Contract
Exhibit
4.1
THIS
WARRANT AND THE SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
“ACT”), OR UNDER ANY APPLICABLE STATE SECURITIES LAWS. THIS WARRANT
AND THE SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT ARE SUBJECT TO
RESTRICTIONS ON RESALE AND MAY NOT BE RESOLD EXCEPT AS PERMITTED UNDER THE
ACT
AND ANY APPLICABLE STATE SECURITIES LAWS.
UNLESS
PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT
TRADE THE SECURITY BEFORE NOVEMBER 21, 2007.
Warrant
to Purchase 200,000 Common Shares
of
WARRANT
Issue
Date: July 20, 2007
This
certifies that AES Energy Storage, LLC or its permitted transferee (the
“Holder”) is entitled to purchase from ALTAIR NANOTECHNOLOGIES
INC., a corporation continued under the Canada Business Corporations Act (the
“Company”), at the price and during the period as hereinafter
specified, 200,000 shares, (such number of shares, as adjusted as provided
below, the “Shares”) without nominal or par value, of the
Company (the “Common Shares”), at a purchase price of $3.64 per
share, subject to adjustment as described below (as so adjusted from time to
time, the “Exercise Price”), at any time during the period
specified in Section 1(a) hereof.
1. Exercise. The
rights represented by this Warrant (the “Warrant”) shall be
exercisable at the Exercise Price, and during the periods as
follows:
(a) At
any time and from time to time between, the earlier of (i) the date of delivery
of the Pilot Project Storage System by Altairnano, Inc. pursuant to that certain
Joint Product Development and Equipment Purchase Agreement dated as of July
20,
2007, between Holder and Altairnano, Inc., and (ii) December 31, 2007, and
the
four-year anniversary of the Issue Date (the “Expiration Date”)
inclusive, the Holder shall have the right to purchase all or any portion of
the
Shares at the Exercise Price.
(b) After
the Expiration Date, the Holder shall have no right to purchase all or any
portion of the Shares hereunder.
2. Payment
for Shares; Issuance of Certificates; Net Exercise.
(a) The
rights represented by the Warrant may be exercised at any time within the
periods above specified, in whole or in part, by (i) the surrender of the
Warrant (with the purchase form at the end hereof properly executed) at the
principal executive office of the Company (or such other office or agency of
the
Company as it may designate by notice in writing to the Holder at the address
of
the Holder appearing on the books of the Company); (ii) payment to the Company
of the Exercise Price then in effect for the number of Shares specified in
the
above-mentioned purchase form together with applicable stock transfer taxes,
if
any; and (iii) delivery to the Company of a duly executed agreement signed
by
the person(s) designated in the purchase form to the effect that such person(s)
agree(s) to be bound by the provisions of Section 3. The Warrant shall be deemed
to have been exercised, in whole or in part to the extent specified, immediately
prior to the close of business on the date the Warrant is surrendered and
payment is made in accordance with the foregoing provisions of this Section
2,
and the person or persons in whose name or names the certificates for the Shares
shall be issuable upon such exercise shall become the holder or holders of
record of such Shares at that time and date. The Shares and the certificates
for
the Shares so purchased shall be delivered to the Holder within a reasonable
time, not exceeding ten (10) business days, after the rights represented by
this
Warrant shall have been so exercised.
(b) Notwithstanding
anything to the contrary contained in Section 2(a), the Holder may elect to
exercise this Warrant in whole or in part on a “cashless exercise basis” by
receiving Shares equal to the value (as determined below) of this Warrant,
or
any part hereof, upon surrender of the Warrant at the principal office of the
Company together with notice of such election in which event the Company shall
issue to the Holder a number of Shares computed
using the following formula:
X
= Y(A-B)
A
|
Where:
|
X
= the number of Shares to be issued to the
Holder;
|
Y
= the number of Shares issuable upon exercise of this Warrant or, if
only a portion of this Warrant is being exercised, the portion of this Warrant
being exercised (at the date of such calculation);
A
= the
fair market value of one Common Share (at the date of such calculation);
and
B
= the
Exercise Price (as adjusted to the date of such calculation).
