EXHIBIT 10.1
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (the "Agreement"), dated as of February
15, 2005, by and among Altair Nanotechnologies, Inc., a Canadian corporation,
with headquarters located at 000 Xxxxxx Xxx, Xxxx, Xxxxxx 00000 (the "Company"),
and the investor listed on the signature page attached hereto (individually, a
"Buyer" and collectively with any other investors, the "Buyers").
WHEREAS:
A. The Company and the Buyer desire to enter into this transaction to
purchase the securities set forth herein pursuant to a currently effective shelf
registration statement on Form S-3, which has at least 5,000,000 common shares,
without par value ("Common Stock") unallocated and registered thereunder
(Registration Number 333-111416) (the "Registration Statement"), which
Registration Statement has been declared effective in accordance with the
Securities Act of 1933, as amended (the "1933 Act"), by the United States
Securities and Exchange Commission (the "SEC").
B. The Buyer wishes to purchase, and the Company wishes to sell, upon
the terms and conditions stated in this Agreement, that aggregate number of
shares of Common Stock, set forth below such Buyer's name on the signature page
hereto (which aggregate amount for all Buyers together shall be 5,000,000 shares
of Common Stock and shall collectively be referred to herein as the "Purchased
Shares").
C. The Purchased Shares are sometimes referred to herein as the
"Securities".
NOW, THEREFORE, the Company and the Buyer hereby agree as follows:
1. PURCHASE AND SALE OF PURCHASED SHARES.
(a) Purchase of Purchased Shares.
Subject to the satisfaction (or waiver) of the conditions set
forth in Sections 5 and 6 below, the Company shall issue and sell to the Buyer,
and the Buyer severally, but not jointly with any other Buyer, agrees to
purchase from the Company on the Closing Date (as defined below), the number of
Purchased Shares as is set forth below such Buyer's name on the signature page
hereto (the "Closing"). The Closing shall occur on the Closing Date at the
offices of Xxxxxxx Xxxx & Xxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
(b) Purchase Price. The purchase price for each Purchased
Share to be purchased by each Buyer at the Closing shall be $4.05 (the
"Purchase Price").
(c) Closing Date. The date and time of the Closing (the
"Closing Date") shall be 10:00 a.m., New York City Time, on February 15, 2005,
after notification of satisfaction (or waiver) of the conditions to the Closing
set forth in Sections 6 and 7 below (or such later date and time of day as is
mutually agreed to by the Company and each Buyer).
(d) Form of Payment. On the Closing Date, (i) the Buyer shall
pay its Purchase Price to the Company for the Purchased Shares to be issued and
sold to such Buyer at the Closing, by wire transfer of immediately available
funds in accordance with the Company's written wire instructions, and (ii) the
Company shall, or shall cause the Company's transfer agent (the "Transfer
Agent") to deliver to the Buyer at the address for notice designated on the
signature page hereof certificates for the Purchased Shares.
2. REPRESENTATIONS AND WARRANTIES OF THE BUYER. The Buyer represents
and warrants with respect to only itself that: (i) This Agreement has been duly
and validly authorized, executed and delivered on behalf of such Buyer and
constitutes the legal, valid and binding obligation of such Buyer enforceable
against such Buyer in accordance with its terms, except as such enforceability
may be limited by general principles of equity or to applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation and other similar laws
relating to, or affecting generally, the enforcement of applicable creditors'
rights and remedies; and (ii) the execution, delivery and performance by such
Buyer of this Agreement and the consummation by such Buyer of the transactions
contemplated hereby will not (A) result in a violation of the organizational
documents of such Buyer or (B) 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 agreement, indenture or instrument to which such Buyer is a
party, or (C) result in a violation of any law, rule, regulation, order,
judgment or decree (including federal and state or Canadian provincial
securities laws) applicable to such Buyer, except in the case of clauses (B) and
(C) above, for such conflicts, defaults, rights or violations which would not,
individually or in the aggregate, reasonably be expected to have a material
adverse effect on the ability of such Buyer to perform its obligations
hereunder. The Buyer acknowledges that it is not relying on any representations
or warranties made by the Agent (as defined below) in determining to enter into
this transaction. The Buyer (i) if an individual, is a resident of the State of
New York if a resident of the United States or resides outside of the United
States and Canada, (ii) if other than an individual, maintains its principal
office and place of business in the State of New York if in the United States or
outside of the United States and Canada, and (iii) has made all offers, and
received any offers, information, Transaction Documents and Disclosure Materials
in the State of New York if in the United States or outside of the United States
and Canada.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby makes the following representations and warranties
to the Buyer:
(a) Organization and Qualification; Authorization;
Enforcement. Each of the Company and each of its subsidiaries (the
"Subsidiaries") is an entity duly incorporated or otherwise organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or organization (as applicable), with the requisite power and
authority to own and use its properties and assets and to carry on its business
as currently conducted. The Company owns, directly or indirectly, all of the
capital stock of each Subsidiary free and clear of any lien, charge, security
interest, encumbrance, right of first refusal or other restriction
(collectively, "Liens"), and all the issued and outstanding shares of capital
stock of each Subsidiary are validly issued and are fully paid, non-assessable
and free of preemptive and similar rights. Neither the Company nor any
Subsidiary is in violation of any of the provisions of its respective
certificate or articles of incorporation, bylaws or other organizational or
charter documents. Each of the Company and the Subsidiaries is duly qualified to
do business and is in good standing as a foreign corporation or other entity in
