Warrant to Purchase up to 231,482 Common Shares
Exhibit
4.1
THIS
WARRANT AND THE SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN
REGISTERED UNDER THE 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.
Warrant
to Purchase up to 231,482 Common Shares
of
PLACEMENT
AGENT'S WARRANT
Dated:
December 18, 2006
This
certifies that XXXXX AND COMPANY, LLC (herein sometimes called the “Placement
Agent”)
or its
permitted transferee (the Placement Agent or any such permitted transferee
is
sometimes herein called 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, up to 231,482 shares
(the “Shares”)
without nominal or par value, of the Company (the “Common
Shares”),
at a
purchase price of $3.375 per share, subject to adjustment as described below
(as
so adjusted from time to time, the “Exercise
Price”),
at
any time during the five-(5) year period commencing from the date hereof (the
“Closing
Date”).
This
Placement Agent's Warrant (the “Placement
Agent's Warrant”)
is
issued pursuant to a Placement Agent Agreement between the Company and the
Placement Agent, in connection with a public offering of the Company’s Common
Shares, through the reasonable efforts of the Placement Agent, as therein
described (the “Placement
Agent Agreement”).
All
capitalized terms used herein and not otherwise defined, shall have the meanings
ascribed to such terms in the Placement Agent Agreement.
1.
Exercise. The
rights represented by this Placement Agent's 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 Closing Date and December 18, 2011
(the
expiration of five (5) years from the Closing Date, also referred to herein
as 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 Placement Agent's Warrant may be exercised at any
time
within the periods above specified, in whole or in part, by (i) the surrender
of
the Placement Agent's 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
6 and subsections (b), (c), (d), (e) and (f) of Section 7 hereof. The Placement
Agent's 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
Placement Agent's 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 Placement Agent's Warrant
shall have been so exercised.
(b)
Notwithstanding
anything to the contrary contained in Section 2(a), the Holder may elect to
exercise this Placement Agent's Warrant in whole or in part on a “cashless
exercise basis” by receiving Shares equal to the value (as determined below) of
this Placement Agent's Warrant, or any part hereof, upon surrender of the
Placement Agent's 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 Placement Agent's
Warrant
or, if only a portion of this Placement Agent’s Warrant is being
exercised, the portion of this Placement Agent’s Warrant being canceled
(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).
|
-2-
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.
3.
Transfer. (a)
Any
transfer of this Placement Agent's Warrant shall be effected by the Holder
by
(i) executing the form of assignment at the end hereof and (ii) surrendering
the
Placement Agent's 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 Placement Agent’s
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 Placement Agent’s 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 from the date hereof.
Upon
any
transfer of this Placement Agent's 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 Placement
Agent's 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 Placement Agent's Warrant or any part thereof in
violation of this Section 3 shall be null and void
ab initio.
(c) This
Placement Agent’s Warrant may not be exercised and neither this Placement
Agent’s 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 Placement
Agent’s Warrant shall bear a legend in substantially the same form as the legend
set forth on the first page of this Placement Agent’s Warrant. Each certificate
for Shares issued upon exercise of this Placement Agent’s 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:
-3-
“THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND
HAVE NOT BEEN REGISTERED UNDER THE 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.”
Additionally,
similar legends pursuant to Canadian law, as applicable, shall be set forth
on
any such Shares or Placement Agent’s Warrant, as reasonably determined by the
Company’s Canadian counsel.
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 Placement Agent’s 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 nonassessable. The
Company further covenants and agrees that, during the periods within which
the
Placement Agent's 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 Placement Agent's Warrant.
5.
No
Voting or Dividend Rights. The
Placement Agent's 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.
Registration
Rights.
(a)
The
Company covenants and agrees that (subject to the provisions of this Section
6),
within 30 days from the date hereof, it will prepare and file with the U.S.
Securities and Exchange Commission (the “Commission”)
a
registration statement on Form S-3 (or if such form is not available, a Form
S-1) (the “Registration
Statement”)
covering all of the Shares underlying the Placement Agent’s Warrant (the
“Registrable
Securities”)
for a
secondary or resale offering to be made on a continuous basis pursuant to Rule
415. The Company will use its commercially reasonable efforts to cause the
Registration Statement to be declared effective under the Act (including filing
with the Commission a request for acceleration of effectiveness in accordance
with Rule 461 promulgated under the Act within five (5) business days of the
date that the Company is notified by the Commission that the Registration
Statement will not be “reviewed” or is no longer subject to further review by
the Commission) and to keep the Registration Statement continuously effective
until the earlier of (i) such time that all of the Registrable Securities have
been sold, (ii) the date when the Holder may sell the Registrable Securities
pursuant to Rule 144(k) promulgated under the Act, as determined by counsel
to
the Company pursuant to a written opinion letter, or (iii) the Expiration
Date.
