exv10w2a



 







EXHIBIT 10.2a




SECOND AMENDMENT AND WAIVER




TO THE




SECURITIES PURCHASE AGREEMENT




          THIS SECOND AMENDMENT AND WAIVER, dated as of May 5, 2006 (this “Amendment”) to the
Securities Purchase Agreement referred to below is entered into by and among White Mountain
Titanium Corporation, a Nevada corporation (the “Company”), Rubicon Master Fund, a company
organized under the laws of the Cayman Islands (“Rubicon”), and Phelps Dodge Corporation, a
Delaware corporation (“Phelps Dodge”).




          WHEREAS, the Company and Rubicon entered into that certain Securities Purchase Agreement,
dated as of July 7, 2005 (the “Original Securities Purchase Agreement”) pursuant to which
Rubicon purchased Preferred Shares and Warrants from the Company;




          WHEREAS, the parties entered into that certain Amendment, Waiver and Joinder to the Securities
Purchase Agreement (the “First Amendment”) dated as of September 7, 2005, pursuant to which
Rubicon granted a limited waiver of the Company’s compliance with certain terms of the Original
Securities Purchase Agreement and permitted Phelps Dodge to become a Purchaser (as so amended and
waived, the “Securities Purchase Agreement”); and




          WHEREAS, the Company has offered, and Rubicon and Phelps Dodge have accepted an offer, to
resolve certain breaches of the Securities Purchase Agreement by extending certain dates in the
Securities Purchase Agreement and issuing the Common Shares (as defined below) to Rubicon and
Phelps Dodge in accordance herewith, and by eliminating the requirement to file the Canadian
Prospectus.




          NOW THEREFORE, in consideration of the premises and other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereby agree as follows:




          SECTION 1. Definitions. Reference is hereby made to the Securities Purchase Agreement
for a statement of the terms thereof. All terms used in this Amendment which are used but not
otherwise defined herein shall have the same meanings herein as set forth in the Securities
Purchase Agreement.




          SECTION 2. Amendments.




          (a) Amendments to Section 1.1 (Definitions). Section 1.1 of the Securities Purchase
Agreement is amended as follows:




               (i) the definition of Canadian Prospectus is hereby deleted in its entirety;



 









 





               (ii) the definition of Canadian Securities Commissions is hereby deleted in its entirety;



               (iii) the definition of Canadian Securities Laws is hereby deleted in its entirety;



               (iv) the definition of Filing Date is amended to read as follows: “‘Filing Date’ means the
date on which the Registration Statement is first filed with the Commission, but in any event not
later than October 31, 2005.”;



               (v) the definition of MRRS Decision Document is hereby deleted in its entirety;



               (vi) the definition of Preliminary Canadian Prospectus is hereby deleted in its entirety;



               (vii) the following definition is hereby added to the Securities Purchase Agreement: “’Common
Shares’ shall mean the shares of Common Stock issued to Rubicon Master Fund, a company organized
under the laws of the Cayman Islands (“Rubicon”) and Phelps Dodge Corporation, a Delaware
corporation (“Phelps Dodge”), pursuant to that certain Amendment and Waiver to this Agreement,
dated as of May 5, 2006 (the “Second Amendment”), by and among the Company, Rubicon and Phelps
Dodge;



               (viii) the definition of “Securities” is hereby amended to read as follows: “’Securities’
means collectively, the Preferred Shares, the Common Shares, the Conversion Shares, the Warrants
and the Warrant Shares.”;



               (ix) the definition of Trading Market is hereby amended to read as follows: “‘Trading Market’
means any Eligible Market on which the Common Stock is then listed or quoted.”;



               (x) the definition of Transaction Documents is hereby amended to read as follows:
“’Transaction Documents’ means this Agreement, the First Amendment (as defined in the Second
Amendment), the Second Amendment, the Certificate of Designations, the Warrants, the Transfer Agent
Instructions, and any other documents or agreements executed in connection with the transactions
contemplated hereunder.”;



               (xi) the definition of Registrable Securities is hereby amended to read as follows:
“’Registrable Securities’ means any Common Shares, Conversion Shares or Warrant Shares issued or
issuable pursuant to the Transaction Documents, together with any securities issued or issuable
upon any stock split, dividend or other distribution, recapitalization or similar event with
respect to the foregoing”; and



               (xii) the definition of Required Effectiveness Date is hereby amended by replacing the date
“January 31, 2006” in such definition with the following date: “September 30, 2006”.



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          (b) Amendment to Section 3.1(b)(iii). Section 3.1(b)(iii) is hereby amended by adding
the following:




          “The Common Shares are duly authorized and, when issued and paid for in accordance with the
Transaction Documents, shall be free and clear from all Encumbrances with respect to the issue
thereof and shall not be subject to preemptive rights or similar rights of stockholders.”




          (c) Amendment to Section 4.2 (Furnishing of Information). The first sentence of
Section 4.2 of the Securities Purchase Agreement is amended to eliminate the phrase “and applicable
Canadian Securities Laws.”




          (d) Amendments to ARTICLE VI (REGISTRATION RIGHTS). ARTICLE VI of the Securities
Purchase Agreement is amended to eliminate in their entirety the following terms: “Canadian
Prospectus,” “Canadian Securities Commissions,” “Canadian Securities Laws,” and “MRRS Decision
Document.”




