As filed with the Securities and Exchange Commission on January 17, 2003
Registration No. 333-_______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-2
REGISTRATION STATEMENT
Under the Securities Act of 1933
Altair Nanotechnologies Inc.
(Exact name of registrant as specified in its charter)
Canada None
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
William P. Long
Chief Executive Officer Copies to:
Altair Nanotechnologies Inc. Bryan T. Allen, Esq.
1725 Sheridan Avenue, Suite 140 Brian G. Lloyd, Esq.
Cody, Wyoming 82414 STOEL RIVES LLP
(307) 587-8245 201 South Main Street, Suite 1100
(Address, including zip code, and telephone number, Salt Lake City, Utah 84111
including area code, of registrant's principal office; Phone: (801) 328-3131
name, address, including zip code, and telephone number, Fax: (801) 578-6999
including area code, of agent for service)
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement as
determined by market conditions.
If any of the securities being registered on this form are to be offered on
a delayed or continuing basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [X]
If the registrant elects to deliver its latest annual report to security
holders, or a complete and legible facsimile thereof, pursuant to Item 11(a)(1)
of this form, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [ ]
CALCULATION OF REGISTRATION FEE
========================================== ================= ================== ================ ===================
Proposed
maximum
Title of each class Proposed maximum aggregate
of securities to be registered Amount to be offering price offering Amount of
registered per share(1) price(1) registration fee
------------------------------------------ ----------------- ------------------ ---------------- -------------------
Common shares, no par value 2,250,000(2)(3) $0.45 $1,012,500 $94
Warrants(4) 750,000 -- -- --
========================================== ================= ================== ================ ===================
(1) Estimated pursuant to Rule 457 solely for the purpose of calculating
the registration fee, based upon the average of the high and low sales
prices for the common shares as reported on the Nasdaq SmallCap Market
on January 16, 2003.
(2) Includes 750,000 common shares issuable upon the exercise of warrants
registered hereunder.
(3) In addition, pursuant to Rule 416 of the Securities Act of 1933, this
Registration Statement covers a presently indeterminate number of
shares of common stock issuable upon the occurrence of a stock split,
stock dividend, or other similar transaction.
(4) Warrants to purchase up to 750,000 common shares registered hereunder.
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the SEC, acting pursuant to said Section 8(a), may
determine.
ALTAIR
NANOTECHNOLOGIES INC.
2,250,000 Common Shares
750,000 Warrants
------------------
This prospectus relates to the offering and sale of 1,500,000 common
shares, no par value, of Altair Nanotechnologies Inc., together with 750,000
Series 2003A Warrants and the 750,000 common shares issuable upon the exercise
of such warrants. Each Series 2003A Warrant entitles the holder thereof to
purchase one common share of Altair at any time prior to the fifth anniversary
of the issue date at the price equal to the greater of (i) $1.00 per share, and
(ii) 125% of the average of the closing price of our common shares, as reported
on the Nasdaq SmallCap Market, during the calendar week preceding the calendar
week in which we receive and accept subscription proceeds for the particular
investment. In addition, pursuant to Rule 416 of the Securities Act of 1933, as
amended, this prospectus, and the registration statement of which it is a part,
covers a presently indeterminate number of shares of common stock issuable upon
the occurrence of a stock split, stock dividend, or other similar transaction.
We are offering the common shares, together with the Series 2003A
Warrants, pursuant to this prospectus on a "best-efforts," "no-minimum" basis.
The common shares and Series 2003A Warrants are being offered in units
consisting of one common share and one-half Series 2003 A Warrant for a purchase
price per unit equal to 90% of the average of the closing price of the common
shares, as reported on the Nasdaq SmallCap Market, during the calendar week
preceding the calendar week in which we receive and accept subscription
proceeds.
In the United States, our common shares are listed for trading under
the symbol ALTI on the Nasdaq SmallCap Market. On January 16, 2003, the closing
sale price of our common shares, as reported by the Nasdaq SmallCap Market, was
$0.43 per share.
Unless otherwise expressly indicated, all monetary amounts set forth in
this prospectus are expressed in United States Dollars. As of January 9, 2003,
we had 30,249,573 common shares issued and outstanding.
Consider carefully the risk factors beginning on page 3 in this
prospectus before investing in the offered securities being sold with this
prospectus.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed on the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
Dated January 15, 2003
Table of Contents
Page
SUMMARY.......................................................................1
RISK FACTORS..................................................................3
FORWARD-LOOKING STATEMENTS...................................................12
USE OF PROCEEDS..............................................................13
DILUTION.....................................................................14
PLAN OF DISTRIBUTION.........................................................14
DESCRIPTION OF OFFERED SECURITIES............................................15
LEGAL MATTERS................................................................16
EXPERTS......................................................................16
INFORMATION ABOUT OUR COMPANY................................................16
RECENT DEVELOPMENTS..........................................................16
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE..............................17
WHERE YOU CAN FIND MORE INFORMATION..........................................18
SUMMARY
This summary highlights some of the information in this prospectus.
Because it is a summary, it does not contain all of the information you need to
make an investment decision. To understand this offering fully, you should read
this entire prospectus.
Altair Nanotechnologies Inc.
We are a development-stage Canadian company whose primary business is
developing and commercializing ceramic oxide nanoparticle products. In the
second quarter of 2002, we initiated research and development efforts directed
toward the utilization of nanomaterials in the pharmaceuticals industry. In July
2002, we announced the development of a new active pharmaceutical ingredient for
the treatment of hyperphosphatemia (elevated serum phosphate levels) in patients
undergoing kidney dialysis, as well as a new drug delivery system using
inorganic ceramic nanoparticles. In August 2002, we filed a patent application
covering these developments. We are currently seeking business relationships
with pharmaceutical companies that can conduct additional testing and
development, seek necessary FDA approvals and take the other steps necessary to
bring the new pharmaceutical ingredient and drug delivery system to market.
