AMENDMENT TO
COMMON SHARE PURCHASE WARRANTS
This Amendment to Common Share Purchase Warrants (this "Amendment") is
entered into on this 5th day of June, 2003, by and between Altair
Nanotechnologies, Inc., a Canadian corporation (the "Company"), and Xxxxx
Xxxxxx, an individual ("Xxxxxx").
Background
A. The Company previously issued the following warrants to purchase
common shares of the Company to Xxxxxx (such warrants, collectively the
"Warrants"):
o a Series 0000X Xxxxxxx dated June 19, 2001 for 400,000 common
shares,
o a Series 0000X Xxxxxxx dated July 23, 2001 for 100,000 common
shares,
o a Series 2001B Warrant dated June 19, 2001 for 400,000 of our
common shares (which warrant has been exercised with respect to
all except 196,331 common shares), and
o a Series 2001B Warrant dated July 23, 2001 for 100,000 common
shares.
B. The Company and Xxxxxx desire to reduce the exercise price of the
Warrants as set forth herein.
Agreement
NOW THEREFORE, in consideration of the covenants set forth herein and
in the Warrants and other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the Company and the Xxxxxx hereby
agree as follows:
1. Amendment to Warrants. In each of the Warrants, the Exercise Price
(as defined therein) is hereby amended to be $1.00.
2. Ownership Limitation. The following Section 24 hereby added to each
of the Warrants to the extent not added by a prior amendment (with capitalized
terms used below but not defined in this Amendment having the meaning set forth
in the Warrants):
Notwithstanding anything to the contrary contained herein or in the
Warrants, in no event shall the Holder be entitled to exercise this
Warrant Certificate to the extent that after giving effect to such
exercise the Holder (together with such person's affiliates) would
beneficially own (calculated as set forth below) in excess of 9.99% of
the outstanding Common Shares following such exercise. For purposes of
the foregoing sentence, the number of Common Shares beneficially owned
by the Holder and its affiliates or acquired by the Holder and its
affiliates, as the case may be, shall include the number of Common
Shares issuable upon exercise of this Warrant Certificate with respect
to which such determination of beneficial ownership is being made, but
shall exclude the number of Common Shares which would be issuable upon
(i) exercise of the remaining, nonexercised portion of this Warrant
Certificate beneficially owned by such Holder and its affiliates and
(ii) exercise or exchange of the unexercised or unconverted portion of
any warrants or other securities of the Company subject to a limitation
on exchange or exercise analogous to the limitation contained herein
beneficially owned by such Holder and its affiliates. Except as set
forth in the preceding sentence, for purposes of this paragraph,
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beneficial ownership shall be calculated in accordance with Section
13(d) of the Securities Exchange Act of 1934, as amended.
Notwithstanding anything to the contrary contained herein, each
Subscription Form shall constitute a representation by the Holder
submitting such Subscription Form that, after giving effect to such
Subscription Form, (A) the Holder will not beneficially own (as
determined in accordance with this paragraph) in excess of 9.99% of the
outstanding Common Shares and (B) the Holder will not have acquired,
through exercise of this Warrant Certificate or otherwise, a number of
Common Shares which, when added to the number of Common Shares
beneficially owned at the beginning of the 60-day period ending on and
including the applicable date of exercise of this Warrant Certificate,
is in excess of 9.99% of the outstanding Common Shares following such
exercise during the 60-day period ending on and including such date of
exercise and the Company shall have no liability for any exercise in
reliance on any such Subscription Form. For purposes of this paragraph,
in determining the number of the outstanding Common Shares the Holder
may rely on the number of outstanding Common Shares (1) as reflected in
the Company's most recent shareholder list, which list shall be
provided to the Holder by the Company upon the Holders' written request
(which request the Holder shall not submit to the Company on more than
one occasion per calendar quarter) and certified by the Company as
true, complete and accurate as of the date thereof, or (2) at such time
as the Company is a Reporting Company under the Securities Exchange Act
of 1934, as reflected in the Company's most recent Form 10-Q or Form
10-K, as the case may be, or a more recent public announcement by the
Company or other notice by the Company or its transfer agent setting
forth the number of Common Shares outstanding. In any case, the number
of outstanding Common Shares shall be determined after giving effect to
exercises of this Warrant Certificate (including the exercise with
respect this determination is being made) by the Holder since the date
as of which such number of outstanding Common Shares was disclosed or
reported. Notwithstanding the foregoing, in the event of any event of
default under any promissory note or other instrument of indebtedness
issued by the Company to the Holder, the Holder shall have the right to
exercise this Warrant Certificate and to convert all or any portion of
this Warrant Certificate into Common Stock, in its sole discretion and
at such time or times as it deems appropriate.
3. Acknowledgement of Restrictions. Xxxxxx acknowledge and agrees that
(a) the Warrants were initially issued in transactions exempt from the
registration requirement the Securities Act of 1933, as amended (the "Securities
Act") and are "restricted securities," as defined under Rule 144 promulgated
under the Securities Act ("Rule 144"), (b) for purposes of the Securities Act,
the amendment to the Warrants effected by this Amendment represents the issuance
of a new security and re-starts any holding periods for purposes of Rule 144 or
otherwise, and (c) as a result (b), notwithstanding any prior registration of
the re-sale of the common shares issuable upon exercise of the Warrants under
the Securities Act, the common shares issuable upon the exercise of the Warrants
are no longer eligible for re-sale under any previously filed registration
statement and may not be sold unless subsequently registered under the
Securities Act or eligible for an exemption of the restrictions applicable to
restricted securities.
4. Ratification of Warrants. Except as expressly amended by this
Amendment, the terms and conditions of each of the Warrants are hereby ratified
and confirmed by the parties hereto and thereto.
5. Counterparts. This Amendment may be signed in counterparts, all of
which taken together shall constitute a single integrated agreement. A facsimile
copy of this Amendment or any counterpart thereto shall be valid as an original.
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IN WITNESS WHEREOF, the Company and the Xxxxxx have caused this
Amendment to Common Share Purchase Warrants to be executed effective as of the
date first set forth above.
The Company
Altair Nanotechnologies Inc.
By: /s/ Xxxxxx Xxxxxxxxx
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Its: Chief Financial Officer
Xxxxxx
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx, an individual
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