altair_8k-ex1002.htm

 

    
      

    

    Exhibit 10.2

     

     

    
      DEFINITIVE
AGREEMENT

      


      This
Definitive Agreement (“Agreement”) effective as of April 30, 2010 (the
“Effective Date”) is entered into by and between Altairnano, Inc. (“Altair”),
The Sherwin-Williams Company (“Sherwin-Williams”) and AlSher Titania LLC
(“AlSher”), (collectively, the “Parties”).

      


      WHEREAS,
Altair and Sherwin-Williams formed the limited liability company AlSher,
pursuant to that certain Limited Liability Company Agreement of AlSher Titania
LLC dated April 24, 2007 (the “LLC Agreement”), to develop and commercialize (a)
processes for the conversion of ore into titanium containing materials, and (b)
implement the Altair Hydrochloric Pigment Process (“AHPP”) and methods of using
AHPP for the cost effective production of titanium dioxide pigment (the
“Business”).

      


      WHEREAS,
Altair owns 70% of the membership interest of AlSher and Sherwin-Williams owns
30% of the membership interest of AlSher.

      


      WHEREAS,
Sherwin-Williams is interested in securing further financing or seeking
additional investors on behalf of AlSher to further the Business and Altair
desires withdraw as a member of AlSher.

      


      NOW,
THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the Parties hereby agree to the following.

      


      1.           Transfer of Membership
Interest.

       

      a.           Transfer.  As
of the Effective Date, Altair hereby withdraws as a member of AlSher and
transfers all of its membership interest in AlSher to
AlSher.  Sherwin-Williams hereby consents to such withdrawal and
transfer.  Timely after the transfer and in any event within 30
calendar days after the transfer, Altair will deliver copies of all “Business
Records” of AlSher to Sherwin-Williams, including but not limited to all
material information reasonably related to the application and use of
intellectual property that has been and will continue to be the subject the
existing agreements between Altair, Sherwin-Williams and/or AlSher, financial
statements, tax returns, general ledgers, bank statements, accounting data,
customer lists, customer contracts and purchase orders, product and pricing
information, market studies, strategic plans, supplier and creditor information,
contracts, pending contracts, quotations, information regarding assets and
liabilities, information regarding pending or threatened litigation or any other
claims that may be asserted against AlSher, and all other business records
relating to AlSher which are in Altair’s possession.   Altair
agrees to cooperate with Sherwin-Williams in providing all Business Records that
may be reasonably requested in the future but not delivered or readily available
at the closing.

       

      b.           Consideration.  In
addition to the mutual promises and agreements among the Parties set forth in
this Agreement:

       

      (i)           to
the extent that AlSher receives Payments generated from the Business or
licensing of the technology related to the Business, AlSher will pay to Altair
***** of the net of such Payments when received from any source, subject to a
maximum of $3,000,000 (“Maximum Payment”). The term “Payments” is defined as
compensation or revenue such as, but not limited to, royalty payments, product
sales payments (net of reasonable freight, trade discounts, distribution
allowances shown on invoices, returns, taxes, duties or other governmental
charges levied on or measured by the billing amount, costs of goods sold, which
includes raw materials, production costs, all third party distribution and third
party storage related costs, technical costs, and any freight, shipping and
handling costs with delivering the product to the customer and less discounts,
rebates, returns, and all other sales adjustments, the foregoing calculated in
accordance with GAAP as applicable), licensing payments, milestone payments or
any other similar payments, less rebates, discounts, freight, returns of
products, and taxes.  “Payments” does not include proceeds of loans,
equity investments, grants or other similar receipts.

       

      (ii)           Altair
is hereby released from the Contribution Agreement, dated April 24, 2007, by and
between Sherwin-Williams, Altair and AlSher; and

       

      (iii)           Altair
is hereby released from its past, present and future obligations under the LLC
Agreement.

       

       

      
        
           


        

        
          1

          
            

          

        

        
           


        

      

       

      (iv)           Notwithstanding
the foregoing releases and the releases set forth in Section 3 below, the
provisions of any agreements between Altair, Sherwin-Williams and/or AlSher
regarding confidentiality, and the guaranty thereof by Altair Nanotechnologies,
Inc. are not released and shall survive and continue in effect.