In addition to pharmaceuticals, we are developing nanomaterials with
potential applications in alternative energy--primarily fuel cells and
batteries--as well as thermal spray coatings, catalysts, cosmetics and paints.
We have also developed prototypes of the Altair Centrifugal Jig and
have conducted a feasibility study on a mining property that we lease in
Tennessee. However, we are not further developing the jig or the Tennessee
mineral property at this time.
Our principal office is located at 1725 Sheridan Avenue, Suite 140,
Cody, Wyoming 82414 U.S.A., and our telephone number is (307) 587-8245.
The Offering
------------------------------------------------------------ ---------------------------------------------------------
Offered Securities
1,500,000 common shares and 750,000 Series
2003A Warrants (including the common shares
issuable upon exercise of such warrants) in units
of one common share and one-half Series 2003A Warrant.
------------------------------------------------------------ ---------------------------------------------------------
Offering price For each unit, consisting of one common share and
one-half Series 2003A Warrant, an amount equal to 90%
of the average of the closing price of the common
shares, as reported on the Nasdaq SmallCap Market,
during the calendar week preceding the calendar week in
which we receive and accept subscription proceeds for
the particular investment.
------------------------------------------------------------ ---------------------------------------------------------
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Common shares outstanding before this offering 30,249,573(1)
------------------------------------------------------------ ---------------------------------------------------------
Common shares outstanding after this offering, if all 31,749,573(1)
offered securities are sold and the Series 2003A Warrants
are exercised
------------------------------------------------------------ ---------------------------------------------------------
Use of proceeds We are offering the offered securities on a "best
efforts," "no-minimum" basis. We intend to use the
cash proceeds from the sale of the offered securities
for working capital to be used for general corporate
purposes. If management determines that capital from
other sources is sufficient to fund our ongoing
operations, we may use up to $280,000 of the net cash
proceeds to prepay indebtedness arising under our
$1,400,000 Second Amended and Restated Secured Term
Note. In addition, in order to conserve working
capital, we may issue the offered securities in
non-cash transactions in exchange for the cancellation
of indebtedness and accounts payable and in exchange
for services, including services rendered in connection
with capital-raising activities.
------------------------------------------------------------ ---------------------------------------------------------
Risk factors Investing in the offered securities involves
substantial risks. You should read the risk factors
beginning on page 3 in this prospectus before making an
investment decision.
------------------------------------------------------------ ---------------------------------------------------------
(1) Excludes 4,061,700 common shares authorized for issuance upon exercise of
outstanding options that have been granted pursuant to our stock option plans,
9,170,171 common shares subject to outstanding warrants to purchase common
shares and an indeterminable number of common shares subject to a $1,400,000
Second Amended and Restated Secured Term Note.
2
RISK FACTORS
Before you invest in the offered securities described in this prospectus,
you should be aware that such investment involves the assumption of various
risks. You should consider carefully the risk factors described below together
with all of the other information included in this prospectus before you decide
to purchase the offered securities.
We have not generated any substantial operating revenues and may not ever
generate substantial revenues.
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To date, we have not generated substantial revenues from operations. We
have not generated revenues from the jig and have scaled back development
efforts for the foreseeable future. We have generated only $141,576 of sales
revenues in our nanoparticle business as of September 30, 2002 and have not
completed exploration of the Tennessee mineral property. We can provide no
assurance that we will ever generate revenues from the jig or the Tennessee
mineral property or that we will generate substantial revenues from the titanium
processing technology.
We may continue to experience significant losses from operations.
--------------------------------------------------------------------------------
We have experienced a loss from operations in every fiscal year since
our inception. Our losses from operations in 2000 were $6,647,367 and our losses
from operations in 2001 were $6,021,532. We will continue to experience a net
operating loss until, and if, the titanium processing technology, the jig and/or
the Tennessee mineral property begin generating significant revenues. Even if
any or all such products or projects begin generating significant revenues, the
revenues may not exceed our costs of production and operating expenses. We may
not ever realize a profit from operations.
We may not be able to raise sufficient capital to meet future obligations.
--------------------------------------------------------------------------------
As of September 30, 2002, we had $306,061 in cash and a working capital
deficit of $2,181,380. Although we have raised additional capital since
September 30, 2002, we do not expect that this capital, when combined with
projected revenues from nanoparticle sales, will be sufficient to fund our
ongoing operations. Accordingly, we will need to raise significant amounts of
additional capital in the future in order to sustain our ongoing operations and
continue the testing and additional development work necessary to place the
titanium processing technology into continuous operation. In addition, we will
need additional capital for testing and development of the jig or exploration of
the Tennessee mineral property. If we determine to construct and operate a mine
on the Tennessee mineral property, we will need to obtain a significant amount
of additional capital to complete construction of the mine and commence
operations.
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We may not be able to obtain the amount of additional capital needed or
may be forced to pay an extremely high price for capital. Factors affecting the
availability and price of capital may include the following:
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o market factors affecting the availability and cost of capital
generally;
o our financial results;
o the amount of our capital needs;
o the market's perception of nanotechnology and/or minerals stocks;
o the economics of projects being pursued;
o industry perception of our ability to recover or produce minerals
with the jig or titanium processing technology or from the Tennessee
mineral property; and
o the price, volatility and trading volume of our common shares.
