[Certain portions of this exhibit have been omitted pursuant to Rule
24b-2 and are subject to a confidential treatment request. Copies of
this exhibit containing the omitted information have been filed
separately with the Securities and Exchange Commission. The omitted
portions of this document are marked with a ***.]
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release (this "Agreement") is
entered into as of June 4, 2004 (the "Effective Date"), by and among Altair
Nanotechnologies, Inc., a corporation organized under the laws of Canada with
principal offices in Reno, Nevada ("Altair"), on the one hand; and Xxxxx Xxxxxx,
a natural person who is a resident of Chicago, Illinois ("Xxxxxx"); and Toyota
on Western, Inc., a corporation organized under the laws of the State of
Illinois ("Toyota"), on the other hand. Xxxxxx, Toyota and their affiliates (as
defined by Rule 405 of the Securities Act of 1933, as amended) are collectively
referred to herein as the "Xxxxxx Parties."
For the purpose of resolving the issues between or among the parties,
Altair, Toyota and Xxxxxx hereby agree as follows:
1. Issuance of Additional Stock. Not later than 15 days following the date
of this Agreement, Altair shall issue 100,000 shares of Altair common
stock to Toyota (the "Settlement Shares").
2. Registration of Stock. Not later than 30 days following the date of
this Agreement and pursuant to the terms of the Registration Rights
Agreement attached as Exhibit A, Altair shall file a registration
statement registering the re-sale of (1) the Settlement Shares and (2)
the 1,750,000 shares of Altair common stock and also the shares of
Altair common stock underlying warrants (the "Warrants") represented by
Warrant Certificate Nos. 2003B-1, 2003B-2 or 2003B-3 acquired by Toyota
from Altair on March 31, 2003 in a private placement and currently held
by Toyota or Toyota's transferees.
3. Amendment of the Warrant. Contemporaneously with the execution of this
Agreement, the parties shall execute the First Amendment to the Warrant
in substantially the form attached as Exhibit B with respect to each of
the Warrants.
4. ***
5. Communications. The Xxxxxx Parties agree for a period of one year from
the date of this Agreement as follows:
5.1. Except as disclosure shall be required by law, the Xxxxxx Parties
shall not, directly or indirectly, issue any Public Communication
(as defined below) regarding Altair or its present or former
officers, directors, or business operations. "Public
Communication" means (a) any press release, Internet posting, or
radio or television announcement or (b) any other written,
recorded or verbal communication that is reasonably likely to be
seen or heard by more than five individuals, including but not
limited to mailings, facsimile distributions and email
distributions.
5.2. The Xxxxxx Parties shall not, directly or indirectly, take any
steps to pursue a proxy contest for the election of any person not
nominated by Altair to the Altair board of directors;
5.3. Except as disclosure may be required by law, the Xxxxxx Parties
shall not, directly or indirectly, submit any communications or
complaints to the SEC or any self regulatory organization relative
to Altair unless the Xxxxxx Party seeking to submit the
communication or complaint to the SEC has first reported the
communication or complaint to Altair's Audit Committee and given
Altair's Audit Committee 90 days to address the communication or
complaint;
5.4. Except as disclosure may be required by law and subject to the
notice requirement of Section 5.3 above, the Xxxxxx Parties shall
not, directly or indirectly, send faxes or other written
communications to Altair's officers, directors or legal counsel
more frequently than once every 90 days.
6. Confidentiality. The provisions of Exhibit C to this Agreement are
incorporated herein by reference.
7. Release by Altair.
7.1. Except as otherwise provided in Section 7.4 below, Altair hereby
releases and forever discharges the "Xxxxxx Releasees" consisting
of Xxxxxx, Toyota and their current and former respective lenders,
shareholders, parents, subsidiaries, affiliates, divisions,
officers, directors, owners, associates, predecessors, successors,
heirs, assigns, agents, partners, employees, insurers,
representatives, lawyers, and all persons acting by, through,
under, or in concert with them, or any of them, of and from any
and all manner of action or actions, cause or causes of action, in
law or in equity, and any suits, debts, liens, contracts,
agreements, promises, liabilities, claims, demands, damages,
losses, costs, or expenses, of any nature whatsoever, known or
unknown, fixed or contingent (the "Claims"), that Altair now has
or may hereafter have against the Xxxxxx Releasees, or any of
them, by reason of any matter, cause, or thing whatsoever from the
beginning of time to the date hereof, including, without
limitation, any and all Claims arising out of, based upon, or in
any way relating to transactions with Altair, the Altair Releasees
(as defined below), Xxxxxxxxxxx Xxxxxx, Irvine Management
Consulting Inc., CMGI, Equity Alert, Market Pathways, C. Van
Mussher, IR Image, or Patagon Securities Corp.