each jurisdiction in which the nature of the business conducted or property
owned by it makes such qualification necessary, except where the failure to be
so qualified or in good standing, as the case may be, could not, individually or
in the aggregate: (i) adversely affect the legality, validity or enforceability
of this Agreement and any other documents or agreements executed in connection
with the transactions contemplated hereunder (the "Transaction Documents"), (ii)
have or result in a
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material adverse effect on the results of operations, assets, prospects,
business or condition (financial or otherwise) of the Company and the
Subsidiaries, taken as a whole, or (iii) adversely impair the Company's ability
to perform fully on a timely basis its obligations under any of the Transaction
Documents (any of (i), (ii) or (iii), a "Material Adverse Effect"). The Company
has the requisite corporate power and authority to enter into and to consummate
the transactions contemplated by each of the Transaction Documents and otherwise
to carry out its obligations hereunder and thereunder. The execution and
delivery of each of the Transaction Documents by the Company and the
consummation by it of the transactions contemplated hereby and thereby have been
duly authorized by all necessary action on the part of the Company and no
further consent or action is required by the Company, its Board of Directors or
its stockholders. Each of the Transaction Documents has been (or upon delivery
will be) duly executed by the Company and is, or when delivered in accordance
with the terms hereof, will constitute, the valid and binding obligation of the
Company enforceable against the Company in accordance with its terms, except as
such enforceability may be limited by general principles of equity or to
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and
other similar laws relating to, or affecting generally, the enforcement of
applicable creditors' rights and remedies.
(b) No Conflicts. The execution, delivery and performance of
the Transaction Documents by the Company and the consummation by the Company of
the transactions contemplated hereby and thereby do not and will not: (i)
conflict with or violate any provision of the Company's or any Subsidiary's
certificate or articles of incorporation, bylaws or other organizational or
charter documents, or (ii) subject to obtaining the Required Approvals (as
defined below), conflict with, or constitute a default (or an event that 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 (with or
without notice, lapse of time or both) of, any agreement, credit facility, debt
or other instrument (evidencing a Company or Subsidiary debt or otherwise) or
other understanding to which the Company or any Subsidiary is a party or by
which any property or asset of the Company or any Subsidiary is bound or
affected, or (iii) result in a violation of any law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or governmental
authority to which the Company or a Subsidiary is subject (including federal and
state and Canadian securities laws and regulations), or by which any property or
asset of the Company or a Subsidiary is bound or affected; except in the case of
each of clauses (ii) and (iii), such as could not, individually or in the
aggregate, have or result in a Material Adverse Effect.
(c) Filings, Consents and Approvals; Integration; Listing and
Maintenance Requirements; Application of Takeover Protections. Neither the
Company nor any Subsidiary is required to obtain any consent, waiver,
authorization or order of, give any notice to, or make any filing or
registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Company of the Transaction Documents, other than
(i) the filings required under Section 4(f), (ii) the filing with the SEC of the
prospectus supplement required by the Registration Statement pursuant to Rule
424(b) under the 1933 Act, (iii) the application(s) to The Nasdaq SmallCap
Market (the "Principal Market") for the listing of the Purchased Shares for
trading thereon in the time and manner required thereby, and (iv) applicable
Blue Sky filings (collectively, the "Required Approvals"). "Person" means an
individual or corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of any kind.
Neither the Company, nor any of its Affiliates, nor any Person acting on its or
their behalf has, directly or indirectly, made any offers or sales of any
security or solicited any offers to buy any security, under circumstances that
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would cause this offering of the Securities to be integrated with prior
offerings by the Company for purposes of any applicable stockholder approval
provisions, including, without limitation, under the rules and regulations of
any exchange or automated quotation system on which any of the securities of the
Company are listed or designated, nor will the Company or any of its
Subsidiaries take any action or steps that would cause the offering of the
Securities to be integrated with other offerings. The Company has not, in the 12
months preceding the date hereof, received notice from the Principal Market on
which the Common Stock is or has been listed or quoted to the effect that the
Company is not in compliance with the listing or maintenance requirements of the
Principal Market. The Company is, and has no reason to believe that it will not
in the foreseeable future continue to be, in compliance with all such listing
and maintenance requirements. The issuance and sale of the Securities hereunder
does not contravene the rules and regulations of the Principal Market and no
shareholder approval is required for the Company to fulfill its obligations
under the Transaction Documents. The Common Stock is currently listed on the
Principal Market. The Company and its Board of Directors have taken all
necessary action, if any, in order to render inapplicable any control share
acquisition, business combination, poison pill (including any distribution under
a rights agreement) or other similar anti-takeover provision under the Company's
Certificate of Incorporation (or similar charter documents) or the laws of its
state of incorporation that is or could become applicable to the Buyers as a
result of the Buyers and the Company fulfilling their obligations or exercising
their rights under the Transaction Documents, including, without limitation, as
a result of the Company's issuance of the Securities and the Buyers' ownership
of the Securities.
