EXHIBIT 10.31
EXECUTION COPY
SETTLEMENT AGREEMENT
AND GENERAL RELEASE
This SETTLEMENT AGREEMENT AND GENERAL RELEASE (the "Agreement") is entered into
as of this 22nd day of April, 2005 by and between X. Xxxxxx Xxxxxx, an adult
individual residing in the State of New Mexico ("Carson") and Nord Resources
Corporation, a Delaware corporation (the "Company"). Xxxxxx and the Company are
hereinafter sometimes referred to as a "Party" and collectively, as the
"Parties".
RECITALS
WHEREAS, Xxxxxx was for a time employed by the Company under an employment
agreement, dated as of May 27, 1997 (the "Employment Agreement"), and that
employment terminated on or about December 2000; and
WHEREAS, pursuant to the Employment Agreement, the Company may have been
obligated to adopt a retirement plan comparable to the retirement plan adopted
by Nord Pacific Limited (the "NPL Plan"), pursuant to which Xxxxxx was entitled
to receive retirement benefits from the Company comparable to the retirement
benefits he would receive under the NPL Plan;
WHEREAS, a dispute has arisen between the Parties (the "Dispute") arising
out of Xxxxxx'x employment with the Company and the Company's willingness to
provide benefits to Xxxxxx which are similar to those provided under the NPL
Plan; and;
WHEREAS, the Parties now desire to enter into this Agreement to resolve the
Dispute.
NOW, THEREFORE, in consideration of the foregoing premises, and the
promises and covenants herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties, intending to be legally bound, hereby agree as follows:
1. CONSIDERATION. In consideration for Xxxxxx signing this Agreement and
complying with the promises made herein, the Company agrees to provide Xxxxxx
with the following (collectively, the "Consideration"):
(a) RESTRICTED SHARES. On or before August 1, 2005, the Company will issue
Xxxxxx two hundred and fifty thousand (250,000) shares of restricted common
stock of the Company (the "Settlement Shares").
(b) WARRANTS. In addition to the Shares, the Company shall issue to Xxxxxx
warrants (the "Warrants") to purchase two hundred and fifty thousand (250,000)
shares of the Company's common stock at a price of Fifty Cents ($0.50) per share
(the "Warrant Shares", and collectively with the Settlement Shares, the
"Shares"), pursuant to an warrant agreement in the form attached hereto as
Exhibit A (the "Warrant"). The
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Warrants shall expire on April 22, 2008. The Shares shall have the rights and be
subject to the limitations set forth in Sections 2 and 3, and each Share shall
bear the restrictive legend set forth in Section 4 of this Agreement.
2. PIGGY-BACK REGISTRATION.
(a) PIGGY BACK RIGHTS. If the Company proposes to file a registration
statement under the Act with respect to an offering by any person other than
Xxxxxx or the Company for is own account, then the Company shall give written
notice of such proposed filing to Xxxxxx at least ten (10) days before the
anticipated filing date, and such notice shall offer Xxxxxx the opportunity to
register such of the Shares as Xxxxxx may request. The Company shall use its
best efforts to cause the managing underwriter or underwriters of a proposed
underwritten offering to permit Xxxxxx to include such securities in such
offering on the same terms and conditions as any similar securities of the
Company included therein. Notwithstanding the foregoing, if the managing
underwriter or underwriters of such offering delivers a written opinion to the
Company that the total amount or kind of securities which Xxxxxx, the Company
and any other persons or entities intend to include in such offering would
materially and adversely affect the success or offering price of such offering,
then the amount or kind of securities to be offered for the account of Xxxxxx
shall be reduced to the extent necessary to reduce the total amount of
securities to be included in such offering to the amount recommended by such
managing underwriter. In connection with a piggy-back registration, the Company
will bear all Registration Expenses. Notwithstanding any other provision of this
Agreement, "Registrable Securities" as used in this Section 2 shall be deemed to
include the Settlement Shares, the Warrant, and the Warrant Shares. The rights
and obligations of the Parties pursuant to this Section 2 shall immediately
cease and be of no further force or effect upon the earliest of the following to
occur:
(i) the breach or violation of any material term, representation or
warranty of this Agreement by Xxxxxx;
(ii) the occurrence or existence of any event, condition or
circumstance involving Xxxxxx which does or will impair or restrict the ability
of Xxxxxx or any other person to distribute the Shares in accordance with the
Plan of distribution furnished by Xxxxxx for inclusion in the registration
statement; and
(iii) the Shares are eligible for sale without restriction pursuant to
Rule 144 promulgated by the Securities and Exchange Commission as then in
effect.
