Note Termination and Issuance Agreement
This Note Termination and Issuance Agreement (the "Agreement") is made
and entered into this 28th day of December, 2001, by and among Altair
International Inc., an Ontario 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, Altair and Lender entered into a Securities Purchase Agreement
dated December 15, 2000 (the "Purchase Agreement"), pursuant to which the Altair
Parties issued to Lender a $7,000,000 Asset-Backed Exchangeable Term Note dated
December 15, 2000 (as amended, the "Note"); and
WHEREAS, Lender and the Altair Parties desire to terminate the Note,
issue a new note and cause the Purchase 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agreements to be amended, terminated, superseded or ratified, all as set forth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. Termination of Letter of Credit. At Closing (as defined
below), Altair and Lender shall execute and deliver to American National Bank
and Trust Company of Chicago (the "Issuer") and each other, and cause the Issuer
to execute and deliver to Altair and Lender, the letter in the form attached
hereto as Exhibit A (the "LOC Termination Letter"), pursuant to which (i) the
letter of credit (the "Letter of Credit") dated December 14, 2000 issued by the
Issuer on behalf of the Altair Parties in favor of Lender is terminated and all
obligations of the Altair Parties with respect thereto are released, and (ii)
the Altair Parties direct the Issuer to transfer to Lender via wire transfer Two
Million Five Hundred Thousand Seven Hundred Thirty Two and 92/100 U.S. Dollars
($2,500,732.92) of the cash collateral securing the Letter of Credit and to
transfer any remaining cash collateral to Altair.
B. Termination of Note; Issuance of New Note. At Closing, the
Altair Parties shall execute and deliver to Lender, and Lender shall execute and
deliver to the Altair Parties, the Secured Term Note in the form attached hereto
as Exhibit B (the "New Note"). Upon execution and delivery of the New Note by
the parties thereto and Lender's receipt of the $2,500,000 transfer described in
Section 1(A)(ii), (i) the Note, including all principal, interest, exchange
rights, penalties, fees and any other amounts owed by any Altair Party to Lender
with respect to the Note, shall be deemed to have been paid in full, and (ii)
the Note shall immediately and automatically terminate and the Altair Parties
shall have no further obligations thereunder. 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
termination of such Note as set forth in the preceding sentence.
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C. Additional Investment Warrants. As consideration for
Lender's willingness to enter into this Agreement, terminate the Note and accept
the New Note, Altair shall (i) execute and deliver to Lender a Warrant for
200,000 common shares of Altair ("Common Shares") in the form attached hereto as
Exhibit C (the "Fixed Warrant"); (ii) execute and deliver to Lender a
Conditional Warrant for up to 500,000 Common Shares in the form attached hereto
as Exhibit D (the "Conditional Warrant"), and (iii) execute and deliver to
Lender the Warrant Amendment Agreement in the form attached hereto as Exhibit E
(the "Warrant Amendment").
D. 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 F (the "New Registration Rights
Agreement"). Upon the mutual execution of the New Registration Rights Agreement,
the Registration Rights Agreement dated December 15, 2000 (the "Existing
Registration Rights Agreement"), between Altair and Lender, as amended, shall
immediately and automatically terminate and the Altair Parties shall have no
further obligation thereunder.
E. Amendment to Stock Pledge Agreement. At Closing, each of
Mineral Recovery Systems and Lender shall executed and deliver to the other an
Amendment to Stock Pledge Agreement in the form attached hereto as Exhibit G.
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 LOC
Termination Letter, the New Note, the Fixed Warrant, the Conditional Warrant,
the Warrant Amendment and the New Registration Rights Agreement and each of the
other agreements entered into by the Parties hereto in connection with the
transactions contemplated by this Agreement (collectively, the "Transaction
Documents"), and Altair has the requisite corporate power and authority to issue
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the Common Shares of Altair issuable under the New Note or upon exercise of the
Fixed Warrant, the Conditional Warrant or the Warrant Amendment (the "Shares")
in accordance with the terms hereof and thereof; (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 New Note, the Fixed Warrant and the Conditional
Warrant will be, and upon exchange or exercise in accordance with the Note, the
Warrant Amendment, the New Note, the Fixed Warrant or the Conditional Warrant,
as the case may be, the Shares will be, validly issued, fully paid and
non-assessable and free from all taxes, liens and charges with respect to the
issue thereof.
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, 22,094,142 shares are issued and outstanding,
3,666,700 shares are reserved for issuance pursuant to Altair's stock option and
purchase plans and 2,787,007 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. In addition to the foregoing, in order to satisfy the condition
precedent set forth in Section 6(A)(4) of this Agreement, Altair may enter into,
or have entered into, subscription agreements for the sale of its capital stock
and/or warrants to purchase its capital stock.
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) 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
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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
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 New Note,
the Fixed Warrant, the Conditional Warrant, the Warrant Amendment, and the
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.
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(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: (i)
except as provided in the Existing Registration Rights Agreement or the New
Registration Rights Agreement, 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 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 New Note, the
Fixed Warrant, the Conditional Warrant and, until such time as the sale of 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 Shares 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 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
registered for sale under the 1933 Act and Altair has received a written
5
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.
