altair_ex0401.htm


     

    Exhibit
      4.1

     

    THIS
      WARRANT AND THE SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN
      REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
      “ACT”), OR UNDER ANY APPLICABLE STATE SECURITIES LAWS.  THIS WARRANT
      AND THE SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT ARE SUBJECT TO
      RESTRICTIONS ON RESALE AND MAY NOT BE RESOLD EXCEPT AS PERMITTED UNDER THE
      ACT
      AND ANY APPLICABLE STATE SECURITIES LAWS.

     

    UNLESS
      PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT
      TRADE THE SECURITY BEFORE NOVEMBER 21, 2007.

    


     

    Warrant
      to Purchase 200,000 Common Shares

    of

    Altair
      Nanotechnologies Inc.


     

    WARRANT


     

    Issue
      Date: July 20, 2007


     

    This
      certifies that AES Energy Storage, LLC or its permitted transferee (the
“Holder”) is entitled to purchase from ALTAIR NANOTECHNOLOGIES
      INC., a corporation continued under the Canada Business Corporations Act (the
      “Company”), at the price and during the period as hereinafter
      specified, 200,000 shares, (such number of shares, as adjusted as provided
      below, the “Shares”) without nominal or par value, of the
      Company (the “Common Shares”), at a purchase price of $3.64 per
      share, subject to adjustment as described below (as so adjusted from time to
      time, the “Exercise Price”), at any time during the period
      specified in Section 1(a) hereof.

     

    1.           Exercise.  The
      rights represented by this Warrant (the “Warrant”) shall be
      exercisable at the Exercise Price, and during the periods as
      follows:

     

    (a)           At
      any time and from time to time between, the earlier of (i) the date of delivery
      of the Pilot Project Storage System by Altairnano, Inc. pursuant to that certain
      Joint Product Development and Equipment Purchase Agreement dated as of July
      20,
      2007, between Holder and Altairnano, Inc., and (ii) December 31, 2007, and
      the
      four-year anniversary of the Issue Date (the “Expiration Date”)
      inclusive, the Holder shall have the right to purchase all or any portion of
      the
      Shares at the Exercise Price.

     

    (b)           After
      the Expiration Date, the Holder shall have no right to purchase all or any
      portion of the Shares hereunder.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    2.           Payment
      for Shares; Issuance of Certificates; Net Exercise.

     

    (a)           The
      rights represented by the Warrant may be exercised at any time within the
      periods above specified, in whole or in part, by (i) the surrender of the
      Warrant (with the purchase form at the end hereof properly executed) at the
      principal executive office of the Company (or such other office or agency of
      the
      Company as it may designate by notice in writing to the Holder at the address
      of
      the Holder appearing on the books of the Company); (ii) payment to the Company
      of the Exercise Price then in effect for the number of Shares specified in
      the
      above-mentioned purchase form together with applicable stock transfer taxes,
      if
      any; and (iii) delivery to the Company of a duly executed agreement signed
      by
      the person(s) designated in the purchase form to the effect that such person(s)
      agree(s) to be bound by the provisions of Section 3. The Warrant shall be deemed
      to have been exercised, in whole or in part to the extent specified, immediately
      prior to the close of business on the date the Warrant is surrendered and
      payment is made in accordance with the foregoing provisions of this Section
      2,
      and the person or persons in whose name or names the certificates for the Shares
      shall be issuable upon such exercise shall become the holder or holders of
      record of such Shares at that time and date. The Shares and the certificates
      for
      the Shares so purchased shall be delivered to the Holder within a reasonable
      time, not exceeding ten (10) business days, after the rights represented by
      this
      Warrant shall have been so exercised.

     

    (b)           Notwithstanding
      anything to the contrary contained in Section 2(a), the Holder may elect to
      exercise this Warrant in whole or in part on a “cashless exercise basis” by
      receiving Shares equal to the value (as determined below) of this Warrant,
      or
      any part hereof, upon surrender of the Warrant at the principal office of the
      Company together with notice of such election in which event the Company shall
      issue to the Holder a number of Shares computed
      using the following formula:

     

    X
      = Y(A-B)

      
                               A

     

    
      	
            	
              Where:

            	
              X
                =  the number of Shares to be issued to the
                Holder;

            


    

     

    Y
      =  the number of Shares issuable upon exercise of this Warrant or, if
      only a portion of this Warrant is being exercised, the portion of this Warrant
      being exercised (at the date of such calculation);

     

    A
      = the
      fair market value of one Common Share (at the date of such calculation);
      and

     

    B
      = the
      Exercise Price (as adjusted to the date of such calculation).

