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Note Amendment Agreement
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This Note Amendment Agreement (the "Agreement") is made and entered
into this 21st day of November 2002, by and among Altair Nanotechnologies Inc.,
a Canadian corporation ("Altair"), Mineral Recovery Systems, Inc., a Nevada
corporation ("Mineral Recovery Systems"), Fine Gold Recovery Systems, Inc., a
Nevada corporation ("Fine Gold"), Altair Nanomaterials Inc. ("Nanomaterials";
collectively with Altair, Mineral Recovery Systems and Fine Gold, the "Altair
Parties"), and Doral 18, LLC, a Cayman Islands limited liability company
("Lender"). (Each of the Altair Parties and Lender are sometimes individually
referred to as "Party" and collectively referred to as the "Parties").
Recitals:
WHEREAS, the Altair Parties and Lender entered into Note Termination
and Issuance Agreement dated December 28, 2001 (the "Termination Agreement"),
pursuant to which the Altair Parties issued to Lender a $2,000,000 Secured Term
Note dated December 28, 2001 (as amended, the "Note"); and
WHEREAS, Lender and the Altair Parties desire to amend the Note and
cause the Termination Agreement and other associated agreements to be amended,
terminated, superseded or ratified, all as set forth herein;
Agreement:
NOW THEREFORE, to that end and in consideration of the premises,
covenants and agreements contained herein, and the mutual benefits to be derived
from this Agreement, the Parties agree as follows:
1. General Transaction.
A. Prepayment and Amendment of Note. At Closing, Altair shall
issue to Lender 1,500,000 common shares of Altair (the "Payment Shares") in
exchange for a reduction of the principal amount outstanding under the Note from
$2,000,000 to $1,400,000. The Note, as partially prepaid and amended by this
Agreement, shall be represented by an Amended and Restated Secured Term Note in
the form attached hereto as Exhibit A (the "Amended Note"). At Closing, the
Altair Parties shall execute and deliver to Lender the Amended Note. Upon
execution and delivery of the Amended Note by the Altair Parties to Lender, the
Note shall, immediately and automatically, be deemed to have been superseded and
terminated by the Amended Note. At Closing, Lender shall deliver to the Altair
Parties the original Note marked "Cancelled," provided that Lender's failure to
deliver such cancelled Note shall not affect or negate the superseding and
termination of the Note as set forth in the preceding sentence. Lender waives
any and all prepayment penalties and premiums that, but for this waiver, may
arise as a result of the prepayments and amendments of the Note contemplated by
this Agreement.
B. Amendment of Note and Pledge Agreements; Issuance of
Warrants. At Closing, Altair shall execute and deliver to Lender a Warrant for
750,000 common shares of Altair in the form, and with the terms and provisions,
attached hereto as Exhibit B (the "Warrant") in exchange for Lender's amending
the Note in order to extend the Maturity Date (as defined in the Note) to March
31, 2004 and to eliminate certain restrictive and other covenants, all as set
forth in the Amended Note. In order to effect the foregoing, Lender shall
execute and deliver counterparts to the Amended Note at Closing.
C. Registration Rights Agreement. At Closing, each of Altair
and Lender shall execute and deliver to the other a Registration Rights
Agreement in the form attached hereto as Exhibit C (the "New Registration Rights
Agreement"). Upon the mutual execution of the New Registration Rights Agreement,
the Registration Rights Agreement dated December 28, 2001 (the "Existing
Registration Rights Agreement"), between Altair and Lender, as amended, shall
immediately and automatically terminate and Altair shall have no further
obligation thereunder.
2. Closing. The Parties agree to close the transaction described
in Section 1 of this Agreement (the "Closing") on the date first set forth above
or, if all Parties agree to a later Closing or a later date for Closing is set
pursuant to Section 6(C), such date as is agreed to by all of the Parties or as
is set pursuant to Section 6(C) (the "Closing Date"). The Closing shall take
place at the offices of the manager of Lender at 000 Xxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxx Xxxx, Xxxxxxxx 00000 at 10:00 a.m., Central Time, on the Closing Date
and shall be effective as of 12:01 a.m. on the Closing Date.
