetco Agreement
and the Intellectual Property, free and clear of all Encumbrances
and other than as herein provided, the Arimetco Agreement is not
subject to any contractual rights of Persons other than Summo and
Summo has not done or omitted to do anything which has resulted
or could result in an Encumbrance on, or which could permit any
third Person to claim an interest in, the Arimetco Agreement
and/or the Intellectual Property except as otherwise disclosed in
this Agreement or otherwise resulting from the U.S. Bankruptcy
proceedings.
(h) Payments. All work on or in respect of the ▇▇▇▇▇▇▇ Camp
Mine and/or the Intellectual Property done by or on behalf of
Summo including for greater certainty and without limitation, by
third Persons, has been or will be fully paid by Summo.
(h) Knowledge of Summo. Summo does not have any knowledge
and/or information with respect to the ▇▇▇▇▇▇▇ Camp Mine that has
not been communicated or made available to Nord Copper. For
greater certainty and without limitation, Summo has not received
any notice of; (i) any non-compliance of the ▇▇▇▇▇▇▇ Camp Mine
or the improvements or fixtures located thereon, or the operation
or maintenance thereof, with municipal, building or zoning by-
laws or regulations; or (ii) any work orders relating to, or
notices from any government authorities advising of any defects
in, the construction or state of repair of any improvements or
fixtures on the ▇▇▇▇▇▇▇ Camp Mine; which notices have not been
complied with. Summo's covenant, representation and warranty
regarding such notice does not apply to any notice received by
Arimetco, which may be in the project files in Summo's offices or
in the ▇▇▇▇▇▇▇ Camp Mine files located at the mine site, and
which may be referenced in the Consent Order, all of which have
been made available to Nord Copper.
(j) Arimetco Agreement. The Arimetco Agreement is a legal,
valid, binding and enforceable agreement of Summo and has not
been materially amended other than as appears in the second
amendment to the Arimetco Agreement, entered into at the request
of Nord Copper and to the Best Knowledge of Summo, no default
exists thereunder on the part of Arimetco. On the date hereof,
save and except for the payment of US$60,000, US$30,000 of which
became due on March 17, 1999 and of which US$30,000 became due on
April 17, 1999. Summo has complied with and performed all of its
covenants and obligations under the Arimetco Agreement, including
for greater certainty and without limitation, save and except as
aforementioned, the payment of all option payments, charges and
expenses owing by Summo thereunder.
(k) No Liabilities. There are no liabilities of Summo for which
Nord Copper may be liable on or after the completion of the
Transaction other than liabilities disclosed in this Agreement
and those specifically forming a part of the Arimetco Agreement.
(l) Condition of Assets. To the Best Knowledge of Summo, all
tangible assets which are the subject matter of the Arimetco
Agreement are in good condition, repair and proper working order,
subject to normal wear and tear and are fit and appropriate for
use for the purpose for which they were intended.
(m) Intellectual Property Rights. The Intellectual Property is
owned by Summo and does not infringe upon the intellectual
property rights of any other Person.
(n) No Options. No Person other than under this Agreement has
any agreement or option or any right capable of becoming an
agreement or option for the purchase from Summo of the Arimetco
Agreement and/or the Intellectual Property and/or the Permits.
(o) Environmental Matters. Other than that which has been
disclosed to Nord Copper and which is referenced in the Consent
Order, to the Best Knowledge of Summo the ▇▇▇▇▇▇▇ Camp Mine and
the operations thereat and their existing and prior uses comply
with any applicable, federal, state, municipal or local Laws,
regulations, requirements, orders or approvals of all
governmental authorities relating to environmental, dangerous
goods and occupational health and safety matters. To the Best
Knowledge of Summo, there are no expropriation, condemnation or
similar proceedings, actual or threatened, of which Summo has
received notice, against any part or parts of the ▇▇▇▇▇▇▇ Camp
Mine. To the Best Knowledge of Summo no contaminant has been
released, spilled, leaked, discharged, disposed of, pumped,
poured, emitted, emptied, injected, leached, dumped or allowed to
escape ("Release") at, on or under the ▇▇▇▇▇▇▇ Camp Mine contrary
to any applicable environmental Law, no part of the ▇▇▇▇▇▇▇ Camp
Mine is located within an environmentally sensitive area or fill
regulated area and there are no environmental charges, privileges
or Encumbrances relating to the ▇▇▇▇▇▇▇ Camp Mine. Summo knows
of no facts or circumstances related to environmental matters
with respect to the ▇▇▇▇▇▇▇ Camp Mine that could lead to any
environmental claims, liabilities or responsibilities.