7.2. Altair represents and warrants that there has been no assignment
or other transfer of any interest in any Claim that it may have
against the Xxxxxx Releasees, or any of them, and Altair agrees to
indemnify and hold the Xxxxxx Releasees, and each of them,
harmless from any liabilities, claims, demands, damages, costs,
expenses, and attorneys' fees incurred by the Xxxxxx Releasees, or
any of them, as a result of any person asserting any such
assignment or transfer. It is the intention of the parties that
this indemnity does not require payment as a condition precedent
to recovery by the Xxxxxx Releasees against Altair under this
indemnity.
2
7.3. Altair agrees that if it hereafter commences, joins in, or in any
manner seeks relief through any suit arising out of, based upon,
or relating to any of the Claims released hereunder, or in any
manner asserts against the Xxxxxx Releasees, or any of them, any
of the Claims released hereunder, then Altair shall pay to the
Xxxxxx Releasees, and each of them, in addition to any other
damages caused to the Xxxxxx Releasees thereby, all attorneys'
fees and costs incurred by the Xxxxxx Releasees in defending or
otherwise responding to that suit or Claim.
7.4. Notwithstanding any provision contained in Sections 7.1, 7.2, and
7.3 above, the release set forth herein does not extend to
releasing the Xxxxxx Releasees, or any of them, from their
responsibilities, representations, warranties, promises,
obligations, covenants, and agreements contained in this Agreement
or the responsibilities, representations, warranties, promises,
obligations, covenants, and agreements contained within the four
corners of the various unexercised warrants held by the Xxxxxx
Parties.
8. Release by Xxxxxx Parties.
8.1. Except as otherwise provided in Section 8.4 below, the Xxxxxx
Parties hereby release and forever discharge the "Altair
Releasees" consisting of Altair and its current and former
respective lenders, shareholders, parents, subsidiaries,
affiliates, divisions, officers, directors, owners, associates,
predecessors, successors, heirs, assigns, agents, partners,
employees, insurers, representatives, lawyers, and all persons
acting by, through, under, or in concert with them, or any of
them, of and from any Claims that the Xxxxxx Parties now have or
may hereafter have against the Altair Releasees, or any of them,
by reason of any matter, cause, or thing whatsoever from the
beginning of time to the date hereof, including, without
limitation, any and all Claims arising out of, based upon, or in
any way relating to transactions with the Xxxxxx Parties, the
Xxxxxx Releasees, Xxxxxxxxxxx Xxxxxx, Irvine Management Consulting
Inc., CMGI, Equity Alert, Market Pathways, C. Van Mussher, IR
Image, or Patagon Securities Corp.
8.2. The Xxxxxx Parties represent and warrant that there has been no
assignment or other transfer of any interest in any Claim that it
may have against the Altair Releasees, or any of them, and the
Xxxxxx Parties agree to indemnify and hold the Altair Releasees,
and each of them, harmless from any liabilities, claims, demands,
damages, costs, expenses, and attorneys' fees incurred by the
Altair Releasees, or any of them, as a result of any person
asserting any such assignment or transfer. It is the intention of
the parties that this indemnity does not require payment as a
condition precedent to recovery by the Altair Releasees against
the Xxxxxx Parties under this indemnity.
8.3. The Xxxxxx Parties agree that if they hereafter commence, join in,
or in any manner seek relief through any suit arising out of,
based upon, or relating to any of the Claims released hereunder,
3
or in any manner asserts against the Altair Releasees, or any of
them, any of the Claims released hereunder, then the Xxxxxx
Parties shall pay to the Altair Releasees, and each of them, in
addition to any other damages caused to the Altair Releasees
thereby, all attorneys' fees and costs incurred by the Altair
Releasees in defending or otherwise responding to that suit or
Claim.
8.4. Notwithstanding any provision contained in Sections 8.1, 8.2, and
8.3 above, the release set forth herein does not extend to
releasing the Altair Releasees, or any of them, from their
responsibilities, representations, warranties, promises,
obligations, covenants, and agreements contained in this Agreement
or the responsibilities, representations, warranties, promises,
obligations, covenants, and agreements contained within the four
corners of the various unexercised warrants held by the Xxxxxx
Parties.