     

    For
      the
      purpose of any computation under this Subsection 2(b), the fair market value
      per
      Common Share at any date shall be deemed to be the Closing Price (as defined
      below) of the Common Shares on the Trading Day immediately preceding the date
      as
      of which the fair market value is being determined, provided that if
      the Common Shares are not then listed or quoted on any market or exchange,
      then
      the fair market value shall be the average of the closing bid prices for the
      Common Shares on the OTC Bulletin Board, or, if such is not available, the
      Pink
      Sheets LLC, or otherwise the average of the closing bid prices for the Common
      Shares quoted by two market-makers of the Common Shares, or otherwise such
      fair
      market value shall be determined in good faith by the Company and the Holders.
      “Trading Day” shall mean any day on which the principal United
      States securities exchange or trading market on which the Common Shares are
      listed, quoted or traded (the “Principal Market”) as reported
      by Bloomberg Financial Markets (“Bloomberg's”) is open for
      trading. “Closing Price” shall mean the average of the last
      sale prices for the Common Shares on the Principal Market for the ten Trading
      Days previous to the date of determination.

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

    3.           Transfer.   (a)  Any
      transfer of this Warrant shall be effected by the Holder by (i) executing the
      transfer form at the end hereof; and (ii) surrendering the Warrant for
      cancellation at the office or agency of the Company referred to in Section
      2
      hereof, accompanied by (y) a certificate (signed by an officer of the Holder,
      or
      other authorized representative reasonably satisfactory to the Company, if
      the
      Holder is an entity) stating that each transferee is a permitted transferee
      under this Section 3; and, if applicable, (z) an opinion of counsel, reasonably
      satisfactory in form and substance to the Company, to the effect that the Shares
      or the Warrant, as the case may be, may be sold or otherwise transferred without
      registration under the Securities Act of 1933, as amended (the
“Act”).  Notwithstanding the foregoing, the Holder
      agrees that it shall not sell or transfer all or any part of the Warrant or
      the
      Shares to a resident of Canada or a person subject to the securities laws of
      Canada for a period of at least four (4) months and one day from the date
      hereof.

     

    Upon
      any
      transfer of this Warrant or any part thereof in accordance with the first
      sentence of this Section 3(a), the Company shall issue, in the name or names
      specified by the Holder (including the Holder), a new Warrant or Warrants of
      like tenor (including all substantive provisions hereof) and representing in
      the
      aggregate rights to purchase the same number of Shares as are purchasable
      hereunder at such time.

     

    (b)           Any
      attempted transfer of this Warrant or any part thereof in violation of this
      Section 3 shall be null and void ab initio.

     

    (c)           This
      Warrant may not be exercised and neither this Warrant nor any of the Shares,
      nor
      any interest in either, may be offered, sold, assigned, pledged, hypothecated,
      encumbered or in any other manner transferred or disposed of, in whole or in
      part, except in compliance with applicable United States federal and state
      securities laws and applicable Canadian securities laws and the terms and
      conditions hereof.  Each Warrant shall bear a legend in substantially
      the same form as the legend set forth on the first page of this
      Warrant.  Each certificate for Shares issued upon exercise of this
      Warrant, unless at the time of exercise such Shares are acquired pursuant to
      a
      registration statement that has been declared effective under the Act and
      applicable blue sky laws, shall bear a legend substantially in the following
      form:

     

    “THE
      SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT AND
      HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
      AMENDED (THE “ACT”).  SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN
      THE ABSENCE OF REGISTRATION OR AN EXEMPTION THEREFROM.  ALTAIR
      NANOTECHNOLOGIES INC. MAY REQUIRE AN OPINION OF COUNSEL REASONABLY ACCEPTABLE
      TO
      IT THAT A PROPOSED TRANSFER OR SALE IS IN COMPLIANCE WITH THE ACT.”

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

    Additionally,
      similar legends pursuant to Canadian law, as applicable, shall be set forth
      on
      any such Shares or Warrant, as reasonably determined by the Company’s Canadian
      counsel, including the following:

     

    "UNLESS
      PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT
      TRADE THE SECURITY BEFORE [insert date that is four (4) months and one day
      after
      issue date]."


