SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT ("Agreement") dated this 3rd day
of July, 1997 between NORD PACIFIC LIMITED, a Bermuda corporation (the
"Company"), with an address at 00 Xxxxxx Xxxxxx, Xxxxxxxx XX00, Xxxxxxx and
NORD RESOURCES CORPORATION, a Delaware corporation (the "Purchaser"), with an
address at 0000 Xxxxxxxxxx Xxxxxxx Xxxxx, Xxxxxx, Xxxx 00000.
W I T N E S S E T H :
WHEREAS, the Purchaser currently owns 3,348,012 shares of
the common stock, $.05 par value per share ("Common Stock"), of the Company
representing approximately thirty-five and two one-hundredths (35.2%) percent
of the issued and outstanding shares of the Common Stock of the Company; and
WHEREAS, concurrently herewith, the Company is closing on
a public offering in Canada (the "Canadian Offering") of units ("Units"),
each Unit consisting of one (1) share of Common Stock and one-half (1/2) of
one (1) common stock purchase warrant ("Purchase Warrant"); and
WHEREAS, the Purchase Warrants are governed by a Warrant
Indenture dated the date hereof, between the Company and Montreal Trust
Company of Canada as Trustee (the "Warrant Trustee"); and
WHEREAS, subject to the terms and conditions that are set
forth herein, the Purchaser desires to purchase and the Company desires to
sell, in a private placement ("Private Placement") pursuant to Section 4(2)
of the Securities Act of 1933, as amended ("1933 Act"), Units comprised of
shares of Common Stock (the "NRC Shares") and Purchase Warrants (the
"Warrants"), for an aggregate price of $2,411,888.10 Cdn ("Purchase Price");
and
WHEREAS, the purpose of the Private Placement is to
enable the Purchaser to maintain, after the closing of the Canadian Offering
and the Private Placement, an approximate thirty (30%) percent ownership
interest in the Common Stock of the Company, before the exercise of any
Purchase Warrants.
NOW THEREFORE, in consideration of the premises and the
covenants and agreements set forth below and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties hereto agree as follows:
1. PURCHASE AND SALE OF COMMON STACK AND WARRANTS.
Concurrently herewith and pursuant to Section 4(2)
under the 1933 Act,
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the Company shall sell in a private placement and the Purchaser shall
purchase the Shares and Warrants for the Purchase Price.
2. PAYMENT OF PURCHASE PRICE.
The Purchase Price shall be paid by the Purchaser to
the Company by certified or bank check payable to the direct order of the
Company, or by wire transfer, in the amount of the Purchase Price.
3. ISSUANCE OF SHARES.
The Shares purchased hereunder shall be issued by
the Company's transferAgent, American Stock Transfer & Trust Company
("Transfer Agent"), pursuant to a letter of instruction, delivered
concurrently herewith by the Company to the Transfer Agent. The certificate
for the Shares will contain a legend indicating that the Shares have not been
registered under the 1933 Act.
4. ISSUANCE OF WARRANTS.
The warrants purchased hereunder shall be issued by
the Warrant Trustee pursuant to a letter of instruction delivered
concurrently herewith by the Company to the Warrant Trustee.
5. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
The Purchaser hereby represents and warrants to the
Company as follows:
(i) the Purchase is a corporation duly organized,
validly existing and in good standing under the
laws of the State of Delaware;
(ii) the purchase of the Shares and Warrants and the
execution, delivery and performance of this
Agreement has been duly authorized by all
necessary action on the part of the Purchaser
and this Agreement constitutes a valid and
binding obligation of the Purchaser
enforceable in accordance with its terms;
(iii) the Purchaser is acquiring the Shares and
Warrants for investment purposes only and not
with a view to sale or distribution hereof and
that the Shares and Warrants are being acquired
for Purchaser's own account and not on behalf of
others;
(iv) Purchaser acknowledges that the Shares and
Warrants constitute restricted securities
within the meaning of Rule 144 promulgated by
the Securities and Exchange Commission under
the 1933 Act and that neither the Shares,
Warrants nor shares of Common Stock
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issuable upon exercise of the Warrants may be
sold, except pursuant to an effective
registration statement under the 1933 Act or in
a transaction exempt from registration under
the 1933 Act.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to the
Purchaser as follows:
(i) the Company is a corporation duly organized,
validly existing and in good tanding under the
laws of Bermuda;
(ii) the Company has full corporate power and
authority to execute and deliver this Agreement
and to issue the Shares and Warrants and to
consummate the transactions contemplated on its
part hereby;
(iii) the execution and delivery of the Shares,
Warrants and this Agreement and the performance
by the Company of the Warrants and this Agreement
have been duly authorized by all necessary
actions on the part of the Company and the
Warrants and this Agreement constitute valid and
binding obligations of the Company enforceable
in accordance with their terms; and
(iv) upon payment of the Purchase Price, the Shares
will be duly and validly authorized and issued,
fully paid and nonassessable and free from
preemptive rights and the shares of Common Stock
issuable upon exercise of the Warrants have been
duly and validly authorized for issue and, upon
payment of the applicable exercise price, will
be fully paid and nonassessable and free from
preemptive rights.