-4-
(b)
If
(i) at
any time when a prospectus relating to Registrable Securities is required to
be
made available under the Act, the Company discovers that, or any event occurs
as
a result of which, the prospectus (including any supplement thereto) included
in
the Registration Statement, as then in effect, includes an untrue statement
of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or (ii) the Commission issues any
stop order suspending the effectiveness of the Registration Statement or
proceedings are initiated or threatened for that purpose, then the Company
shall
promptly deliver a written notice to such effect to each Holder whose
Registrable Securities are included in the Registration Statement, and each
such
Holder shall immediately upon receipt of such notice discontinue its disposition
of Registrable Securities pursuant to the Registration Statement until the
copies of the supplemented or amended prospectus contemplated by the immediately
following sentence is made available and, if so directed by the Company, shall
deliver to the Company (at the Company's expense), if applicable, all copies,
other than permanent file copies, then in such Holder's possession of the
prospectus or prospectus supplement relating to such Registrable Securities
current at the time of receipt of such notice. As promptly as practicable
following the event or discovery referred to in clause (i) of the immediately
preceding sentence, the Company shall prepare and make available to the Holders
whose Registrable Securities are included in the Registration Statement the
amendment or supplement of such prospectus so that, as thereafter made available
to purchasers of such Registrable Securities, such prospectus shall not include
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading. Notwithstanding
anything to the contrary in this Section 6 if the filing or maintenance of
the
Registration Statement would require the Company to make a disclosure that
would, in the reasonable judgment of the Company's Board of Directors, have
a
material adverse effect on the business, operations, properties, prospects
or
financial condition of the Company or on pending or imminent transactions,
the
Company shall have the right, exercisable for a period not to exceed in the
aggregate 60 consecutive calendar days in any period of twelve consecutive
months (the “Blackout
Period”)
upon
written notice to the Holders, to delay the filing of the Registration Statement
or of any amendment thereto, to suspend its obligation to maintain the
effectiveness of the Registration Statement and to suspend the use of any
prospectus or prospectus supplement in connection with the Registration
Statement. Each Holder agrees that upon receipt of any such notice from the
Company, it shall immediately cease all efforts to dispose of Registrable
Securities pursuant to the Registration Statement until such time as the Company
shall notify it of the end of such restrictions or, if earlier, the expiration
of the Blackout Period.
-5-
7.
Indemnification. (a)
Whenever the Registration Statement relating to the Shares issued upon exercise
of the Placement Agent's Warrant is filed under the Act, amended or
supplemented, the Company will indemnify and hold harmless each Holder of the
securities covered by the Registration Statement, amendment or supplement (such
Holder being hereinafter called the “Distributing
Holder”),
and
each person, if any, who controls (within the meaning of the Act) the
Distributing Holder, and each underwriter (within the meaning of the Act) of
such securities and each person, if any, who controls (within the meaning of
the
Act) any such underwriter, against any losses, claims, damages or liabilities,
joint or several, to which the Distributing Holder, any such controlling person
or any such underwriter may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities, or actions in respect thereof,
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement as
declared effective or any final prospectus constituting a part thereof or any
amendment or supplement thereto, (ii) the omission or the alleged omission
to
state therein a material fact required to be stated therein or necessary to
make
the statements therein not misleading or (iii) any act or failure to act, or
any
alleged act or failure to act, by any Distributing Holder in connection with,
or
relating in any manner to, the Registration Statement or the offering
contemplated thereby, and which is included as part of or referred to in any
loss, claim, damage, liability or action arising out of or based upon matters
covered by clause (i) or (ii) above; (provided that the Company shall not be
liable in the case of any matter covered by this clause (iii) to the extent
that
it is determined in a final judgment by a court of competent jurisdiction that
such loss, claim, damage, liability or action resulted directly from any such
act or failure to act undertaken or omitted to be taken by such Distributing
Holder through its gross negligence or willful misconduct) and will reimburse
the Distributing Holder or such controlling person or underwriter promptly
upon
demand for any legal or other expense reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Company will
not be liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in said
Registration Statement, said preliminary prospectus, said final prospectus
or
said amendment or supplement in reliance upon and in conformity with written
information furnished by such Distributing Holder or any other Distributing
Holder for use in the preparation thereof and provided further, that the
indemnity agreement provided in this Section 7(a) with respect to any
preliminary prospectus shall not inure to the benefit of any Distributing
Holder, controlling person of such Distributing Holder, underwriter or
controlling person of such underwriter from whom the person asserting any
losses, claims, charges, liabilities or litigation based upon any untrue
statement or alleged untrue statement of a material fact or omission or alleged
omission to state therein a material fact, received such preliminary prospectus,
if a copy of the prospectus in which such untrue statement or alleged untrue
statement or omission or alleged omission was corrected has not been sent or
given to such person within the time required by the Act and the rules and
regulations of the Commission thereunder. This indemnity agreement is not
exclusive and will be in addition to any liability, which the Company might
otherwise have and shall not limit any rights or remedies that may otherwise
be
available at law or in equity to each Distributing Holder.