     

    Any
      certificate for any Shares issued at any time in exchange or substitution for
      any certificate for any Shares bearing such legend (except a new certificate
      for
      any Shares issued after the acquisition of such Shares pursuant to a
      registration statement that has been declared effective under the Act) shall
      also bear such legend unless, in the opinion of counsel for the Company, the
      Shares represented thereby need no longer be subject to the restriction
      contained herein.  The provisions of this Section 3(c) shall be
      binding upon all subsequent holders of certificates for Shares bearing the
      above
      legend and all subsequent holders of this Warrant, if any.

     

    4.           Shares
      to be Fully Paid; Reservation of Shares.  The Company
      covenants and agrees that all Shares which may be purchased hereunder will,
      upon
      issuance and delivery against payment therefor of the requisite purchase price,
      be duly and validly issued, fully paid and non-assessable. The Company further
      covenants and agrees that, during the periods within which the Warrant may
      be
      exercised, the Company will at all times have authorized and reserved a
      sufficient number of Common Shares to provide for the exercise of the
      Warrant.

     

    5.           No
      Voting or Dividend Rights.   The Warrant shall not
      entitle the Holder to any voting rights or any other rights, including without
      limitation notice of meetings of other actions or receipt of dividends or other
      distributions, as a stockholder of the Company.

     

    6.           Adjustment
      of Exercise Price.   The Exercise Price in effect at
      the time and the number and kind of securities purchasable upon the exercise
      of
      this Warrant shall be subject to adjustment from time to time upon the happening
      of certain events as follows:

     

    (a)           In
      case the Company shall (i) declare a dividend or make a distribution on its
      outstanding Common Shares in Common Shares or any other security, (ii) subdivide
      or reclassify its outstanding Common Shares into a greater number of shares,
      (iii) combine or reclassify its outstanding Common Shares into a smaller number
      of shares, or (iv) enter into any transaction whereby the outstanding Common
      Shares are at any time changed into or exchanged for a different number or
      kind
      of shares or other securities of the Company or of another corporation through
      reorganization, merger, consolidation, liquidation or recapitalization, then
      appropriate adjustments in the number of Shares (or other securities for which
      such Shares have previously been exchanged or converted) subject to this Warrant
      shall be made and the Exercise Price in effect at the time of the record date
      for such dividend or distribution or of the effective date of such subdivision,
      combination, reclassification, reorganization, merger, consolidation,
      liquidation or recapitalization shall be proportionately adjusted so that the
      Holder of this Warrant exercised after such date shall be entitled to receive
      the aggregate number and kind of shares or other securities which, if this
      Warrant had been exercised by such Holder immediately prior to such date, the
      Holder would have been entitled to receive upon such dividend, distribution,
      subdivision, combination, reclassification, reorganization, merger,
      consolidation, liquidation or recapitalization. For example, if the Company
      declares a 2 for 1 stock subdivision (split) and the Exercise Price hereof
      immediately prior to such event was $7.00 per Share and the number of Shares
      issuable upon exercise of this Warrant was 85,500, the adjusted Exercise Price
      immediately after such event would be $3.50 per Share and the adjusted number
      of
      Shares issuable upon exercise of this Warrant would be 171,000. Such adjustment
      shall be made successively whenever any event listed above shall
      occur.

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

    (b)           Whenever
      the Exercise Price is adjusted, as herein provided, the Company shall promptly
      cause a notice setting forth the adjusted Exercise Price and adjusted number
      of
      Shares issuable upon exercise of the Warrant to be mailed to the Holder, at
      its
      address set forth herein, and shall cause a certified copy thereof to be mailed
      to the Company's transfer agent, if any. The Company may retain a firm of
      independent certified public accountants selected by the Board of Directors
      (who
      may be the regular accountants employed by the Company) to make any computation
      required by this Section 6, and a certificate signed by such firm shall be
      conclusive evidence of the correctness of such adjustment.

     

    (c)           In
      the event that at any time, as a result of an adjustment made pursuant to the
      provisions of this Section 6, the Holder thereafter shall become entitled to
      receive any shares of the Company other than Common Shares, thereafter the
      number of such other shares so receivable upon exercise of the Warrant shall
      be
      subject to adjustment from time to time in a manner and on terms as nearly
      equivalent as practicable to the provisions with respect to the Common Shares
      contained in Section 6(a)  above.