(b) REGISTRATION PROCEDURES. Whenever Xxxxxx has requested that any Shares
be registered pursuant to Section 2(a) of this Agreement, the Company will
(subject to the terms and conditions set forth herein) use its best efforts to
effect the registration and the sale of such Shares upon the terms and
conditions hereof in accordance with the intended method of disposition thereof.
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The Company may require Xxxxxx to furnish to the Company such information
regarding his ownership, and the distribution, of such Shares as the Company may
from time to time reasonably request in writing. Xxxxxx agrees that he shall
execute and deliver to the Company such written undertakings as the Company and
its counsel may reasonably require in order to assure full compliance with the
relevant provisions of the Act.
(c) REGISTRATION EXPENSES. Except as otherwise expressly provided herein,
all expenses incident to the Company's performance of or compliance with Section
2 of this Agreement, including without limitation all registration and filing
fees, fees and expenses of compliance with securities or "Blue Sky Laws"
(including reasonable fees and disbursements of counsel in connection with "Blue
Sky" qualifications of the Registrable Securities), printing expenses, messenger
and delivery expenses, internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), if such securities are to be listed, the fees and expenses
incurred in connection with the listing of the securities to be registered on
each securities exchange on which similar securities issued by the Company are
then listed, and fees and disbursements of counsel for the Company and its
independent certified public accountants (including the expenses of any special
audit or "comfort" letters required by or incident to such performance),
securities acts liability insurance (if the Company elects to obtain such
insurance), the reasonable fees and expenses of any special experts retained by
the Company in connection with such registration and fees and expenses of other
Persons retained by the Company (all such expenses being herein called
"Registration Expenses"), will be borne by the Company. Nothing contained in
this Agreement shall be deemed to require the Company to cause the Registrable
Securities to be rated by any rating agency or listed on any securities
exchange.
3. RESTRICTION ON TRANSFER. Xxxxxx understands and acknowledges the restrictions
limiting the transfer of the Shares and the Warrants offered hereby and to which
Xxxxxx will be bound. Xxxxxx agrees that he will not sell or attempt to sell all
or any part of the Shares or the Warrants unless and until such Shares have
first been registered under the Act, and all applicable similar state laws and
regulations, or Xxxxxx first furnishes an opinion of counsel satisfactory to the
Company and its counsel, stating that exemption from such registration
requirements are available and that the proposed sale is not, and will not place
the Company, nor any of its officers, directors or other shareholders, in
violation of any applicable federal or state securities law, or any rule or
regulation promulgated thereunder. Xxxxxx further understands and agrees that
any such transfer will also be subject to the restrictions on transfer contained
on the face, or reverse side, of any certificate issued to Xxxxxx evidencing an
ownership interest in the Company, and any other restriction imposed upon the
Shares by applicable law, contract or otherwise.
4. LEGENDS ON STOCK CERTIFICATES. Each certificate representing the Shares
shall contain the following legends on the reverse of such certificate:
THIS SECURITY HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY
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XXXXX XXXXXXXXXX XXXXXXXXXX, XX RELIANCE UPON THE EXEMPTION FROM
REGISTRATION PROVIDED IN SECTION 4(2) OF THE ACT AND REGULATION D
THEREUNDER. AS SUCH, THE PURCHASE OF THIS SECURITY WAS NECESSARILY WITH THE
INTENT OF INVESTMENT AND NOT WITH A VIEW FOR DISTRIBUTION. THEREFORE, ANY
SUBSEQUENT TRANSFER OF THIS SECURITY OR ANY INTEREST THEREIN WILL BE
UNLAWFUL UNLESS IT IS REGISTERED UNDER THE ACT OR UNLESS AN EXEMPTION FROM
REGISTRATION IS AVAILABLE. FURTHERMORE, IT IS UNLAWFUL TO CONSUMMATE A SALE
OR TRANSFER OF THIS SECURITY, OR ANY INTEREST THEREIN, WITHOUT THE OPINION
OF COUNSEL FOR THE COMPANY THAT THE PROPOSED TRANSFER OR SALE DOES NOT
AFFECT THE EXEMPTIONS RELIED UPON BY THE COMPANY IN ORIGINALLY DISTRIBUTING
THIS SECURITY.
