altair_8k-ex1004.htm


    
      

    

     

    Exhibit
      10.4

     

    September
      24, 2007

    


    


    Private
      and Confidential

    


    Mr.
      Alan
      J. Gotcher, Ph.D.

    President
      & CEO

    Altair
      Nanotechnologies Inc.

    204
      Edison Way

    Reno,
      NV
      890502

    


    Ladies
      and Gentlemen:

    


    Pursuant
      to the April 21, 2006 Letter
      Agreement between Altair Nanotechnologies Inc. (the "Company") and J.P. Morgan
      Securities Inc. ("JPMorgan") the parties are entering into this letter agreement
      in order to set forth the specific terms and conditions in connection with
      the
      proposed issuance, offering and sale by the Company (the "Offering") of
      approximately $25 million to $50 million of equity or equity-linked securities
      (the "Securities") on a private placement basis.

    


    1.           Best
      Efforts Placement.  The Company has engaged JPMorgan to act as
      sole placement agent on a best efforts basis for the Offering.  The
      Company acknowledges and agrees that JPMorgan's engagement hereunder is not
      an
      agreement by JPMorgan or any of its affiliates to underwrite or purchase any
      securities or otherwise provide any financing.

    


    2.           Exclusive
      Engagement.  During the period of JPMorgan’s engagement hereunder,
      the Company will not, and will cause its affiliates not to, discuss the Offering
      or any other placement or sale of equity or equity-related securities with
      any
      third parties (except through JPMorgan) and it will promptly notify JPMorgan
      if
      it receives any inquiry concerning the Securities.  The Company
      represents and agrees that no offers or sales of securities of the same or
      a
      similar class as the Securities have been made or will be made by the Company
      or
      on its behalf that would be integrated with the offer and sale of the Securities
      under the doctrine of integration referred to in Regulation D under the
      Securities Act of 1933, as amended.  Notwithstanding the foregoing,
      the Company shall not be prohibited by this Section 2 from discussing the
      issuance, and or issuing, its equity or equity-linked securities to
      counterparties in connection with licensing agreements entered into with such
      counterparties provided that the
      Company will take all necessary steps to ensure that any such offering and
      sale
      of its securities are exempt from the registration requirements of the
      Securities Act pursuant to Rule 506 of Regulation D
      thereunder.

    


    3.           Indemnification
      and Contribution.  In consideration of the engagement hereunder,
      the Company agrees to the indemnification and contribution provisions set forth
      in Annex A hereto, which provisions are incorporated by reference herein and
      constitute a part hereof.

    


    4.           Fees
      and Expenses.  The Company agrees to pay JPMorgan an initial
      retainer of $75,000 upon the signing of this letter agreement.  This
      retainer is nonrefundable but shall be credited against any further fees payable
      to JPMorgan hereunder.  In addition, as compensation for its services
      hereunder, the Company agrees to pay JPMorgan at each closing for the sale
      of
      Securities a placement fee equal to 6.0% of the value of the Securities sold
      at
      such closing, in cash; provided, however, that the minimum aggregate cash
      consideration, if any, to be paid to JPMorgan in connection with this engagement
      shall not be less than $1,500,000.

     

    The
      Company agrees to reimburse JPMorgan promptly upon request for all reasonable
      out-of-pocket costs and expenses (including, without limitation, reasonable
      fees, disbursements and other charges of legal counsel and other experts)
      incurred in connection with this letter agreement or any of the transactions
      contemplated hereby, whether or not any Securities are issued, offered or sold;
      provided, however, that the Company’s reimbursement obligation pursuant to this
      sentence shall not exceed $75,000 in the aggregate without its prior
      consent.  In addition, as is customary in private placements, the
      Company will also pay the fees and expenses of one counsel for the purchasers
      of
      the Securities, such counsel to be mutually acceptable to the Company and
      JPMorgan.

     

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    5.           Disclosure.  In
      connection with its engagement hereunder, JPMorgan will assist the Company
      in
      preparing a private placement memorandum and/or other documents to be used
      in
      connection with the Offering (the "Offering Document").  The Company
      acknowledges and agrees that the Offering Document is its own work product,
      that
      JPMorgan may rely, without independent verification, upon the accuracy and
      completeness of all information furnished by the Company to JPMorgan for use
      in
      connection with the Offering (collectively, the "Information") and that JPMorgan
      does not assume any responsibility therefor.