     

    (d)           The
      Company shall provide the Holder with prior written actual notice (receipt
      confirmed) of any event described in Section 6(a) at least ten (10) days prior
      to the record date with respect to such event.  In addition, the
      Company shall deliver to the Holder copies of any and all information it is
      required to deliver to its shareholders with respect to such event at the same
      time such information is delivered to shareholders.

     

    7.           Governing
      Law.   This Agreement shall be governed by and in
      accordance with the laws of the State of New York without regard to conflicts
      of
      laws principles thereof.

     

    8.           Binding
      Effect on Successors.  In case of any consolidation of
      the Company with, or merger of the Company into, any other entity, or in case
      of
      any sale or conveyance of all or substantially all of the assets of the Company
      other than in connection with a plan of complete liquidation of the Company
      at
      any time prior to the Expiration Date, then as a condition of such
      consolidation, merger or sale or conveyance, the Company shall give written
      notice of consolidation, merger, sale or conveyance to the Holder and, from
      and
      after the effective date of such consolidation, merger, sale or conveyance
      the
      Warrant shall represent only the right to receive the consideration that would
      have been issuable in respect of the Shares underlying the Warrant in such
      consolidation, merger, sale or conveyance had the Warrant been exercised in
      full
      immediately prior to such effective time and the Holder shall have no further
      rights under this Warrant other than the right to receive such
      consideration.

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

    9.           Fractional
      Shares.  No fractional shares shall be issued upon
      exercise of this Warrant.  The Company shall, in lieu of issuing any
      fractional share, pay the holder entitled to such fraction a sum in cash equal
      to such fraction multiplied by the then effective Exercise Price.

     

    10.           Lost
      Warrants.   The Company represents and warrants to
      the Holder hereof that upon receipt of evidence reasonably satisfactory to
      the
      Company of the loss, theft, destruction, or mutilation of this Warrant and,
      in
      the case of any such loss, theft or destruction, upon receipt of an affidavit
      of
      loss and indemnity reasonably satisfactory to the Company, or in the case of
      any
      such mutilation upon surrender and cancellation of such Warrant, the Company,
      at
      its expense, will make and deliver a new Warrant, of like tenor, in lieu of
      the
      lost, stolen, destroyed or mutilated Warrant.

     

    11.           Headings.  The
      headings of the several sections and paragraphs of this Warrant are inserted
      for
      convenience only and do not constitute a part of this Warrant.

     

    12.           Modification
      and Waiver.   This Warrant and any provision hereof
      may be changed, waived, discharged or terminated only by an instrument in
      writing signed by the party against which enforcement of the same is
      sought.

     

    13.           Survival. 
      The rights and obligations of the Company, of the Holder and of the holder
      of
      Shares issued upon exercise of this Warrant shall survive the exercise of this
      Warrant.

     

    14.           Remedies.  The
      Company stipulates that the remedies at law of the Holder in the event of any
      default or threatened default by the Company in the performance of or compliance
      with any of the terms of this Warrant are not and will not be adequate and
      that,
      to the fullest extent permitted by law, such terms may be specifically enforced
      by a decree for the specific performance of any agreement contained herein
      or by
      an injunction against a violation of any of the terms hereof or
      otherwise.

     

    15.           Reservation
      of Shares.  The Company covenants and agrees that all
      Shares which may be purchased hereunder will, upon issuance and delivery against
      payment therefor of the requisite purchase price, be duly and validly issued,
      fully paid and non-assessable. The Company further covenants and agrees that,
      during the periods within which the Warrant may be exercised, the Company will
      at all times have authorized and reserved a sufficient number of Common Shares
      to provide for the exercise of the Warrant.

     

    16.           Will
      Secure Governmental Approvals.  If any of the Shares
      required to be reserved for the purposes of exercise of this Warrant require
      registration with or approval of any governmental authority under any law of
      the
      United States or its constituent states (other than the Securities Act) before
      such Shares may be issued upon exercise of this Warrant (other than as a result
      of a breach by AES of its representations and warranties to the Company or
      an
      assignment of this Warrant by AES), the Company will, at its expense, as
      expeditiously as possible use its commercially reasonable efforts to cause
      such
      Shares to be duly registered or approved, as the case may be.