5. NO CONSIDERATION ABSENT EXECUTION OF THIS AGREEMENT. Xxxxxx and the Company
understand and agree that Xxxxxx would not receive the Consideration specified
in Section 1 above, except for his execution of this Agreement and his
fulfillment of the promises contained herein. Xxxxxx agrees and acknowledges
that he is receiving the Consideration set forth herein as consideration for his
execution and performance in full of this Agreement and that he is not otherwise
entitled to such Consideration. Xxxxxx further agrees that the Consideration is
adequate and fair consideration for all of his promises and obligations herein.
Xxxxxx agrees that other than the Consideration set forth in this Agreement, he
is not entitled to and will not receive any other monies, benefits or
compensation from the Company, including but not limited to any other wages,
salary, bonuses, stock warrants, stock options, restricted stock, vacation or
sick pay, separation pay, retirement benefits, retirement pay, or any other
benefits or compensation of any kind whatsoever.
6. RELEASE AND WAIVER. In exchange for the Consideration set forth above, and
for other good and valuable consideration, the receipt and sufficiency of all of
which are hereby acknowledged, each of the Parties hereto, for and behalf of
itself and himself and, as the case may be, their respective heirs,
representatives, assigns, predecessors, successors, employees, shareholders,
officers, directors, agents, attorneys, parent corporations, subsidiaries,
divisions, or affiliated corporations or organizations, whether previously or
hereafter affiliated in any manner (collectively the "Releasing Entities"),
hereby releases and forever discharges the other Party hereto and, as the case
may be, each of their respective heirs, representatives, assigns, predecessors,
successors, employees, shareholders, officers, directors, agents, attorneys,
parent corporations, subsidiaries, divisions, or affiliated corporations or
organizations, whether previously or hereafter affiliated in any manner
(collectively the "Released Entities") from any and all claims, demands, causes
of action, charges of discrimination, charges of wrongful termination,
obligations, damages, attorneys' fees, costs and liabilities of any nature
whatsoever, including all common law and statutory claims of race, sex, national
origin,
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religion, handicap and age discrimination, whether or not now known, suspected
or claimed, which each of the Releasing Entities ever had, now has, or may claim
to have as of the date of this Agreement against the Released Entities.
7. WAIVER OF XXXXXX'X RIGHTS UNDER EMPLOYMENT AGREEMENT. The Parties agree that
the Employment Agreement was and remains terminated in its entirety as of the
date referenced in Section 1 of this Agreement. Xxxxxx agrees that he is not
entitled to receive, and will not claim, any damages, profits, compensation,
bonuses, benefits, vacation, stock warrants, stock options, retirement benefits
or pay, or rights other than those which are expressly set forth in this
Agreement. Xxxxxx acknowledges that the Consideration he is receiving under this
Agreement is in lieu of, and he hereby waives any other rights he may have had
under, the Employment Agreement and any other agreements, express or implied, he
may have had with the Company prior to the Effective Date. Except as otherwise
provided herein, this Agreement supersedes all rights and/or benefits Xxxxxx may
have or claim arising out of the Employment Agreement and other agreements he
may have had with the Company prior to the Effective Date.
8. COVENANT NOT TO XXX. Except to enforce this Agreement, each of the Parties
hereby promises never to file or make, or permit to be filed or made on his or
its behalf, as applicable, a lawsuit, charge, complaint, or other claim
asserting any claim or demand against any of the Released Entities which is
within the scope of the claims released in Section 6 above. This Agreement may
and shall be pleaded by any of the Released Entities as a full and complete
defense to, and may be used as a basis for an injunction against any action,
suit or other proceeding which may be instituted, prosecuted or maintained in
breach thereof. If either Party files or makes, or permits to be filed or made
on his behalf, a lawsuit, charge, complaint, appeal or other claim asserting any
claim or demand against any of the Released Entities which is within the scope
of the claims released in Section 6 above, whether or not such claim is
otherwise valid, that Released Entity shall be entitled to: (i) the full
enforcement of the terms of this Agreement; (ii) the immediate dismissal of all
claims released in Section 6 above; and (iii) the recovery of his/its attorneys'
fees and legal costs incurred in defending such claim(s).
9. NONDISCLOSURE. Xxxxxx agrees not to use, not to disclose and to keep
confidential any non-public, secret, confidential or proprietary information,
knowledge or data relating to the organization, business or finances of the
Company (including but not limited to trade secrets or confidential information
respecting inventions, products, designs, methods, know-how, techniques,
systems, processes, software programs, works of authorship, marketing and/or
sales information, sales forecasts, customer profiles, customer lists, customer
prospect information, projects, plans and proposals).