If we are unable to obtain sufficient capital or are forced to pay a high price
for capital, we may be unable to meet future obligations or adequately exploit
existing or future opportunities, and may be forced to discontinue operations.
We have a substantial number of warrants, options and other convertible
securities outstanding and may issue a significant number of additional shares
upon exercise or conversion thereof.
--------------------------------------------------------------------------------
As of December 1, 2002, there were outstanding warrants to purchase up
to 10,653,506 common shares at a weighted average exercise price of $1.79 per
share and options to purchase up to 3,911,700 common shares at a weighted
average exercise price of $3.98 per share. The existence of such warrants and
options may hinder future equity offerings, and the exercise of such warrants
and options may further dilute the interests of all shareholders. Future resale
of the common shares issuable on the exercise of such warrants and options may
have an adverse effect on the prevailing market price of the common shares.
In addition, we have issued a Second Amended and Restated Secured Term
Note. Under the Second Amended and Restated Secured Term Note, a conversion
right with respect to $280,000 of principal accrues on each of March 1, 2003,
June 1, 2003, September 1, 2003, December 1, 2003 and March 1, 2004. If the
amount that would be subject to a conversion right is prepaid prior to the date
of accrual, such conversion right does not accrue. Once a conversion right has
accrued, the principal amount subject to that conversion right cannot be prepaid
unless all principal amounts not subject to a conversion right have been prepaid
in full. Each conversion right gives the holder the right to convert the subject
principal amount into common shares at a conversion price equal to the lesser of
(a) $1.00 per share and (b) 70% of the average of the closing price of our
common shares for the five trading days ending on the trading day immediately
preceding the date on which that conversion right accrued.
In order to illustrate the relationship between the market price of our
common shares and the issuance of common shares upon the exercise of conversion
rights that may accrue under the Second Amended and Restated Secured Term Note,
the following table sets forth how many additional common shares would be issued
upon the exercise of all such conversion rights if all such conversion rights
accrue and the average of the closing price of our common stock for the five
trading days ending on the day before each conversion right accrues is (a) $1.43
or greater, (b) $0.50 per share, (c) $0.25 per share, or (d) $0.10 per share.
Such prices are selected for illustration purposes only and do not reflect our
actual estimate of the average of the closing price of our common shares for any
particular period.
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$1.43 or $0.50 $0.25 $0.10
Greater
--------- -------- --------- ----------
Shares Issuable(1) 1,400,000 4,000,000 8,000,000 20,000,000
Percentage of Outstanding(2)
Common Shares 4.4% 11.7% 20.9% 39.8%
(1) Assumes that shareholder approval is obtained for the transaction
in which we issued the Second Amended and Restated Secured Term Note
and all related transactions, that no principal is prepaid, that all
conversion rights accrue and are exercised at the same time and that no
default occurs and that no penalties or premiums are required to be
paid.
(2) Represents percentage of outstanding common shares following
exchange assuming the 30,249,573 common shares outstanding on January
1, 2003 are outstanding on the date of conversion.
The potential accrual of such conversion rights may hinder future
equity offerings, and the exercise of any conversion rights that accrue may
further dilute the interests of all shareholders. The sale in the open market of
common shares issuable upon the exercise of conversion rights may place downward
pressure on the market price of our common shares. Speculative traders may
anticipate the exercise of conversion rights and, in anticipation of a decline
in the market price of our common shares, engage in short sales of our common
shares. Such short sales could further negatively affect the market price of our
common shares.
Our competitors may be able to raise money and exploit opportunities more
rapidly, easily and thoroughly than we can.
--------------------------------------------------------------------------------
We have limited financial and other resources and, because of our early
stage of development, have limited access to capital. We compete or may compete
against entities that are much larger than we are, have more extensive resources
than we do and have an established reputation and operating history. Because of
their size, resources, reputation, history and other factors, certain of our
competitors may have better access to capital and other significant resources
than we do and, as a result, may be able to exploit acquisition and development
opportunities more rapidly, easily or thoroughly than we can.
We have pledged substantial assets to secure the Second Amended and Restated
Secured Term Note.
--------------------------------------------------------------------------------
We have pledged all of the intellectual property, fixed assets and
common stock of Altair Nanomaterials, Inc., our second-tier wholly-owned
subsidiary, to secure repayment of a Second Amended and Restated Secured Term
Note with a face value of $1,400,000 and a due date of March 31, 2004. Altair
Nanomaterials, Inc. owns and operates the titanium processing technology we
acquired from BHP Minerals International Inc. in 1999. The Second Amended and
Restated Secured Term Note is also secured by a pledge of the common stock and
leasehold assets of Mineral Recovery Systems, Inc., which owns and operates our
5
leasehold interests in the Camden, Tennessee area. If we default on the Second
Amended and Restated Secured Term Note, severe remedies will be available to the
holder of the Second Amended and Restated Secured Term Note, including immediate
seizure and disposition of all pledged assets.
We have issued a $3,000,000 note to secure the purchase of the land and the
building where our titanium processing assets are located.
--------------------------------------------------------------------------------
In August 2002, we entered into a purchase and sale agreement with BHP
Minerals International Inc. to purchase the land, building and fixtures in Reno,
Nevada where our titanium processing assets are located. In connection with this
transaction, BHP also agreed to terminate our obligation to pay royalties
associated with the sale or use of the titanium processing technology. In
return, we issued to BHP a note in the amount of $3,000,000, at an interest rate
of 7%, secured by the property we acquired. The first payment of $600,000 of
principal plus accrued interest is due February 8, 2006. Additional payments of
$600,000 plus accrued interest are due annually on February 8, 2007 through
2010. If we fail to make the required payments on the note, BHP has the right to
foreclose and take the property. If this should occur, we would be required to
relocate our titanium processing assets and offices, causing a significant
disruption in our business.