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 the Shares
and (B) no amounts under the New 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. Additional Financing. During the term of the New Note,
Altair shall not, without the prior written consent of Lender, issue any
variably-priced debt or variably-priced equity securities of any type.
C. Limitation on Number of Exchange and Warrant Shares. Altair
shall not be obligated to issue more than 19.9% of its total outstanding Common
Shares upon exercise of the Note, the New Note, the Fixed Warrant, the
Conditional Warrant and all other Warrants issued to Lender to date under or in
connection with this Agreement or the Purchase 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. In the
event Altair is prohibited from issuing Shares under the New Note, the Fixed
Warrant, or the Conditional Warrant as a result of the operation of this Section
5(C), Altair shall be subject to the restrictions described in the applicable
instrument.
D. Minimum Cash Requirement. The Altair Parties shall have
cash or "cash equivalents" in an amount equal to or greater than $250,000 (i) on
each March 31, June 30, September 30 and December 31 during the term of the New
Note, and (ii) at all times during the term of the Amended Note that the closing
price of Altair's Common Shares has been below $1.00 for ten or more trading
days. In order to verify Altair's compliance with subsection (ii) above, upon
the request of Lender at any time the closing price of Altair's Common Shares
has been below $1.00 per share for ten or more trading days, Altair shall
provide Lender with a current balance sheet and/or copies of cash or cash
equivalent account statements dated as of any date specified by Lender on which
closing price of Altair's Common Shares has been below $1.00 per share for ten
or more trading days.
E. Post-Effective Amendments. Altair hereby covenants and
agrees that, during the period commencing on the date of Closing until the date
that is 60 days after the Prospectus Supplement (as defined in the Registration
Rights Agreement) is filed, the Company shall not enter into any agreement or
take any other action that would require the Company to file a post-effective
amendment to the Existing Registration Statement (as defined in the Registration
Rights Agreement).
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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:
1. 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).
2. 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.
3. 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.
4. Raising of Additional Funds. Altair has received an
additional $750,000 for working capital on or prior to the Closing Date pursuant
to commitments which were received on or prior to December 13, 2001.
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:
1. 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).
2. 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.
3. 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.
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7. Miscellaneous Provisions.
A. Superseding of Purchase Agreement; Confirmation of
Collateral Documents; References to Note.
(i) Purchase Agreement. Effective as of the Closing, the
Purchase Agreement (other than Article VIII thereof) shall immediately and
automatically terminate and be of no further force and effect. Notwithstanding
the foregoing, Article VIII of the Purchase Agreement shall survive until the
payment in full of the New Note.
(ii) Collateral Documents; References to Note. Notwithstanding
the termination of the Note, the New 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 "Security Agreement"), the Stock Pledge
Agreement dated December 15, 2000 between Doral and Altair, and the Stock Pledge
Agreement dated December 15, 2000 between Mineral Recovery Systems, Inc. and
Doral 18, LLC as the same was amended as of the date hereof (the "Stock Pledge
Agreements") to the same extent and in the same manner as the Note and all
references to the Note in the Security Agreement and the Stock Pledge Agreements
shall be deemed to refer to the New 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
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
8
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 INTERNATIONAL, INC.
Xx. Xxxxxxx X. Xxxx
0000 Xxxxxxxx Xxx., Xxxxx 000
Xxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Xxxxxx Xxxxxxxxx
000 Xxxxx Xxxx Xxxx., Xxxxx 00
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
Facsimile: (000) 000-0000
Equity Transfer Services
000 Xxxxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxx X0X 0X0
Attn: Xxxxx Xxxxxxxx
If to the Lender:
Doral 18, LLC
000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Telephone: (000)000-0000
Facsimile: (000)000-0000
Attention: Xxxxx X. Xxxxx
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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.
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]
10
IN WITNESS WHEREOF, Lender and the Altair Parties have caused this Note
Termination and Issuance 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 International Inc.,
an Ontario corporation
By:/s/ Xxxxxxx X. Xxxx
----------------------
Its:_____________________________
Mineral Recovery Systems, Inc.
a Nevada corporation
By:/s/ Xxxxxxx X. Xxxx
----------------------
Its:_____________________________
Fine Gold Recovery Systems, Inc.
a Nevada corporation
By:/s/ Xxxxxxx X. Xxxx
----------------------
Its:_____________________________
Altair Nanomaterials Inc.
a Nevada corporation
By:/s/ C. Xxxxxxx Xxxxxx
----------------------
Its:_____________________________
11
EXHIBIT A
LOC TERMINATION LETTER
[SEE ATTACHED]
12
EXHIBIT B
NEW NOTE
[SEE ATTACHED]
13
EXHIBIT C
FIXED WARRANT
[SEE ATTACHED]
14
EXHIBIT D
CONDITIONAL WARRANT
[SEE ATTACHED]
15
EXHIBIT E
WARRANT AMENDMENT
[SEE ATTACHED]
16
EXHIBIT F
NEW REGISTRATION RIGHTS AGREEMENT
[SEE ATTACHED]
17
EXHIBIT G
AMENDMENT TO STOCK PLEDGE AGREEMENT
[SEE ATTACHED]
18