    


    The
      Company represents that (i) the Information and the Offering Document will
      not
      include an untrue statement of a material fact or omit to state a material
      fact
      necessary in order to make the statements therein, in the light of the
      circumstances under which they were made, not misleading, (ii) all historical
      financial data provided to JPMorgan will be prepared in accordance with
      generally accepted accounting principles and practices then in effect in the
      United States and will fairly present the financial condition and operations
      of
      the Company and (iii) any forecasted financial, market or industrial information
      provided to JPMorgan will be prepared in good faith with a reasonable basis
      for
      the assumptions and the conclusions reached therein. In addition, the Company
      agrees that it will notify JPMorgan promptly if any of the foregoing
      representations ceases to be accurate at any time during the period of
      JPMorgan's engagement hereunder.

    


    6.           Engagement
      Period, Termination and Survival. JPMorgan’s engagement hereunder may be
      terminated by JPMorgan or the Company at any time upon 10 days' prior written
      notice to the other party.  The provisions of this letter agreement
      relating to the payment of fees and expenses, indemnification and contribution,
      references to JPMorgan and governing law will survive any termination or
      expiration of this letter agreement.  In addition, if any person
      contacted by JPMorgan during the term of its engagement hereunder and with
      whom
      JPMorgan had substantive discussions regarding the Offering purchases
      Securities, or any substantially similar securities, from the Company during
      the
      12-month period following termination of this letter agreement, the Company
      shall pay JPMorgan, upon the closing of such sale, a cash fee equal to the
      amount that would have been payable had this letter agreement not been
      terminated.

    


    7.  Matters
      Relating to Engagement.  The Company acknowledges that JPMorgan
      has been retained solely to provide the services set forth herein.  In
      rendering such services, JPMorgan shall act as an independent contractor, and
      any duties of JPMorgan arising out of its engagement hereunder shall be owed
      solely to the Company.  In addition, the Company agrees that JPMorgan
      may perform the services contemplated hereby in conjunction with its affiliates,
      and that any JPMorgan affiliates performing services hereunder shall be entitled
      to the benefits and be subject to the terms of this letter
      agreement.

    


    Following
      completion of this engagement, JPMorgan shall have the right to place
      advertisements in financial and other newspapers and journals at its own expense
      describing its services to the Company hereunder.  JPMorgan may not,
      without its prior written consent, which shall not be unreasonably withheld,
      be
      quoted or referred to in any document, release or communication prepared, issued
      or transmitted by the Company (including any entity controlled by, or under
      common control with, the Company or any director, officer, employee or agent
      thereof).

     

     

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

     

    The
      Company acknowledges that JPMorgan is a securities firm engaged in securities
      trading and brokerage activities and providing investment banking and financial
      advisory services.  In the ordinary course of business, JPMorgan and
      its affiliates may at any time hold long or short positions, and may trade
      or
      otherwise effect transactions, for their own account or the accounts of
      customers, in debt or equity securities of the Company, its affiliates or other
      entities that may be involved in the transactions contemplated
      hereby.

    


    In
      addition, JPMorgan and its
      affiliates may from time to time perform various investment banking, commercial
      banking and financial advisory services for other clients and customers who
      may
      have conflicting interests with respect to the Company or the
      Offering.  JPMorgan and its affiliates will not use confidential
      information obtained from the Company pursuant to this engagement or their
      other
      relationships with the Company in connection with the performance by JPMorgan
      and its affiliates of services for other companies, and JPMorgan and its
      affiliates will not furnish any such information to other
      companies.  The Company also acknowledges that JPMorgan and its
      affiliates have no obligation to use in connection with this engagement, or
      to
      furnish to the Company, confidential information obtained from other
      companies.

    


    Furthermore,
      the Company acknowledges that JPMorgan and its affiliates may have fiduciary
      or
      other relationships whereby JPMorgan and its affiliates may exercise voting
      power over securities of various persons, which securities may from time to
      time
      include securities of the Company or of potential purchasers of the Securities
      or others with interests in respect of the Offering.  The Company
      acknowledges that JPMorgan and its affiliates may exercise such powers and
      otherwise perform its functions in connection with such fiduciary or other
      relationships without regard to JPMorgan’s relationship to the Company
      hereunder.

    


    The
      Company acknowledges that JPMorgan
      is not an advisor as to legal, tax, accounting or regulatory matters in any
      jurisdiction.  The Company shall consult with its own advisors
      concerning such matters and shall be responsible for making its own independent
      investigation and appraisal of the transactions contemplated hereby, and
      JPMorgan shall have no responsibility or liability to the Company with respect
      thereto.

    


    The
      Company acknowledges that the terms
      of this letter agreement are contingent upon the receipt by JPMorgan of
      appropriate Commitment Committee approval.  JPMorgan shall promptly
      notify the Company upon receipt of Commitment Committee approval.