Operations using the titanium processing technology, the jig or the Tennessee
mineral property may lead to substantial environmental liability.
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Virtually any proposed use of the titanium processing technology, the
jig or the Tennessee mineral property would be subject to federal, state and
local environmental laws. Under such laws, we may be jointly and severally
liable with prior property owners for the treatment, cleanup, remediation and/or
removal of any hazardous substances discovered at any property we use. In
addition, courts or government agencies may impose liability for, among other
things, the improper release, discharge, storage, use, disposal or
transportation of hazardous substances. We might use hazardous substances and,
if we do, we will be subject to substantial risks that environmental remediation
will be required.
Certain of our experts and directors reside in Canada and may be able to avoid
civil liability.
--------------------------------------------------------------------------------
We are a Canadian corporation, and a majority of our directors and our
Canadian legal counsel are residents of Canada. As a result, investors may be
unable to effect service of process upon such persons within the United States
and may be unable to enforce court judgments against such persons predicated
upon civil liability provisions of the United States securities laws. It is
uncertain whether Canadian courts would (i) enforce judgments of United States
courts obtained against us or such directors, officers or experts predicated
upon the civil liability provisions of United States securities laws or (ii)
impose liability in original actions against Altair or its directors, officers
or experts predicated upon United States securities laws.
We are dependent on key personnel.
--------------------------------------------------------------------------------
Our continued success will depend to a significant extent on the
services of Dr. William P. Long, our Chief Executive Officer, Dr. Rudi Moerck,
our President, and Mr. C. Patrick Costin, our Vice President and President of
Fine Gold Recovery Systems, Inc. and Mineral Recovery Systems, Inc., our
6
wholly-owned subsidiaries. The loss or unavailability of Dr. Long, Dr. Moerck or
Mr. Costin could have a material adverse effect on us. We do not carry key man
insurance on the lives of Dr. Long, Dr. Moerck or Mr. Costin.
We may issue substantial amounts of additional shares without stockholder
approval.
--------------------------------------------------------------------------------
Our articles of continuance authorize the issuance of an unlimited
number of common shares. All such shares may be issued without any action or
approval by our stockholders. In addition, we have two stock option plans which
have potential for diluting the ownership interests of our stockholders. The
issuance of any additional common shares would further dilute the percentage
ownership of Altair held by existing stockholders.
The market price of our common shares is extremely volatile.
--------------------------------------------------------------------------------
Our common shares are listed on the Nasdaq SmallCap Market. Trading in
our common shares has been characterized by a high degree of volatility. Trading
in our common shares may continue to be characterized by extreme volatility for
numerous reasons, including the following:
o Uncertainty regarding the viability of the titanium processing
technology, the jig or the Tennessee mineral property;
o Dominance of trading in our common shares by a small number of
firms;
o Positive or negative announcements by us or our competitors;
o Uncertainty regarding our ability to maintain our listing on the
Nasdaq SmallCap Market or continue as a going concern;
o Industry trends, general economic conditions in the United States or
elsewhere, or the general markets for equity securities, minerals,
or commodities; and
o Speculation by short sellers of our common shares or other persons
who stand to profit from a rapid increase or decrease in the price
of our common shares.
We may be delisted from the Nasdaq SmallCap Market.
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Our listing on the Nasdaq SmallCap Market is conditioned upon our
compliance with the continued listing requirements for such market by June 2,
2003, including the $1.00 per share minimum bid requirement. If the market price
for our common shares has not increased to $1.00 per share for at least 10
consecutive days by June 2, 2003, we expect to be delisted from the Nasdaq
SmallCap Market. Delisting from the Nasdaq SmallCap Market may have a
significant negative impact on the trading price, volume and marketability of
our common shares.
We have never declared a cash dividend and do not intend to declare a cash
dividend in the foreseeable future.
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We have never declared or paid cash dividends on our common shares. We
currently intend to retain any future earnings, if any, for use in our business
and, therefore, do not anticipate paying dividends on our common shares in the
foreseeable future.
7
If you purchase shares in this offering, you will face immediate and substantial
dilution.
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This offering involves immediate substantial dilution to prospective
investors. The book value per common share immediately following this offering
will be substantially less than the price per common shares.
Because we are not required to sell a minimum number of securities in this
offering, there is a greater risk that you could lose your investment.
--------------------------------------------------------------------------------
We are offering the offered shares and Series 2003A Warrants on a "best efforts"
basis. This offering is not subject to a requirement for the sale of a minimum
number of shares. We cannot assure you that we will be able to sell all or any
portion of the offered shares and Series 2003A Warrants or that proceeds from
sales actually made will be sufficient to fund operations. Because the number of
offered securities that we will actually sell in this offering is unknown, the
risks to initial purchasers of the offered securities are substantially
increased.
We may be unable to exploit the potential pharmaceutical application of our
titanium processing technology.