3. Representations and Warranties of the Altair Parties. In order
to induce Lender to enter into this Agreement, Altair represents and warrants to
Lender as follows:
A. Organization and Qualification. Each of the Altair Parties
are corporations duly organized and validly existing in good standing under the
laws of the jurisdiction in which they are incorporated, and have the requisite
corporate power and authorization to own their properties and to carry on their
business as now being conducted. Each of the Altair Parties are duly qualified
as a foreign corporation to do business and is in good standing in every
jurisdiction in which its ownership of property or the nature of the business
conducted by it makes such qualification necessary, except to the extent that
the failure to be so qualified or be in good standing would not have a Material
Adverse Effect. As used in this Agreement, "Material Adverse Effect" means any
material adverse effect on the business, properties, assets, operations, results
or operations, financial condition or prospects of any of the Altair Parties,
taken as a whole, or on the transactions contemplated hereby or by the
agreements and instruments to be entered into in connection herewith, or on the
authority or ability of the Altair Parties to perform their respective
obligations under the Transaction Documents (as defined below).
B. Authorization; Enforcement; Validity. (i) To the extent a
party to such agreements, each of the Altair Parties has the requisite corporate
power and authority to enter into and perform this Agreement, the Amended Note,
the Warrant, the New Registration Rights Agreement and each of the other
agreements entered into by the Altair Parties in connection with the
transactions contemplated by this Agreement (collectively, the "Transaction
Documents"), and Altair has the requisite corporate power and authority to issue
the Payment Shares, the common shares of Altair issuable upon conversion of the
Note (the "Note Shares"), and the common shares of Altair issuable upon the
exercise of the Warrant (the "Warrant Shares"); (ii) the execution and delivery
of the Transaction Documents by each of the Altair Parties to the extent a party
to such agreement and the consummation of the transactions contemplated hereby
and thereby have been duly authorized by Board of Directors of each of the
Altair Parties and no further consent or authorization is required by the Altair
Parties or their respective Boards of Directors or stockholders; (iii) the
Transaction Documents have been duly executed and delivered by each of the
Altair Parties; and (iv) the Transaction Documents constitute the valid and
binding obligations of the Altair Parties to extent they are a party to such
agreement enforceable against them in accordance with their terms, except as
such enforceability may be limited by general principles of equity or applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws
relating to, or affecting generally, the enforcement of creditors' rights and
remedies. Upon issuance, the Amended Note, the Payment Shares and the Warrant
will be validly issued, fully paid and non-assessable and free from all taxes,
liens and charges with respect to the issue thereof arising by, through or under
any Altair Party. Upon exercise of the Warrant in accordance with its terms, the
Warrant Shares will be, validly issued, fully paid and non-assessable and free
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from all taxes, liens and charges with respect to the issue thereof arising by,
through or under any Altair Party, and upon the exercise of conversion rights
accruing under the Note in accordance with their terms, the Note Shares will be,
validly issued, fully paid and non-assessable and free from all taxes, liens and
charges with respect to the issue thereof arising by, through or under any
Altair Party.
C. Capitalization. As of the date hereof, the authorized
capital stock of Altair consists of an unlimited number of common shares, of
which as of the date hereof, 26,892,106 shares are issued and outstanding,
5,586,559 shares are reserved for issuance pursuant to Altair's stock option and
purchase plans and 7,300,900 shares are reserved for issuance upon exercise of
outstanding warrants to purchase common shares. All of such outstanding shares
have been, or upon issuance will be, validly issued and are fully paid and
nonassessable.
D. Conflicts. The execution, delivery and performance of the
Transaction Documents by Altair and the consummation by the Altair Parties of
the transactions contemplated hereby and thereby (including, without limitation,
the reservation for issuance and issuance of the shares issuable hereunder) will
not (i) result in a violation of the Certificate of Incorporation or the By-laws
of any of the Altair Parties or (ii) conflict with, or constitute a default (or
an event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation of, any material agreement, indenture or instrument to which any of
the Altair Parties are a Party, or result in a violation of any law, rule,
regulation, order, judgment or decree (including federal and state securities
laws and regulations) applicable to any of the Altair Parties or by which any
property or asset of any of the Altair Parties are bound or affected.
E. Absence of Litigation. There is no action, suit,
proceeding, inquiry or investigation before or by any court, public board,
government agency, self-regulatory organization or body pending or, to the
knowledge of any of the Altair Parties, threatened against or affecting any of
the Altair Parties, the common shares or any of the officers or directors of any
of the Altair Parties in their capacities as such.
