Exhibit 4.35
NORD RESOURCES CORPORATION
November 8, 2005
Nedbank Limited
1st Floor, Old Mutual Place
0 Xxxxxxx Xxxx
Xxxxxx XX0X 0XX
Attn: Xxxxx Xxxxx
Re: Bridge Loan
Ladies and Gentlemen:
Reference is made to that certain bridge loan (the "Loan") in the aggregate
principal amount of $3,900,000 to Nord Resources Corporation (the "Borrower")
represented by that certain secured promissory note, dated the date hereof made
by the Borrower in favor of Nedbank Limited (the "Lender") (as amended,
supplemented, refinanced or otherwise modified from time to time, the "Note").
Capitalized terms used herein without definition shall have the meanings
ascribed to such terms in the Note.
It is a condition subsequent to the obligation of the Lender to make the
loan described in the Note that certain items be delivered to the Lender,
certain of which items have not been so delivered. In order to facilitate the
closing of the Loan within the time constraints requested by the Borrower, the
Lender has agreed that certain closing requirements may be waived in whole or in
part, as conditions to the initial disbursement under said financing
arrangement. In consideration thereof, the Borrower has agreed to satisfy each
of the following items set forth below within the corresponding time period set
forth below:
1. In the event that the Borrower does not complete an Initial Public
Offering of its common stock by May 8, 2006, the Borrower agrees to
issue to the Lender a warrant certificate evidencing warrants to
purchase up to 743,590 shares of the Borrower's common stock, at an
exercise price equal to the average of the closing prices (as listed
on the Bulletin Board) of Borrower's common stock on the twenty (20)
trading days ending on May 8, 2006, substantially in the form attached
hereto as Exhibit A.
2. The Borrower agrees to propose to Xxxxxx the terms of any project
financing which it desires to procure for the Xxxxxxx Camp Mine, and
to negotiate in good faith to obtain such project financing from
Lender, and to accept such project financing from Lender if mutual
agreement can be obtained, on terms acceptable to the Borrower in its
sole and absolute discretion, prior to negotiating the same with any
third party.
The Borrower acknowledges and agrees that its failure (a) to satisfy any of
the requirements set forth above within the time constraints set forth above
with respect to such requirements or (b) to comply with any of the other terms
or provisions of this letter agreement, shall constitute a Default (as defined
in the Note) giving rise to all rights and remedies permitted to the Lender
under the Note.
This agreement shall be governed by, and shall be construed and enforced in
accordance with the laws of the State of Arizona. No waiver, modification or
amendment of any provision of this agreement shall be effective unless
specifically made in writing and duly signed by the party to be bound thereby.
Except as expressly provided herein, this agreement shall not act as a
waiver or excuse of performance of any obligations contained in the Note.
[Signature page follows]
Very truly yours,
NORD RESOURCES CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: President
AGREED AND ACCEPTED THIS _____ day of
November, 2005
NEDBANK LIMITED
By: /s/ X. Xxxx /s/ X. Xxxxxxxx
--------------------------------- ----------------------------------------
Name: X.Xxxx X. Xxxxxxxx
Title: Head of Forfaiting Head of Credit
EXHIBIT A
NORD RESOURCES CORPORATION
WARRANT CERTIFICATE
No. ________ 743,590 Warrants
THE WARRANTS REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, NOR REGISTERED NOR QUALIFIED UNDER ANY STATE SECURITIES
LAWS. SUCH WARRANTS MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE,
TRANSFERRED, PLEDGED, OR HYPOTHECATED UNLESS QUALIFIED AND REGISTERED UNDER
APPLICABLE STATE AND FEDERAL SECURITIES LAWS OR UNLESS, IN THE OPINION OF
COUNSEL SATISFACTORY TO NORD RESOURCES CORPORATION SUCH QUALIFICATION AND
REGISTRATION IS NOT REQUIRED PURSUANT TO AN EXEMPTION THEREFROM. NO TRANSFER OF
ANY SUCH WARRANT SHALL BE VALID OR EFFECTIVE UNTIL SUCH CONDITIONS HAVE BEEN
FULFILLED.