For
the
purpose of any computation under this Subsection 2(b), the fair market value
per
Common Share at any date shall be deemed to be the Closing Price (as defined
below) of the Common Shares on the Trading Day immediately preceding the date
as
of which the fair market value is being determined, provided that if
the Common Shares are not then listed or quoted on any market or exchange,
then
the fair market value shall be the average of the closing bid prices for the
Common Shares on the OTC Bulletin Board, or, if such is not available, the
Pink
Sheets LLC, or otherwise the average of the closing bid prices for the Common
Shares quoted by two market-makers of the Common Shares, or otherwise such
fair
market value shall be determined in good faith by the Company and the Holders.
“Trading Day” shall mean any day on which the principal United
States securities exchange or trading market on which the Common Shares are
listed, quoted or traded (the “Principal Market”) as reported
by Bloomberg Financial Markets (“Bloomberg's”) is open for
trading. “Closing Price” shall mean the average of the last
sale prices for the Common Shares on the Principal Market for the ten Trading
Days previous to the date of determination.
2
3. Transfer. (a) Any
transfer of this Warrant shall be effected by the Holder by (i) executing the
transfer form at the end hereof; and (ii) surrendering the Warrant for
cancellation at the office or agency of the Company referred to in Section
2
hereof, accompanied by (y) a certificate (signed by an officer of the Holder,
or
other authorized representative reasonably satisfactory to the Company, if
the
Holder is an entity) stating that each transferee is a permitted transferee
under this Section 3; and, if applicable, (z) an opinion of counsel, reasonably
satisfactory in form and substance to the Company, to the effect that the Shares
or the Warrant, as the case may be, may be sold or otherwise transferred without
registration under the Securities Act of 1933, as amended (the
“Act”). Notwithstanding the foregoing, the Holder
agrees that it shall not sell or transfer all or any part of the Warrant or
the
Shares to a resident of Canada or a person subject to the securities laws of
Canada for a period of at least four (4) months and one day from the date
hereof.
Upon
any
transfer of this Warrant or any part thereof in accordance with the first
sentence of this Section 3(a), the Company shall issue, in the name or names
specified by the Holder (including the Holder), a new Warrant or Warrants of
like tenor (including all substantive provisions hereof) and representing in
the
aggregate rights to purchase the same number of Shares as are purchasable
hereunder at such time.
(b) Any
attempted transfer of this Warrant or any part thereof in violation of this
Section 3 shall be null and void ab initio.
(c) This
Warrant may not be exercised and neither this Warrant nor any of the Shares,
nor
any interest in either, may be offered, sold, assigned, pledged, hypothecated,
encumbered or in any other manner transferred or disposed of, in whole or in
part, except in compliance with applicable United States federal and state
securities laws and applicable Canadian securities laws and the terms and
conditions hereof. Each Warrant shall bear a legend in substantially
the same form as the legend set forth on the first page of this
Warrant. Each certificate for Shares issued upon exercise of this
Warrant, unless at the time of exercise such Shares are acquired pursuant to
a
registration statement that has been declared effective under the Act and
applicable blue sky laws, shall bear a legend substantially in the following
form:
“THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND
HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE “ACT”). SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN
THE ABSENCE OF REGISTRATION OR AN EXEMPTION THEREFROM. ALTAIR
NANOTECHNOLOGIES INC. MAY REQUIRE AN OPINION OF COUNSEL REASONABLY ACCEPTABLE
TO
IT THAT A PROPOSED TRANSFER OR SALE IS IN COMPLIANCE WITH THE ACT.”
3
Additionally,
similar legends pursuant to Canadian law, as applicable, shall be set forth
on
any such Shares or Warrant, as reasonably determined by the Company’s Canadian
counsel, including the following:
"UNLESS
PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT
TRADE THE SECURITY BEFORE [insert date that is four (4) months and one day
after
issue date]."