(d) Issuance of the Securities. The Securities are duly
authorized and, when issued and paid for in accordance with the applicable
Transaction Documents, will be duly and validly issued, fully paid and
nonassessable, free and clear of all Liens (other than any Liens arising solely
from an act or omission of a Buyer). The issuance by the Company of the
Securities has been registered under the 1933 Act and all of the Securities are
freely transferable and tradable by the Buyers without restriction (other than
any restrictions arising solely from an act or omission of a Buyer) in the
United States. The Purchased Shares are being issued pursuant to the
Registration Statement and the issuance of the Purchased Shares has been
registered by the Company under the 1933 Act. The Registration Statement is
effective and available for the issuance of the Securities thereunder and the
Company has not received any notice that the SEC has issued or intends to issue
a stop-order with respect to the Registration Statement or that the SEC
otherwise has suspended or withdrawn the effectiveness of the Registration
Statement, either temporarily or permanently, or intends or has threatened in
writing to do so. The "Plan of Distribution" section under the Registration
Statement permits the issuance and sale of the Securities hereunder. Upon
receipt of the Securities, the Buyers will have good and marketable title to
such Securities and the Purchased Shares will be freely tradable on the
Principal Market. The Purchased Shares constitute less than 10% of the issued
and outstanding shares of Common Stock of the Company.
(e) Capitalization. The number of shares and type of all
authorized, issued and outstanding capital stock, options and other securities
of the Company (whether or not presently convertible into, or exercisable or
exchangeable for, shares of capital stock of the Company) is set forth in the
SEC Reports (as defined below), in each case as of the date referenced in the
respective SEC Report and to the extent required thereby. All outstanding shares
of capital stock of the Company are duly authorized, validly issued, fully paid
and nonassessable and have been issued in compliance with all applicable
securities laws. No securities of the Company are entitled to preemptive or
similar rights, and no Person has any right of first refusal, preemptive right,
right of participation, or any similar right to participate in the transactions
contemplated by the Transaction Documents. There are no anti-dilution or price
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adjustment provisions contained in any security issued by the Company (or in any
agreement providing rights to security holders) that will be triggered by the
issuance and sale of the Securities, and the issuance and sale of the Securities
will not obligate the Company to issue shares of Common Stock or other
securities to any Person (other than the Buyers) and will not result in a right
of any holder of Company securities to adjust the exercise, conversion, number
of issuable shares, exchange or reset price under such securities.
(f) SEC Reports; Financial Statements. The Company has filed
all reports required to be filed by it under the 1933 Act and the Securities
Exchange Act of 1934, as amended (the "1934 Act"), including pursuant to Section
13(a) or 15(d) thereof, for the period since January 1, 2004 to the date hereof
(or such shorter period as the Company was required by law to file such
material) (the foregoing materials being collectively referred to herein as the
"SEC Reports" and, together with the Schedules to this Agreement, the
"Disclosure Materials") on a timely basis (except for Reports on Form 8-K with
respect to which the failure to file timely does not affect the Company's
eligibility to use a Form S-3 Registration Statement) or has received a valid
extension of such time of filing and has filed any such SEC Reports prior to the
expiration of any such extension. The Company has delivered to the Buyer a true,
correct and complete copy of all SEC Reports filed within the ten (10) days
preceding the date hereof. As of their respective dates, the SEC Reports
complied in all material respects with the requirements of the 1933 Act and the
1934 Act and the rules and regulations of the SEC promulgated thereunder, and
none of the SEC Reports, when filed, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The Registration
Statement and any prospectus included therein, including the prospectus
supplement to be filed covering the transactions covered hereby, complied in all
material respects with the requirements of the 1933 Act and the 1934 Act and the
rules and regulations of the SEC promulgated thereunder, and none of such
Registration Statement or any such prospectus contain or contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the case
of any prospectus in the light of the circumstances under which they were made,
not misleading. The financial statements of the Company included in the SEC
Reports comply in all material respects with applicable accounting requirements
and the rules and regulations of the SEC with respect thereto as in effect at
the time of filing. Such financial statements have been prepared in accordance
with generally accepted accounting principles applied on a consistent basis
during the periods involved ("GAAP"), except as may be otherwise specified in
such financial statements or the notes thereto, and fairly present in all
material respects the financial position of the Company and its consolidated
subsidiaries as of and for the dates thereof and the results of operations and
cash flows for the periods then ended, subject, in the case of unaudited
statements, to normal, immaterial, year-end audit adjustments.
