FORM OF NORD VOTING
AGREEMENT
THIS
VOTING AGREEMENT (this “Agreement”) is made and entered
into as of October 23, 2006, by and among (i) Platinum Diversified
Mining USA, Inc., a Delaware corporation (together with its
successors and permitted assigns, “PDM USA”), (ii) NORD
Resources Corporation, a Delaware corporation (together with its
successors, “NORD”), and (iii) the undersigned
stockholders of NORD (each, solely in its capacity as such a
stockholder, a “Stockholder”).
R E C I T A L S
WHEREAS,
Platinum Diversified Mining, Inc., a Cayman Islands corporation
(“PDM”), PDM USA, its wholly-owned subsidiary, PDM
Merger Corp., a Delaware corporation (together with its successors,
“Merger Sub”), NORD are as of the date hereof making
and entering into that certain Agreement and Plan of Merger made
and entered into as of October 23, 2006 (as amended, modified or
supplemented from time to time, the “Merger
Agreement”);
WHEREAS,
the Merger Agreement provides for the merger of Merger Sub with and
into NORD, with NORD as the surviving company and a wholly-owned
subsidiary of PDM USA (the “Merger”);
WHEREAS,
each Stockholder is the beneficial owner of such number of shares
of capital stock of NORD as is indicated on such
Stockholder’s signature page to this Agreement;
WHEREAS,
approval of the Merger and the other agreements expressly
contemplated by the Merger Agreement (the “Related
Agreements”) by the stockholders of NORD are conditions
precedent to the obligation of PDM, PDM USA and NORD to consummate
the Merger and the execute and deliver the Related
Agreements;
WHEREAS,
the execution and delivery of this Agreement by the Stockholders is
a condition precedent to the execution and delivery by PDM and PDM
USA of the Merger Agreement and constitutes a material inducement
for PDM and PDM USA therefor; and
WHEREAS,
in consideration of and as a condition to the execution of the
Merger Agreement by PDM and PDM USA, each Stockholder (solely in
its capacity as such) agrees to vote the Shares and New Shares (as
such term is defined below) of NORD over which such Stockholder has
voting power so as to facilitate consummation of the transactions
contemplated by the Merger Agreement and the Related
Agreements.
A G R E E M E N T
NOW,
THEREFORE, in consideration of the premises, the mutual covenants
and agreements herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby
expressly acknowledged, the parties hereto, intending to be legally
bound, agree as follows:
1.
Certain Definitions . Capitalized terms not defined herein
shall have the meanings ascribed to them in the Merger Agreement.
For purposes of this Agreement:
(a)
“Expiration Date” means the earliest to occur of (i)
such date and time as the Merger Agreement shall have been
terminated pursuant to Article VII thereof, (ii) the Effective
Time, and (iii) the written agreement of the parties
hereto.
(b) “Merger
Votes” means votes on each of the following:
(1) in
favor of approval and adoption of the Merger, the Merger Agreement
(including any amendment thereto approved by the Board of Directors
of NORD), the Related Agreements and any matter that could
reasonably be expected to facilitate the Merger;
(2) against
any proposal or action that could reasonably be expected to delay,
impede or interfere with the approval of the Merger, including (i)
any merger, consolidation, sale of assets, reorganization or
recapitalization of NORD with any party other than PDM USA and
Merger Sub and their affiliates, and (ii) any liquidation or
winding up of NORD, in each case except as provided in the Merger
Agreement; and
(3) against
any action or agreement that could reasonably be expected to result
in a breach of any covenant, representation or warranty or any
other obligation of NORD under the Merger Agreement or any Related
Agreement to which NORD is a party or signatory.
(c) “New
Shares” means, with respect to any Stockholder, all shares of
capital stock of NORD that such Stockholder purchases or with
respect to which such Stockholder otherwise acquires beneficial
ownership after the date hereof, including (i) any shares acquired
by gift or succession or means of dividend or distribution, and
(ii) any shares issued or issuable upon the conversion, exercise or
exchange, as the case may be, of any securities which are
convertible into, or exercisable or exchangeable for, shares of
capital stock of NORD.
(d) “Shares”
means, with respect to any Stockholder, all shares of capital stock
of NORD beneficially owned by such Stockholder as of the date of
this Agreement.
2.
Restrictions on Transfer of Shares .
(a)
Restrictions on Transfer of Shares . Except as otherwise
contemplated by the Merger Agreement, each Stockholder agrees not
to cause or permit, or to attempt to effect, directly or
indirectly, any transfer of or Encumbrance on its Shares or New
Shares, and any such purported transfer or Encumbrance shall be
null and void ab initio .
(b)
Transfer of Voting Rights . Except as otherwise contemplated
by the Merger Agreement or the Related Agreements, each Stockholder
agrees not to (i) deposit (or permit the deposit of) any Shares or
New Shares in a voting trust, or (ii) grant any proxy or power of
attorney or enter into any voting agreement or similar agreement or
authorization in contravention of its obligations under this
Agreement with respect to any Shares or New Shares.
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(c)
No Conflicts . Each Stockholder shall not take any other
action that would in any way restrict, limit or interfere or
conflict with the performance of its obligations under this
Agreement.
3.