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We do not have the technical or financial resources to complete
development of, and take to market, any pharmaceutical application of our
titanium processing technology. In order for us to receive any significant,
long-term benefit from any potential pharmaceutical application of our
technologies, the following must occur:
o we must enter into an evaluation license or similar agreement with
an existing pharmaceutical company under which such company would
pay a fee for the right to evaluate a pharmaceutical use of our
technology for a specific period of time and for an option to
purchase or receive a license for such use of our technology;
o tests conducted by such pharmaceutical company would have to
indicate that the pharmaceutical use of our technology is safe,
technically viable and financially viable;
o such pharmaceutical company would have to apply for and obtain FDA
approval of the pharmaceutical use of our technology, or any related
products, which would involve extensive additional testing; and
o such pharmaceutical company would have to successfully market the
product incorporating our technology.
Although we could receive some revenues in various stages of the testing and
evaluation of the pharmaceutical application of our technology, we may not
receive significant revenue unless and until an end product incorporating the
technology goes to market.
We may not be able to license our technology for titanium dioxide pigment
production.
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Because of our relatively small size and limited resources, we do not
plan to use our titanium processing technology for large-scale production of
titanium dioxide pigments; we have, however, entered into discussions with
various minerals and materials companies about licensing our technology to such
8
entities for large-scale production of titanium dioxide pigments. We have not
entered into any long-term licensing agreements with respect to the use of our
titanium processing technology for large-scale production of titanium dioxide
pigments and can provide no assurance that we will be able to enter into any
such agreement. Even if we enter into such agreement, we would not receive
significant revenues from such license until feasibility testing is complete
and, if the results of feasibility testing were negative, we would not receive
significant revenues at any time.
We may not be able to sell nanoparticles produced using the titanium processing
technology.
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We plan to use the titanium processing technology to produce ceramic
oxide nanoparticles. Nanoparticles and other products we intend to initially
produce with the titanium processing technology generally must be customized for
a specific application working in cooperation with the end user. We are still
testing and customizing our nanoparticle products for various applications and
have no long-term agreements with end users to purchase any of our nanoparticle
products. We may be unable to recoup our investment in the titanium processing
technology and titanium processing equipment for various reasons, including the
following:
o we may be unable to customize our nanoparticle products to meet the
distinct needs of potential customers;
o potential customers may purchase from competitors because of
perceived or actual quality or compatibility differences;
o our marketing and branding efforts may be insufficient to attract a
sufficient number of customers; and
o because of our limited funding, we may be unable to continue our
development efforts until a strong market for nanoparticles
develops.
In addition, the uses for such nanoparticles are limited, and the
market for such nanoparticles is small. In light of the small size of the
market, the addition of a single manufacturer may cause the price to drop to a
point at which we cannot produce the nanoparticles at a profit.
Our costs of production may be too high to permit profitability.
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We have not produced products using our titanium processing technology
and equipment on a commercial basis. Our actual costs of production may exceed
those of competitors and, even if our costs of production are lower, competitors
may be able to sell titanium dioxide and other products at a lower price than is
economical for Altair.
In addition, even if our initial costs are as anticipated, the titanium
processing equipment may break down, prove unreliable or prove inefficient in a
commercial setting. If so, related costs, delays and related problems may cause
production of titanium dioxide nanoparticles and related products to be
unprofitable.
9
We have not completed testing and development of the jig and are presently
focusing our resources on other projects.
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We have not completed testing of, or developed a production model of,
any series of the jig. We do not expect to complete testing and development of
the jig during 2003 and have determined to focus most of our limited resources
on the titanium processing technology. We may never develop a production model
of the jig.
Even if we complete development of the jig, the jig may prove unmarketable and
may not perform as anticipated in a commercial operation.
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The designed capacity of the Series 12 jig is too small for coal
washing, heavy minerals extraction, and most other intended applications of the
jig, except use in small placer gold mines or similar operations. Even if the
Series 12 jig is completed and performs to design specifications in subsequent
tests or at a commercial facility, we believe that, because of its small
capacity, the potential market for the Series 12 jig is limited.
If we complete development of and begin marketing a production model of
the Series 30 jig, it may not prove attractive to potential end users, may be
rendered obsolete by competing technologies or may not recover end product at a
commercially viable rate. Even if technology included in the jig initially
proves attractive to potential end users, performance problems and maintenance
issues may limit the market for the jig.
The jig faces competition from other jig-like products and from alternative
technologies.
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Various jig-like products and alternative mineral processing
technologies perform many functions similar or identical to those for which the
jig is designed. Results from further tests or actual operations may reveal that
these alternative products and technologies are better adapted to any or all of
the uses for which the jig is intended. Moreover, regardless of test results,
consumers may view any or all of such alternative products and technologies as
technically superior to, or more cost effective than, the jig.
Certain patents for the jig have expired, and those that have not expired may be
difficult to enforce.
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All of the initial patents issued on the jig have expired, and we are
unable to prevent competitors from copying the technology once protected by such
patents. Additional patents related to the process through which water is pulsed
through the cylindrical screen on the jig expire beginning in 2010, and patents
for an efficiency-enhancing aspect of the cylindrical screen expire during 2018.
The cost of enforcing patents is often significant, especially outside of North
America. Accordingly, we may be unable to enforce even our patents that have not
yet expired.
We have suspended examining the feasibility of mining the Tennessee mineral
property and may not have working capital sufficient to again continue testing
efforts.
--------------------------------------------------------------------------------
Due to a shortage of working capital, we have suspended feasibility
testing of the Tennessee mineral property. We do not expect to obtain an amount
of working capital sufficient to again start feasibility testing of the
Tennessee mineral property in the foreseeable future.