(p) Employment. Summo is not a party to any written or oral
employment, agreement with respect to the ▇▇▇▇▇▇▇ Camp Mine.
(q) Disclosure. Summo has disclosed, granted access to or made
available to Nord Resources for inspection and review all
information, data and files relevant to the Arimetco Agreement,
the Intellectual Property and the ▇▇▇▇▇▇▇ Camp Mine, which
information, data and files are not inaccurate or untrue in any
material respects, when viewed in the aggregate.
(r) No Brokers. All negotiations relating to this Agreement and
the Transaction have been carried on by Summo directly with Nord
Copper without the intervention of any other Person on behalf of
Summo in such manner as to give rise to any valid claim against
Nord Copper for a brokerage commission, finder's fee or other
like payment and Summo will indemnify and save harmless Nord
Copper and from any such claim.
(s) Investment Intent. Summo is acquiring the Nord Resources
Stock solely for the purpose of investment and not with a view to
the distribution or sale of any part thereof. Summo acknowledges
that the Nord Resources Stock has not been registered under the
Securities Act or any state securities law and is being issued
and sold in reliance on exemptions from such registration
requirements that are available only if the Nord Resources Stock
is not being offered to the public and is being acquired for
investment and not with a present view to its distribution or
sale.
(t) Private Placement Representations.
(i) (A) Summo can bear the economic risk of losing its
entire investment in the Nord Resources Stock and can
afford to hold the Nord Resources Stock for an
indefinite period of time;
(B) Summo is an Accredited Investor as defined in Rule 501(a) of
Regulation D of the Securities Act.
(ii) Summo has received, read, reviewed and is familiar with Nord
Resources' audited, consolidated financial statements for the
financial year ended December 31, 1998 (the "Financial
Statements"), and confirms that all requested documents, records
and books pertaining to its investment in Nord Resources have
been made available or delivered to it.
(iii) Summo has had the opportunity to ask questions of and
receive answers from officers of Nord Resources concerning its
investment in the Nord Resources Stock and additional information
necessary to verify the accuracy of the information contained in
the Financial Statements.
(u) Omissions and Misrepresentations. None of the foregoing
covenants, representations and warranties knowingly contains any
untrue statement of material fact or knowingly omits to state any
material fact necessary to make any such covenant, warranty or
representation not misleading.
4. COVENANTS, REPRESENTATIONS AND WARRANTIES OF NORD COPPER AND
NORD RESOURCES
4.1 Covenants, Representations and Warranties. Nord Copper
and Nord Resources hereby covenant, represent and warrant to
Summo as follows and acknowledge and confirm that Summo is
relying upon such covenants, representations and warranties in
connection with the Transaction:
(a) Incorporation and Organization. Each of Nord Copper and
Nord Resources is duly incorporated and validly subsisting under
the laws of the State of Delaware and has the corporate power to
own or lease its respective properties and to carry on its
respective business as it is now being conducted and to execute,
deliver and perform its respective obligations under this
Agreement. Each of Nord Copper and Nord Resources has all
requisite corporate power and authority to enter into this
Agreement and to perform its respective obligations hereunder.
(b) Acts of Bankruptcy. Neither Nord Copper nor Nord Resources
is insolvent, has proposed a compromise or arrangement to its
creditors generally, has taken any proceeding with respect to a
compromise or arrangement, has taken any proceeding to have
itself declared bankrupt or wound-up, has taken any proceeding to
have a receiver appointed of any part of its respective assets
and at present, no encumbrancer or receiver has taken possession
of any of its respective property and no execution or distress is
enforceable or levied upon any of its respective property and no
petition for a receiving order in bankruptcy is filed against it.
(c) Corporate and Shareholder Authority. All requisite
corporate and shareholder actions have been taken or by the
Closing Date shall have been taken by each of Nord Copper and
Nord Resources to authorize the valid execution and delivery of
this Agreement and the consummation of the Transaction. Each of
Nord Copper and Nord Resources has obtained all consents,
approvals and authorizations of, and has effected all filings
with, regulatory authorities that are required in connection with
the consummation of the Transaction.
(d) Agreement Enforceable. This Agreement constitutes a valid
and legally binding obligation of each of Nord Copper and Nord
Resources enforceable against each of Nord Copper and Nord
Resources in accordance with its terms.
