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EXHIBIT 10.38
NORD RESOURCES CORPORATION
WARRANT CERTIFICATE
(U.S. PURCHASERS)
No. ________
____,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 ______ __, 2008
WARRANTS FOR THE
PURCHASE OF COMMON STOCK
THIS CERTIFIES THAT, FOR VALUE RECEIVED, ____________________, an
adult
individual residing in the State of ________________, is the owner
of
_______________________ (__________) warrants (the "Warrants") for
the purchase
of up to an aggregate of ________________________ (_________)
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. Mountain Time on the Expiration
Date (as
hereinafter defined), upon the presentation and surrender of this
Warrant
Certificate (as hereinafter defined) with a written notice signed
by the Holder
(as hereinafter defined) stating the number of shares of Common
Stock (as
hereinafter defined) with respect to which such exercise is being
made, at the
principal corporate address of the Corporation, accompanied by
payment of US
$0.40 per Warrant Share (as hereinafter defined), as may be
adjusted as provided
for herein, 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.
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SECTION 1
INTERPRETATION
As used herein, the following terms shall have the following
meanings, unless
the context shall otherwise require:
(a)
"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 3048 Seven Dash Road, Dragoon,
Arizona
85609;
(b)
"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);
(c)
"Expiration Date" shall mean 5:00 P.M. (Mountain Time) on _______
__,
2008. If such date shall be 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. (Mountain 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;
(d)
"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;
(e)
"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;
(f)
"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 forty cents ($0.40), subject to adjustment from time to
time
pursuant to the provisions of Section 5 hereof;
(g)
"Securities Act" shall mean the United States 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;
(h)
"Warrants" shall mean the Warrants represented by this Warrant
Certificate;
(i)
"Warrant Certificate" shall mean any certificate representing
Warrants,
and
"this Certificate" shall mean the warrant certificate issued to
the
Holder identified on the first page hereof;
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(j)
"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;
and
(k)
"Warrant Shares" means the restricted common stock of the
Corporation
deliverable upon exercise of a Warrant.
All references to currency herein are to the lawful currency of the
United
States of America.
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, by delivery to the Corporation of a completed Notice
of
Exercise in the form attached as Schedule A hereto. 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; 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
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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. 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 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 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.
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SECTION 5
ADJUSTMENT OF PURCHASE PRICE AND
NUMBER OF WARRANT SHARES OR WARRANTS
(a)
Stock Splits, etc. The number and kind of securities purchasable
upon
the
exercise of this Warrant and the Purchase Price shall be subject
to
adjustment from time to time upon the happening of any of the
following. In
case
the Corporation shall (i) pay a dividend in shares of Common Stock
or
make
a distribution in shares of Common Stock to all holders of its
outstanding Common Stock, (ii) subdivide its outstanding shares of
Common
Stock into a greater number of shares, (iii) combine its
outstanding shares
of
Common Stock into a smaller number of shares of Common Stock, or
(iv)
issue any shares of its capital stock in a reclassification of the
Common
Stock, then the number of Warrant Shares purchasable