WARRANTS FOR THE
PURCHASE OF COMMON STOCK
Issue Date: _________, 2006
THIS CERTIFIES THAT, FOR VALUE RECEIVED, Nedbank Limited, a __________ limited
liability company organized under the laws of the Republic of South Africa (the
"Holder"), is the owner of 743,590 warrants to purchase an equal number of
validly-issued, fully-paid and non-assessable shares of Common Stock of NORD
RESOURCES CORPORATION, a corporation organized and existing under the laws of
the State of Delaware (the "Corporation").
The warrants represented by this Warrant Certificate are fully vested as of the
date hereof. Purchase may be made at any time, and from time to time, prior to
5:00 p.m. Pacific Time on the Expiration Date (as hereinafter defined), upon the
presentation and surrender of this Warrant Certificate with a written notice
signed by the Holder stating the number of shares of Common Stock with respect
to which such exercise is being made, at the principal corporate address of the
Corporation, accompanied by payment of the Purchase Price, in lawful money of
the United States of America in cash or by official bank or certified check made
payable to NORD RESOURCES CORPORATION. The Purchase Price and the number of
shares of Common Stock subject to purchase upon the exercise of the Warrants are
subject to modification or adjustment as set forth herein.
SECTION 1. DEFINITIONS. As used herein, the following terms shall have the
following meanings, unless the context shall otherwise require:
(a) "Adjusted Purchase Price" shall have the meaning given to it in
Section 5 of this Certificate.
(b) "Change of Shares" shall have the meaning given to it in Section 5 of
this Certificate.
(c) "Corporate Office" shall mean the office of the Corporation at which,
at any particular time, its principal business shall be administered,
which office is currently located at 0000 Xxxxx Xxxx Xxxx, Xxxxxxx,
Xxxxxxx 00000.
(d) "Exercise Date" shall mean, as to any Warrant, the date on which the
Corporation shall have received both (a) this Warrant Certificate,
together with a written notice of exercise in accordance herewith,
duly executed by the Holder hereof, or his attorney duly authorized in
writing, and indicating that the Holder is thereby exercising such
Warrant(s), and (b) payment by wire transfer, or by official bank or
certified check made payable to the Corporation, of an amount in
lawful money of the United States of America equal to the applicable
Purchase Price for such Warrant(s).
(e) "Exercise Price" shall mean, as to any Warrant, the average closing
price of the Common Stock (as listed on the bulletin board) for the 20
trading days prior to May ____, 2006.
(f) "Expiration Date" shall mean 5:00 P.M. (Pacific Time) on the date that
is twenty-four (24) months following the date of this Warrant
Certificate.
If the Expiration Date falls on a holiday or a day on which banks are
authorized to be closed in the State of Arizona, then the Expiration
Date shall mean 5:00 P.M. (Pacific Time) of the next consecutive day
which does not fall on a holiday or a day on which banks are
authorized to be closed in the State of Arizona.
(g) "Holder" shall mean, as to any Warrant and as of any particular date,
the person in whose name the Warrant Certificate representing such
Warrant is registered as of that date on the Warrant Register
maintained by the Corporation.
(h) "Common Stock" shall mean the common stock of the Corporation, which
has the right to participate in the distribution of earnings and
assets of the Corporation without limit as to amount or percentage.
(i) "Purchase Price" shall mean the purchase price to be paid upon
exercise of each Warrant hereunder in accordance with the terms
hereof, which
price shall be the Exercise Price, subject to adjustment from time to
time pursuant to the provisions of Section 5 hereof.
(j) "Securities Act" shall mean the Securities Act of 1933, and any
amendments or modifications, or successor legislation, thereto
adopted, and all regulations, rules or other laws enacted or adopted
pursuant thereto.
(k) "Warrants" shall mean the Warrants represented by this Warrant
Certificate.
(l) "Warrant Certificate" shall mean any certificate representing
Warrants, and "this Certificate" shall mean they warrant Certificate
issued to the Holder identification on the first page hereof.