(e) No Violations. The execution and delivery of this Agreement
and all other agreements contemplated herein by each of Nord
Copper and Nord Resources and the observance and performance of
the terms and provisions of this Agreement and any such
agreements; (i) does not and will not require Nord Copper or Nord
Resources to obtain or make any consent, authorization, approval,
filing or registration under any law, by-law, rule, regulation,
judgment, order, writ, injunction or decree which is binding upon
Nord Copper or Nord Resources other than as contemplated in this
Agreement; (ii) does not and will not constitute a violation or
breach of the charter documents or by-laws of Nord Copper or Nord
Resources; (iii) does not and will not constitute a violation or
breach of applicable Laws, a provision of any Contract to which
Nord Copper or Nord Resources is a party or by which Nord Copper
or Nord Resources is bound or any Law, rule, regulation,
judgment, order, writ, injunction or decree applicable to Nord
Copper or Nord Resources; (iv) does not and will not constitute a
default (nor would with the passage of time or the giving of
notice or both or otherwise, constitute a default) under any
Contract, to which Nord Copper or Nord Resources is a party or by
which Nord Copper or Nord Resources is bound; and (v) does not
and will not result in the creation or imposition of an
Encumbrance on the Nord Resources Stock.
(f) Litigation. There is not pending, or, to the Best Knowledge
of Nord Copper and Nord Resources, threatened or contemplated any
suit, action, legal proceeding, litigation or governmental
investigation of any sort relating to Nord Copper or Nord
Resources nor is there any present state of facts or
circumstances which can be reasonably anticipated to be a basis
for any such suit, action, legal proceeding, litigation or
governmental investigation nor is there presently outstanding
against Nord Copper or Nord Resources any judgment, decree,
injunction, rule or order of any court, governmental department,
commission, agency, instrumentality or arbitrator.
(g) Nord Resources Stock. On Closing, the Nord Resources Stock
will be validly created, reserved and allotted for issuance and
upon issuance to Summo in accordance with the terms and
conditions of this Agreement, will be validly issued and
outstanding, fully paid and non-assessable.
(h) No Options. No Person other than under this Agreement has
any agreement or option or any right capable of becoming an
agreement or option for the purchase from Nord Resources of the
Nord Resources Stock.
(i) Regulatory Status. Nord Resources is a registrant with the
Securities and Exchange Commission in the United States of
America. Nord Resources has duly made on a timely basis all
filings required to be made under all applicable securities laws
and is presently in good standing with respect to filings with
the Securities and Exchange Commission.
(j) Audited Financial Statements. The audited consolidated
financial statements of Nord Resources for the financial year
ended December 31, 1998 present fairly the financial condition
and results of operations of Nord Resources as at such date and
for the period then ended and have been prepared in accordance
with United States generally accepted accounting principles
applied on a consistent basis, except as otherwise stated in the
notes to such financial statements. Since December 31, 1998,
there has been no material adverse change in the business,
operations, properties, assets or condition, financial or
otherwise, of Nord Resources on a consolidated basis from that
shown in the audited consolidated financial statements of Nord
Resources as at December 31, 1998.
(k) Public Disclosure Information. All information and
documents publicly disclosed by Nord Resources during the past
two years, including financial statements, fairly and accurately
represent in all material respects the business and affairs of
Nord Resources as at the respective times of disclosure.
(l) No Brokers. All negotiations relating to this Agreement and
the Transaction have been carried on by Nord Copper and Nord
Resources directly with Summo without the intervention of any
other Person on behalf of Nord Copper and Nord Resources in such
manner as to give rise to any valid claim against Summo for a
brokerage commission, finder's fee or other like payment and Nord
Copper and Nord Resources will indemnify and save harmless Summo
from any such claim.
(m) Omissions and Misrepresentations. None of the foregoing
covenants, representations and warranties knowingly contains any
untrue statement of material fact or knowingly omits to state any
material fact necessary to make any such covenant, warranty or
representation not misleading.
SURVIVAL OF COVENANTS, REPRESENTATIONS AND WARRANTIES
5.1 Survival. No investigations made by or on behalf of
any Party at any time shall have the effect of waiving,
diminishing the scope of or otherwise affecting any covenant,
representation or warranty made by any Party. No waiver by any
Party of any condition, in whole or in part, shall operate as a
waiver of any other condition. The covenants, representations
and warranties contained in Article 3 and 4 respectively or in
any certificate or other document delivered in connection with
the Closing shall survive the making of this Agreement and the
Closing for a period of two years (the "Survival Period")
provided, however, that if a claim for a breach of any such
covenant, representation or warranty is brought prior to the
expiration of the applicable Survival Period such covenant,
representation or warranty shall, for the purposes of such claim,
survive the applicable Survival Period until such claim is
finally resolved and all obligations with respect thereto have
been fully satisfied.