       

      (c)           Representations and
Warranties by Altair.  Altair represents and warrants to
Sherwin-Williams and AlSher that the statements in this Section 1(c) are true
and correct.

       

      (i)           Altair
has the necessary power and authority to enter into, execute and deliver this
Agreement and the other related documents and agreements referred herein to be
executed and delivered by Altair in connection with the transactions
contemplated by this Agreement, to perform its obligations hereunder and
thereunder, and to consummate the transactions contemplated hereby and
thereby.  The execution and delivery of this Agreement and related
agreements and the consummation of the transactions contemplated hereby and
thereby have been duly and validly authorized by all required action on the part
of Altair.  This Agreement and related agreements have been executed
and delivered by Altair and constitute legal and binding agreements enforceable
against Altair in accordance with their respective terms, subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium and similar laws affecting creditors' rights.

       

      (ii)           Altair
is the sole legal and beneficial owner of the membership interest, free and
clear of any and all liens, claims, restrictions and/or encumbrances of any
nature whatsoever.

       

      (iii)           To
the best of Altair's knowledge, the financial statements attached as Exhibit A
present fairly, in all material respects, the financial position and operating
results of AlSher at the dates and for the periods set forth in such financial
statements.

       

      (iv)           To
the best of Altair’s knowledge, the accounts payable and other liabilities
listed on Exhibit A-1 (“Liabilities”), and the accounts receivable and other
receivables listed on Exhibit A-2 (“Receivables”) constitute all Liabilities and
Receivables of AlSher existing as of the Effective Date.

       

      (v)           Unless
otherwise disclosed on Exhibit A-1, to the best of Altair’s knowledge, there are
no other claims, causes of actions, litigation, pending or threatened, known or
unknown, or the basis therefor, or any other liabilities pertaining to AlSher
existing as of the Effective Date.

       

      (vi)           The
Business Records constitute all the material Business Records in Altair’s
possession.

      


      2.           Transfer and Sale of
Equipment.

       

      a.           Ownership of
Equipment.  The Parties acknowledge and agree that the
Equipment listed on Schedule A, which includes all equipment owned by AlSher as
of April 24, 2007 and all equipment purchased thereafter by AlSher, attached
hereto is owned by AlSher free and clear of any liens, claims, or
encumbrances.

       

      b.           Removal of
Equipment.  AlSher will remove the Equipment from Altair’s
facilities within six (6) months from the Effective Date of this Agreement.
AlSher will be responsible for all costs related to the disposal, sale or
removal of the Equipment. Sherwin-Williams shall guarantee AlSher’s
responsibility for any costs of removal of the Equipment. If AlSher fails to
timely remove the Equipment then Altair may remove and dispose of the Equipment
and shall be reimbursed for its reasonable expenses.  If AlSher fails
to reimburse Altair within 65 days from date of invoice from Altair, then Altair
may seek reimbursement from Sherwin-Williams.  Altair will provide, at
no cost to AlSher, such personnel advisory assistance as reasonably requested,
to assist AlSher in the removal of Equipment, as well as remote assistance with
the transition of administrative, financing and accounting functions to
Sherwin-Williams and AlSher so long as such does not impede Altair’s normal
business operations. Altair represents and warrants that the Equipment has been
decommissioned and decontaminated prior to the date of removal. In the event
that additional measures are required to decommission or decontaminate the
Equipment, Altair shall be responsible for all costs related to such
measures.

      


      3.           Termination of AlSher
Agreements.  The Parties agree that the following agreements
between the parties are hereby terminated as of the Effective Date: (i) Services
Agreement between AlSher and Altair dated April 24, 2007; (ii) Supply Agreement
between Altair and AlSher dated April 24, 2007; (iii) Equipment Lease between
AlSher and Altair dated April 24, 2007; (iv) Altair Nanotechnology Inc.’s
Guaranty dated April 24, 2007; (v) License Agreement between Altairnano, Inc.
and AlSher Titania LLC dated April 24, 2007; and (vi) Cross-License Agreement
between The Sherwin-Williams Company and Altairnano, Inc. dated April 24,
2007.