4. Representations and Warranties of Lender. Lender hereby
represents and warrants to the Altair Parties that:
A. Organization and Qualification. Lender is limited liability
company duly organized and validly existing in good standing under the laws of
the jurisdiction in which it is organized, and has the requisite company power
and authorization to own its properties and to carry on its business as now
being conducted. Lender is duly qualified as a foreign company to do business
and is in good standing in every jurisdiction in which its ownership of property
or the nature of the business conducted by it makes such qualification
necessary, except to the extent that the failure to be so qualified or be in
good standing would not have a Material Adverse Effect.
B. Authorization; Enforcement; Validity. (i) Lender has the
requisite company power and authority to enter into and perform each of the
Transaction Documents to which it is a Party in accordance with the terms hereof
and thereof; (ii) the execution and delivery of the Transaction Documents to
which Lender is a Party by Lender and the consummation by it of the transactions
contemplated hereby and thereby have been duly authorized and no further consent
or authorization is required by Lender, any manager of Lender or any member of
Lender; (iii) the Transaction Documents to which Lender is a Party have been
duly executed and delivered by Lender; and (iv) the Transaction Documents to
which Lender is a Party constitute the valid and binding obligation of Lender
enforceable against Lender in accordance with their terms, except as such
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enforceability may be limited by general principles of equity or applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws
relating to, or affecting generally, the enforcement of creditors' rights and
remedies.
C. Absence of Litigation. There is no action, suit,
proceeding, inquiry or investigation before or by any court, public board,
government agency, self-regulatory organization or body pending or, to the
knowledge of Lender, threatened against or affecting Lender or any of Lender's
managers or members in their capacities as such.
D. Investment Representations.
(i) Investment Purpose. Lender is acquiring the
Amended Note, the Purchase Shares,
the Warrant, the Note Shares and the Warrant Shares (collectively, the
"Securities") as principal, for its own account for investment only and not with
a view towards, or for resale in connection with, the public sale or
distribution thereof, except pursuant to sales registered or exempted under the
1933 Act.
(ii) Investor Status. Lender is an "accredited investor" as
that term is defined in Rule 501(a) of Regulation D promulgated under the 1933
Act.
(iii) Reliance on Exemptions. Lender understands that the
Securities are being offered and sold to it (and any securities terminated or
amended pursuant to the Transaction Documents are being terminated or amended)
in reliance on specific exemptions from the registration requirements of United
States federal and state securities laws and that Altair is relying in part upon
the truth and accuracy of, and Lender's compliance with, the representations,
warranties, agreements, acknowledgments and understandings of Lender set forth
herein in order to determine the availability of such exemptions and the
eligibility of Lender to acquire such Securities.
(iv) Information. Lender and its advisors, if any, have
been furnished with all materials relating to the business, finances and
operations of the Altair Parties and materials relating to the offer and sale of
the Securities (and the termination or amendment of any securities being
terminated or amended by the Transaction Documents) which have been requested by
Lender. Lender and its advisors, if any, have been afforded the opportunity to
ask questions of the Altair Parties. Neither such inquiries nor any other due
diligence investigations conducted by Lender or its advisors, if any, or its
representatives shall modify, amend or affect Lender's right to rely on Altair's
representations and warranties as set forth herein. Lender understands that its
investment in the Securities involves a high degree of risk. Lender has sought
such accounting, legal and tax advice as it has considered necessary to make an
informed investment decision with respect to its acquisition of the Securities.
(v) No Governmental Review. Lender understands that no
United States federal or state agency or any other government or governmental
agency has passed on or made any recommendation or endorsement of the Securities
or the fairness or suitability of the investment in the Securities nor have such
authorities passed upon or endorsed the merits of the offering of the
Securities.
(vi) Transfer or Resale. Lender understands that: except as
provided in the New Registration Rights Agreement, (i) the Securities have not
been and are not being registered under the 1933 Act or any state securities
laws, and may not be offered for sale, sold, assigned or transferred unless (A)
subsequently registered thereunder, (B) Lender shall have delivered to Altair an
opinion of counsel, in a generally acceptable form, to the effect that such
Securities to be sold, assigned or transferred may be sold, assigned or
transferred pursuant to an exemption from such registration, or (C) Lender
provides Altair with an assurance (which assurance shall be acceptable to Altair
in its reasonable discretion) that such Securities could then be sold, assigned
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or transferred pursuant to Rule 144 promulgated under the 1933 Act (or a
successor rule thereto) ("Rule 144"); (ii) any sale of the Securities made in
reliance on Rule 144 may be made only in accordance with the terms of Rule 144
and further, if Rule 144 is not applicable, any resale of the Securities under
circumstances in which the seller (or the person through whom the sale is made)
may be deemed to be an underwriter (as that term is defined in the 0000 Xxx) may
require compliance with some other exemption under the 1933 Act or the rules and
regulations of the Securities and Exchange Commission ("SEC") thereunder; and
(iii) neither Altair nor any other person is under any obligation to register
such Securities under the 1933 Act or any state securities laws or to comply
with the terms and conditions of any exemption thereunder.