     

    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    

    17.           No
      Obligations as Shareholder.  No provision hereof, in the
      absence of affirmative action by the Holder hereof to purchase Shares, and
      no
      mere enumeration herein of the rights or privileges of the Holder hereof, shall
      give rise to any liability of such Holder for the Exercise Price or as a
      shareholder of the Company, whether such liability is asserted by the Company
      or
      by creditors of the Company.

     

    18.           Taxes
      Payable Upon Exercise.  The Company shall pay any stock
      issuance, transfer or similar taxes that may be payable in respect of the
      issuance of Shares upon exercise of this Warrant.  For purposes of
      clarity, the Company shall not be required to pay any federal, state, local
      or
      foreign income taxes, if any, payable by the Holder or any other person upon
      exercise of this Warrant, or any taxes which may be payable in respect of any
      transfer involved in the issuance of Shares in the name other than that in
      which
      this Warrant is registered, and the Company shall not be required to issue
      or
      deliver any such Shares unless and until the person requesting such issuance
      shall have paid to the Company the amount of any such transfer taxes, or shall
      have established to the satisfaction of the Company that such taxes have been
      paid.

     

    19.           Notice
      to Cash or Similar Dividend.  The Company shall provide
      the Holder with written actual notice (receipt confirmed) of any dividend or
      other distribution of assets (other than a distribution described in Section
      6(a)) at least ten (10) days prior to the record date for such dividend or
      other
      distribution.

     

    20.        
        Notices.  All notices or other
      communications which are required or permitted hereunder shall be in writing
      and
      shall be deemed sufficiently given if delivered personally (as confirmed by
      signature of receiving party) or sent by nationally recognized overnight courier
      postage prepaid (as confirmed by signature of receiving party) to the address
      set forth below or to such other address as any party may have specified in
      a
      notice duly given to the other party as provided herein. Such notice of
      communication shall be deemed to have been given as of the date
      received.

     

    If
      to
      Altairnano:

    Altairnano,
      Inc.

    204
      Edison Way

    Reno,
      Nevada  89502

    Attn:  Alan
      Gotcher, CEO and President

    


    If
      to
      AES:

    


    AES
      Energy Storage, LLC

    c/o
      The
      AES Corporation

    4300
      Wilson Boulevard

    Arlington,
      Virginia 22203

    Attention:
      Chris Shelton

    


    With
      a
      copy to:

    


    AES
      Energy Storage, LLC

    c/o
      The
      AES Corporation

    4300
      Wilson Boulevard

    Arlington,
      Virginia 22203

    Attention:
      General Counsel

    


    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

    

    IN
      WITNESS WHEREOF, the Company has
      caused this Warrant to be signed by its duly authorized officers.

    


     

    ALTAIR
      NANOTECHNOLOGIES INC.

    


     

    By:
      /s/ Alan Gotcher

          Name:
      Alan Gotcher

              Title:  
      President and CEO

     

     

    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

    

    PURCHASE
      FORM

     

    (To
      be
      signed only upon exercise of Warrant)

    


     

    The
      undersigned, the holder of the foregoing Warrant, hereby irrevocably elects
      to
      exercise the purchase rights represented by such Warrant for, and to purchase
      thereunder, _______________ Common Shares, without nominal or par value per
      share (the “Shares”), of ALTAIR NANOTECHNOLOGIES INC. and
      either tenders herewith payment of the aggregate Exercise Price in respect
      of
      the Shares in full, in the amount of $_________; or elects pursuant to Section
      2(b) of such Warrant into Common Shares on a cashless basis and requests that
      the certificates for the Shares be issued in the name(s) of, and delivered
      to
      _________________, whose address(es) is (are):

     

    


     

    Dated:   __________________________

     

     

                                              By:

                                                   ___________________________

     

                                                   ___________________________

     

                                                   ___________________________

                                                   Address

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    TRANSFER
      FORM

     

    (To
      be
      signed only upon transfer of Warrant)


     

    For
      value
      received, the undersigned hereby sells, assigns, and transfers unto
      ______________________________ the right to purchase Shares represented by
      the
      foregoing Warrant to the extent of __________ Shares, and appoints
      _________________________ attorney to transfer such rights on the books of
      Altair Nanotechnologies Inc., with full power of substitution in the
      premises.

     

     

    Dated:  ____________________________

     

     

                                              By:

                                                   _____________________________

     

                                                   _____________________________

     

                                                   _____________________________

                                                   Address

     

    


    In
      the
      presence of:

     

    ___________________________