(m) "Warrant Registry" means the official record maintained by the
Corporation in which are recorded, with respect to each Warrant
Certificate issued by the Corporation: the date of issuance, the name
and address of the original Holder, the name and address of each
subsequent transferee of such original Holder, and the number
identifying, such Warrant Certificate.
(n) "Warrant Shares" shall have the meaning given to it in Section 2 of
this Certificate.
SECTION 2. EXERCISE OF WARRANTS.
(a) Each Warrant evidenced hereby may be exercised by the Holder at any
time on the Exercise Date, upon the terms and subject to the
conditions set forth herein. A Warrant shall be deemed to have been
exercised immediately prior to the close of business on the Exercise
Date and the person entitled to receive shares of restricted common
stock of the Corporation deliverable upon such exercise shall be
treated for all purposes as the Holder of a Warrant Share upon the
exercise of the applicable Warrant as of the close of business on the
Exercise Date. Promptly following, and in any event within ten (10)
business days after, the date on which the Corporation first receives
clearance of all funds received in payment of the Purchase Price
pursuant to this Warrant Certificate, the Corporation shall cause to
be issued and delivered to the person or persons entitled to receive
the same, a certificate or certificates evidencing the issuance to
such Holder of the applicable number of Warrant Shares (plus a Warrant
Certificate for any remaining issued but unexercised Warrants of the
Holder). Notwithstanding the foregoing sentence, in the event that any
registration or qualification (or filing for exemption from any such
requirements) is required prior to the issuance of
such Warrant Shares by the Corporation in accordance with Section 3(b)
below, then the obligation to deliver any such certificates shall
arise only upon completion of such requirements and at such time as
the Corporation may lawfully do so.
(b) Upon the exercise of the Warrants represented hereby, if the
Corporation so requests, the Holder shall certify to the Corporation
that it is not exercising such Warrants with a view to distribute the
Warrant Shares in violation of the Securities Act, and shall provide
such other investor representations as the Corporation may require to
confirm the ability of the Corporation to rely upon the exemption from
registration under the Securities Act which applies to the
distribution of Warrant Shares at the time of such distribution.
SECTION 3. RESERVATION OF SHARES; REGISTRATION; RIGHTS; TAXES; ETC.
(a) The Corporation covenants that it will at all times reserve and keep
available out of its authorized Common Stock, solely for the purpose
of issue upon the valid exercise of Warrants, such number of Warrant
Shares as shall then be issuable upon the exercise of all Warrants
then outstanding. The Corporation covenants that all shares of Common
Stock which shall be issuable upon exercise of the Warrants shall, at
the time of delivery, be duly and validly issued, fully-paid,
non-assessable and free from all taxes, liens and charges with respect
to the issuance thereof (other than those which the Corporation shall
promptly pay or discharge, or any liens created thereon by the Holder
thereof and/or any predecessor of such Holder).
(b) The Corporation shall not be obligated to deliver any Warrant Shares
pursuant to the exercise of the Warrants represented hereby unless and
until a registration statement under the Securities Act and/or under
any applicable state securities laws and regulations, with respect to
such securities is effective, or an exemption from such registration
is available to the Corporation at the time of such exercise. The
Corporation covenants that if any Warrant Shares reserved for the
purpose of exercise of Warrants hereunder require registration with,
or approval of, any governmental authority under any federal or state
securities law before such securities may be validly issued or
delivered upon such exercise, then the Corporation will in good faith
and as expeditiously as reasonably possible, endeavor to secure such
registration or approval. However, in the event that this Warrant
Certificate represents Warrants which have been transferred by an
initial holder thereof, the Warrants represented hereby may not be
exercised by, nor shares of Common Stock issued to, the Holder hereof
in any state in which such exercise and issuance would be unlawful. If
the Holder exercises its right to purchase Warrant Shares following
the initial public offering of the Corporation's Common Stock,
the Warrant Shares issuable to the Holder upon exercise of the
Warrants will be registered under the Securities Act and freely
tradeable by the Holder.
(c) The Corporation shall pay all documentary, stamp or similar taxes and
other governmental charges that may be imposed with respect to the
issuance of the Warrants, or the issuance or delivery of any shares of
Common Stock upon exercise of the Warrants; provided, however, that if
the shares of Common Stock are to be delivered in a name other than
the name of the Holder hereof, then no such delivery shall be made
unless the person requesting the same has paid to the Corporation the
amount of transfer taxes or charges incident thereto, if any.
