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 ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ and NORD RESOURCES
CORPORATION, a Delaware corporation (the "Purchaser"), with an address at ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇.
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 STOCK AND WARRANTS.
Concurrently herewith and pursuant to Section 4(2) under the 1933
Act, 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
transfer agent, 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 Purchaser 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
thereof 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 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.
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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 standing 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.
10. 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.
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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 this 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/ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
NORD RESOURCES CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President-Finance
74299.2
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NORD PACIFIC LIMITED
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▇▇▇▇▇▇▇▇ ▇▇▇▇
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July 3, 1997
Nord Resources Corporation
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▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
RE: PRIVATE PLACEMENT OF SHARES OF COMMON STOCK,
$.05 PAR VALUE PER SHARE, AND WARRANTS
PURSUANT TO SECTION 4(2) OF THE UNITED STATES
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/ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Enc. -------------------------------
75085.1 ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, President
AGREED TO:
NORD RESOURCES CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Senior Vice
President-Finance