(g) Material Changes. Since the date of the latest audited
financial statements included within the SEC Reports, except as specifically
disclosed in the SEC Reports: (i) there has been no event, occurrence or
development that, individually or in the aggregate, has had or that could result
in a Material Adverse Effect, (ii) the Company has not incurred any liabilities
(contingent or otherwise) other than (A) trade payables and accrued expenses
incurred in the ordinary course of business consistent with past practice and
(B) liabilities not required to be reflected in the Company's financial
statements pursuant to GAAP or required to be disclosed in filings made with the
SEC, (iii) the Company has not altered its method of accounting or the identity
of its auditors, (iv) the Company has not declared or made any dividend or
distribution of cash or other property to its stockholders or purchased,
redeemed or made any agreements to purchase or redeem any shares of its capital
stock, and (v) the Company has not issued any equity securities to any officer,
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director or Affiliate, except pursuant to existing Company stock option plans or
upon the exercise of outstanding warrants to purchase Common Stock. "Affiliate"
means any Person that, directly or indirectly through one or more
intermediaries, controls or is controlled by or is under common control with a
Person, as such terms are used in and construed under Rule 144. "Rule 144" means
Rule 144 promulgated by the SEC pursuant to the 1933 Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC having substantially the same effect as such Rule.
(h) Litigation. There is no action, suit, inquiry, notice of
violation, proceeding or investigation pending or, to the knowledge of the
Company, threatened against or affecting the Company, any Subsidiary or any of
their respective properties before or by any court, arbitrator, governmental or
administrative agency or regulatory authority (federal, state, county, local or
foreign) (collectively, an "Action") which: (i) adversely affects or challenges
the legality, validity or enforceability of any of the Transaction Documents or
the Securities or (ii) could, if there were an unfavorable decision,
individually or in the aggregate, have or result in a Material Adverse Effect.
Neither the Company nor any Subsidiary, nor any director or officer thereof, is
or has been the subject of any Action involving a claim of violation of or
liability under federal or state securities laws or a claim of breach of
fiduciary duty. There has not been, and to the knowledge of the Company, there
is not pending or contemplated, any investigation by the SEC involving the
Company or any current or former director or officer of the Company. The SEC has
not issued any stop order or other order suspending the effectiveness of any
registration statement filed by the Company or any Subsidiary under the 1934 Act
or the 1933 Act, including the Registration Statement.
(i) Internal Accounting Controls. The Company and the
Subsidiaries maintain a system of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are executed in accordance
with management's general or specific authorizations, (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain asset
accountability, (iii) access to assets is permitted only in accordance with
management's general or specific authorization, and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. The
financial records of the Company accurately reflect in all material respects the
information relating to the business of the Company, the location and collection
of its assets, and the nature of all transactions giving rise to the obligations
or accounts receivable of the Company. The Company has established disclosure
controls and procedures (as defined in 1934 Act Rules 13a-14 and 15d-14) for the
Company and designed such disclosures controls and procedures to ensure that
material information relating to the Company is made known to the certifying
officers by others within the Company, particularly during the period in which
the Company's Form 10-K or 10-Q, as the case may be, is being prepared. The
Company's certifying officers have evaluated the effectiveness of the Company's
controls and procedures as of a date within 90 days prior to the filing date of
the Form 10-K for the year ended December 31, 2003 (such date, the "Evaluation
Date"). The Company presented in the Form 10-K for the year ended December 31,
2003, the conclusions of the certifying officers about the effectiveness of the
disclosure controls and procedures based on their evaluations as of the
Evaluation Date.
(j) Investment Company; Xxxxxxxx-Xxxxx Act. The Company is
not, and is not an Affiliate of, an "investment company" within the meaning of
the Investment Company Act of 1940, as amended. The Company is in compliance
with any and all applicable requirements of the Xxxxxxxx-Xxxxx Act of 2002 that
are effective as of the date hereof, and any and all applicable rules and
regulations promulgated by the SEC thereunder that are effective as of the date
hereof, except where such noncompliance would not have a Material Adverse
Effect.
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(k) Disclosure. The Company confirms that neither it nor any
other Person acting on its behalf has provided any of the Buyers or their agents
or counsel with any information that the Company believes will, following the
Closing Date, constitute nonpublic information. The Company understands and
confirms that the Buyers will rely on the foregoing representations in effecting
transactions in securities of the Company. All disclosure provided to the Buyers
regarding the Company, its business and the transactions contemplated hereby,
including the Schedules to this Agreement, furnished by or on behalf of the
Company are true and correct and do not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements made therein, in the light of the circumstances under which they were
made, not misleading. The Company acknowledges and agrees that no Buyer makes or
has made any representations or warranties with respect to the transactions
contemplated hereby other than those specifically set forth in Section 2.
4. COVENANTS.
(a) Best Efforts. Each party shall use its best efforts timely
to satisfy each of the covenants and the conditions to be satisfied by it as
provided in Sections 5, 6 and 7 of this Agreement.