SECTION 4. LOSS OR MUTILATION. Upon receipt by the Corporation of evidence
satisfactory to it of the ownership of, and loss, theft, destruction or
mutilation of, this Warrant Certificate and (in case of loss, theft or
destruction) of indemnity satisfactory to the Corporation, and (in the case
of mutilation) upon surrender and cancellation thereof, the Corporation
shall execute and deliver to the Holder in lieu thereof a new Warrant
Certificate of like tenor representing an equal aggregate number of
Warrants as was indicated to be outstanding on the prior lost or mutilated
Warrant Certificate (provided, however, that to the extent that any
discrepancy may exist between the number of Warrants purported to be
outstanding in respect of any Holder as evidenced by a Warrant Certificate
that has been lost or mutilated and the number attributable to such Holder
in the Warrant Registry, then the Warrant Registry shall control for all
purposes, absent a showing of manifest error. Each Holder requesting a
substitute Warrant Certificate due to loss, theft or destruction shall,
prior to receiving such substitute certificate, provide an affidavit to the
Corporation in the form prescribed thereby and signed by (and notarized on
behalf of) such Xxxxxx. Applicants for a substitute Warrant Certificate
shall comply with such other reasonable regulations and pay such other
reasonable charges as the Corporation may prescribe.
SECTION 5. ADJUSTMENT OF PURCHASE PRICE AND NUMBER OF WARRANT SHARES OR
WARRANTS.
(a) Subject to the provisions of this Warrant Certificate and applicable
law, in the event the Corporation shall, at any time or from time to
time after the date hereof, issue any shares of Common Stock as a
stock dividend to the holders of Common Stock, or subdivide or combine
the outstanding shares of Common Stock into a greater or lesser number
of shares (any such sale, issuance, subdivision or combination being
herein called a "Change of Shares"), then, and thereafter upon each
further Change of Shares, the Purchase Price in effect immediately
prior to such Change of Shares shall be reduced, but in no event
increased, to a price (the "Adjusted Purchase Price") determined by
multiplying the Purchase Price in effect immediately prior to such
Change of Shares by a fraction, the numerator
of which shall be the sum of the number of shares of Common Stock
outstanding immediately prior to the issuance of such additional
shares plus the number of shares of Common Stock which the aggregate
consideration received by the Corporation would purchase at such
Purchase Price, and the denominator of which shall be the sum of the
number of shares of Common Stock outstanding immediately after the
issuance of such additional shares. Such adjustment to the Purchase
Price shall be made successively whenever an issuance is made after a
Change of Shares has occurred.
Upon each adjustment of the Purchase Price pursuant to this Section
5(a), the total number of shares of Common Stock purchasable upon the
exercise of each Warrant shall become (subject to the provisions
contained in Section 5(b) hereof) such number of shares (calculated to
the nearest tenth) purchasable at the Purchase Price in effect
immediately prior to such adjustment multiplied by a fraction, the
numerator of which shall be the Purchase Price in effect immediately
prior to such adjustment and the denominator of which shall be the
applicable Adjusted Purchase Price (rounded to the nearest whole
number of shares). No fractional shares shall be issued or called for
as a result of any adjustment made hereunder.
(b) The Corporation may elect, at its sole discretion, upon any adjustment
of the Purchase Price hereunder, to adjust the number of Warrants
outstanding, in lieu of adjustment of the number of Warrant Shares
purchasable upon the exercise of each Warrant as hereinabove provided,
so that each Warrant outstanding after such adjustment shall represent
the right to purchase one Warrant Share. Each Warrant held of record
prior to such adjustment of the number of Warrants shall become that
number of Warrants (calculated to the nearest tenth) determined by
multiplying the number one by a fraction, the numerator of which shall
be the Purchase Price in effect immediately prior to such adjustment
and the denominator of which shall be the Adjusted Purchase Price.