9. Representations, Warranties and Covenants.
9.1. Xxxxxx and Toyota, jointly and severally, hereby covenant,
represent, and warrant to the other parties to this Agreement as
follows:
9.1.1. Xxxxxx and Toyota are correctly described and named in this
Agreement;
9.1.2. Before executing this Agreement, Xxxxxx and Toyota became fully
informed of the terms, contents, provisions, and effect of this
Agreement and the attached exhibits;
9.1.3. This Agreement is fully and forever binding on, and enforceable
against Xxxxxx and Toyota in accordance with its terms;
9.1.4. The execution and delivery of this Agreement and any other
documents, agreements, or instruments executed or delivered by
Xxxxxx and Toyota pursuant hereto and the consummation of the
transactions herein or therein contemplated does not conflict with
or result in a breach of any of the terms or provisions of, or
constitute a default under, any material agreement or instrument
to which Xxxxxx and Toyota is a party or any provision of law,
statute, rule, or regulation applicable to Xxxxxx and Toyota or
any judicial or administrative order or decree by which Xxxxxx and
Toyota is bound;
9.1.5. In entering into and signing this Agreement, Xxxxxx and Toyota
have had the benefit of the advice of attorneys of their own
choosing, and they enter into this Agreement freely by their own
choosing and judgment, and without duress or other influence;
9.1.6. Xxxxxx and Toyota have made an investigation to their
satisfaction of all facts and reasons why it should enter into
this Agreement and agree, based upon Xxxxxx'x and Toyota's
knowledge, experience, and investigation, that this Agreement is
fair and just;
4
9.1.7. Xxxxxx and Toyota represent that they have not relied upon, and
will not rely upon any statements, acts, or omissions by any of
the other parties, other than as set forth in this Agreement, in
making their decision to enter into this Agreement;
9.1.8. This Agreement is duly executed by Xxxxxx and Toyota with full
knowledge and understanding of its terms and meaning, on Xxxxxx'x
and Toyota's own judgment and upon the advice of each of their
attorneys and financial and tax advisors;
9.1.9. This Agreement is not and shall not be construed as an admission
of wrongdoing or liability by any party, any of which wrongdoing
or liability is and has been specifically denied by each party. It
is expressly understood and agreed that the terms of this
Agreement are contractual and not merely recitals, and that the
agreements contained herein and the consideration transferred is
intended to compromise doubtful and disputed claims, avoid and
terminate litigation, and buy peace, and that no payments made and
no release or other consideration given by any party shall be
construed as an admission of wrongdoing or liability by any party,
all wrongdoing or liability being expressly denied by each party;
and
9.1.10. Xxxxxx and Toyota acknowledge that their aforesaid representations
are a material inducement to every other party to enter into this
Agreement.
9.1.11. Investment Representations.
a. Purchase for Own Account. Toyota is the sole and true party
in interest, is acquiring the Settlement Shares for its own account for
investment, is not purchasing the Settlement Shares for the benefit of
any other person, and has no present intention of holding or managing
the Settlement Shares with others or of selling, distributing or
otherwise disposing of any portion of the Settlement Shares. Toyota has
its principal place of business in the state of Illinois.
b. Disclosure and Review of Information. Toyota acknowledges
and represents that it has received and reviewed copies of Altair's
Annual Report on Form 10-K for the year ended December 31, 2003 and
Altair Quarterly Report on Form 10-Q for the quarter ended March 31,
2004 (the "SEC Filings"). In addition, Toyota acknowledges and
represents that Toyota has been given a reasonable opportunity to
review all documents, books and records of Altair pertaining to this
investment, and has been supplied with all additional information
concerning Altair and the Settlement Shares that has been requested by
Toyota, has had a reasonable opportunity to ask questions of and
receive answers from Altair or its representatives concerning this
investment, and that all such questions have been answered to the full
satisfaction of Toyota. Toyota has received, and acknowledges that it
is receiving, no representations, written or oral, from Altair or its
officers, directors, employees, attorneys or agents other than those
contained in this Agreement and the SEC Filings. In making its decision
5
to purchase the Securities, Toyota has relied solely upon its review of
the SEC Filings, this Agreement, and independent investigations made by
it or its representatives without assistance of Altair.
