Exhibit 10.18
NORD RESOURCES CORPORATION SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (this "Agreement") has been entered into, as of
the date of acceptance set forth on page 5 hereof, between Nord Resources
Corporation (the "Company") and the person or entity executing this Agreement as
the registered holder of the Units (as defined below) on behalf of the
beneficial owner or owners thereof (hereinafter, the "Purchaser"). By the
Purchaser's execution hereof, Purchaser acknowledges that the Company is relying
upon the accuracy of the representations and warranties of the Purchaser
contained herein.
I. General. This Agreement sets forth the terms under which Purchaser will
invest in the Company.
This subscription is one of a number of subscriptions for up to 1,000,000 Units
(defined below) offered on behalf of the Company in a private placement (the
"Offering"). Execution of this Agreement by the Purchaser shall constitute an
offer by the Purchaser to subscribe for Units, in the number, and on the terms
and conditions, specified herein. If the Purchaser's offer is accepted, the
Company will execute a copy of this Agreement and return it to the Purchaser.
The Purchaser's offer must be unconditional. The Purchaser may not condition the
acceptability of its offer upon any matter.
2. Definition of "Unit". Each "Unit" shall consist of one share of the Common
Stock of the Company, par value $.01 per share (a "Common Share") and one-half
of one Common Share Purchase Warrant (a "Purchase Warrant"), each whole Purchase
Warrant entitling the holder thereof for three years from the closing of the
Offering to purchase one Common Share upon payment of $.40. (All references
herein to monetary units refer to U.S. dollars.)
3. Subscription Amount and Payment. Purchaser hereby subscribes for ____________
Units (at $.40 per Unit), and submits to the Company herewith
$_____________________ in full payment for such Units.
4. Representations and Warranties of the Company. The Company hereby represents
and warrants to the Purchaser, that it:
(a) is duly incorporated under the laws of the State of Delaware with
corporate power and authority to own, lease and operate its properties
and to conduct its business as now conducted by it;
(b) is qualified to carry on business under the laws of the jurisdiction
in which it presently carries on business;
(c) has full corporate power and capacity to create and issue the Common
Shares and Purchase Warrants and issue the Common Shares upon the
exercise of the Purchase Warrants;
(d) has duly authorized this Agreement and this Agreement constitutes a
valid obligation of the Company duly binding upon it and enforceable
in accordance with its terms except as such enforceability may be
subject to (I) bankruptcy, insolvency, moratorium, or other similar
laws affecting the enforcement of creditors' rights generally, and (2)
general equitable principles;
(e) has authorized capital consisting of 50,000,000 Common Shares, par
value $.01 per share, of which there are as at the date hereof
25,180,477 Common Shares outstanding as fully paid and non-assessable,
together with options to purchase an additional 4,284,999 Common
Shares; and
(f) has not, in connection with the Offering of Units, engaged in any
general solicitation or general advertising (as those terms are used
in Regulation D under the United States Securities Act of 1933, as
amended (the "Securities Act"). including advertisements, articles,
notices or other communications published in any newspaper., magazine
or similar media or broadcast over radio or television, or any seminar
or meeting whose attendees have been invited by general solicitation
or general advertising.
5. Representations and Warranties of the Undersigned. The undersigned hereby
represents and warrants to the Company, on behalf of the beneficial owner
or owners, that such beneficial owner or owners:
(a) are duly authorized to consummate the purchase of the Units;
(b) understand that the Common Shares and Purchase Warrants have not been
and will not be registered under the Securities Act, and that the sale
contemplated hereby is being made in reliance on a private placement
exemption to Accredited Investors (as defined below);
(c) is an "accredited investor" as defined in Rule 501(a) under the
Securities Act ("Accredited Investor") and have completed the Investor
Questionnaire accurately; and is acquiring the Common Shares and
Purchase Warrants for its own account or for the account of an
Accredited Investor as to which it exercises sole investment
discretion, and not with a view to any resale, distribution or other
disposition of the Units;
(d) is not an underwriter, dealer or other person who participates in the
distribution of the Shares that are to be offered or sold pursuant to
this Subscription;
(e) has received, and has carefully read and reviewed the Private
Placement Offering Memorandum dated April 2, 2004, including the Risk
Factors and Company financial information set forth therein (the
"Offering Memorandum"), and this Agreement, and confirm that all
requested documents, records and books pertaining to their prospective
investment in the Company have been made available to them;
(f) have had the opportunity to ask questions of, and receive answers
from, the management of the Company concerning the terms of an
investment in the Common Shares and Purchase Warrants, and concerning
any additional information regarding the Company;
(g) confirm that, except as set forth in this Agreement, no
representations or warranties have been made to them by the Company,
or by any of its officers, directors or any agent, employee or
affiliate of any of them, and that in entering into this Agreement
they are not relying upon any information, other than that contained
in the Exchange Act Reports, this Agreement, and the discussions and
other
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information described in subsection (e) and (f) above;
(h) confirm that the statements and information provided by the Purchaser
in this Agreement and otherwise communicated by the Purchaser to the
Company, are complete and accurate in all respects;
(i) acknowledge that there can be no guarantee of profit to be realized,
if any. as a result of an investment in the Company;
(j) acknowledge and are aware that the Common Shares and Purchase Warrants
are a speculative investment which involve a high degree of risk,
including those set forth in the Offering Memorandum;
(k) have sufficient knowledge and experience in financial and business
matters to be capable of evaluating the risks and merits of an
investment in the Company, and have been provided with adequate
information to be able to make an informed decision with respect