10. NO CLAIMS FILED BY EITHER PARTY. Each of the Parties hereby confirms to the
other Party, that it has not filed and will not file, or permit to be filed on
his behalf, any charge, complaint, or action in any forum or form against the
Released Entities. Nothing in this Section 10 or elsewhere in this Agreement
shall prevent any Party from filing an action in order to enforce the terms and
conditions of this Agreement.
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11. NO ASSISTANCE IN ACTIONS AGAINST THE RELEASED ENTITIES. Each of the Parties
agrees that it will not advise, counsel or otherwise cooperate with or assist
current or former employees or independent contractors of the Released Entities
to pursue any type of legal action or administrative proceeding against the
Released Entities. Each Party further agrees that it will not participate,
directly or indirectly, as a witness, consultant, expert or otherwise, in any
action at law, proceeding in equity or administrative proceeding against the
Released Entities, unless requested to do so in writing by the Released Entities
or unless compelled to do so by force of law. In the event that either Party
believes it is compelled by force of law or for any other reason to testify or
otherwise participate in any action or proceeding against any of the Released
Entities, such Party agrees to provide the Released Entities with reasonable
advance notice of he subpoena, judicial notice, or other reason which he
believes compels his participation.
12. REPRESENTATIONS AND WARRANTIES.
(a) Representations and Warranties of the Company. The Company hereby
represents and warrants to Xxxxxx, as of the date hereof, the following:
(i) the Company is a corporation duly organized and validly existing
under the laws of the State of Delaware, and has full power and
authority to enter into, execute and perform this Agreement,
which Agreement, once executed by Company, shall be the valid and
binding obligation of such party, enforceable against such party
by any court of competent jurisdiction in accordance with its
terms;
(ii) the individuals signing this Agreement on behalf the Company are
the duly elected executive officers of the Company so indicated,
and have full power and authority to enter into and execute this
Agreement for and on behalf of the Company;
(iii) the Company is not bound by or subject to any contract,
agreement, court order or judgment, administrative ruling, law,
regulation or any other item which prohibits or restricts such
party from entering into and performing this Agreement in
accordance with its terms, or requiring the consent of any third
party prior to the entry into or performance of this Agreement in
accordance with its terms by such party.
(b) Representations and Warranties of Xxxxxx. Xxxxxx hereby represents and
warrants to the Company, as of the date hereof, the following:
(i) Xxxxxx has full power and capacity to enter into, execute and
perform this Agreement, which Agreement, once executed by Xxxxxx, shall be the
valid and binding obligation of such party, enforceable against such party by
any court of competent jurisdiction in accordance with its terms;
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(ii) Xxxxxx is not bound by or subject to any contract, agreement,
law, court order or judgment, administrative ruling, regulation or any other
item which prohibits or restricts such party from entering into and performing
this Agreement in accordance with its terms, or requiring the consent of any
third party prior to the entry into or performance of this Agreement in
accordance with its terms by such party;
(iii) with respect to the Shares being acquired by the Xxxxxx:
(A) Xxxxxx is acquiring the Shares for his own account, and not
with a view toward the subdivision, resale, distribution, or
fractionalization thereof; Xxxxxx has no contract,
undertaking, or arrangement with any person to sell,
transfer, or otherwise dispose of the Shares (or any portion
thereof), and has no present intention to enter into any
such contract, undertaking, agreement or arrangement;
(B) the subscription for Shares by Xxxxxx hereunder is not the
result of any form of general solicitation or general
advertising;
(C) Xxxxxx hereby acknowledges that: (1) the offering of the
Shares was made only through direct, personal communication
between Xxxxxx and the Company; (2) Xxxxxx has had access to
material concerning the Company's planned business and
operations, which material was furnished or made available
to Xxxxxx by officers or representatives of the Company; (3)
the Company has given Xxxxxx the opportunity to ask any
questions and obtain all additional information desired in
order to verify or supplement the material so furnished; and
(4) Xxxxxx understands and acknowledges that the Shares are
subject to substantial restrictions upon the transfer
thereof, and that a purchaser of the Shares must be prepared
to bear the economic risk of such investment for an
indefinite period;
(D) Xxxxxx understands that the Shares have not been registered
under the Securities Act of 1933 (the "Act") or any state
securities act (nor passed upon by the SEC or any state
securities commission), and that the Shares may never be
registered or qualified by under federal or state securities
laws solely in reliance upon an available exemption from
such registration or qualification, and hence such Shares
cannot be sold unless they are subsequently so registered or
qualified, or are otherwise subject to any applicable
exemption from such registration requirements; and
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(E) Xxxxxx further understands and acknowledges that (1) the
Shares have not been registered with the New Mexico
Securities Division under the New Mexico Securities Act, or
any other law or regulation, (2) may not be resold to any
person unless and until such registration has occurred or
pursuant to an exemption from registration permitted by the
applicable securities laws; and (3) that there are
substantial restrictions on transfer of the Shares, as set
forth by legend on the reverse side of every certificate
evidencing the ownership of the Shares;
(iv) Xxxxxx is an "accredited investor" as such term is defined in
Rule 501 of Regulation D promulgated by the Securities and
Exchange Commission under the Act, or is a sophisticated investor
meeting the minimum standards for an investment in an
unregistered security under Section 12.11.12.20 of the New Mexico
Administrative Code; and
(v) Xxxxxx has been advised to consult with an attorney regarding
legal matters concerning the purchase and ownership of the
Shares, and with a tax advisor regarding the tax consequences of
purchasing such Shares.