-6-
(b)
The
Distributing Holder will indemnify and hold harmless the Company, each of its
directors, each of its officers who have signed the Registration
Statement and each person, if any, who controls the Company (within the
meaning of the Act) against any losses, claims, damages or liabilities, joint
or
several, to which the Company or any such director, officer or controlling
person may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities, or actions in respect thereof, arise out of
or
are based upon (i) any untrue or alleged untrue statement of any material fact
contained in said Registration Statement, said preliminary prospectus, said
final prospectus, or said amendment or supplement, or (ii) are based upon the
omission or the alleged omission to state therein a material fact required
to be
stated therein or necessary to make the statements therein not misleading,
in
each case to the extent, but only to the extent, that such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in said Registration
Statement, said preliminary prospectus, said final prospectus or said amendment
or supplement in reliance upon and in conformity with written information
furnished by such Distributing Holder for use in the preparation thereof; and
will reimburse the Company or any such director, officer or controlling person
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action
as
such expenses are incurred. This indemnity agreement is not exclusive and will
be in addition to any liability, which each Distributing Holder might otherwise
have and shall not limit any rights or remedies that may otherwise be available
at law or in equity to the Company.
(c)
Promptly
after receipt by an indemnified party under this Section 7 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party under this Section 7, notify
the indemnifying party in writing of the commencement thereof, but the omission
so to notify the indemnifying party will not relieve it from any liability
which
it may have to any indemnified party for indemnity or contribution to the extent
the indemnifying party is not prejudiced as a proximate result of such failure.
In case any such action is brought against any indemnified party, and such
indemnified party seeks or intends to seek indemnity from an indemnifying party,
the indemnifying party will be entitled to participate in, and, to the extent
that it shall elect, jointly with any other indemnifying party similarly
notified, by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof with counsel reasonably satisfactory to such indemnified party;
provided, however, if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that a conflict may arise between the positions of
the
indemnifying party and the indemnified party in conducting the defense of any
such action or that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available
to
the indemnifying party, the indemnified party or parties shall have the right
to
select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party
or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of such indemnifying party's election so to assume the defense of such
action and approval by the indemnified party of counsel (which approval shall
not be unreasonably withheld or delayed), the indemnifying party will not be
liable to such indemnified party under this Section 7 for any legal or other
expenses subsequently incurred by such indemnified party in connection with
the
defense thereof unless:
-7-
(i)
the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that
the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (together with local counsel), representing the indemnified
parties who are parties to such action); (ii) the indemnifying party shall
not
have employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of
the
action; or (iii) the indemnifying party has authorized the employment of counsel
for the indemnified party satisfactory to the indemnified party at the expense
of the indemnifying party, in each of which cases the fees and expenses of
counsel shall be at the expense of the indemnifying party.
(d)
The
indemnifying party under this Section 7 shall not be liable for any settlement
of any proceeding effected without its written consent, which consent shall
not
be unreasonably withheld or delayed, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees
to
indemnify the indemnified party against any loss, claim, damage, liability
or
expense by reason of such settlement or judgment. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement, compromise or consent to the entry of judgment in any pending or
threatened action, suit or proceeding in respect of which any indemnified party
is or could have been a party and indemnity was or could have been sought
hereunder by such indemnified party, unless such settlement, compromise or
consent includes: (i) an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such action, suit or
proceeding; and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any indemnified party.