(vii) Legends. Lender understands that, in addition to
other legends as may be required by applicable securities laws of the Province
of Ontario, the certificates or other instruments representing the Amended Note,
the Warrant and, until such time as the sale of the Purchase Shares, the Note
Shares and the Warrant Shares (collectively, the "Shares") have been registered
under the 1933 Act and Altair has received a written commitment from Lender that
all Shares will be re-sold in accordance with the prospectus delivery
requirements of the 1933 Act, the stock certificates representing the Securities
shall bear a restrictive legend in substantially the following form (and a
stop-transfer order may be placed against transfer of such stock certificates):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND
MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS, OR AN OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT
REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE
SECURITIES LAWS OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID ACT.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED FOR
SALE, SOLD, TRANSFERRED OR ASSIGNED TO ANY RESIDENT OF CANADA ON OR
BEFORE APRIL 1, 2003.
The legend set forth above shall be removed, and Altair shall issue a
certificate without such legend to the holder of the Securities upon which it is
stamped, if, unless otherwise required by state securities laws, (i) such
Securities are contemporaneously registered for sale under the 1933 Act and
Altair has received a written commitment that all such Securities will be
re-sold in accordance with the prospectus delivery requirements of the 1933 Act,
(ii) in connection with a sale transaction, such holder provides Altair with an
opinion of counsel, in a generally acceptable form, to the effect that a public
sale, assignment or transfer of the Securities may be made without registration
under the 1933 Act, or (iii) such holder provides Altair with reasonable
assurances that the Securities can be sold pursuant to Rule 144.
(vii) Residency. Lender is a resident of and subject to the
securities laws of Cayman Islands. Lender is not, and at no time prior to the
date of this Agreement has Lender ever been, a resident of the United States of
America or Canada.
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5. Additional Covenants.
A. Reporting Status. Until the earlier of (i) the date which
is one year after the date as of which Lender may sell all of the Shares without
restriction pursuant to Rule 144(k) promulgated under the 1933 Act (or successor
thereto), or (ii) the date on which (A) Lender shall have sold all of the Shares
and (B) no amounts under the Amended Note are due and owing (the "Registration
Period"), Altair shall file all reports required to be filed with the SEC
pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act"),
and Altair shall not terminate its status as an issuer required to file reports
under the 1934 Act even if the 1934 Act would otherwise permit such termination.
B. Limitation on Number of Shares. Altair shall not be
obligated to issue more than 19.9% of its outstanding common shares, determined
as of December 15, 2000 (in a manner consistent with Rule 4350(i)(1)(D)
promulgated by the NASD with respect to the Nasdaq Stock Market), in connection
with this Agreement, upon exercise of rights arising under the $7,000,000
Asset-Backed Exchangeable Term Note dated December 15, 2000, the Note, the
Amended Note, the Warrant, the Fixed Warrant (as defined in the Termination
Agreement), the Conditional Warrant (as defined in the Termination Agreement)
and all other securities issued to Lender to date under or in connection with
the Securities Purchase Agreement dated December 15, 2000, the Termination
Agreement and this Agreement if such issuance is prohibited by the listing
requirements of the principal market on which the common shares are traded (the
"Principal Market"). The foregoing limitation shall not apply in the event that
Altair obtains the approval of its stockholders as required by the Principal
Market (or any successor rule or regulation) for issuances of common shares in
excess of such amount.
6. Conditions Precedent to Closing.
A. Conditions Precedent to Obligations of Lender. Lender shall
not be required to close the transactions contemplated by this Agreement unless
and until:
(i) Representations. The representations and warranties of
the Altair Parties contained in this Agreement are then true in all material
respects with the same effect as though the representations and warranties had
been made at such time (except for any representations and warranties which
relate solely to another time).
(ii) No Defaults. There are no existing conditions, events,
or acts which constitute a default of any Altair Parties hereunder, or with the
passing of time or giving of notice would constitute a default of any Altair
Parties hereunder.