13. INDEMNIFICATION. Xxxxxx recognizes that the offering of the Shares to Xxxxxx
pursuant hereto will be based upon his covenants, representations and warranties
set forth herein and in other documents relating to the subscription of the
Shares by Xxxxxx. Each Party hereby agrees to indemnify and hold harmless the
other, together with such Party's officers, directors, partners, shareholders,
employees, agents and representatives (collectively, the "Indemnified Parties"),
from and against any loss, cost, damage, claim, charge, set-off, encumbrance or
other obligation or liability (a "Liability") resulting from or arising out of
any material breach of such Party's duties, obligations or requirements
hereunder including, without limitation, any and all claims from third parties
against any Indemnified Party as a result thereof (a "Third-Party Claim"). Such
indemnification shall cover, without limitation, the right to reimbursement of
reasonable attorneys' fees, expenses and costs of litigation, arbitration,
mediation and/or settlement. Payment to the Indemnified Parties, and any of
them, shall be made upon notice to the Party or parties from whom
indemnification may properly be sought hereunder (the "Indemnifying Party") that
a Liability has arisen (or, to the extent that notice has been previously
delivered, that such Liability is continuing), together with any invoice or
other demand for payment to any Party, including an attorney defending against
or prosecuting the same, and the Indemnifying Party shall promptly furnish
payment thereon as directed in such notice.
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14. NON-DISPARAGEMENT. Each Party hereby agrees with the other that it will not
in any way whatsoever or to any extent whatsoever disparage, demean, deprecate,
rebuke, condemn, belittle, slander or libel, either orally or in writing, any of
the Released Entities.
15. NO ADMISSION OF WRONGDOING. The Parties agree that this Agreement is not,
and shall not be considered as, an admission of any wrongdoing or liability on
the part of any of the Released Entities or on the part of Xxxxxx.
16. MISCELLANEOUS.
(a) NOTICES. All notices, requests, demands and other communications
required or permitted to be given hereunder shall be in writing and shall be
deemed to have been duly given on the date of personal service or transmission
by fax if such transmission is received during the normal business hours of the
addressee, or on the first business day after sending the same by overnight
courier service or by telegram, or on the third business day after mailing the
same by first class mail, or on the day of receipt if sent by certified or
registered mail, addressed as follows:
if to the Xxxxxx: X. Xxxxxx Xxxxxx
X.X. Xxx 000
Xxxxx Xxxxx, XX 00000
if to the Company: Nord Resources Corporation
0000 Xxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx
President
or to such other address or addresses as such Parties may indicate by written
notice sent n accordance with this Section 16(a).
(b) BINDING AGREEMENT; ASSIGNMENT. This Agreement shall constitute the
binding agreement of the Parties hereto, enforceable against each of them in
accordance with its terms. This Agreement shall inure to the benefit of each of
the Parties hereto, and their respective heirs, personal representatives,
successors and assigns. This Agreement may not be assigned by either Party,
whether by operation of law or by contract, without the prior, written consent
of the other Party hereto.
(c) ENTIRE AGREEMENT. This Agreement constitutes the entire and final
agreement and understanding among the Parties with respect to the subject matter
hereof and the transactions contemplated hereby, and supersedes any and all
prior oral or written agreements, statements, representations, warranties or
understandings by any Party, all of which are merged herein and superseded
hereby.
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(d) GOVERNING LAW; VENUE. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Arizona applicable to the
performance and enforcement of contracts made within such state, 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 Agreement,
the Parties hereby agree to accept the exclusive jurisdiction of the Courts of
the State of Arizona. 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.