10
Even if we again commence feasibility testing on the Tennessee mineral
property, we are unable to provide any assurance that mining of the Tennessee
mineral property is feasible or to identify all processes that we would need to
complete before we could commence a mining operation on the Tennessee mineral
property. To the extent early feasibility testing yields positive results, we
expect feasibility testing to involve, among other things, the following:
o operating a pilot mining facility to determine mineral recovery
efficiencies and the quality of end products;
o additional drilling and sampling in order to more accurately
determine the quantity, quality and continuity of minerals on the
Tennessee mineral property;
o examining production costs and the market for products produced at
the pilot facility;
o designing any proposed mining facility;
o identifying and applying for the permits necessary for any proposed
full-scale mining facility; and
o attempting to secure financing for any proposed full-scale mining
facility.
Our test production at the pilot plant, economic analysis and additional
exploration activities may indicate any of the following:
o that the Tennessee mineral property does not contain heavy minerals
of a sufficient quantity, quality or continuity to permit any
mining;
o that production costs exceed anticipated revenues;
o that end products do not meet market requirements or customer
expectations;
o that there is an insufficient market for products minable from the
Tennessee mineral property; or
o that mining the Tennessee mineral property is otherwise not
economically or technically feasible.
Even if we conclude that mining is economically and technically
feasible on the Tennessee mineral property, we may be unable to obtain the
capital, resources and permits necessary to mine the Tennessee mineral property.
Market factors, such as a decline in the price of, or demand for, minerals
recoverable at the Tennessee mineral property, may adversely affect the
development of mining operations on such property. In addition, as we move
through the testing process, we may identify additional items that need to be
researched and resolved before any proposed mining operation could commence.
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We cannot forecast the life of any potential mining operation located on the
Tennessee mineral property.
--------------------------------------------------------------------------------
We have not explored and tested the Tennessee mineral property enough
to establish the existence of a commercially minable deposit (i.e. a reserve) on
such property. Until such time as a reserve is established (of which there can
be no assurance), we cannot provide an estimate as to how long the Tennessee
mineral property could sustain any proposed mining operation.
We may be unable to obtain necessary environmental permits and may expend
significant resources in order to comply with environmental laws.
--------------------------------------------------------------------------------
In order to begin construction and commercial mining on the Tennessee
mineral property, we must obtain additional federal, state and local permits. We
will also be required to conform our operations to the requirements of numerous
federal, state and local environmental laws. Because we have not yet commenced
design of a commercial mining facility on the Tennessee mineral property, we are
not in a position to definitively ascertain which federal, state and local
mining and environmental laws or regulations would apply to a mine on the
Tennessee mineral property. Nevertheless, we anticipate having to comply with
and/or obtain permits under the Clean Air Act, Clean Water Act and Resource
Conservation and Recovery Act, in addition to numerous state laws and
regulations before commencing construction or operation of a mine on the
Tennessee mineral property. We can provide no assurance that we will be able to
comply with such laws and regulations or obtain any such permits. In addition,
obtaining such permits and complying with such environmental laws and
regulations may be cost prohibitive.
The market for commodities produced using the jig or at the Tennessee mineral
property may significantly decline.
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If the jig is successfully developed and manufactured on a commercial
basis, we intend to use the jig, or lease the jig for use, to separate and
recover valuable, heavy mineral particles. Active international markets exist
for gold, titanium, zircon and many other minerals potentially recoverable with
the jig. Prices of such minerals fluctuate widely and are beyond our control. A
significant decline in the price of minerals capable of being extracted by the
jig could have significant negative effect on the value of the jig. Similarly, a
significant decline in the price of minerals expected to be produced on the
Tennessee mineral property could have a significant negative effect on the
viability of a mine or processing facility on such property.
FORWARD-LOOKING STATEMENTS
This prospectus contains various forward-looking statements. Such
statements can be identified by the use of the forward-looking words
"anticipate," "estimate," "project," "likely," "believe," "intend," "expect," or
similar words. These statements discuss future expectations, contain projections
regarding future developments, operations, or financial conditions, or state
other forward-looking information. When considering such forward-looking
statements, you should keep in mind the risk factors noted in the previous
section and other cautionary statements throughout this prospectus and our
periodic filings with the SEC that are incorporated herein by reference. You
should also keep in mind that all forward-looking statements are based on
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management's existing beliefs about present and future events outside of
management's control and on assumptions that may prove to be incorrect. If one
or more risks identified in this prospectus or any applicable filings
materializes, or any other underlying assumptions prove incorrect, our actual
results may vary materially from those anticipated, estimated, projected, or
intended.
Among the key factors that may have a direct bearing on our operating
results are risks and uncertainties described under "Risk Factors," including
those attributable to the absence of significant operating revenues or profits,
uncertainties regarding the development and commercialization of the titanium
processing technology and the jig, development risks associated with the
Tennessee mineral property and uncertainties regarding our ability to obtain
capital sufficient to continue our operations and pursue our proposed business
strategy.
USE OF PROCEEDS
We will receive all of the proceeds from the offer and sale of the
offered securities. We intend to use the net cash proceeds, following the
payment of any legal costs and other offering expenses, to provide working
capital to be used for general corporate purposes. If management determines that
capital from other sources is sufficient to fund our ongoing operations, we may
use up to $280,000 of the net cash proceeds to prepay indebtedness arising under
our $1,400,000 Second Amended and Restated Secured Term Note. Under such note, a
conversion right with respect to $280,000 of principal accrues on each of March
1, 2003, June 1, 2003, September 1, 2003, December 1, 2003 and March 1, 2004. If
the amount that would be subject to a conversion right is prepaid prior to the
date of accrual, such conversion right does not accrue. In order to avoid the
dilution associated with the accrual of such a conversion right, management may
determine to use up to $280,000 of the net cash proceeds in order to prevent the
accrual of a conversion right on March 1, 2003.