(b) Prospectus Supplement and Blue Sky. On or before the
execution of this Agreement, the Company shall have delivered, and as soon as
practicable after the Closing the Company shall file, a prospectus supplement to
the Registration Statement with respect to the Securities as required under and
in conformity with the 1933 Act, including Rule 424(b) thereunder. If required,
the Company, on or before the Closing Date, shall take such action as the
Company shall reasonably determine is necessary in order to obtain an exemption
for or to qualify the Securities for sale to the Buyers at the Closing pursuant
to this Agreement under applicable securities or "Blue Sky" laws of the State of
New York (or to obtain an exemption from such qualification), and shall provide
evidence of any such action so taken to the Buyers on or prior to the Closing
Date. The Company shall make all filings and reports relating to the offer and
sale of the Securities required under applicable securities or "Blue Sky" laws
of the states of the United States following the Closing Date.
(d) Listing. The Company shall promptly secure the listing of
all of the Purchased Shares upon each national securities exchange and automated
quotation system, if any, upon which the Common Stock is then listed (subject to
official notice of issuance) and shall maintain, so long as any other shares of
Common Stock shall be so listed, such listing of all shares of Common Stock from
time to time issuable under the terms of the Transaction Documents. The Company
shall maintain the Common Stock's authorization for listing on the Principal
Market. Neither the Company nor any of its Subsidiaries shall take any action
which would be reasonably expected to result in the delisting or suspension of
the Common Stock on the Principal Market. The Company shall pay all fees and
expenses in connection with satisfying its obligations under this Section 4(d).
(e) Fees. The Company shall be responsible for the payment of
any placement agent's fees, financial advisory fees, or broker's commissions
(other than for Persons engaged by any Buyer) relating to or arising out of the
transactions contemplated hereby and arising from the Company's acts or
omissions, including, without limitation, any fees or commissions payable to
Maxim Group LLC (the "Agent"). The Company shall pay, and hold the Buyer
harmless against, any liability, loss or expense (including, without limitation,
reasonable attorney's fees and out-of-pocket expenses) arising in connection
with any claim relating to any such payment. Except as otherwise set forth in
this Agreement or in the Transaction Documents, each party to this Agreement
shall bear its own expenses in connection with the sale of the Securities to the
Buyers.
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(f) Disclosure of Transactions and Other Material Information.
The Company shall, on or before 8:30 a.m., New York City Time, on February 15,
2005, issue a press release reasonably acceptable to the Agent disclosing all
material terms of the transactions contemplated hereby. On or before 8:30 a.m.,
New York City Time, on February 15, 2005, the Company shall file a Current
Report on Form 8-K describing the terms of the transactions contemplated by the
Transaction Documents in the form required by the 1934 Act, and attaching the
form of this Agreement, the Company's agreement with the Placement Agent
regarding its engagement as placement agent and an updated legal opinion with
respect to the Registration Statement as exhibits to such filing (including all
attachments, the "8-K Filing"). The Company shall not, and shall cause each of
its Subsidiaries and each of their respective officers, directors, employees and
agents, not to, provide any Buyer with any material, nonpublic information
regarding the Company or any of its Subsidiaries from and after the filing of
the press release referred to in the first sentence of this Section without the
express written consent of such Buyer. Neither the Company nor any Buyer shall
issue any press releases or any other public statements with respect to the
transactions contemplated hereby; provided, however, that the Company shall be
entitled, without the prior approval of any Buyer, to make any press release or
other public disclosure with respect to such transactions (i) in substantial
conformity with the 8-K Filing and contemporaneously therewith and (ii) as is
required by applicable law and regulations, including the applicable rules and
regulations of the Principal Market (provided that in the case of clause (i) the
Agent shall be consulted by the Company in connection with any such press
release or other public disclosure prior to its release). Without the prior
written consent of any applicable Buyer or unless required by applicable law,
the Company shall not disclose the name of any Buyer in any filing,
announcement, release or otherwise.
5. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL.
The obligation of the Company hereunder to issue and sell the
Purchased Shares to each Buyer at the Closing is subject to the satisfaction, at
or before the Closing Date, of each of the following conditions, provided that
these conditions are for the Company's sole benefit and may be waived by the
Company at any time in its sole discretion by providing each Buyer with prior
written notice thereof: (i) such Buyer shall have executed each of the
Transaction Documents to which it is a party and delivered the same to the
Company; (ii) such Buyer shall have delivered to the Company the Purchase Price
for the Purchased Shares being purchased by such Buyer and each other Buyer at
the Closing by wire transfer of immediately available funds pursuant to the wire
instructions provided by the Company; and (iii) the representations and
warranties of such Buyer shall be true and correct in all material respects as
of the date when made and as of the Closing Date as though made at that time
(except for representations and warranties that speak as of a specific date),
and such Buyer shall have performed, satisfied and complied in all material
respects with the covenants, agreements and conditions required by this
Agreement to be performed, satisfied or complied with by such Buyer at or prior
to the Closing Date.