INDEMNITY
6.1 Indemnity of Nord Copper and Nord Resources. Summo
agrees to indemnify and save harmless Nord Copper and Nord
Resources from all Losses actually incurred by Nord Copper and
Nord Resources as a result of any breach by Summo or any
inaccuracy of any covenant, representation or warranty of Summo
contained in this Agreement.
6.2 Indemnity of Summo. Nord Copper and Nord Resources
agree to indemnify and save harmless Summo from all Losses
actually incurred by Summo as a result of any breach by Nord
Copper or Nord Resources or any inaccuracy of any covenant,
representation or warranty of Nord Copper and Nord Resources
contained in this Agreement.
6.3 Notice of Claims. In the event that a Party (the
"Indemnified Party") shall become aware of any Loss in respect of
which the other Party (the "Indemnifying Party") agreed to
indemnify the Indemnified Party pursuant to this Agreement (the
"Indemnification Claim"), the Indemnified Party shall promptly
give written notice thereof to the Indemnifying Party. Such
notice shall specify whether the Indemnification Claim arises as
a result of a claim by a Person against the Indemnified Party (a
"Third Party Claim") or whether the Loss does not so arise (a
"Direct Claim") and shall also specify with reasonable
particularity (to the extent that the information is available)
the factual basis for the Indemnification Claim and the amount of
the Loss if known. If through the fault of the Indemnified Party
the Indemnifying Party does not receive notice of any
Indemnification Claim in time to contest effectively the
determination of any liability susceptible of being contested,
the Indemnifying Party shall be entitled to set off against the
amount claimed by the Indemnified Party the amount of any Losses
incurred by the Indemnifying Party resulting from the Indemnified
Party's failure to give such notice on a timely basis.
6.4 Investigation of Claims. With respect to any Direct
Claim, following receipt of notice from the Indemnified Party of
the Indemnification Claim, the Indemnifying Party shall have 60
days to make such investigation of the Indemnification Claim as
is considered necessary or desirable. For the purpose of such
investigation, the Indemnified Party shall make available to the
Indemnifying Party the information relied upon by the Indemnified
Party to substantiate the Indemnification Claim, together with
all such other information as the Indemnifying Party may
reasonably request. If both Parties agree at or prior to the
expiration of such 60 day period (or any mutually agreed upon
extension thereof) to the validity and amount of such
Indemnification Claim, the Indemnifying Party shall immediately
pay to the Indemnified Party the full agreed upon amount of the
Indemnification Claim, failing which the matter shall be
determined by a court of competent jurisdiction.
6.5 Supplemental Rights. The rights and benefits provided
in this Article are supplemental to and are without prejudice to
any other rights, actions or causes of action which may arise
pursuant to any other section of this Agreement or pursuant to
applicable Law.
CONDITIONS PRECEDENT TO NORD COPPER' S AND NORD RESOURCES'
OBLIGATIONS AT CLOSING
7.1 Conditions Precedent. All obligations of Nord Copper
to purchase and assume the Arimetco Agreement and to purchase the
Intellectual Property at Closing under this Agreement are subject
to the fulfillment (or waiver in writing by Nord Copper and Nord
Resources) prior to or at the Closing of each of the following
conditions:
(a) Covenants, Representations and Warranties. The covenants,
representations and warranties made by Summo under this Agreement
shall be true in all material respects on and as of the Closing
Date.
(b) Actions, Etc. All actions, proceedings, instruments and
documents required to carry out the Transaction and all other
related legal matters shall have been approved by Nord Copper and
Nord Resources and Nord Copper and Nord Resources shall have been
furnished with such certified copies of actions and proceedings
and other such instruments and documents as Nord Copper and Nord
Resources shall have reasonably requested.
(c) Assignment of Arimetco Agreement. Nord Copper and Summo
shall have executed and delivered an assignment and assumption
agreement of the Arimetco Agreement on terms and conditions
satisfactory to all parties. Arimetco and Summo shall have
executed an amendment of the Arimetco Agreement which shall
provide, among other things, that the Arimetco Agreement shall be
amended to provide that the remaining purchase price of
US$1,860,000 thereunder shall be payable as follows; (i)
US$310,000 on Closing; (ii) US$500,000 on June 4, 2000; (iii)
US$500,000 on June 4, 2001; (iv) US$550,000 on June 4, 2002; and
(v) interest paid quarterly at the rate of 8% per annum.