Any
certificate for any Shares issued at any time in exchange or substitution for
any certificate for any Shares bearing such legend (except a new certificate
for
any Shares issued after the acquisition of such Shares pursuant to a
registration statement that has been declared effective under the Act) shall
also bear such legend unless, in the opinion of counsel for the Company, the
Shares represented thereby need no longer be subject to the restriction
contained herein. The provisions of this Section 3(c) shall be
binding upon all subsequent holders of certificates for Shares bearing the
above
legend and all subsequent holders of this Warrant, if any.
4. Shares
to be Fully Paid; Reservation of Shares. The Company
covenants and agrees that all Shares which may be purchased hereunder will,
upon
issuance and delivery against payment therefor of the requisite purchase price,
be duly and validly issued, fully paid and non-assessable. The Company further
covenants and agrees that, during the periods within which the Warrant may
be
exercised, the Company will at all times have authorized and reserved a
sufficient number of Common Shares to provide for the exercise of the
Warrant.
5. No
Voting or Dividend Rights. The Warrant shall not
entitle the Holder to any voting rights or any other rights, including without
limitation notice of meetings of other actions or receipt of dividends or other
distributions, as a stockholder of the Company.
6. Adjustment
of Exercise Price. The Exercise Price in effect at
the time and the number and kind of securities purchasable upon the exercise
of
this Warrant shall be subject to adjustment from time to time upon the happening
of certain events as follows:
(a) In
case the Company shall (i) declare a dividend or make a distribution on its
outstanding Common Shares in Common Shares or any other security, (ii) subdivide
or reclassify its outstanding Common Shares into a greater number of shares,
(iii) combine or reclassify its outstanding Common Shares into a smaller number
of shares, or (iv) enter into any transaction whereby the outstanding Common
Shares are at any time changed into or exchanged for a different number or
kind
of shares or other securities of the Company or of another corporation through
reorganization, merger, consolidation, liquidation or recapitalization, then
appropriate adjustments in the number of Shares (or other securities for which
such Shares have previously been exchanged or converted) subject to this Warrant
shall be made and the Exercise Price in effect at the time of the record date
for such dividend or distribution or of the effective date of such subdivision,
combination, reclassification, reorganization, merger, consolidation,
liquidation or recapitalization shall be proportionately adjusted so that the
Holder of this Warrant exercised after such date shall be entitled to receive
the aggregate number and kind of shares or other securities which, if this
Warrant had been exercised by such Holder immediately prior to such date, the
Holder would have been entitled to receive upon such dividend, distribution,
subdivision, combination, reclassification, reorganization, merger,
consolidation, liquidation or recapitalization. For example, if the Company
declares a 2 for 1 stock subdivision (split) and the Exercise Price hereof
immediately prior to such event was $7.00 per Share and the number of Shares
issuable upon exercise of this Warrant was 85,500, the adjusted Exercise Price
immediately after such event would be $3.50 per Share and the adjusted number
of
Shares issuable upon exercise of this Warrant would be 171,000. Such adjustment
shall be made successively whenever any event listed above shall
occur.
4
(b) Whenever
the Exercise Price is adjusted, as herein provided, the Company shall promptly
cause a notice setting forth the adjusted Exercise Price and adjusted number
of
Shares issuable upon exercise of the Warrant to be mailed to the Holder, at
its
address set forth herein, and shall cause a certified copy thereof to be mailed
to the Company's transfer agent, if any. The Company may retain a firm of
independent certified public accountants selected by the Board of Directors
(who
may be the regular accountants employed by the Company) to make any computation
required by this Section 6, and a certificate signed by such firm shall be
conclusive evidence of the correctness of such adjustment.