6. CONDITIONS TO THE BUYER'S OBLIGATION TO PURCHASE.
The obligation of the Buyer hereunder to purchase the Purchased
Shares at the Closing is subject to the satisfaction, at or before the Closing
Date, of each of the following conditions, provided that these conditions are
for the Buyer's sole benefit and may be waived by such Buyer at any time in its
sole discretion by providing the Company with prior written notice thereof:
(i) The Company shall have (i) executed and delivered to such
Buyer each of the Transaction Documents, which Transaction Documents shall be
identical for all Buyers, and (ii) delivered the stock certificates representing
the Purchased Shares being purchased by the Buyer.
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(ii) Such Buyer shall have received the opinions of Stoel
Rives, LLP and Xxxxxxx and Xxxx LLP, the Company's outside counsel ("Company
Counsel"), dated as of the Closing Date, substantially in the form attached
hereto as Exhibit A.
(iii) The Common Stock (I) shall be listed on the Principal
Market and (II) shall not have been suspended, as of the Closing Date, by the
SEC or the Principal Market from trading on the Principal Market nor shall
suspension by the SEC or the Principal Market have been threatened, as of the
Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by
falling below the minimum listing maintenance requirements of the Principal
Market.
(iv) The Company shall have delivered to such Buyer a
certificate, executed by the Secretary of the Company and dated as of the
Closing Date, as to (i) the resolutions consistent with this transaction as
adopted by the Company's Board of Directors in a form reasonably acceptable to
such Buyer, (ii) the Articles of Incorporation (or its equivalent), as amended
to date, and (iii) the Bylaws of the Company, each as in effect at the Closing,
in the form attached hereto as Exhibit B.
(v) The representations and warranties of the Company shall be
true and correct as of the date when made and as of the Closing Date as though
made at that time (except for representations and warranties that speak as of a
specific date) and the Company shall have performed, satisfied and complied in
all respects with the covenants, agreements and conditions required by the
Transaction Documents to be performed, satisfied or complied with by the Company
at or prior to the Closing Date. Such Buyer shall have received a certificate,
executed by the Chief Executive Officer of the Company, dated as of the Closing
Date, to the foregoing effect and as to such other matters as may be reasonably
requested by such Buyer in the form attached hereto as Exhibit C.
(vi) The Registration Statement shall be effective and
available for the issuance and sale of the Securities hereunder and the Company
shall have delivered to such Buyer the prospectus required thereunder.
(vii) The Company shall be issuing to all Buyers at the
Closing not less than 5,000,000 Purchased Shares.
7. TERMINATION. In the event that the Closing shall not have occurred
with respect to a Buyer on the Closing Date due to the Company's or such Buyer's
failure to satisfy the conditions set forth in Sections 5 and 6 above (and the
nonbreaching party's failure to waive such unsatisfied condition(s)), the
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 of any party to any other party.
8. MISCELLANEOUS.
(a) 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 New York,
without giving effect to any choice of law or conflict of law provision or rule
(whether of the State of New York or any other jurisdictions) that would cause
the application of the laws of any jurisdictions other than the State of New
York. Each party hereby irrevocably submits to the exclusive jurisdiction of the
state and federal courts sitting in The City of New York, Borough of Manhattan
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
9
irrevocably waives personal service of process and consents to process being
served in any such suit, action or proceeding by mailing a copy thereof to such
party at the address for such notices to it under this Agreement and agrees that
such service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law. 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 WITH OR ARISING OUT OF
THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
(b) Counterparts. This Agreement may be executed in two or
more 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 party; provided that 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, not
a facsimile signature.
(c) Headings. The headings of this Agreement are for
convenience of reference and shall not form part of, or affect the
interpretation of, this Agreement.
(d) 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.
(e) Entire Agreement; Amendments. This Agreement supersedes
all other prior oral or written agreements between the Buyers, the Company,
their affiliates and Persons acting on their behalf with respect to the matters
discussed herein, and this Agreement and the instruments referenced herein
contain the entire understanding of the parties with respect to the matters
covered herein and therein and, except as specifically set forth herein or
therein, neither the Company nor any Buyer 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 the
Company and the holders of Purchased Shares representing at least a majority of
the amount of the Purchased Shares, or, if prior to the Closing Date, the Buyers
being obligated to purchase at least a majority of the amount of the Purchased
Shares. No provision hereof may be waived other than by an instrument in writing
signed by the party against whom enforcement is sought. No such amendment shall
be effective to the extent that it applies to less than all of the holders of
the Purchased Shares then outstanding. No consideration shall be offered or paid
to any Person to amend or consent to a waiver or modification of any provision
of any of the Transaction Documents unless the same consideration also is
offered to all of the parties to the Transaction Documents, holders of shares of
Common Stock The Company has not, directly or indirectly, made any agreements
with any Buyers relating to the terms or conditions of the transactions
contemplated by the Transaction Documents except as set forth in the Transaction
Documents.