In addition, in order to conserve working capital, we may issue some or
all of the offered securities in non-cash transactions in exchange for the
cancellation of indebtedness and accounts payable and in exchange for services,
including services rendered in connection with capital raising activities.
There is no requirement that we sell a minimum number of shares in this
offering. Therefore, we may receive no proceeds from this offering, or
insufficient proceeds for our planned use of proceeds set forth above.
13
DILUTION
Our net tangible book value (deficit) at September 30, 2002 was
$3,038,825 or approximately $0.12 per common share. Net tangible book value of a
company is the value of all of its tangible assets, less the value of all
liabilities. Net tangible book value per common share is the net tangible book
value of the company divided by the number of common shares issued and
outstanding.
If all of the 1,500,000 common shares and 750,000 Series 2003A Warrants
to which this prospectus relates are sold at an assumed sale price of $0.40 per
share, and all Series 2003A Warrant are exercised at an assumed exercise price
of $1.00 per share, our net tangible book value would be $4,388,825 or $0.15 per
common share at September 30, 2002, resulting in an immediate increase in net
tangible book value of $1,350,000 or approximately $0.03 per common share to
existing shareholders and an immediate dilution of approximately $0.45 per
common share to purchasers.
The following table illustrates dilution on a per common share and per
offering basis:
Per Unit Per Offering
Offering price (1)......................................................... $0.40 $600,000
Net tangible book value (deficit) at September 30, 2002.................... $0.12 $3,038,825
Increase attributable to purchase by new investors(2)...................... $0.03 $1,350,000
Pro forma net tangible book value (deficit) after the offering (2)......... $0.15 $4,388,825
Pro forma net tangible book value dilution to new investors (3)............ $0.45 $1,003,000
(1) Reflects the sale of 1,500,000 common shares and 750,0000 Series 2003
Warrants at an estimated purchase price per units of one common share
and one-half Series 2003 Warrant of $0.40. The actual purchase price
will vary, and may differ materially, from the estimated price.
(2) Assumes that the number of common shares outstanding as of September
30, 2002 was 26,203,902 and that the 1,500,000 common shares and
750,000 Series 2003A Warrants to which this prospectus relates are sold
at a price of $0.40 per share and that all Series 2003A Warrants are
exercised for the purchase of an additional 750,000 common shares at an
exercise price of $1.00 per share. Does not reflect the possible
issuance of up to 4,061,700 common shares upon the exercise of
outstanding stock options or the possible issuance of up to 9,170,177
common shares upon the exercise of outstanding warrants.
(3) Dilution represents the difference between the amount paid by investors
(average price of $0.60 per share) and the pro forma net tangible book
value after the offering contemplated by this prospectus.
PLAN OF DISTRIBUTION
We are offering and selling the 1,500,000 common shares and 750,000
Series 2003A Warrants to which this prospectus relates directly to purchasers.
We have not retained any underwriter, broker or dealer to facilitate the offer
or sale of the offered securities, and we will pay no underwriting commissions
or discounts in connection with the offer or sale of the offered securities.
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DESCRIPTION OF OFFERED SECURITIES
Our Common Shares
Our articles of continuance authorize the issuance of an unlimited
number of common shares, which do not have par value. As of December 31, 2002,
there were 30,244,348 common shares issued and outstanding, held by
approximately 500 registered holders. Holders of common shares are entitled to
one vote per share on all matters to be voted on by shareholders. There is no
cumulative voting with respect to the election of directors. The holders of
common shares are entitled to receive dividends, if any, as may be declared from
time to time by our board of directors in its discretion from funds legally
available therefor. Upon our liquidation, dissolution or winding up, the holders
of common shares are entitled to receive ratably any assets available for
distribution to shareholders. The common shares have no preemptive or other
subscription rights, and there are no conversion rights or redemption or sinking
fund provisions with respect to such shares. All of the outstanding common
shares are fully paid and nonassessable.
As of December 31, 2002, we had issued and outstanding options to
acquire 4,061,700 common shares issued pursuant to its options plans and had
issued and outstanding warrants to purchase 9,170,171 common shares issued in
various series.
Neither our articles nor our bylaws contain any provision that would
delay, defer or prevent a change in control. We have, however, adopted an
Amended and Restated Shareholder Rights Plan Agreement dated October 15, 1999,
which allows our shareholders to acquire additional common shares at a price
that would create a strong disincentive to a tender offer or similar change of
control transaction, if a person acquires, or announces an intent to acquire,
15% or more of the outstanding common shares, and if certain other conditions
are met. A copy of this agreement is attached as Exhibit 10.1 to our Current
Report on Form 8-K filed with the SEC on November 18, 1999. A copy of this
agreement is also available upon written request to us. You should review the
entire agreement before making any investment decision.
Series 2003A Warrants
Each Series 2003A Warrant entitles the holder thereof to purchase one
common share at any time prior to the fifth anniversary of the issue date at the
price equal to the greater of (i) $1.00 per share, and (ii) 125% of the average
of the closing price of the common shares, as reported on our principal trading
market, during the calendar week preceding the calendar week in which we receive
and accept subscription proceeds for the particular investment. The holder of a
Series 2003A Warrant may exercise such Warrant by delivering to the Company at
its principal office the Series 2003A Warrant certificate, the Subscription Form
attached thereto, and cash or certified check in an amount equal to the exercise
price multiplied by the number of Series 2003A Warrants being exercised. Each
Series 2003A Warrant is freely assignable, subject to the restrictions of
15
applicable federal, Canadian, state, and provincial securities laws. The Series
2003A Warrants provide for the adjustment of the number of common shares subject
thereto and the exercise price in the event of a stock split, stock dividend,
merger, consolidation, or similar event.