thereto;
(I) agree that if it decides to offer, sell or otherwise transfer any of
the Common Shares or Purchase Warrants, it will not offer, sell or
otherwise transfer any of such Common Shares or Purchase Warrants)-
directly or indirectly unless:
(i) (1) the sale is to an Accredited Investor, and (2) a purchaser's
letter containing representations, warranties and agreements
substantially similar to those contained in this Agreement and
satisfactory to the Company, is executed by the purchaser and
delivered to the Company prior to the sale; or
(ii) the sale is made outside. the United States in compliance with
the requirements of Rules 904 and 905 of Regulation S under the
Securities Act and in compliance with applicable local laws and
regulations; or
(iii) the sale is made pursuant to an exemption from registration
under the Securities Act provided by Rule 144 thereunder, if
available; or
(iv) the Units are sold in a transaction that does not require
registration under the Securities Act or any applicable United
States state laws and regulations governing the offer and sale of
securities;
and it has furnished to the Company an opinion of counsel of
recognized standing in the relevant jurisdictions reasonably
satisfactory to the Company; and
(m) understand and acknowledge that upon the original issuance of the
Common Shares and Purchase Warrants, and until such time as is no
longer required under the Securities Act or applicable state laws, all
certificates representing the Common Shares and Purchase Warrants, and
all certificates issued in exchange therefore or in substitution
thereof, shall bear, on the face of such certificates, a legend
substantially similar to the following:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE RESTRICTED
SECURITIES AS THAT TERM IS DEFINED IN RULE 144 UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), AND HAVE NOT BEEN REGISTERED
UNDER THE ACT. THESE SECURITIES
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MAY NOT BE OFFERED FOR SALE, SOLD OR TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR PURSUANT TO AN
EXEMPTION FROM REGJSTRATION UNDER THE ACT, THE AVAILABILITY OF WHICH
IS TO BE ESTABLISHED TO THE SATISFACTION OF THE ISSUER. THE ISSUER MAY
REQUIRE AN OPINION OF COUNSEL SKILLED IN SECURITIES MATTERS AND OTHER
EVIDENCE OF COMPLIANCE WITH THE ACT PRIOR TO PERMITTING A TRANSFER OF
THESE SECURITIES.
THE FOREGOING REPRESENTATIONS AND WARRANTIES ARE TRUE AND ACCURATE AS OF THE
DATE HEREOF AND SHALL SURVIVE THE DELIVERY OF THIS AGREEMENT BY THE PURCHASER.
PURCHASER AGREES TO NOTIFY THE COMPANY PROMPTLY OF ANY CHANGES TO ANY OF THE
FOREGOING.
6. Indemnification. The Purchaser hereby indemnifies and holds harmless the
Company and its officers, directors, agents and affiliates from and against all
damages, losses, costs and expenses (including reasonable attorneys' fees) which
they may incur by reason of the Purchaser's (or such other's) failure to fulfill
any of the terms or conditions of this Agreement or the Investor Questionnaire,
or by reason of any untrue statement made herein or therein or any breach of any
representation, warranty, acknowledgment or agreement made herein or therein.
7. Purchase. Sale and Delivery of the Share. On the basis of the
representations, warranties and agreements herein contained. but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Purchaser, and the Purchaser agrees to purchase from the Company the number of
Units set forth in Section 3 of this Agreement for the aggregate purchase price
set forth in Section 3. A certificate representing the aggregate number of
shares of Common Stock and Purchase Warrants will be delivered to the Purchaser
following payment to the Company of the purchase price for the Units, in United
States Dollars, in immediately available funds.
8. Miscellaneous.
(a) This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware in the United States.
(b) This Agreement contains the entire agreement between the parties. The
provisions of this Agreement may not be modified or waived except in
writing.
(c) The headings of this Agreement are for convenience of reference only,
and they shall not limit or otherwise affect the interpretation of any
term or provision hereof.
(d) This Agreement and the rights, powers and duties set forth herein
shall. except as set forth herein, bind and inure to the benefit of
the heirs, executors, administrators, legal representatives.
successors and assigns of the parties hereto.
(e) The Purchaser may not assign any of Purchaser's rights or interest in
and under this Agreement without the prior written consent of the
Company, and any attempted assignment without such consent shall be
void and without effect.
(f) The entity executing this Agreement represents that it has all
required power and authority to execute, deliver and perform this
Agreement for itself and for the behalf of the beneficial owners of
the Units.
9. Counterparts. This Agreement shall be executed in two counterparts, each of
which shall constitute an original. The Company shall retain one counterpart,
and one counterpart shall be
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returned to the Purchaser upon acceptance thereof by the Company.
IN WITNESS WHEREOF, I have executed this Subscription Agreement, as
Purchaser, on this __________________ day of ___________________, 2004.
TYPE OF OWNERSHIP (Check One)
_______ Individual Ownership (one signature required)
_______ Joint Tenants with Right of Survivorship (both parties must sign)
_______ Tenants in Common (both parties must sign)
_______ Trust (please include name of trust, name of trustee, date trust
was formed and provide a copy of the Trust Agreement or other
authorization)
_______ Partnership (please include a copy of the Partnership Agreement)
_______ Community Property (one signature required if interest held in one
name, i.e., managing spouse; two signatures required if interest
held in both names)
_______ Corporation (please include certified corporate resolution
authorizing signature and investment in the program)
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Signature(s) of Purchaser(s)
Social Security or Tax ---------------------------------------
Identification Number(s):
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------------------------------------- Name(s) of Purchaser(s)
(Please Print)
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Address of Purchaser(s) (Please Print)
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ACCEPTED:
NORD RESOURCES CORPORATION
By:
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Authorized Officer
Date:
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