c. Speculative Investment. Toyota understands that (i) it must
bear the economic risk of the investment in the Settlement Shares for
an indefinite period of time because the Settlement Shares have not
been registered under the Securities Act of 1933, as amended (the
"Securities Act") or qualified under the Securities Act or the
securities laws of any other jurisdiction and (ii) its investment in
Altair represented by the Settlement Shares is highly speculative in
nature and is subject to a high degree of risk of loss in whole or in
part. Toyota has adequate means of providing for its current needs and
possible contingencies, and is able to bear the high degree of economic
risk of this investment, including, but not limited to, the possibility
of the complete loss of Toyota's entire investment and the limited
transferability of the Settlement Shares, which may make the
liquidation of this investment impossible for the indefinite future.
d. Accredited Xxxxxx Parties Status. Toyota is an "accredited
investor" within the meaning of Rule 501(a) promulgated under the
Securities Act in that, among other reasons, all equity owners of
Toyota had individual income (exclusive of any income attributable to
my spouse) in excess of $200,000 in each of the most recent two years
and reasonably expect to have an individual income in excess of
$200,000 for the current year and/or) alimony paid, and have an
individual net worth, or my spouse and I have a combined individual net
worth, in excess of $1,000,000.
e. Investment Experience. Toyota has experience as an investor
in securities and acknowledges that it can bear the economic risk of
its investment in the Securities. By reason of Toyota's business or
financial experience or the business or financial experience of its
professional advisors who are unaffiliated with and who are not
compensated by Altair or any affiliate or selling agent of Altair,
directly or indirectly, Toyota has the capacity to protect its own
interests in connection with its purchase of the Securities. Toyota has
not been organized solely for the purpose of acquiring the Securities.
f. Restricted Securities. Toyota understands that the
Settlement Shares are and will be "restricted securities" under the
Securities Act inasmuch as they are being acquired from Altair in a
transaction not involving a public offering, and that, under the
Securities Act and applicable regulations thereunder, such securities
may be resold without registration under the Securities Act only in
certain limited circumstances.
g. Legends. Toyota understands that the certificates
evidencing the Settlement Shares will bear the legend set forth below,
together with any other legends required by the laws of the Province of
Ontario and any other state or province with jurisdiction:
6
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER APPLICABLE STATE
SECURITIES LAWS AND HAVE BEEN TAKEN FOR INVESTMENT PURPOSES
ONLY AND NOT WITH A VIEW TO OR FOR SALE IN CONNECTION WITH ANY
DISTRIBUTION THEREOF. THESE SECURITIES MAY NOT BE SOLD OR
OTHERWISE TRANSFERRED UNLESS A REGISTRATION STAEMENT UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, IS IN EFFECT WITH RESPECT
TO SUCH SECURITIES OR ALTAIR HAS RECEIVED AN OPINION IN FORM
AND SUBSTANCE SATISFACTORY TO ALTAIR PROVIDING THAT AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT OF 1933, AS AMENDED, IS AVAILABLE.
h. The legend set forth above shall be removed by Altair from
any certificate evidencing any of the Settlement Shares only (i) upon
receipt by Altair of an opinion in form and substance satisfactory to
Altair that such legend may be removed pursuant to Rule 144 promulgated
under the Securities Act, or (ii) upon confirmation that a registration
statement under the Securities Act is at that time in effect with
respect to the legended Settlement Share and that such transfer will
not jeopardize the exemption or exemptions from registration pursuant
to which the respective Settlement Shares was issued.