(d) Consent Order. The Director of the Arizona Department of
Environmental Quality shall have issued a consent order on terms
and conditions satisfactory to Nord Copper and Nord Resources, in
their sole discretion, relating to environmental remediation and
operating requirements.
(e) Compliance with Covenants. Summo shall have complied with
all covenants and agreements herein agreed to be performed or
caused to be performed by Summo.
(f) Approvals and Consents. At or before Closing there shall
have been obtained from all appropriate federal, state,
municipal, local or other governmental or administrative bodies
all such approvals and consents, if any, in form and on terms
satisfactory to Nord Copper and Nord Resources as may be required
in order to permit the completion of the Transaction as herein
contemplated.
(g) Corporate Authorizations. Summo shall have delivered to
Nord Copper and Nord Resources evidence satisfactory to Nord
Copper and Nord Resources that all necessary corporate
authorizations by Summo authorizing and approving the Transaction
have been obtained.
(h) Legal Opinion. Nord Copper and Nord Resources shall have
received a legal opinion from counsel to Summo on terms and
conditions satisfactory to Nord Copper and Nord Resources with
respect to Summo and the Transaction, subject only to reasonable
qualifications.
(i) No Orders. No order of any court or administrative agency
shall be in effect which restrains or prohibits the Transaction
and no suit, action, inquiry, investigation or proceeding in
which it will be or it is sought to restrain, prohibit or change
the terms of or obtain damages or other relief in connection with
the Transaction and which in the judgment of Nord Copper and
Nord Resources makes it inadvisable to proceed with the
consummation of the Transaction shall have been made, instituted
or threatened by any Person.
In case any of the foregoing conditions cannot be fulfilled at or
before the time of Closing to the satisfaction of Nord Copper and
Nord Resources, Nord Copper and Nord Resources may rescind this
Agreement by notice to Summo and in such event each of the
Parties shall be released from all obligations hereunder.
Provided however that any such conditions may be waived in whole
or in part by Nord Copper and Nord Resources without prejudice
to Nord Copper's and Nord Resources' rights of rescission in the
event of the non-fulfillment of any other condition or
conditions, any such waiver to be binding on Summo only if the
same is in writing.
CONDITIONS PRECEDENT TO SUMMO'S OBLIGATIONS AT CLOSING
8.1 Conditions Precedent. All obligations of Summo to sell,
transfer and assign the Arimetco Agreement and to sell the
Intellectual Property under this Agreement are subject to the
fulfillment (or waiver in writing by Summo prior to or at the
Closing of each of the following conditions:
(a) Covenants, Representations and Warranties. The covenants,
representations and warranties made by Nord Copper and Nord
Resources in or under this Agreement shall be true in all
material respects on and as of the Closing Date and Summo shall
have received from Nord Copper and Nord Resources a certificate
signed as of the Closing Date.
(b) Actions, Etc. All actions, proceedings, instruments and
documents required to carry out the Transaction including without
limitation, the issuance of the Nord Resources Stock and all
other related legal matters shall have been approved by Summo and
Summo shall have been furnished with such certified copies of
actions and proceedings and other such instruments and documents
as Summo shall have reasonably requested.
(c) Assignment of Arimetco Agreement. Nord Copper and Summo
shall have executed and delivered the assignment and assumption
agreement together with Arimetco as contemplated by section
7.1(c).
(d) Compliance with Covenants. Nord Copper and Nord Resources
shall have complied with all covenants and agreements herein
agreed to be performed or caused to be performed by Nord Copper
and Nord Resources.
(e) Approvals and Consents. At or before Closing there shall
have been obtained from all appropriate federal, state,
municipal, local or other governmental or administrative bodies
all such approvals and consents, if any, in form and on terms
satisfactory to Summo as may be required in order to permit the
completion of the Transaction as herein contemplated.
(f) Corporate Authorizations. Nord Copper and Nord
Resources shall have delivered to Summo evidence satisfactory to
Summo that all necessary corporate authorizations by Nord Copper
and Nord Resources authorizing and approving the Transaction have
been obtained.
(g) No Orders. No order of any court or administrative agency
shall be in effect which restrains or prohibits the Transaction
and no suit, action, inquiry, investigation or proceeding in
which it will be or it is sought to restrain, prohibit or change
the terms of or obtain damages or other relief in connection with
the Transaction and which in the judgment of Summo makes it
inadvisable to proceed with the consummation of the Transaction
shall have been made, instituted or threatened by any Person.