       

       

      
        
           


        

        
          2

          
            

          

        

        
           


        

      

      
 

      4.           Mutual
Release.  In consideration of the promises and actions by each
of the Parties to this Agreement, each Party and its agents, servants, officers,
directors, employees, representatives, successors, subsidiaries, divisions,
assigns, parent corporations and affiliates hereby release and forever discharge
the other Parties and their agents, servants, officers, directors, employees,
representatives, successors, subsidiaries, divisions, assigns, parent
corporations and affiliates from any and all past, present or future claims,
causes of action, liabilities, liens and demands, known or unknown, which such
Party has, may have or claims to have against any other Party, specifically for
or in any manner growing out of or arising from any agreements entered into by
and between the Parties related to the Business, or any other actions of the
Parties related to the Business, at any time up to and including the date of
this Agreement, including, without limitation, any and all known or unknown
claims and the consequences thereof.  Notwithstanding the foregoing,
the foregoing release shall not extend to any known or unknown claims, demands
or causes of action asserted against a party by any third party (including,
without limitation, an employee of either party) for personal injury, death or
loss of or damage to property and all claims, demands, or causes of action
arising under, based on or related to environmental laws or environmental
matters.

      


      5.           Technical Services
Agreement.  The Parties hereby enter into a Technical Services
Agreement a copy of which is attached hereto as Exhibit B and incorporated
herein.

      


      6.           License
Agreement.  The Parties hereby enter into a License Agreement,
a copy of which is attached hereto as Exhibit C and incorporated
herein.

      


      7.           Toll Manufacturing
Agreement.  The Parties hereby enter into a Toll Manufacturing
Agreement, a copy of which is attached hereto as Exhibit D and incorporated
herein.

      


      8.           Unwinding of the License
Agreement.

       

      a.           Milestone Payments and
Additional Payments.  The License Agreement shall terminate at
midnight December 31, 2010 unless:

       

      (I).  AlSher concludes
financing for the construction of a small scale demonstration plant with an
estimated minimum of 2600 tons per year output (“Small Scale Plant”) to further
the Business by December 31, 2010; or

       

      (II).  Prior to 5 PM Eastern
Time December 31, 2010 AlSher, by written notice to Altair, elects to extend the
term of the License Agreement beyond its December 31, 2010 termination date by
paying ***** in arrears per calendar quarter (any partial quarter to be
prorated) with the first such payment being receive by Altair on or before April
1, 2011 as milestone payments (“Milestone Payments”) which shall be applied to
the Payments pursuant to Section 1. Such Milestone Payments shall continue until
the earlier of (i) written notice from AlSher to Altair that financing has been
successfully concluded for the Small Scale Plant; (ii)  written notice
on or before December 31, 2013, that the Milestone Payments will end and,
subject to (iii) below, AlSher will pay to Altair the following amounts: ******
on January 31, 2014, ***** on January 31, 2015, and an additional amount on
January 31, 2016 such that the total of all Payments under Sections 1.b.i. and 8
to Altair equals the Maximum Payment; (iii) written notice from AlSher to Altair
that AlSher has not been successful in securing new investors or concluding
definitive agreements for the financing of the Small Scale Plant; or (iv) three
years after the Effective Date, provided (i) or (ii) have not
occurred.  Subsections (iii) and (iv) are referred to as “Trigger
Events”. If AlSher shall fail to cure any Milestone Payment within 30 days of
receiving written notice from Altair that such payment is delinquent, then upon
the thirty-first day after such notice the License Agreement shall terminate.
Termination of the License Agreement due to such failure to pay shall also be
considered a "Trigger Event."  Milestone Payments are not recoverable
by AlSher from Altair pursuant to occurrence of any termination
event.

       

      b.           Cross License. Upon
the occurrence of a Trigger Event, the License Agreement attached as Exhibit C
shall terminate and the Cross License attached hereto as Exhibit E shall become
effective.  Upon effectiveness of the Cross License Agreement, no
further payments shall be due to Altair pursuant to Section 1(b) of this
Agreement.

       

      c.           Termination due to
Bankruptcy.  If at any time during the Term, and Event of
Bankruptcy relating to AlSher occurs, and AlSher rejects this Agreement pursuant
to the bankruptcy proceedings, Altair shall have, in addition to all other legal
and equitable rights and remedies available hereunder, the option to terminate
this Agreement upon thirty (30) days written notice to AlSher.

