THIRD AMENDMENT
to the “Terms of Agreement,
Option to Purchase the ‘Coyote Springs’ Property,
Graham County, Arizona”
This document is the third
amendment (the “ Amendment ”) to the
“Terms of Agreement, Option to Purchase the ‘Coyote
Springs’ Property, Graham County, Arizona” dated
January 28, 2004, as amended, (the “ Property
Agreement ”) between NORD RESOURCES CORPORATION
(“ Nord ”) and THORNWELL ROGERS ,
SOUTH BRANCH RESOURCES LLC and MRPGEO, LLC
(collectively the Vendors ”).
WHEREAS:
A
.
Section 2 of the Property Agreement provides for certain payments
by Nord to each of the Vendors in cash or shares of common stock of
Nord (the “ Nord Shares ”) and further provides
for the issuance by Nord to each of the Vendors of options to
purchase shares of common stock of Nord (the “ Nord
Options ”), at the times and in the amounts set forth in
the Property Agreement; and
B.
The parties hereto wish to set forth their agreement as to how
those payment obligations will be met in the event that Nord merges
with or into another person, entity or corporation (a “
Merger ”);
NOW, THEREFORE, in consideration
of the payment by Nord to the Vendors of the sum of Ten Dollars
(US$10.00), the receipt and sufficiency of which is hereby
acknowledged by the Vendors, and in consideration of premises, and
of the representations and warranties, covenants and agreements
contained herein, the parties agree as follows:
1.
The following terms will have the following meanings in this
Amendment Agreement:
“ Conversion Ratio
” means the ratio determined as follows: (i) the per share
consideration received by the stockholders of Nord determined in
accordance with a Merger Agreement, divided by (ii) the average of
the closing price per share of the Substitute Shares on the primary
trading market for such shares for the five trading days
immediately preceding the date the Merger Agreement is
signed;
“ Merger Agreement
” means a definitive agreement setting forth the terms and
conditions of a Merger;
“ Related Entity
” means any parent, ultimate parent, or subsidiary of the
Successor and includes any business, corporation, partnership,
limited liability company or other entity in which the Successor
holds a greater than fifty percent ownership interest, directly or
indirectly;
“ Substitute Options
” means options to purchase Substitute Shares at the exercise
price calculated in accordance with Section 4 of this
Amendment;
“ Substitute Shares
” means shares of common stock in the Successor or a Related
Entity; provided that if the shares of common stock in any of the
Successor or a Related Entity are
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publicly traded or quoted, the
Substitute Shares shall be the publicly traded or quoted shares in
such entity; and
“
Successor