Agreement to Vote Shares . At every meeting of the
stockholders of NORD, however called, and at every adjournment or
postponement thereof, and for every action or approval by consent
of the stockholders of NORD, in each case related or potentially
related to the Merger Votes, each Stockholder (solely in its
capacity as such) shall (A) sign and deliver such consent to PDM
USA if consistent with the Merger Votes, (B) not sign such consent
if inconsistent with the Merger Votes, (C) appear at such meeting
or otherwise cause its Shares to be counted as present thereat for
purposes of establishing a quorum, and (D) vote, or cause to be
voted, its Shares and, if applicable, its New Shares, strictly in
accordance with the Merger Votes.
4.
Irrevocable and Exclusive Proxy . Concurrently with the
execution and delivery of this Agreement, each Stockholder agrees
to deliver to PDM USA a duly executed Irrevocable Proxy and Power
Of Attorney substantially in the form attached hereto as Exhibit
A (the “Proxy”), which shall be irrevocable during
the term of this Agreement to the fullest extent permissible by
law, with respect to the Shares and the New Shares. Each
Stockholder expressly acknowledges that the Proxy is coupled with
an interest. Each Stockholder hereby revokes any and all prior
proxies, powers of attorney or similar authorizations in respect of
any Shares to the extent related to the Merger Votes.
5.
Representations and Warranties of Stockholder . Each
Stockholder hereby represents and warrants to PDM and PDM USA as
follows:
(a)
Title to Securities . Such Stockholder is the beneficial
owner and, to the extent indicated, record holder of the shares of
capital stock of NORD and the options, warrants, convertible notes
and other convertible securities of NORD indicated on the signature
page hereof, free and clear of any Encumbrance that, in each case,
would deprive PDM and PDM USA of the benefits of this Agreement.
Such Stockholder has identified on the signature page of this
Agreement any nominee or agent or other Person in whose name any
Shares beneficially owned by such Stockholder are held, and contact
information relating to such Person.
(b)
No Other Securities . Such Stockholder does not beneficially
own any securities of NORD other than the shares of capital stock
of NORD and the options, warrants, convertible notes and other
convertible securities of NORD indicated on the signature page
hereof.
(c)
Authorization . Such Stockholder has the full power and
authority (if an Entity), or the full legal capacity (if an
individual), to make, enter into and carry out the terms of this
Agreement and the Proxy. This Agreement and the Proxy have been
duly executed and delivered by such Stockholder and constitute its
legal, valid and binding obligations, enforceable against it in
accordance with their respective terms.
(d)
No Conflicts or Consents . The execution and delivery of
this Agreement and the Proxy by such Stockholder do not, and the
performance of this Agreement and the Proxy by such Stockholder
will not, (i) conflict with or violate any law or order applicable
to such
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Stockholder
or to which it or any of its properties is or may be subject or
affected, or (ii) result in or constitute a breach of, or result
(with or without notice or lapse of time) in the creation of any
Encumbrance on any of the Shares or New Shares pursuant to, any
contract to which such Stockholder is a party or by which such
Stockholder or any of its affiliates or property is or may be bound
or affected. The execution and delivery of this Agreement and the
Proxy by such Stockholder do not, and the performance of this
Agreement and the Proxy by such Stockholder will not, require any
consent of any Person.
6.
Covenants of Parent .
(a)
No Registration of Transfers . NORD shall not register the
transfer of any Shares or New Shares, or any convertible securities
of NORD, of any Stockholder on the stock record books, records or
ledgers of NORD at any time prior to the Expiration Date. NORD
shall issue stop-transfer instructions to each transfer agent (if
any) for any class or series of its capital stock, instructing each
such transfer agent not to register any transfer of any such Shares
or New Shares during the term hereof except in compliance with the
terms of this Agreement.
(b)
Filing of Proxies . NORD shall promptly file each Proxy with
the corporate secretary of NORD.
(c)
Notice of Conflict . NORD shall notify PDM USA as soon as
practicable, but in any event within one business day, if it
receives (i) any proxy, power of attorney or similar authorization
or any revocation which purports to revoke or otherwise conflicts
with any Proxy, or (ii) any request or notice of transfer of any
Shares or New Shares of any Stockholder.
7.
New Shares . NORD and each Stockholder agree that New Shares
shall be subject to the terms and conditions of this Agreement to
the same extent as if they constituted Shares. Each Stockholder
shall promptly, and in any event within two business days, notify
PDM USA of the number of New Shares it acquires from time to
time.
8.
Permitted Activities . Nothing in this Agreement shall be
construed to (i) require any Stockholder to exercise any option,
warrant or other Security to acquire shares of capital stock of
NORD, or (ii) prohibit any Stockholder from engaging in a net
exercise of any option, warrant or other security to acquire shares
of capital stock of NORD in accordance with the terms
thereof.
9.
Further Assurances . From time to time, at PDM USA’s
request and without consideration, each Stockholder and NORD shall
execute and deliver such additional documents and take all such
further action as may be necessary or desirable to consummate and
make effective, in the most expeditious manner practicable, the
transactions and appointments contemplated by this Agreement.
Without limiting the generality of the foregoing, each Stockholder
(solely in its capacity as such) shall execute and deliver any
a