MISCELLANEOUS
9.1 Tender. Any tender of documents or money hereunder may be
made upon the Parties or upon their respective solicitors as set
forth herein
9.2 Closing. Any document, instrument or thing which is to be
delivered by either Party at the Closing shall be tabled at the
Closing at the place of closing by the Party which is to deliver
such document, instrument or thing, and any document, instrument
or thing so tabled by a Party shall;
(a) be deemed to have been delivered by such Party for
purposes of this Agreement;
(b) be held in escrow by the solicitor for such party
to be dealt with in accordance with subparagraphs (c)
and (d);
(c) be delivered to the Party to which it is to be
delivered pursuant to the terms hereof, if all
documents, instruments and things which are to be
delivered at the Closing are tabled in accordance with
the section at the Closing; and
(d) be delivered to, or in accordance with the
directions of the Party which tabled it, if
subparagraph (c) does not apply.
9.3 Costs. Except as otherwise expressly provided in this
Agreement, all legal, tax and other costs and expenses incurred
in connection with the preparation of this Agreement and the
consummation of the Transaction shall be paid by the Party
incurring such expenses.
9.4 Notice. All notices, requests, demands or other
communications by the Parties required or permitted to be given
by one Party to another shall be given in writing by personal
delivery, telecopy or by registered or certified mail, postage
prepaid, addressed, telecopied or delivered to such other Party
as follows:
(a) if to Nord Copper and Nord Resources:
Nord Resources Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
U S A 87102
Attention: President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇(b)
(b) if to Summo:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
U S A 80203
Attention: President and Chief Executive Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address or telecopier number as may be given by
any of them to the others in writing from time to time and such
notices, requests, demands or other communications shall be
deemed to have been received when delivered, if personally
delivered, on the date telecopied (with receipt confirmed) if
telecopied and received at or prior to 5:00 p.m. local time and,
if not, on the next Business Day, and if mailed, on the date
received as certified.
9.5 Further Assurances. The Parties shall sign such other
papers, cause such meetings to be held, resolutions passed and by-
laws enacted and exercise their vote and influence, do and
perform and cause to be done and performed such further and other
acts and things as may be necessary or desirable in order to give
full effect to this Agreement and every part hereof.
9.6 Laws. This Agreement shall be governed by the laws of the
State of Colorado, except for its rules as to conflict of law.
9.7 Time of the Essence. Time shall be of the essence of this
Agreement and of every part hereof and no extension nor variation
of this Agreement shall operate as a waiver of this provision.
9.8 Entire Agreement. This Agreement constitutes the entire
agreement between the Parties with respect to all of the matters
herein. This Agreement supersedes any and all agreements,
understandings and representations made among the Parties prior
to the date hereof, This Agreement shall not be amended except
by a memorandum in writing signed by both Parties and any
amendment hereof shall be null and void and shall not be binding
upon any Party which has not given its consent as aforesaid.
9.9 Assignment. Neither Party may assign this Agreement or any
part hereof without the prior written consent of the other Party
which consent may be unreasonably withheld. Subject to the
foregoing, this Agreement shall enure to the benefit of and be
binding upon the Parties and their respective successors and
assigns, but no other Person.
9.10 Invalidity. In the event that any of the covenants,
representations and warranties or any portion of them contained
in this Agreement are unenforceable or are declared invalid for
any reason whatsoever, such unenforceability or invalidity shall
not affect the enforceability or validity of the remaining terms
or portions thereof contained in this Agreement and such
unenforceable or invalid, covenant, representation and warranty
or covenant or portion thereof shall be severable from the
remainder of this Agreement.
9.11 Counterpart. This Agreement may be executed in several
counterparts, each of which so executed shall be deemed to be an
original and such counterparts when taken together shall
constitute one and the same original agreement which shall be
binding on the Parties hereto.
9.12 No Public Announcement. No public announcement or press
release concerning the Transaction shall be made by any Party
except with the prior written consent of the other Parties,
acting reasonably except as may be required by federal,
provincial or state law or regulation or by any governmental
agency or by any exchange upon which the stock of Summo or Nord
Resources or any parent of Summo or Nord Resources may be traded.
IN WITNESS WHEREOF the Parties have duly executed this Agreement
as of the date and year first above written.
NORD COPPER CORPORATION
Per: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
VP-Finance
NORD RESOURCES CORPORATION
Per: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
VP-Finance
SUMMO USA CORPORATION
Per: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
VP-Finance