(iii) Tender of Closing. The Altair Parties are prepared to
deliver all of the documents, agreements and other items that the Altair Parties
are required to deliver at Closing pursuant to this Agreement.
B. Condition's Precedent to Obligations of Lender. None of the
Altair Parties shall be required to close the transactions contemplated by this
Agreement unless and until:
(i) Representations. The representations and warranties of
Lender contained in this Agreement are then true in all material respects with
the same effect as though the representations and warranties had been made at
such time (except for any representations and warranties which relate solely to
another time).
(ii) No Defaults. There are no existing conditions, events,
or acts which constitute a default of Lender hereunder, or with the passing of
time or giving of notice would constitute a default of Lender hereunder.
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(iii) Tender of Closing. Lender is prepared to deliver all
of the documents, agreements and other items that the Lender is required to
deliver at Closing pursuant to this Agreement.
C. Obligation to Close. Lender and each of the Altair Parties
shall be required to close the transactions contemplated by this Agreement no
later than two business days following (1) the satisfaction of all of the
conditions precedent to such Party's obligation to close, and (2) receipt from
any other Party hereto of a written demand requesting that such Party close as
specified date and time no sooner than two business days following delivery of
such demand. In the event that any Party shall fail to close as provided in the
preceding sentence, in addition to any and all remedies available at law or
equity, any nonbreaching Party shall have the option to terminate this Agreement
with respect to such breaching Party at the close of business on such date
without liability to any other Party.
7. Miscellaneous Provisions.
A. Superseding of 2001 Termination Agreement; Confirmation of
Collateral Documents; References to Note.
(i) 2001 Termination Agreement. Effective as of the
Closing, the Termination Agreement shall immediately and automatically terminate
and be of no further force and effect.
(ii) Collateral Documents; References to Note.
Notwithstanding the superseding and termination of the Note by the Amended Note,
the Amended Note shall be secured by the Security Agreement dated December 15,
2000, as the same was amended on August 31, 2000, between Altair Nanomaterials,
Inc. and Doral 18, LLC (including the Intellectual Property Security Agreement
attached thereto as Exhibit A as the same was amended on August 31, 2000), the
Stock Pledge Agreement dated December 15, 2000 between Mineral Recovery Systems,
Inc. and Doral 18, LLC as amended to date, and the Stock Pledge Agreement dated
December 15, 2000, between Altair Nanotechnologies Inc. and Doral 18, LLC, as
amended to date, to the same extent and in the same manner as the Note, and all
references to the Note in any such security agreement or stock pledge agreement
shall be deemed to refer to the Amended Note.
B. Governing Law; Jurisdiction; Jury Trial. All questions
concerning the construction, validity, enforcement and interpretation of this
Agreement shall be governed by the internal laws of the State of Illinois,
without giving effect to any choice of law or conflict of law provision or rule
(whether of the State of Illinois or any other jurisdictions) that would cause
the application of the laws of any jurisdictions other than the State of
Illinois. Each Party hereby irrevocably submits to the non-exclusive
jurisdiction of the state and federal courts sitting in the City of Chicago, for
the adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is brought in an inconvenient forum or that the
venue of such suit, action or proceeding is improper. EACH PARTY HEREBY
IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY
TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR
ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
C. Counterparts. This Agreement may be executed in multiple
identical counterparts, all of which shall be considered one and the same
agreement and shall become effective when counterparts have been signed by each
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Party and delivered to the other Parties. A facsimile signature shall be
considered due execution and shall be binding upon the signatory thereto with
the same force and effect as if the signature were an original signature.
D. Headings. The headings of this Agreement are for
convenience of reference and shall not form part of, or affect the
interpretation of, this Agreement.
E. Severability. If any provision of this Agreement shall be
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or
enforceability of any provision of this Agreement in any other jurisdiction.
F. Entire Agreement; Amendments. This Agreement supersedes all
other prior oral or written agreements between Lender, Altair, their affiliates
and persons acting on their behalf with respect to the matters discussed herein,
and this Agreement and the instruments referenced herein contain the entire
understanding of the Parties with respect to the matters covered herein and
therein. and, except as specifically set forth herein or therein, neither Altair
nor the Lender makes any representation, warranty, covenant or undertaking with
respect to such matters. No provision of this Agreement may be amended other
than by an instrument in writing signed by Altair and the Lender, and no
provision hereof may be waived other than by an instrument in writing signed by
the Party against whom enforcement is sought.