       

      
        
           


        

        
          3

          
            

          

        

        
           


        

      

       

       

      9.           Entire
Agreement.  This Agreement with all Exhibits attached hereto
represents the entire understanding and agreement between the parties hereto and
supersedes any and all prior agreements, whether written or oral, that may exist
between the parties regarding same.

      


      10.           Waiver.  Any
waiver by either party of any provision or condition of this Agreement shall not
be construed or deemed to be a waiver of any other provision or condition of
this Agreement, nor a waiver of a subsequent breach of the same provision or
condition, unless such is expressed in writing and signed by the party to be
bound.

      


      11.           Miscellaneous.  The
validity, interpretation and performance of this Agreement shall be governed and
construed in accordance with the Laws of the State of Ohio.  All
paragraph headings herein are for convenience only and are in no way to be
construed as part of this Agreement or as a limitation of Agreement or as a
limitation of the scope of the particular section or paragraph to which they
refer. In this Assignment, whenever the context so requires, the masculine
gender shall include the feminine and/or neuter and the singular number shall
include the plural and conversely in each case.  In the event of a
conflict between the terms or conditions of this Agreement and those of any
other document, the terms and conditions of this Agreement shall
control.

      


      12.           Severability.  If
any paragraph, subparagraph, section, subsection, sentence or clause of this
Agreement shall be adjudged illegal, invalid or unenforceable, such illegality,
invalidity or unenforceability shall not affect the legality, validity or
enforceability of the Agreement as a whole or of any paragraph, subparagraph,
section, subsection, sentence or clause hereof not so adjudged.  The
parties will endeavor to replace the invalid or null and void provisions by
those which correspond best to the intentions of the parties
hereto.

      


      13.           Notices.  Any
notice, communication or statement required or permitted to be given hereunder
shall be in writing and deemed to have been sufficiently given when delivered in
person, by registered or certified mail, postage prepaid, return receipt
requested, or by reputable overnight carrier to the address in this Section
13.  Either party may, by notice to the other, change the addresses
and names given.

       

      
        
          	
                  To
      Altairnano, Inc.:

                	
                  204
      Edison Way

                	 
      
	 
      	
                  Reno,
      NV  89502

                	 
      
	 
      	
                  Attn:
      General Counsel

                	 
      
	 
      	
                  Fax:
      (775) 858-3731

                	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      
	
                  To
      The Sherwin-Williams Company:

                	
                  101
      West Prospect Avenue

                	 
      
	 
      	
                  Cleveland,
      Ohio 44115

                	 
      
	 
      	
                  Attn:
      Senior Vice President, Strategic Excellence Initiatives

                	 
      
	 
      	
                  Fax:  (216)
      566-3266

                	 
      
	 
      	 
      	 
      
	
                  Copy
      to:

                	
                  101
      West Prospect Avenue

                	 
      
	 
      	
                  Cleveland,
      Ohio 44115

                	 
      
	
                   

                	Attn:
      General Counsel	 
      
	 
      	
                  Fax:
      216-566-1708

                	 
      
	 
      	 
      	 
      
	
                  To
      AlSher Titania LLC:

                	
                  101
      West Prospect Avenue

                	 
      
	 
      	
                  Cleveland,
      Ohio 44115

                	 
      
	 
      	
                  Attn:
      Senior Vice President, Strategic Excellence Initiatives

                	 
      
	 
      	
                  Fax:
      (216) 566-3266

                	 
      
	 
      	 
      	 
      
	
                  Copy
      to:

                	
                  101
      West Prospect Avenue

                	 
      
	 
      	
                  Cleveland,
      Ohio 44115

                	 
      
	
                  Attn:
      General Counsel

                	 
      	 
      
	 
      	
                  Fax:
      216-566-1708

                	 
      


        



      
        
           


        

        
          4

          
            

          

        

        
           


        

      

       

       