(f) 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
receipt, when delivered personally; (ii) upon 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 an overnight courier service, in each case properly addressed
to the party to receive the same. The addresses and facsimile numbers for such
communications shall be:
10
If to the Company:
Altair Nanotechnologies Inc.
000 Xxxxxx Xxx
Xxxx, Xxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Chief Financial Officer
with a copy to:
Stoel Rives LLP
000 Xxxxx Xxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxx, Esq.
If to the Transfer Agent:
Equity Transfer Services
000 Xxxxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxx X0X 0X0
Telephone: (000) 000-0000
Facsimile: (416) 361-047Attention: Xx Xxxxxxx
If to a Buyer, to its address and facsimile number set forth on the signature
page hereto, with copies to such Buyer's representatives as set forth on the
signature page hereto,
With a copy (for informational purposes only) of all notices hereunder
to:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxx, Esq.
or to 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 (5) days prior to the effectiveness of such change.
Written confirmation of receipt (A) given by the recipient of such notice,
consent, waiver or other communication, (B) mechanically or electronically
generated by the sender's facsimile machine containing the time, date, recipient
facsimile number and an image of the first page of such transmission or (C)
provided by an overnight courier service shall be rebuttable evidence of
personal service, receipt by facsimile or receipt from an overnight courier
service in accordance with clause (i), (ii) or (iii) above, respectively.
(g) Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective successors and
assigns, including any purchasers of the Purchased Shares. The Company shall not
assign this Agreement or any rights or obligations hereunder without the prior
written consent of the holders of Purchased Shares representing at least a
majority of the number of the Purchased Shares, including by merger or
consolidation. A Buyer may assign some or all of its rights hereunder without
the consent of the Company, in which event such assignee shall be deemed to be a
Buyer hereunder with respect to such assigned rights.
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(h) 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.
(i) Survival. Unless this Agreement is terminated under
Section 7, the representations and warranties of the Company and the Buyers
contained in Sections 2 and 3, the agreements and covenants set forth in
Sections 4 and 8 shall survive the Closing and the delivery and exercise of
Securities, as applicable. Each Buyer shall be responsible only for its own
representations, warranties, agreements and covenants hereunder.
(j) 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 any 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.
(k) Indemnification. (i) In consideration of the Buyer's
execution and delivery of the Transaction Documents and acquiring the Securities
thereunder and in addition to all of the Company's other obligations under the
Transaction Documents, the Company shall defend, protect, indemnify and hold
harmless the Buyer and each other holder of the Securities and all of their
shareholders, partners, members, officers, directors, employees and direct or
indirect investors and any of the foregoing Persons' agents or other
representatives (including, without limitation, those retained in connection
with the transactions contemplated by this Agreement) (collectively, the
"Indemnitees") from and against any and all actions, causes of action, suits,
claims, losses, costs, penalties, fees, liabilities and damages, and expenses in
connection therewith (irrespective of whether any such Indemnitee is a party to
the action for which indemnification hereunder is sought), and including
reasonable attorneys' fees and disbursements (the "Indemnified Liabilities"),
incurred by any Indemnitee as a result of, or arising out of, or relating to (a)
any misrepresentation or breach of any representation or warranty made by the
Company in the Transaction Documents or any other certificate, instrument or
document contemplated hereby or thereby, (b) any breach of any covenant,
agreement or obligation of the Company contained in the Transaction Documents or
any other certificate, instrument or document contemplated hereby or thereby or
(c) any cause of action, suit or claim brought or made against such Indemnitee
by a third party (including for these purposes a derivative action brought on
behalf of the Company) and arising out of or resulting from (i) the execution,
delivery, performance or enforcement of the Transaction Documents or any other
certificate, instrument or document contemplated hereby or thereby, (ii) any
transaction financed or to be financed in whole or in part, directly or
indirectly, with the proceeds of the issuance of the Purchased Shares, or (iii)
the status of such Buyer or holder of the Securities as an investor in the
Company. To the extent that the foregoing undertaking by the Company may be
unenforceable for any reason, the Company shall make the maximum contribution to
the payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law.