(c) In
the event that at any time, as a result of an adjustment made pursuant to the
provisions of this Section 6, the Holder thereafter shall become entitled to
receive any shares of the Company other than Common Shares, thereafter the
number of such other shares so receivable upon exercise of the Warrant shall
be
subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the Common Shares
contained in Section 6(a) above.
(d) The
Company shall provide the Holder with prior written actual notice (receipt
confirmed) of any event described in Section 6(a) at least ten (10) days prior
to the record date with respect to such event. In addition, the
Company shall deliver to the Holder copies of any and all information it is
required to deliver to its shareholders with respect to such event at the same
time such information is delivered to shareholders.
7. Governing
Law. This Agreement shall be governed by and in
accordance with the laws of the State of New York without regard to conflicts
of
laws principles thereof.
8. Binding
Effect on Successors. In case of any consolidation of
the Company with, or merger of the Company into, any other entity, or in case
of
any sale or conveyance of all or substantially all of the assets of the Company
other than in connection with a plan of complete liquidation of the Company
at
any time prior to the Expiration Date, then as a condition of such
consolidation, merger or sale or conveyance, the Company shall give written
notice of consolidation, merger, sale or conveyance to the Holder and, from
and
after the effective date of such consolidation, merger, sale or conveyance
the
Warrant shall represent only the right to receive the consideration that would
have been issuable in respect of the Shares underlying the Warrant in such
consolidation, merger, sale or conveyance had the Warrant been exercised in
full
immediately prior to such effective time and the Holder shall have no further
rights under this Warrant other than the right to receive such
consideration.
5
9. Fractional
Shares. No fractional shares shall be issued upon
exercise of this Warrant. The Company shall, in lieu of issuing any
fractional share, pay the holder entitled to such fraction a sum in cash equal
to such fraction multiplied by the then effective Exercise Price.
10. Lost
Warrants. The Company represents and warrants to
the Holder hereof that upon receipt of evidence reasonably satisfactory to
the
Company of the loss, theft, destruction, or mutilation of this Warrant and,
in
the case of any such loss, theft or destruction, upon receipt of an affidavit
of
loss and indemnity reasonably satisfactory to the Company, or in the case of
any
such mutilation upon surrender and cancellation of such Warrant, the Company,
at
its expense, will make and deliver a new Warrant, of like tenor, in lieu of
the
lost, stolen, destroyed or mutilated Warrant.
11. Headings. The
headings of the several sections and paragraphs of this Warrant are inserted
for
convenience only and do not constitute a part of this Warrant.
12. Modification
and Waiver. This Warrant and any provision hereof
may be changed, waived, discharged or terminated only by an instrument in
writing signed by the party against which enforcement of the same is
sought.
13. Survival.
The rights and obligations of the Company, of the Holder and of the holder
of
Shares issued upon exercise of this Warrant shall survive the exercise of this
Warrant.
14. Remedies. The
Company stipulates that the remedies at law of the Holder in the event of any
default or threatened default by the Company in the performance of or compliance
with any of the terms of this Warrant are not and will not be adequate and
that,
to the fullest extent permitted by law, such terms may be specifically enforced
by a decree for the specific performance of any agreement contained herein
or by
an injunction against a violation of any of the terms hereof or
otherwise.
15. Reservation
of Shares. The Company covenants and agrees that all
Shares which may be purchased hereunder will, upon issuance and delivery against
payment therefor of the requisite purchase price, be duly and validly issued,
fully paid and non-assessable. The Company further covenants and agrees that,
during the periods within which the Warrant may be exercised, the Company will
at all times have authorized and reserved a sufficient number of Common Shares
to provide for the exercise of the Warrant.
16. Will
Secure Governmental Approvals. If any of the Shares
required to be reserved for the purposes of exercise of this Warrant require
registration with or approval of any governmental authority under any law of
the
United States or its constituent states (other than the Securities Act) before
such Shares may be issued upon exercise of this Warrant (other than as a result
of a breach by AES of its representations and warranties to the Company or
an
assignment of this Warrant by AES), the Company will, at its expense, as
expeditiously as possible use its commercially reasonable efforts to cause
such
Shares to be duly registered or approved, as the case may be.