      14. 
Public
Announcements.

      


      a.           Neither
Party may disclose to any third party the terms and conditions of this Agreement
without the other Party's prior written consent, except:  (i) as
required by any court or governmental body in connection with any litigation or
administrative proceeding or as to disclosures required by law or the rules of
the principal stock exchange on which a Party’s or its parent company’s stock is
traded; (ii) under appropriate conditions of confidentiality, to subcontractors,
accountants, legal counsel, banks, existing or potential investors or other
financing sources and their advisors; or (iii) under appropriate conditions
of confidentiality, in connection with a merger or acquisition or proposed
merger or acquisition, or the like.  Notwithstanding the foregoing,
the disclosing Party shall notify the other Party prior to making any disclosure
of (a) any detailed terms of this Agreement (other than information about the
existence or general scope of this Agreement) or (b) any copies of this
Agreement without redacting, at a minimum, all economic terms, except as such
redaction may be limited by law or the rules of the principal stock exchange on
which a Party’s or its parent company’s stock is traded.

       

      b.           All
press releases or other public announcements by either Party relating to this
Agreement or the subject matter hereof shall be approved in writing in advance
by each Party, such approval not to be unreasonably withheld or delayed;
provided that this shall not restrict a Party’s obligation to comply with
applicable legal disclosure obligations.  Altair agrees that
disclosure of the economic terms of this Agreement and the License Agreement is
not material and shall not be specifically disclosed in any reports filed with
the Securities and Exchange Commission, NASDAQ, their Canadian counterparts or
any similar reporting agency.

      


      Accepted
and agreed to by the Parties as evidenced by their duly authorized
representatives’ below signatures.

      


      
        
          	
                  Altairnano,
      Inc.

                	
                  AlSher
      Titania LLC

                
	 
      	
                  By
      and on behalf of its below owning Members

                
	 
      	 
      
	
                  Signed:
      /s/ Terry Copeland      

                	
                  The
      Sherwin-Williams Company

                
	 
      	 
      
	
                  Printed
      Name: Terry Copeland

                	
                  Signed:
      /s/ Tom Seitz         

                
	 
      	 
      
	
                  Title:
      President and CEO

                	
                  Printed
      Name: Tom Seitz

                
	 
      	 
      
	 
      	
                  Title:  Managing
      Member

                
	 
      	 
      
	
                  The
      Sherwin-Williams Company

                	
                  Altairnano,
      Inc.

                
	 
      	 
      
	 
      	 
      
	
                  Signed:
      /s/ Max H. Lewis         

                	
                  Signed:
      /s/ Terry M. Copeland      

                
	 
      	 
      
	
                  Printed
      Name: Max H. Lewis

                	
                  Printed
      Name: Terry M. Copeland

                
	 
      	 
      
	
                  Title:
      Vice President – Global Innovation

                	
                  Title:
      Managing Member

                


        

      

       

      
        Altair
Nanotechnology Inc. solely as related Sections
3 and 4 of this Agreement.

        


        Signed:
/s/ Terry M. Copeland         

        


        Printed
Name: Terry M. Copeland

        


        Title:
President and CEO

      

      
 

      
        
           


        

        
          5

          
            

          

        

        
           


        

      

       

      
        EXHIBIT
A

        FINANCIAL
STATEMENTS

        


        


        A-1
LIABILITIES

        


        See
following inserted page – AlSher Titania, LLC Accounting Year 2010 Period
3

        


        


        A-2
RECEIVABLES

        


        None

      

       

       

       

      
 

      
        
           


        

        
          6

          
            

          

        

        
           


        

      

       

      
        AlSher
Titania LLC

        Accounting
Year                                2010

        Period                                3

      

       

       

       

       

      *****

       

       

       

      
        
           


        

        
          7

          
            

          

        

        
           


        

      

      EXHIBIT
B

      TECHNICAL SERVICES
AGREEMENT

       

       

       

      
        
           


        

        
          8

          
            

          

        

        
           


        

      

      


      EXHIBIT
C

      LICENSE
AGREEMENT

       

       

      
        
           


        

        
          9

          
            

          

        

        
           


        

      

       

      


      EXHIBIT
D

      TOLL MANUFACTURING
AGREEMENT

       

       

       

      
        
           


        

        
          10

          
            

          

        

        
           


        

      

      


      EXHIBIT
E

      CROSS LICENSE
AGREEMENT

       

       

      
        
           


        

        
          11