(ii) Promptly after receipt by an Indemnitee under
this Section 9(k) of notice of the commencement of any action or proceeding
(including any governmental action or proceeding) involving an Indemnified
Liability, such Indemnitee shall, if a claim for indemnification in respect
thereof is to be made against any indemnifying party under this Section 9(k),
deliver to the indemnifying party a written notice of the commencement thereof,
and the indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other indemnifying
party similarly noticed, to assume control of the defense thereof with counsel
mutually satisfactory to the indemnifying party and the Indemnitee; provided,
12
however, that an Indemnitee shall have the right to retain its own counsel with
the fees and expenses of not more than one counsel for such Indemnitee to be
paid by the indemnifying party, if, in the reasonable opinion of the Indemnitee,
the representation by such counsel of the Indemnitee and the indemnifying party
would be inappropriate due to actual or potential differing interests between
such Indemnitee and any other party represented by such counsel in such
proceeding. Legal counsel referred to in the immediately preceding sentence
shall be selected by the investors holding at least a majority of the Purchased
Shares. The Indemnitee shall cooperate fully with the indemnifying party in
connection with any negotiation or defense of any such action or Indemnified
Liabilities by the indemnifying party and shall furnish to the indemnifying
party all information reasonably available to the Indemnitee that relates to
such action or Indemnified Liabilities. The indemnifying party shall keep the
Indemnitee fully apprised at all times as to the status of the defense or any
settlement negotiations with respect thereto. No indemnifying party shall be
liable for any settlement of any action, claim or proceeding effected without
its prior written consent, provided, however, that the indemnifying party shall
not unreasonably withhold, delay or condition its consent. No indemnifying party
shall, without the prior written consent of the Indemnitee, consent to entry of
any judgment or enter into any settlement or other compromise which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such Indemnitee of a release from all liability in respect to such
Indemnified Liabilities or litigation. Following indemnification as provided for
hereunder, the indemnifying party shall be subrogated to all rights of the
Indemnitee with respect to all third parties, firms or corporations relating to
the matter for which indemnification has been made. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action shall not relieve such indemnifying party of any
liability to the Indemnitee under this Section 9(k), except to the extent that
the indemnifying party is prejudiced in its ability to defend such action.
(iii). The indemnification required by this Section
9(k) shall be made by periodic payments of the amount thereof during the course
of the investigation or defense, as and when bills are received or Indemnified
Liabilities are incurred.
(iv) The indemnity agreements contained herein shall
be in addition to (i) any cause of action or similar right of the Indemnitee
against the indemnifying party or others, and (ii) any liabilities the
indemnifying party may be subject to pursuant to the law.
(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.
(m) Remedies. The Buyer and each holder of the Securities
shall have all rights and remedies set forth in the Transaction Documents and
all rights and remedies which such holders have been granted at any time under
any other agreement or contract and all of the rights which such holders have
under any law. Any Person having any rights under any provision of this
Agreement shall be entitled to enforce such rights specifically (without posting
a bond or other security), to recover damages by reason of any breach of any
provision of this Agreement and to exercise all other rights granted by law.
Furthermore, the Company recognizes that in the event that it fails to perform,
observe, or discharge any or all of its obligations under the Transaction
Documents, any remedy at law may prove to be inadequate relief to the Buyers.
The Company therefore agrees that the Buyers shall be entitled to seek temporary
and permanent injunctive relief in any such case without the necessity of
proving actual damages and without posting a bond or other security.
13
(n) Independent Nature of Buyers' Obligations and Rights. The
obligations of each Buyer under any Transaction Document are several and not
joint with the obligations of any other Buyer, and no Buyer shall be responsible
in any way for the performance of the obligations of any other Buyer under any
Transaction Document. Nothing contained herein or in any other Transaction
Document, and no action taken by any Buyer pursuant hereto or thereto, shall be
deemed to constitute the Buyers as a partnership, an association, a joint
venture or any other kind of entity, or create a presumption that the Buyers are
in any way acting in concert or as a group with respect to such obligations or
the transactions contemplated by the Transaction Documents. The Buyer confirms
that it has independently participated in the negotiation of the transaction
contemplated hereby with the advice of its own counsel and advisors. Each Buyer
shall be entitled to independently protect and enforce its rights, including,
without limitation, the rights arising out of this Agreement or out of any other
Transaction Documents, and it shall not be necessary for any other Buyer to be
joined as an additional party in any proceeding for such purpose. The Company
has elected to provide all Buyers with the same terms and Transaction Documents
for the convenience of the Company and not because it was required or requested
to do so by the Buyers. For reasons of administrative convenience only, a Buyer
may have chosen to communicate with the Company through Xxxxxxx Xxxx & Xxxxx
LLP.
[Signature Page Follows]
14
[Signature Page to Securities Purchase Agreement]
IN WITNESS WHEREOF, the Buyer and the Company have caused their
respective signature page to this Securities Purchase Agreement to be duly
executed as of the date first written above.
COMPANY:
[-----------------------]
By:
Name:
Title:
16
IN WITNESS WHEREOF, the Buyer and the Company have caused their
respective signature page to this Securities Purchase Agreement to be duly
executed as of the date first written above.
BUYER:
By:
Name:
Title: Authorized Signatory
Investment Amount: $________________
Address for Notice:
[-------------]
[-------------]
[-------------]
Facsimile: (___) ___-_____
Telephone: (___) ___-_____
Attention: [__________]
With a copy to: (Legal Representative)
[-------------]
[-------------]
[-------------]
Facsimile: (___) ___-_____
Telephone: (___) ___-_____
Attention: [__________]
17
EXHIBITS
Exhibit A Form of Legal Opinion of Company Counsel
Exhibit B Form of Secretary's Certificate
Exhibit C Form of Officer's Certificate
18