G. Notices. Any notices, consents, waivers or other
communications required or permitted to be given under the terms of this
Agreement must be in writing and will be deemed to have been delivered: (i) upon
actual receipt, when delivered personally; (ii) upon actual receipt, when sent
by facsimile (provided confirmation of transmission is mechanically or
electronically generated and kept on file by the sending Party); or (iii) one
business day after deposit with a nationally recognized overnight delivery
service, in each case properly addressed to the Party to receive the same. The
addresses and facsimile numbers for such communications shall be:
If to any of the Altair Parties:
ALTAIR NANOTECHNOLOGIES INC.
Xx. Xxxxxxx X. Xxxx 0000 Xxxxxxxx Xxx., Xxxxx 000
Xxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Xxxxxx Xxxxxxxxx
000 Xxxxxx Xxx
Xxxx, Xxxxxx 00000
Facsimile: (000) 000-0000
With copies to:
Stoel Rives, LLP
000 Xxxxx Xxxx Xxxxxx , Xxxxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: Xxxxx X. Xxxxx and Xxxxx X. Xxxxx
Facsimile: (000) 000-0000
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Equity Transfer Services
000 Xxxxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxx X0X 0X0
Attn: Xxxxx Xxxxxxxx
If to the Lender:
Doral 18, LLC
X/X Xxxxx Xxxxx
0000 Xxxxxxxx Xxx
Xxxxxxxx XX 00000
Telephone : (000) 000-0000
Facsimile: __________
Attention: Xxxxx Xxxxx
With a copy to:
Xxxxx X. Xxxxxxx, Esq. and Xxxxx X. Xxxxxxx, Esq.
Xxxxxxxx & Xxxxx
000 X. Xxxxx Xx. Xxxxx 0000
Xxxxxxx, XX 00000
(p) (000) 000-0000 and (000) 000-0000 (f) (000) 000-0000 and (000) 000-0000
or at such other address and/or facsimile number and/or to the attention of such
other person as the recipient Party has specified by written notice given to
each other Party five days prior to the effectiveness of such change.
H. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the Parties and their respective successors and
assigns. No Party may assign this Agreement or any rights or obligations
hereunder without the prior written consent of the other Parties hereto.
I. No Third Party Beneficiaries. This Agreement is intended
for the benefit of the Parties hereto and their respective permitted successors
and assigns, and is not for the benefit of, nor may any provision hereof be
enforced by, any other person.
J. Publicity. Each of the Parties hereto shall have the right
to approve before issuance any press releases or any other public statements
with respect to the transactions contemplated hereby; provided, however, that
the Parties shall each be entitled, without the prior approval of the other, to
make any press release or other public disclosure with respect to such
transactions as is required by applicable law and regulations (although such
Party shall consult the other in connection with any such press release or other
public disclosure prior to its release and shall be provided with a copy
thereof).
K. Further Assurances. Each Party shall do and perform, or
cause to be done and performed, all such further acts and things, and shall
execute and deliver all such other agreements, certificates, instruments and
documents as the other Party may reasonably request in order to carry out the
intent and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
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L. No Strict Construction. The language used in this Agreement
will be deemed to be the language chosen by the Parties to express their mutual
intent, and no rules of strict construction will be applied against any Party.
[intentionally left blank; signature page follows]
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IN WITNESS WHEREOF, Lender and the Altair Parties have caused this Note
Amendment Agreement to be duly executed and delivered as of the date first
written above.
"Lender"
Doral 18, LLC,
a Cayman Islands limited liability company
By: /s/ Xxxxx Xxxxx
---------------------------------------
Xxxxx Xxxxx, authorized signatory
"Altair Parties"
Altair Nanotechnologies Inc.,
a Canadian corporation
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------
Its: CEO
---------------------------------------
Mineral Recovery Systems, Inc.
a Nevada corporation
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------
Its: V.P.
---------------------------------------
Fine Gold Recovery Systems, Inc.
a Nevada corporation
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------
Its: V.P.
---------------------------------------
Altair Nanomaterials Inc.
a Nevada corporation
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------------
Its: Secretary/Treasurer
---------------------------------------
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EXHIBIT A
AMENDED NOTE
[SEE ATTACHED]
12
EXHIBIT B
WARRANT
[SEE ATTACHED]
13
EXHIBIT C
NEW REGISTRATION RIGHTS AGREEMENT
[SEE ATTACHED]
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