Upon each adjustment of the number of Warrants pursuant to this
Section 5(b), the Corporation shall, as promptly as practicable, cause
to be distributed to each Holder of Warrant Certificates, on the date
of such adjustment, Warrant Certificates evidencing the adjusted
number of Warrants to which such Holder shall be entitled as a result
of such adjustment or, at the sole option of the Corporation, cause to
be distributed to such Holder in substitution and replacement for the
Warrant Certificates held by him prior to the date of adjustment, and
upon surrender thereof, (if required by the Corporation) new Warrant
Certificates evidencing the aggregate number of Warrants to which such
Holder shall be entitled after such adjustment.
(c) In case of any reclassification, capital reorganization or other
change of outstanding shares of Common Stock, or in case of any
consolidation or merger of the Corporation with or into another
corporation (other than a consolidation or merger in which the
Corporation is the continuing corporation and which does not result in
any reclassification, capital reorganization or other change of
outstanding shares of Common Stock), or in case of any sale or
conveyance to another corporation of all, or substantially all, of the
property of the Corporation (other than a sale/leaseback, mortgage or
other financing transaction), the Corporation shall cause effective
provision to be made so that each holder of a Warrant then outstanding
shall have the right thereafter, by exercising such Warrant, to
purchase the kind and number of shares of stock or other securities or
property (including cash) receivable upon such reclassification,
capital reorganization or other change, consolidation, merger, sale or
conveyance by a holder of the number of Warrant Shares that might have
been purchased upon exercise of such Warrant immediately prior to such
reclassification, capital reorganization or other change,
consolidation, merger, sale or conveyance. Any such provision shall
include provision for adjustments that shall be as nearly equivalent
as may be practicable to the adjustments provided for in this Section
5 upon a Change of Shares. The Corporation shall not effect any such
consolidation, merger or sale without the written consent of Holders
of a majority of the Warrants then outstanding, unless prior to or
simultaneously with the consummation thereof the successor (if other
than the Corporation) resulting from such consolidation or merger or
the corporation purchasing assets or other appropriate corporation or
entity shall assume, by written instrument executed and delivered to
the Corporation, the obligation to deliver to the holder of each
Warrant such substitute warrants, shares of stock, securities or
assets as, in accordance with the foregoing provisions, such Holders
may be entitled to purchase, and the other obligations of the
Corporation set out in this Certificate. The foregoing provisions
shall similarly apply to successive reclassifications, capital
reorganizations and other changes of outstanding shares of Common
Stock and to successive consolidations, mergers, sales or conveyances.
(d) Irrespective of any adjustments or changes in the Purchase Price or
the number of Warrant Shares purchasable upon exercise of the
Warrants, all Warrant Certificates issued (whether prior to or
subsequent to any event causing an adjustment thereof) shall continue
to express the Purchase Price per share, and the number of shares
purchasable thereunder as originally expressed in the Warrant
Certificate initially issued to any Holder.
(e) After each adjustment of the Purchase Price pursuant to this Section
5, the Corporation will promptly prepare a certificate signed by the
Chairman or Chief Executive Officer, and attested by the Secretary or
an Assistant Secretary, of the Corporation setting forth: (i) the
Purchase Price as so adjusted, (ii) the number of shares of Common
Stock purchasable upon exercise of each Warrant after such adjustment
or, if the Corporation shall have elected to adjust the number of
Warrants, the number of Warrants to which the Holder of each Warrant
shall then be entitled, and (iii) a brief statement of the facts
accounting for such adjustment. The Corporation will promptly cause a
brief summary thereof to be sent by ordinary first class mail to each
Holder of Warrants at his or her last address as it shall appear on
the registry books of the Corporation. No failure to mail such notice
nor any defect therein nor in the mailing thereof shall affect the
validity thereof. The affidavit of the Secretary or an Assistant
Secretary of the Corporation that such notice has been mailed shall,
in the absence of fraud, be prima facie evidence of the facts stated
therein.
