Termination and Subscription Agreement
This Termination and Subscription Agreement (hereinafter, this
"Agreement") is made and entered into as of the 14 day of August, 2002 by and
between Altair Nanotechnologies Inc., a Canada corporation (Altair"), and
Xxxxxxx X. Xxxx, an individual ("Long").
In exchange for good and valuable consideration, including the mutual
agreements set forth herein, the parties to this Agreement hereby agree as
follows:
1. Termination of Covenants and Issuance of Common Stock.
1.1 Issuance of Stock. Upon execution of this Agreement, Altair
shall sell and issue to Long 200,000 common shares of Altair (the "Shares").
1.2 Termination of Covenant. Upon Altair's issuance of the Shares,
Section 5(d) of the Employment Agreement dated January 1, 1998 (the "Employment
Agreement") shall immediately and automatically terminate. Except for the
termination of Section 5(d) of the Employment Agreement, the Employment
Agreement shall continue to be valid, effective and binding according to its
terms following the execution of this Agreement.
2. Long's Representations and Warranties. Long represents and
warrants to Altair as follows:
2.1 Purchase for Own Account. The Shares are being purchased for
investment for Long's account and not with a view to distribution other than to
members of his immediate family or trusts established for the benefits of their
immediate family). No person other than Long has, or will have, an interest in
the Shares.
2.2 Authorization. Long has full power and authority to enter into
this Agreement and this agreement constitutes his valid and legally binding
obligation, enforceable in accordance with its respective terms, except (i) as
limited by applicable bankruptcy, insolvency, reorganization, moratorium, and
other laws of general application affecting enforcement of creditors' rights
generally, and (ii) as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies.
2.3 Knowledge and Experience. Long is an officer and director of
Altair and otherwise has such knowledge and experience in financial and business
matters that Long is capable of evaluating the merits and risks of an investment
in Altair and is able to bear the economic risks of an investment in the Shares
for an indefinite period of time.
2.4 Risk Factors. Long undersigned appreciates that an investment
in the Shares involves a high degree of risk, and he has fully and carefully
considered such risk before deciding to purchase the Shares.
2.5 Residence. Long has his residence or principal place of
business, as applicable, in the state indicated on the accompanying signature
page.
3. Acknowledgments. Long represents, warrants, understands and
acknowledges that:
3.1 Restricted Securities. The Shares have not been registered or
qualified under any federal or state securities laws in reliance upon exemptions
from the registration requirements of such laws, and the Shares may not be
transferred by Long except in compliance with the registration requirements of
such laws or pursuant to available exemptions from registration (which
exemptions generally require Long to hold the Shares for at least a period of
two (2) and may require any officer or director to holder the Shares
indefinitely). The offer and sale of the Shares have not been approved or
disapproved by the U.S. Securities and Exchange Commission or any state
regulatory authority, and any representation to the contrary is unlawful.
3.2 Stock Certificate Legends. The stock certificate for the
Shares will include the following legends:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES. THEY MAY NOT BE OFFERED FOR
SALE, SOLD, DELIVERED AFTER SALE, ASSIGNED, HYPOTHECATED OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER
SUCH ACT AND SUCH APPLICABLE STATE SECURITIES LAWS, UNLESS AN EXEMPTION
FROM REGISTRATION IS AVAILABLE (WHICH THE CORPORATION MAY REQUIRE TO BE
EVIDENCED BY AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT
SUCH REGISTRATION IS NOT REQUIRED).
3.3 Possession of Information. Long has participated in, and is an
integral part of, the operation of the business of Altair and, as a result, has
or has access to all information concerning Altair that exists and is material
to the decision of whether or not to invest in the Shares. In addition, Long has
had an opportunity to ask questions and receive answers from other officers of
Altair concerning Altair and the terms and conditions of an investment in
Altair, and has received all information that Long believes is necessary or
desirable in connection with an investment in Altair.
4. Conditions of Altair's Obligations. The obligations of Altair to
Long under this Agreement are subject to the fulfillment of the following
conditions by Long:
4.1 Representations and Warranties. The representations and
warranties of Long contained in Section 2 and Section 3 shall be true on and as
of the date hereof.
5. Miscellaneous.
5.1 Survival of Warranties. The warranties, representations, and
covenants of Altair and Long contained in or made pursuant to this Agreement
shall survive the execution and delivery of this Agreement.
5.2 Governing Law. This Agreement will be governed by, and will be
construed and enforced in accordance with, the laws of the state of Nevada.
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5.3 Amendment; Waiver. This Agreement may be amended only by the
written consent of Altair and Long. No waiver of any provision of this Agreement
will be effective unless in writing and signed by the waiving party.
5.4 Assignment. The rights and benefits of this Agreement will
inure to the benefit of and be enforceable by Altair and its respective
successors and assigns. The rights and obligations of Long under this Agreement
may not be assigned without the prior written consent of Altair.
5.5 Entire Agreement. This Agreement and the documents referred to
herein constitute the entire agreement among the parties, and no party shall be
liable or bound to any other party in any manner by any warranties,
representations, or covenants except as specifically set forth herein or
therein.
IN WITNESS WHEREOF, the undersigned have executed this Agreement
effective as of the date first set forth above.
"Long"
/s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
(Address of Principal Office or Residence of Long)
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"Xxxxxx"
Xxxxxx Nanotechnologies Inc.
By: /s/ Xx Xxxxxxxxx
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Its: Chief Financial Officer
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