(e) SPECIFIC PERFORMANCE; REMEDIES CUMULATIVE. The Parties hereby agree
with each other that, in the event of any breach of this Agreement by any Party
where such breach may cause irreparable harm to any other Party, or where
monetary damages may not be sufficient or may not be adequately quantified, then
the affected Party or Parties shall be entitled to specific performance,
injunctive relief or such other equitable remedies as may be available to it,
which remedies shall be cumulative and non-exclusive, and in addition to such
other remedies as such Party may otherwise have at law or in equity.
(f) SEVERABLE PROVISIONS. Should any provision of this Agreement, excluding
Sections 6, 7 and 8, be declared illegal or unenforceable by any court of
competent jurisdiction, and cannot be modified to be enforceable, such provision
shall immediately become null and void, leaving the remainder of this Agreement
in full force and effect. However, if any portion of Sections 6, 7 and 8 are
ruled to be unenforceable for any reason, Xxxxxx shall return to the Company all
payments that he has received pursuant to Section 1 of this Agreement.
(g) RIGHT TO ADVICE OF COUNSEL. Xxxxxx understands that he has the right to
have this Agreement reviewed by his lawyer and acknowledges that the Company has
encouraged him to consult with his lawyer so that he is fully aware of his
rights and obligations under this Agreement. Xxxxxx acknowledges that he has
done so.
(h). ENTIRE AGREEMENT. This Agreement sets forth the entire agreement
between the Parties with respect to any and all matters described herein, and
fully supersedes any prior agreements or understandings between the Parties with
respect to any such matters.
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IN WITNESS WHEREOF, the Parties hereto knowingly and voluntarily execute
this Agreement as of the date set forth below:
By: /s/ X. Xxxxxx Xxxxxx Date: April 22, 2005
---------------------------------
X. Xxxxxx Xxxxxx
XXXX RESOURCES CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx Date: April 22, 2005
---------------------------------
Xxxxxx X. Xxxxxxxx
President
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EXHIBIT A
TO
SETTLEMENT AGREEMENT AND GENERAL RELEASE
NORD RESOURCES CORPORATION
WARRANT CERTIFICATE
No. ________ _250,000 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.
VOID AFTER APRIL 22, 2008
WARRANTS FOR THE
PURCHASE OF COMMON STOCK
THIS CERTIFIES THAT, FOR VALUE RECEIVED, X. XXXXXX XXXXXX, an adult individual
residing in the State of New Mexico (the "Holder"), is the owner of Two Hundred
and Fifty Thousand (250,000) warrants (the "Warrants") for the purchase of up to
an aggregate of Two Hundred and Fifty Thousand (250,000) shares of
validly-issued, fully-paid and non-assessable common stock of NORD RESOURCES
CORPORATION, a corporation organized and existing under the laws of the State of
Delaware (the "Corporation"). Such 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 Fifty
Cents ($0.50) per share (as may be adjusted hereunder) for each Warrant
exercised (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. The Warrants represented by this Warrant
Certificate have been issued by the Corporation in connection with a Settlement
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Agreement and General Release, dated April 22, 2005, by and between the
Corporation and the Holder.
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) "Expiration Date" shall mean 5:00 P.M. (Pacific Time) on April 22,
2008. If such date shall be a holiday or a day on which banks are
authorized to be closed in the State of California, 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 California.
(f) "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.
(g) "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.
(h) "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 Fifty Cents ($0.50), subject to
2
adjustment from time to time pursuant to the provisions of Section 5
hereof.
(i) "Registration Provisions" shall have the meaning given to it in
Section 3(c) of this Certificate.
(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
3
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
4
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.
(c) The Warrant Shares into which the Warrants represented by this
Certificate may be exercised are included in certain registrable
securities governed by Section 6 of that certain Subscription
Agreement entered into between the Corporation and the original Holder
of this Certificate (the "Registration Provisions"), which
Registration Provisions are hereby incorporated into this Certificate
in their entirety for the benefit of such Holder and any subsequent
transferee thereof, to the extent such transfer has been made in
accordance with the provisions of this Certificate and then applicable
law. If the Corporation is properly notified of any such transfer,
then it shall deem any references to the original Holder hereof in the
Registration Provisions to mean and include, as applicable, such
transferee.
(d) 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
5
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 Holder. 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).
6
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
7
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
8
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
9
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.
10
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 Holder'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,
11
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 Arizona, 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 Arizona. 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.
12
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: April 22, 2005
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