(f) As used in this Section 5, references to "Common Stock" shall mean and
include all of the Corporation's Common Stock authorized on the date
hereof and shall also include any capital stock of any class of the
Corporation thereafter authorized which shall not be limited to a
fixed sum or percentage in respect of the rights of the holders
thereof to participate in dividends and in the distribution of assets
upon the voluntary liquidation, dissolution or winding up of the
Corporation; provided, however, that "Warrant Shares" shall include
only shares of such class designated in the Corporation's Certificate
of Incorporation as Common Stock on the date hereof or (i) in the case
of any reclassification, change, consolidation, merger, sale or
conveyance of the character referred to in Section 5(c) hereof, the
stock, securities or property provided for in such section, or (ii) in
the case of any reclassification or change in the outstanding shares
of Common Stock issuable upon exercise of the Warrants as a result of
a subdivision or combination or consisting of a change in par value,
or from par value to no par value, or from no par value to par value,
such shares of Common Stock as so reclassified or changed.
(g) Any determination as to whether an adjustment in the Purchase Price in
effect hereunder is required pursuant to this Section 5, or as to the
amount of any such adjustment, if required, shall be binding upon all
holders of Warrants and the Corporation if made in good faith by the
Board of Directors of the Corporation. For purposes of this Section
5(g), the Corporation's Board of Directors shall be deemed to have
acted in good faith if it makes any such decision in reliance upon
advice of its legal counsel and/or another independent professional
hired to advise the Board on such matters.
SECTION 6. RESTRICTIVE LEGEND.
(a) Except as otherwise provided in this Section 6, each certificate
evidencing the issuance of Warrant Shares (whether issued in the name
of the original Holder of this Certificate or of any subsequent
transferee thereof), shall be stamped or otherwise imprinted with a
legend in substantially the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, NOR
REGISTERED NOR QUALIFIED UNDER ANY STATE SECURITIES LAWS. SUCH
SHARES MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE,
TRANSFERRED, PLEDGED, OR HYPOTHECATED UNLESS QUALIFIED AND
REGISTERED UNDER APPLICABLE STATE AND FEDERAL SECURITIES LAWS OR
UNLESS, IN THE OPINION OF COUNSEL SATISFACTORY TO NORD RESOURCES
CORPORATION, SUCH QUALIFICATION AND REGISTRATION IS NOT REQUIRED.
NO TRANSFER OF ANY SUCH SHARE SHALL BE VALID OR EFFECTIVE UNTIL
SUCH CONDITIONS HAVE BEEN FULFILLED."
(b) Except as otherwise provided in this Section 6, each Warrant
Certificate shall be stamped or otherwise imprinted with a legend in
substantially the following form:
"THE WARRANTS REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, NOR REGISTERED NOR
QUALIFIED UNDER ANY STATE SECURITIES LAWS. SUCH WARRANTS MAY NOT
BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED,
PLEDGED, OR HYPOTHECATED UNLESS QUALIFIED AND REGISTERED UNDER
APPLICABLE STATE AND FEDERAL SECURITIES LAWS OR UNLESS, IN THE
WRITTEN OPINION OF COUNSEL SATISFACTORY TO NORD RESOURCES
CORPORATION, SUCH QUALIFICATION AND REGISTRATION IS NOT REQUIRED.
NO TRANSFER OF ANY SUCH WARRANT SHALL BE VALID OR EFFECTIVE UNTIL
SUCH CONDITIONS HAVE BEEN FULFILLED."
(c) The legend requirements of Sections 6(a) and 6(b) above shall
terminate as to any particular Warrant or Warrant Share: (i) when and
so long as such security shall have been effectively registered under
the Securities Act and is disposed of pursuant thereto; or (ii) when
the Company shall have received an opinion of counsel reasonably
satisfactory to it that such shares may be sold to the public without
registration thereof under the Securities Act. Whenever the legend
requirements imposed by this Section 6 shall terminate as to any
Warrant Share, as hereinabove provided, the Holder hereof shall be
entitled to receive from the Corporation, at the Corporation's
expense, a new certificate representing such Warrant Shares and not
bearing the restrictive legend set forth in Section 6(a).