7. LISTING.
The Company shall take such steps as are necessary
to make application to list the Shares and the shares of Common Stock
underlying the Warrants on the National Association of Securities Dealers
Automated Quotation System, National Market and the Toronto Stock Exchange.
9. 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 regulation, will not release any
information without the prior written consent of the other party hereto.
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00. BROKERS AND FINDERS.
The Company and Purchaser each represent to the
other that it has dealt with no broker or finder in connection with this
transaction. This representation shall survive the closing hereunder.
11. MISCELLANEOUS.
(a) This Agreement constitutes the entire agreement
between the parties relating to the subject matter hereof, superseding any
and all prior or contemporaneous oral and prior written agreements and
understandings. This Agreement may not be modified or amended nor may any
right be waived except by a writing which expressly refers to this Agreement,
states that it is a modification, amendment or waiver and is signed by all
parties with respect to a modification or amendment or the party granting the
waiver with respect to a waiver. No course of conduct or dealing and no
trade custom or usage shall modify any provisions of this Agreement.
(b) This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed entirely within such State.
(c) This Agreement shall be binding upon and inure
to the benefit of the parties hereto, and their respective successors and
permitted assigns. Neither this Agreement nor any rights or obligations
hereunder may be sold, transferred or assigned without the prior written
consent of the other party.
(d) In the event that any provision of this
Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, unenforceable or void, this Agreement shall continue in full force
and effect without said provision.
(e) Each party shall, without payment of any
additional consideration by any other party, at any time on or after the date
hereof take such further action and execute such other and further documents
and instruments as the other party may request in order to provide the other
party with the benefits of this Agreement.
(f) The captions and headings contained herein are
solely for convenience and reference and do not constitute a part of the
Agreement.
(g) All references to any gender shall be deemed
to include the masculine, feminine or neuter gender, the singular shall
include the plural and the plural shall include the singular.
(h) This Agreement may be executed in two or more
counterparts, each of which shall be deemed on original but all of which
together shall constitute one and the same document.
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IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date and year first aforesaid.
NORD PACIFIC LIMITED
By: /s/ X. Xxxxxx Xxxxxx
-------------------------------
Name: X. Xxxxxx Xxxxxx
Title: President
NORD RESOURCES CORPORATION
By: /s/ Xxxxxxx X. Xxxx
-------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President-Finance
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NORD PACIFIC LIMITED
00 XXXXXX XXXXXX
XXXXXXXX XX00
XXXXXXX
July 3, 1997
Nord Resources Corp oration
0000 Xxxxxxxxxx Xxxxxxx Xxxxx
Xxxxxx, Xxxx 00000
RE: PRIVATE PLACEMENT OF SHARES OF COMMON STOCK,
$.05 PAR VALUE PER SHARE AND WARRANTS
PURSUANT TO SECTION 4(2) OF THE UNITED STATE
SECURITIES ACT OF 1933, AS AMENDED
Ladies and Gentleman:
Reference is made to the Subscription Agreement dated the date
hereof between us (the "Agreement"). This shall serve to confirm the
following: (I) as of June 30, 1997, Nord Pacific was indebted to Nord
Resources in the aggregate amount of $3,661,387.82 (the "Debt"); and (ii) the
Purchase Price (as defined in the Agreement) shall be paid by Nord Pacific to
Nord Resources by reduction of the Debt by an amount equal to the Purchase
Price.
Please acknowledge your agreement to the above by signing the
enclose copy of this letter and returning it to the undersigned.
Very truly yours,
NORD PACIFIC LIMITED
WPC/ri By: /s/ X. Xxxxxx Xxxxxx
-------------------------------
Enc. X. Xxxxxx Xxxxxx, President
75085.1
AGREED TO:
NORD RESOURCES CORPORATION
By: /s/ Xxxxxxx X. Xxxx
-------------------------------
Xxxxxxx X. Xxxx, Senior Vice
President-Finance
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