6
17. No
Obligations as Shareholder. No provision hereof, in the
absence of affirmative action by the Holder hereof to purchase Shares, and
no
mere enumeration herein of the rights or privileges of the Holder hereof, shall
give rise to any liability of such Holder for the Exercise Price or as a
shareholder of the Company, whether such liability is asserted by the Company
or
by creditors of the Company.
18. Taxes
Payable Upon Exercise. The Company shall pay any stock
issuance, transfer or similar taxes that may be payable in respect of the
issuance of Shares upon exercise of this Warrant. For purposes of
clarity, the Company shall not be required to pay any federal, state, local
or
foreign income taxes, if any, payable by the Holder or any other person upon
exercise of this Warrant, or any taxes which may be payable in respect of any
transfer involved in the issuance of Shares in the name other than that in
which
this Warrant is registered, and the Company shall not be required to issue
or
deliver any such Shares unless and until the person requesting such issuance
shall have paid to the Company the amount of any such transfer taxes, or shall
have established to the satisfaction of the Company that such taxes have been
paid.
19. Notice
to Cash or Similar Dividend. The Company shall provide
the Holder with written actual notice (receipt confirmed) of any dividend or
other distribution of assets (other than a distribution described in Section
6(a)) at least ten (10) days prior to the record date for such dividend or
other
distribution.
20.
Notices. All notices or other
communications which are required or permitted hereunder shall be in writing
and
shall be deemed sufficiently given if delivered personally (as confirmed by
signature of receiving party) or sent by nationally recognized overnight courier
postage prepaid (as confirmed by signature of receiving party) to the address
set forth below or to such other address as any party may have specified in
a
notice duly given to the other party as provided herein. Such notice of
communication shall be deemed to have been given as of the date
received.
If
to
Altairnano:
Altairnano,
Inc.
000
Xxxxxx Xxx
Xxxx,
Xxxxxx 00000
Attn: Xxxx
Xxxxxxx, CEO and President
If
to
AES:
AES
Energy Storage, LLC
c/o
The
AES Corporation
0000
Xxxxxx Xxxxxxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxx Xxxxxxx
With
a
copy to:
AES
Energy Storage, LLC
c/o
The
AES Corporation
0000
Xxxxxx Xxxxxxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Attention:
General Counsel
7
IN
WITNESS WHEREOF, the Company has
caused this Warrant to be signed by its duly authorized officers.
By:
/s/ Xxxx Xxxxxxx
Name:
Xxxx Xxxxxxx
Title:
President and CEO
8
PURCHASE
FORM
(To
be
signed only upon exercise of Warrant)
The
undersigned, the holder of the foregoing Warrant, hereby irrevocably elects
to
exercise the purchase rights represented by such Warrant for, and to purchase
thereunder, _______________ Common Shares, without nominal or par value per
share (the “Shares”), of ALTAIR NANOTECHNOLOGIES INC. and
either tenders herewith payment of the aggregate Exercise Price in respect
of
the Shares in full, in the amount of $_________; or elects pursuant to Section
2(b) of such Warrant into Common Shares on a cashless basis and requests that
the certificates for the Shares be issued in the name(s) of, and delivered
to
_________________, whose address(es) is (are):
Dated: __________________________
By:
___________________________
___________________________
___________________________
Address
TRANSFER
FORM
(To
be
signed only upon transfer of Warrant)
For
value
received, the undersigned hereby sells, assigns, and transfers unto
______________________________ the right to purchase Shares represented by
the
foregoing Warrant to the extent of __________ Shares, and appoints
_________________________ attorney to transfer such rights on the books of
Altair Nanotechnologies Inc., with full power of substitution in the
premises.
Dated: ____________________________
By:
_____________________________
_____________________________
_____________________________
Address
In
the
presence of:
___________________________