SECTION 7. RIGHTS OF ACTION. All rights of action with respect to the Warrants
are vested in the Holders of the Warrants, and any Holder of a Warrant,
without consent of the holder of any other Warrant, may, in such Xxxxxx's
own behalf and for his own benefit, enforce against the Company his right
to exercise his Warrants for the purchase of Warrant Shares in the manner
provided in this Warrant Certificate.
SECTION 8. AGREEMENT OF WARRANT HOLDERS. Every holder of a Warrant, by his or
her acceptance thereof, consents and agrees with the Corporation and every
other holder of a Warrant that:
(a) The Warrant Registry shall be maintained by the Corporation's
Secretary, and shall be the official register of all Warrants issued
to any person in the Offering. The Warrant Registry shall be
dispositive as to the issuance, ownership, transfer and other aspects
of each Warrant issued by the Corporation which are recorded therein
and, absent manifest error, such records shall control for all
purposes.
(b) The Warrants are transferable only on the Warrant Registry by the
Holder thereof in person or by his attorney duly authorized in writing
and only if the Warrant Certificates representing such Warrants are
surrendered at the Corporate Office of the Corporation, duly endorsed
or accompanied by a proper instrument of transfer satisfactory to the
Corporation in its sole discretion, together with payment of the
amount of any applicable transfer taxes; and
(c) The Corporation may deem and treat the person in whose name the
Warrant Certificate is registered on the Warrant Registry as the
holder and as the absolute, true and lawful owner of the Warrants
represented thereby for all purposes, and the Corporation shall not be
affected by any notice or knowledge to the contrary, except as
otherwise expressly provided in this Certificate.
SECTION 9. MODIFICATION OF WARRANTS. Other than with respect to any adjustment
made by the Corporation in accordance with the provisions of Section 5
hereof, this Certificate may only be modified, supplemented or altered by
the Corporation, and only with the consent in writing of the Holders of
Warrants representing greater than fifty percent (50%) of the total
Warrants then outstanding; provided, that no change in the number or nature
of the securities purchasable upon the exercise of any Warrant, or the
acceleration of the Exercise Date, shall be made without the consent in
writing of the Holder of the Warrant Certificate representing such Warrant,
other than such changes as are specifically prescribed by this Certificate
as originally executed or are made in compliance with applicable law.
SECTION 10. NOTICES. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been made when
delivered or mailed first class registered or certified mail, postage
prepaid as follows: if to the Holder of a Warrant Certificate, at the
address of such Holder as shown on the Warrant Registry maintained by the
Corporation; and if to the Corporation, at 0000 Xxxxx Xxxx Xxxx, Xxxxxxx,
XX 00000, or such other place as may be designated by the Corporation from
time to time in accordance with this Section 10.
SECTION 11. GOVERNING LAW. This Certificate shall be governed by and construed
in accordance with the corporations laws of the State of Delaware, without
giving effect to the law of conflicts of laws applied thereby. In the event
that any dispute shall occur between the parties arising out of or
resulting from the construction, interpretation, enforcement or any other
aspect of this Certificate, the parties hereby agree to accept the
exclusive jurisdiction of the Courts of the State of Delaware. In the event
either party shall be forced to bring any legal action to protect or defend
its rights hereunder, then the prevailing party in such proceeding shall be
entitled to reimbursement from the non-prevailing party of all fees, costs
and other expenses (including, without limitation, the reasonable expenses
of its attorneys) in bringing or defending against such action.
SECTION 12. ENTIRE UNDERSTANDING. This Certificate contains the entire
understanding among the Corporation and the Holder relating to the subject
matter covered herein, and merges all prior discussions, negotiations and
agreements, if any between them. Neither of the parties to this agreement
shall be bound by any representations, warranties, covenants, or other
understandings relating to such subject matter, other than as expressly
provided for or referred to herein.
IN WITNESS WHEREOF, the Corporation has caused this Warrant Certificate to
be duly executed, manually or in facsimile, by two of its officers thereunto
duly authorized, as of the date set forth below.
NORD RESOURCES CORPORATION ATTEST:
By: By:
--------------------------------- ------------------------------------
Xxxxxx X. Xxxxxxxx Xxxxxx X. Xxxxxx
President Chief Executive Officer
Date: __________, 200_