9.2. Altair hereby covenants, represents, and warrants to the other
parties to this Agreement as follows:
9.2.1. Altair is correctly described and named in this Agreement;
9.2.2. Before executing this Agreement, Altair became fully
informed of the terms, contents, provisions, and effect of
this Agreement and the attached exhibits;
9.2.3. This Agreement is fully and forever binding on, and
enforceable against Altair in accordance with its terms;
9.2.4. The execution and delivery of this Agreement and any other
documents, agreements, or instruments executed or
delivered by Altair pursuant hereto and the consummation
of the transactions herein or therein contemplated does
not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, any
material agreement or instrument to which Altair is a
party or any provision of law, statute, rule, or
regulation applicable to Altair or any judicial or
administrative order or decree by which Altair is bound;
9.2.5. In entering into and signing this Agreement, Altair has
had the benefit of the advice of attorneys of its own
choosing, and enter into this Agreement freely by their
own choosing and judgment, and without duress or other
influence;
7
9.2.6. Altair has made an investigation to its satisfaction of
all facts and reasons why it should enter into this
Agreement and agree, based upon Altair's knowledge,
experience, and investigation, that this Agreement is fair
and just;
9.2.7. Altair represents that it has not relied upon, and will
not rely upon any statements, acts, or omissions by any of
the other parties, other than as set forth in this
Agreement, in making its decision to enter into this
Agreement;
9.2.8. This Agreement is duly executed by Altair with full
knowledge and understanding of its terms and meaning, on
Altair's own judgment and upon the advice of its attorneys
and financial and tax advisors;
9.2.9. This Agreement is not and shall not be construed as an
admission of wrongdoing or liability by any party, any of
which wrongdoing or liability is and has been specifically
denied by each party. It is expressly understood and
agreed that the terms of this Agreement are contractual
and not merely recitals, and that the agreements contained
herein and the consideration transferred is intended to
compromise doubtful and disputed claims, avoid and
terminate litigation, and buy peace, and that no payments
made and no release or other consideration given by any
party shall be construed as an admission of wrongdoing or
liability by any party, all wrongdoing or liability being
expressly denied by each party; and
9.2.10. Altair acknowledges that its aforesaid representations are
a material inducement to every other party to enter into
this Agreement.
10. Successors and Assigns. This Agreement shall inure to the benefit of,
and shall be binding upon, the successors and assigns of the parties to
this Agreement, and each of them. This Agreement is intended to
release, and inure to the benefit of, each of the parties' respective
related parties.
11. Miscellaneous Terms. Each of the parties to this Agreement further
agrees as follows:
11.1. Modifications. No modification, amendment or waiver of any
of the provisions contained in this Agreement, or any
future representations, promise, or condition in
connection with the subject matter of this Agreement,
shall be binding upon any party to this Agreement unless
made in writing and signed by such party or by a duly
authorized officer or agent of such party.
11.2. Severability. In the event any non-material provision of
this Agreement or the application of any such provision is
held to be void, voidable, unlawful or for any reason
unenforceable in any jurisdiction, such provision shall,
as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability; but, the remaining
provisions of this Agreement shall remain in full force
and effect, and any such prohibition or unenforceability
in any jurisdiction shall not invalidate or render
unenforceable such non-material provision in any other
8
jurisdiction. In good faith, the parties shall use their
best efforts, or if such efforts are unsuccessful, the
parties agree that a court or arbitrator may reform such
provision, to replace the provision that is contrary to
law with a legal one approximating to the extent possible
the original intent of the parties.
11.3. No Representations. Except for statements expressly set
forth in this Agreement, no party has made any statement
or representation to any other party regarding a material
fact relied upon by any other party in entering into this
Agreement and no party has relied upon any statement,
representation, or promise of any other party, or of any
representative or attorney for any other party, in
executing this Agreement or in making the settlement
provided for in this Agreement.
11.4. Independent Advice From Counsel. Each of the parties has
received prior independent legal advice from legal counsel
of its choice with respect to the advisability of making
the settlement provided for in this Agreement and with
respect to the advisability of executing this Agreement.
All parties agree and acknowledge that, with respect to
this Agreement and the agreements described herein, Altair
has been represented solely by Stoel Rives LLP, and the
Xxxxxx Parties have been represented solely by Jenkens &
Xxxxxxxxx, A Professional Corporation. Each party
represents and warrants that his or its attorney has
reviewed the Agreement, and that his or its attorney has
approved the Agreement as to form and substance.
11.5. Knowing and Voluntary Consent; Adequate Investigation.
Each of the parties has read this Agreement carefully,
knows and understands the Agreement's content, and has
investigated all facts and matters pertaining to the
subject matter of this Agreement as such party deems
necessary or desirable. This Agreement shall be final and
binding upon the parties regardless of any claims of
mistake of fact or law, or any other circumstances
whatsoever, and may not be set aside for any reason
whatsoever.
11.6. Attorneys' Fees. In the event of any dispute, controversy,
litigation or other proceedings (including proceedings in
bankruptcy) concerning or related to the enforcement of an
arbitration award under this Agreement, the prevailing
party shall be entitled to reimbursement of all of its
costs, including reasonable attorney and expert witnesses
fees and costs, and court or arbitration fees and costs.
11.7. Governing Law. The parties agree that the laws of the
State of Nevada shall govern the interpretation and
enforcement of this Agreement, without giving effect to
its choice of law rules.