    


    8.           Governing
      Law.  This letter agreement, including Annex A hereto, shall be
      governed by and construed in accordance with the laws of the State of New York,
      without giving effect to the conflicts of laws principles
      thereof.  The Company and JPMorgan irrevocably agree to waive trial by
      jury in any action, proceeding, claim or counterclaim brought by or on behalf
      of
      either party related to or arising out of this letter agreement or the
      performance of services hereunder.

    


    9.           Miscellaneous.  This
      letter agreement contains the entire agreement between the parties relating
      to
      the subject matter hereof and supersedes all oral statements and prior writings
      with respect thereto.  This letter agreement may not be amended or
      modified except by a writing executed by each of the parties
      hereto.  Section headings herein are for convenience only and are not
      a part of this letter agreement.  This letter agreement is solely for
      the benefit of the Company and JPMorgan, and no other person (except for
      indemnified persons to the extent set forth in Annex A hereto) shall acquire
      or
      have any rights under or by virtue of this letter agreement.  This
      letter agreement may not be assigned by either party hereto without the other
      party’s prior written consent provided that this letter agreement may be
      assigned to the successor in interest of either the Company or JPMorgan in
      connection with a sale of all or substantially all of the assets of such party
      or a merger in which such party is not the surviving entity.  Neither
      party hereto shall be responsible or have any liability to any other party
      for
      any indirect, special or consequential damages arising out of or in connection
      with this letter agreement or the transactions contemplated hereby, even if
      advised of the possibility thereof.

    


    This
      letter agreement may be executed
      in counterparts, each of which will be deemed an original, but all of which
      taken together will constitute one and the same instrument.

    


    
      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

    

    


    


    If
      the foregoing correctly sets forth
      our understanding, please so indicate by executing this letter, together with
      the enclosed duplicate originals, in the place indicated and returning two
      (2)
      of these originals for our files, together with a check for our retainer in
      the
      amount of $75,000 (payable to J.P. Morgan Securities Inc.).

    


     

    
      	 	
              Very
                truly yours,

              


              


              J.P.
                MORGAN SECURITIES INC.

              


              


              By: 
                /s/ Norman D. Colbert

                   Name:
                Norman D. Colbert

                   Title:
                Managing Director

              


            


    

     

     

    


     

     

    Accepted
      and agreed to as of

    the
      date
      first written above.

    


    ALTAIR
      NANOTECHNOLOGIES INC.

    


    


    By:
      /s/     Alan J.
      Gotcher                    
 

         Name:
      Alan J. Gotcher, Ph.D.

         Title:
      President & CEO

    


    


    
      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

    

     

     

    
 

    
      	 	
              

               

              J.P.
                Morgan Securities Inc.

              277
                Park Avenue, 3rd Floor

              New
                York, NY 
10172 

            


    

       

     

     

    ANNEX
      A        

    


    


    The
      Company agrees to indemnify and hold harmless JPMorgan, its affiliates and
      their
      respective officers, directors, employees, agents and controlling persons (each
      an "Indemnified Person") from and against any and all losses, claims, damages,
      liabilities and expenses, joint or several, to which any such Indemnified Person
      may become subject arising out of or in connection with the transactions
      contemplated by the letter agreement to which this Annex A is attached (the
      “Agreement”), or any claim, litigation, investigation or proceedings relating to
      the foregoing ("Proceedings") regardless of whether any of such Indemnified
      Persons is a party thereto, and to reimburse such Indemnified Persons for any
      legal or other expenses as they are incurred in connection with investigating,
      responding to or defending any of the foregoing, provided that the
      foregoing indemnification will not, as to any Indemnified Person, apply to
      losses, claims, damages, liabilities or expenses to the extent that they are
      finally judicially determined to have resulted from the gross negligence or
      willful misconduct of any Indemnified Person.  The Company also agrees
      that no Indemnified Person shall have any liability (whether direct or indirect,
      in contract, tort or otherwise) to the Company for or in connection with the
      Agreement, any transac­tions con­templated thereby or JPMorgan's role or
      services in connec­tion there­with, except to the extent that any
      liability for losses, claims, demands, damages, liabil­ities or
      expens­es incurred by the Company are finally judicially deter­mined to
      have resulted from the gross negligence or willful misconduct of such
      Indemnified Person.