(e)
Any
losses, claims, damages, liabilities or expenses for which an indemnified party
is entitled to indemnification or contribution under this Section 7 shall be
paid by the indemnifying party to the indemnified party as such losses, claims,
damages, liabilities or expenses are incurred, but in all cases, no later than
forty-five (45) days after invoice to the indemnifying party.
(f)
If
the
indemnification provided for in this Section 7 is unavailable to or insufficient
to hold harmless an indemnified party under Section 7(a) or 7(b) above in
respect of any losses, claims, damages or liabilities (or actions or proceedings
in respect thereof) then each indemnifying party shall contribute to the
aggregate amount paid or payable by such indemnified party in such proportion
as
is appropriate to reflect the relative fault of such indemnifying party on
the
one hand and the indemnified party on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof), as well as any
other
relevant equitable considerations. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material
fact
relates to information supplied by the Company or the “control” stockholders on
the one hand or the Distributing Holder on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
-8-
The
Company and each Distributing Holder agree that it would not be just and
equitable if contributions pursuant to this Section 7(f) were determined by
pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 7(f). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
referred to above in this Section 7(f) shall be deemed to include any legal
or
other expenses reasonably incurred by such indemnified party in connection
with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7(f): (i) each Distributing Holder shall not be
required to contribute any amount in excess of the amount of proceeds received
by such Holder from sale(s) of such Holder's Shares pursuant to the Registration
Statement; and (ii) no person guilty of fraudulent misrepresentation (within
the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any
person who was not guilty of such fraudulent misrepresentation.
8.
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 Placement Agent's 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, (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 of the
Company 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
Placement Agent's 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 Placement Agent's Warrant exercised after such date
shall be entitled to receive the aggregate number and kind of shares or other
securities which, if this Placement Agent's 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 Placement Agent's 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 Placement Agent's Warrant would be
171,000. Such adjustment shall be made successively whenever any event listed
above shall occur.
-9-
(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 Placement Agent's 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 8, 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 8, the Holder of the Placement Agent's Warrant
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 Placement Agent's 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 Sections 8(a) above.
9.
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.
10.
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 Placement Agent's Warrant shall represent only the right to
receive the consideration that would have been issuable in respect of the Shares
underlying the Placement Agent's Warrant in such consolidation, merger, sale
or
conveyance had the Placement Agent's Warrant been exercised in full immediately
prior to such effective time and the Holder shall have no further rights under
this Placement Agent's Warrant other than the right to receive such
consideration.
11. Fractional
Shares.
No
fractional shares shall be issued upon exercise of this Placement Agent’s
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.
12. 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 Placement Agent's 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 Placement Agent's 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.
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13. Headings. The
headings of the several sections and paragraphs of this Placement Agent's
Warrant are inserted for convenience only and do not constitute a part of this
Placement Agent's Warrant.
14. Modification
and Waiver. This
Placement Agent's 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.
15. Survival. The
rights and obligations of the Company, of the Holder and of the holder of Shares
issued upon exercise of this Placement Agent's Warrant shall survive the
exercise of this Placement Agent's Warrant.
16. Remedies.
The
Company stipulates that the remedies at law of the Holder of this Placement
Agent’s Warrant 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 Placement
Agent’s 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.
IN
WITNESS WHEREOF, the Company has caused this Placement Agent's Warrant to be
signed by its duly authorized officers under its corporate seal, and this
Placement Agent's Warrant to be dated December 18, 2006.
By:
_____________________________________
Name:
Title:
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PURCHASE
FORM
(To
be
signed only upon exercise of Warrant)
The
undersigned, the holder of the foregoing Placement Agent's 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
o
tenders
herewith payment of the aggregate Exercise Price in respect of the Shares in
full, in the amount of $_________; or
o
elects
pursuant to Section
2(b) of such Warrant to convert such Warrant into Common Shares on a cashless
exercise basis; and
o
requests
that the
certificates for the Shares 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 Placement Agent's Warrant)
For
value
received, the undersigned hereby sells, assigns, and transfers unto
______________________________ the right to purchase Shares represented by
the
foregoing Placement Agent's 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:
____________________________________