          (e) Amendments to Section 6.1 (Shelf Registration). Section 6.1 of the Securities
Purchase Agreement is amended as follows:





	 	(i)	 	Section 6.1(c) is hereby deleted in its entirety;
	 
	 	(ii)	 	Section 6.1(f)(i) is hereby deleted in its
entirety;
	 
	 	(iii)	 	Section 6.1(f)(iii) is hereby deleted in its
entirety;
	 
	 	(iv)	 	Section 6.1(f)(v) is amended to read as
follows: “the Company fails to have the Common stock listed or quoted
on its Trading Market on or prior to September 30, 2006;”
	 
	 	(v)	 	Section 6.1(f)(vi) is amended to read as
follows:
	 
	 	 	 	after the Effective Date, a Purchaser is not permitted to sell
Registrable Securities under the Registration Statement (or a
subsequent Registration Statement filed in replacement thereof) for
any reason (other than the requirement of the Company to file a
Post-Effective Amendment and for such Post-Effective Amendment to be
declared effective); provided, however, that none of the foregoing
shall constitute an “Event” if the delay is caused by any act of war,
terrorism, natural disaster or power failure.





          SECTION 3. Limited Waiver. Rubicon and Phelps Dodge hereby grants a limited waiver of
Section 4.6 solely with respect to the issuance of the Common Shares hereunder.




          SECTION 4. Issuance of Shares. Promptly upon execution of this Amendment by Rubicon
and Phelps Dodge, the Company shall issue and deliver to Rubicon 400,000 shares




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of Common Stock and shall issue and deliver to Phelps Dodge 40,000 shares of Common Stock
(collectively, the “Common Shares”). These shares shall be defined as Registrable Securities in
the Stock Purchase Agreement and, to the extent permitted by the Commission, shall be included in
the current Registration Statement filed on October 31, 2005 in accordance with the terms of the
Securities Purchase Agreement, as amended hereby. Upon issuance, such shares shall be validly
issued, fully paid and non-assessable. Such shares shall be deemed to have been purchased as if
they were bought on the closing date of the Original Securities Purchase Agreement.




          SECTION 5. Effectiveness. This Amendment shall become effective upon the delivery of
the following closing documents to Rubicon and Phelps Dodge:





          (i) a certificate, executed by the Secretary of the Company and dated as of the Closing
Date, as to (i) the resolutions authorizing the transactions contemplated hereby as adopted
by the Company’s Board of Directors in a form reasonably acceptable to Rubicon and Phelps
Dodge, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect at the
Closing




          (ii) certificates for the Common Shares Rubicon and Phelps Dodge is purchasing
hereunder;




          (iii) original duly executed counterparts to this Amendment by the Company, Rubicon,
and Phelps Dodge;




          (iv) a certificate, executed by a duly authorized executive officer of the Company,
dated as of the Closing Date substantially in the form attached as Exhibit E to the
Original Securities Purchase Agreement; and




          (v) a legal opinion of Company Counsel, in form and substance reasonably satisfactory
to Rubicon and Phelps Dodge, executed by such counsel and delivered to Rubicon and Phelps
Dodge.



          SECTION 6. General Provisions.




          (a) The Company hereby confirms that each representation and warranty made by it under the
Securities Purchase Agreement, as amended by this amendment, and the other Transaction Documents is
true and correct as of the date hereof, except to the extent that any such representation or
warranty expressly related solely to an earlier date (in which case such representation or warranty
was true and correct on and as of such earlier date), and that no Event, and no default or any
event that with the passage of time or giving of notice would constitute a default, has occurred or
is continuing under the Securities Purchase Agreement or any other Transaction Document.




          (b) Each of Rubicon and Phelps Dodge hereby confirms, severally and not jointly, that each
representation and warranty made by it under the Securities Purchase Agreement, as amended by this
amendment, and the other Transaction Documents is true and correct as of the date hereof, except to
the extent that any such representation or warranty expressly related solely to an earlier date (in
which case such representation or warranty was true




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and correct on and as of such earlier date), and that no Event, and no default or any event
that with the passage of time or giving of notice would constitute a default, has occurred or is
continuing under the Securities Purchase Agreement or any other Transaction Document.




          (c) Except as supplemented hereby, each of the Securities Purchase Agreement and the other
Transaction Documents shall continue to be, and shall remain, in full force and effect. Except as
provided herein, this Amendment shall not be deemed (i) to be a waiver of, or consent to, or a
modification or amendment of, any other term or condition of the Securities Purchase Agreement or
(ii) to prejudice any right or rights which the Purchaser may now have or may have in the future
under or in connection with the Securities Purchase Agreement or the other Transaction Documents or
any of the instruments or agreements referred to therein, as the same may be amended, restated,
supplemented or otherwise modified from time to time.




          (d) The terms of the Securities Purchase Agreement are incorporated herein by reference and
shall form a part of this Amendment as if set forth herein in their entirety.



[SIGNATURE PAGE FOLLOWS]




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          IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their
respective officers thereunto duly authorized, as of the date first above written.




	 	 	 	 	 	 	 
	 	 	WHITE MOUNTAIN TITANIUM CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ M. P. Kurtanjek	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: M. P. Kurtanjek	 	 
	 

	 	 	 	Title: President and CEO	 	 
	 
	 	 	 	 	 	 
	 	 	RUBICON MASTER FUND	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ H. Joseph Leitch	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: H. Joseph Leitch	 	 
	 

	 	 	 	Title: Partner	 	 
	 

	 	 	 	Rubicon Fund Management LLP,

Investment Manager to
Rubicon Master Fund
	 	 
	 
	 	 	 	 	 	 
	 	 	PHELPS DODGE CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/
Timothy R. Snider 	 	 
	 

	 	 	 	Name: Timothy R. Snider	 	 
	 

	 	 	 	Title: President 	 	 







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