11.8. Dispute Resolution. Any controversy or claim arising out
of or relating to this Agreement or the breach of this
Agreement (other than claims in which the sole remedy
sought is specific performance of one or more provisions
set forth in this Agreement, which claims may be brought
in state or federal court located in Reno, Nevada) shall
be settled through an arbitration proceeding Reno, Nevada
administered by the American Arbitration Association under
its Commercial Arbitration Rules. With respect to any such
9
arbitration, within 15 days after the commencement of
arbitration as given in the American Arbitration
Association's Commercial Arbitration Rules, each party
shall select one person to act as arbitrator and the two
selected shall select a third arbitrator within 10 days of
their appointment. Each party may select an arbitrator
from the list of arbitrators provided by the American
Arbitration Association or either party may appoint any
other qualified individual to serve as arbitrator. If the
arbitrators selected by the parties are unable or fail to
agree upon the third arbitrator, the third arbitrator
shall be selected by the American Arbitration Association.
The arbitrators will have no authority to award punitive
or other damages not measured by the prevailing party's
actual damages, except as may be required by statute. The
arbitrators, in their sole discretion, may include an
injunction or a direction to any party in their decision.
The arbitration shall be governed by the Commercial
Dispute Resolution Procedures of the American Arbitration
Association in effect at the time the dispute is filed for
arbitration. Any party to an arbitration under this
Section may commence an action in a court of competent
jurisdiction to enforce an arbitration award and/or to
remedy a refusal to arbitrate.
11.9. Authority. Each party represents that all necessary
corporate proceedings have been taken by it to authorize
the settlement and mutual releases contemplated by this
Agreement and the agreements contemplated hereby, and that
this Agreement and the agreements contemplated hereby have
been executed by each party, and shall constitute valid
and binding agreements.
11.10. Execution in Counterparts. This Agreement may be executed
and delivered in any number of counterparts or copies by
the parties to this Agreement. When each party has signed
and delivered at least one counterpart to each other party
to this Agreement, each counterpart shall be deemed an
original and, taken together, shall constitute one and the
same Agreement, which shall be binding and effective as to
the parties to this Agreement.
11.11. Notices. All notices and other communications under this
Agreement shall be in writing, shall specifically refer to
this Agreement, and shall be delivered or transmitted by
facsimile, reliable overnight courier or other reliable
delivery service, and shall be addressed as follows:
If to the Xxxxxx Parties: Xxxxx Xxxxxx
Toyota On Western
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
With a copy to: Jenkens & Xxxxxxxxx,
A Professional Corporation
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: X. Xxxxxxx Xxxx
Facsimile: (000) 000-0000
10
If to Altair: Altair Nanotechnologies, Inc.
000 Xxxxxx Xxx
Xxxx, Xxxxxx 00000
Attn: Corporate Secretary
Facsimile: (000) 000-0000
With a copy to: Stoel Rives LLP
000 X. Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: Xxxxx X. Xxxxx
Facsimile: (000) 000-0000
Such notices and other communications shall be deemed given on the day
on which received. Any party may change his or its address for receipt of
notices and requests hereunder by notice duly given to the other party in
accordance with these provisions.
(Remainder of page intentionally left blank; signature page follows)
11
IN WITNESS WHEREOF, the parties hereto have executed this Settlement
Agreement and Mutual Release to be effective as of the date written above.
ALTAIR NANOTECHNOLOGIES, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
-------------------------------------
Title: President
-------------------------------------
/s/ Xxxxx Xxxxxx
----------------------------------------------
XXXXX XXXXXX, Individually
TOYOTA ON WESTERN, INC.
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
-------------------------------------
Title: President
-------------------------------------
12
EXHIBIT A
(Registration Rights Agreement)
13
EXHIBIT B
(First Amendment to Warrant Certificate No. 2003B-1)
14
EXHIBIT C
Confidentiality
The provisions of this Exhibit C are incorporated by reference into the
Settlement Agreement and Mutual Release dated June 4, 2004 among Altair, Xxxxxx
and Toyota (the "Settlement Agreement"). Terms not otherwise defined in this
Exhibit C have the meanings given those terms in the Settlement Agreement.
***
Altair, Xxxxxx and Toyota shall keep the provisions of this Exhibit C and the
provisions of Section 4 confidential to the maximum extent allowed by law. If
the Settlement Agreement is filed with the SEC, the party filing the Settlement
Agreement shall use its best reasonable efforts to obtain confidential treatment
from the SEC for Section 4 and this Exhibit C to the maximum extent allowed by
the SEC.
15