    


    If
      for
      any reason the foregoing indemnification is unavailable to any Indemnified
      Person or insufficient to hold it harmless, then the Company shall contribute
      to
      the amount paid or payable by such Indemnified Person as a result of such loss,
      claim, damage, liability or expense in such proportion as is appropriate to
      reflect not only the relative benefits received by the Company on the one hand
      and such Indemnified Person on the other hand but also the relative fault of
      the
      Company and such Indemnified Person, as well as any relevant equitable
      considerations.  It is hereby agreed that the relative benefits to the
      Company on the one hand and all Indemnified Persons on the other hand shall
      be
      deemed to be in the same proportion as (i) the total value received or proposed
      to be received by the Company pursuant to any sale of the Securities (whether
      or
      not consummated) bears to (ii) the fee paid or proposed to be paid to JPMorgan
      in connection with such sale.  The indemnity, reimbursement and
      contribution obligations of the Company under these paragraphs shall be in
      addition to any liability which the Company may otherwise have to an Indemnified
      Person and shall be binding upon and inure to the benefit of any successors,
      assigns, heirs and personal representatives of the Company and any Indemnified
      Person.

    


    Promptly
      after receipt by an
      Indemnified Person of notice of the commencement of any Proceedings, such
      Indemnified Person will, if a claim is to be made hereunder against the Company
      in respect thereof, notify the Company in writing of the commencement thereof;
      provided that (i) the omission so to notify the Company will not relieve
      it from any liability which it may have hereunder except to the extent it has
      been materially prejudiced by such failure and (ii) the omission so to notify
      the Company will not relieve it from any liability which it may have to an
      Indemnified Person otherwise than on account of this indemnity
      agreement.  In case any such Proceedings are brought against any
      Indemnified Person and it notifies the Company of the commencement thereof,
      the
      Company will be entitled to participate therein and, to the extent that it
      may
      elect by written notice delivered to the Indemnified Person, to assume the
      defense thereof with counsel reasonably satisfactory to such Indemnified Person;
      provided that if the defendants in any such Proceedings include both the
      Indemnified Person and the Company and the Indemnified Person shall have
      concluded that there may be legal defenses available to it which are different
      from or additional to those available to the Company, the Indemnified Person
      shall have the right to select separate counsel to assert such legal defenses
      and to otherwise participate in the defense of such Proceedings on behalf of
      such Indemnified Person.  Upon receipt of notice from the Company to
      such Indemnified Person of its election so to assume the defense of such
      Proceedings and approval by the Indemnified Person of counsel, the Company
      will
      not be liable to such Indemnified Person for expenses incurred by the
      Indemnified Person in connection with the defense thereof (other than reasonable
      costs of investigation) unless (i) the Indemnified Person shall have employed
      separate counsel in connection with the assertion of legal defenses in
      accordance with the proviso to the immediately preceding sentence (it being
      understood, however, that the Company shall not be liable for the expenses
      of
      more than one separate counsel (in addition to any local counsel), approved
      by
      JPMorgan, representing the Indemnified Persons who are parties to such
      Proceedings), (ii) the Company shall not have employed counsel reasonably
      satisfactory to the Indemnified Person to represent the Indemnified Person
      within a reasonable time after notice of commencement of the Proceedings or
      (iii) the Company has authorized in writing the employment of counsel for the
      Indemnified Person.

     

    
 

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    The
      Company shall not be liable for any settlement of any Proceedings effected
      without its written consent (which consent shall not be unreasonably withheld),
      but if settled with its written consent or if there be a final judgment for
      the
      plaintiff in any such Proceedings, the Company agrees to indemnify and hold
      harmless each Indemnified Person from and against any and all losses, claims,
      damages, liabilities and expenses by reason of such settlement or
      judgment.  Notwithstanding the immediately preceding sentence, if at
      any time an Indemnified Person shall have requested the Company to reimburse
      such Indemnified Person for legal or other expenses in connection with
      investigating, responding to or defending any Proceedings as contemplated by
      this Annex A, the Company shall be liable for any settlement of any Proceedings
      effected without its written consent if (i) such settlement is entered into
      more
      than 30 days after receipt by the Company of such request for reimbursement
      and
      (ii) the Company shall not have reimbursed such Indemnified Person in accordance
      with such request prior to the date of such settlement.  The Company
      shall not, without the prior written consent of an Indemnified Person (which
      consent shall not be unreasonably withheld), effect any settlement of any
      pending or threatened Proceedings in respect of which indemnity could have
      been
      sought hereunder by such Indemnified Person unless such settlement includes
      an
      unconditional release of such Indemnified Person in form and substance
      satisfactory to such Indemnified Person from all liability on claims that are
      the subject matter of such Proceedings.

    


    Capitalized
      terms used but not defined
      in this Annex A have the meanings assigned to such terms in the
      Agreement.

    


    


    


    


    
      
        
          
          

        

        
          2