Canadian Transfer Restrictions
Neither the common shares nor the 2003A Warrants offered pursuant to
this prospectus may be resold or otherwise transferred in Canada for a specified
period after issuance.
LEGAL MATTERS
The validity of the shares being offered hereby is being passed upon
for us by Goodman and Carr LLP, Ontario, Canada.
EXPERTS
The consolidated financial statements incorporated in this prospectus
by reference from the Company's Annual Report on Form 10-K for the year ended
December 31, 2001 have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their report (which report expresses an unqualified
opinion and includes an explanatory paragraph referring to the uncertainty that
the Company will be able to continue as a going concern), which is incorporated
herein by reference, and have been so incorporated in reliance upon the report
of such firm given upon their authority as experts in accounting and auditing.
INFORMATION ABOUT OUR COMPANY
This prospectus is accompanied by copies of our Annual Report on Form
10-K for the year ended December 31, 2001 and our Quarterly Report on Form 10-Q
for the quarter ended September 30, 2002. These documents contain information
about us as of their respective dates. We recommend that you carefully review
these documents as part of your review of this prospectus.
RECENT DEVELOPMENTS
Effective November 21, 2002, the principal amount of the secured term
note that we issued to Doral 18, LLC was reduced from $2,000,000 to $1,400,000
in exchange for our issuance of 1,500,000 common shares to Doral, and the
maturity date of the note was extended from March 31, 2003 to March 31, 2004.
Under the Second Amended and Restated Secured Term Note, a conversion right with
respect to $280,000 of principal accrues on each of March 1, 2003, June 1, 2003,
September 1, 2003, December 1, 2003 and March 1, 2004. If the amount that would
be subject to a conversion right is prepaid prior to the date of accrual, such
conversion right does not accrue. Once a conversion right has accrued, the
principal amount subject to that conversion right cannot be prepaid unless all
principal amounts not subject to a conversion right have been prepaid in full.
Each conversion right gives the holder the right to convert the subject
principal amount into common shares at a conversion price equal to the lesser of
(a) $1.00 per share and (b) 70% of the average of the closing price of our
common shares for the five trading days ending on the trading day immediately
preceding the date on which that conversion right accrued.
16
Effective July 2, 2002, we changed our name from Altair International
Inc. to Altair Nanotechnologies Inc. and moved our jurisdiction of incorporation
from the Ontario Business Corporations Act to the Canada Business Corporations
Act. The purpose of the name change was to reflect our strategy of focusing our
business on the supply of nanomaterials and to reflect our position in the
nanotechnology sector. We changed jurisdiction of incorporation because our
business is increasingly being conducted on an international basis, and
operating as a Canadian federal company will be more consistent with our
international focus. Moreover, a minimum of 25% of the directors of a company
incorporated under the Canada Business Corporations Act must be resident
Canadians whereas 50% of the directors of a company incorporated under the
Ontario Business Corporations Act must be resident Canadians. Thus, the Canada
Business Corporations Act's residency requirements will increase the number of
qualified nominees for the board from which the Company may draw.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to incorporate by reference the information we file
with them. This means that we can disclose information to you by referring you
to those documents. The documents that have been incorporated by reference are
an important part of this prospectus, and you should review that information in
order to understand the nature of any investment by you in our common shares.
Information contained in this prospectus automatically updates and supersedes
previously filed information. We are incorporating by reference the documents
listed below and all of our filings under the Securities Exchange Act of 1934,
as amended, after the date of filing of the initial registration statement and
prior to the effectiveness of the registration statement.
o Our Annual Report on Form 10-K for the year ended December 31, 2001,
filed with the SEC on April 1, 2002.
o Our Current Report on Form 8-K filed with the SEC on May 10, 2002.
o Our Quarterly Report on Form 10-Q for the quarter ended March 31,
2002 filed with the SEC on May 15, 2002.
o Our Current Report on Form 8-K filed with the SEC on July 17, 2002.
o Our Quarterly Report on Form 10-Q for the quarter ended June 30,
2002 filed with the SEC on August 14, 2002, as amended by the
Amendment 1 to Quarterly Report on Form 10-Q/A filed with the SEC on
October 15, 2002, as amended by the Amendment No. 2 on Form 10-Q/A
filed with the SEC on October 21, 2002.
o Our Quarterly Report on Form 10-Q for the quarter ended September
30, 2002 filed with the SEC on November 14, 2002.
o Our Current Report on Form 8-K filed with the SEC on November 27,
2002, as amended by Amendment No. 1 to Current Report on Form 8-K/A
filed with the SEC on December 4, 2002.
17
We will provide, without charge, to each person to whom this prospectus
is delivered, upon written or oral request of any such person, a copy of any or
all of the foregoing documents (other than exhibits to such documents which are
not specifically incorporated by reference in such documents). Please direct
written requests for such copies to the Company c/o Mineral Recovery Systems at
204 Edison Way, Reno, Nevada 89502, U.S.A., Attention: Ed Dickinson, Chief
Financial Officer. Telephone requests may be directed to the office of the
Director of Finance at (800) 897-8245.
You should only rely upon the information included in or incorporated
by reference into this prospectus or in any prospectus supplement that is
delivered to you. We have not authorized anyone to provide you with additional
or different information. You should not assume that the information included in
or incorporated by reference into this prospectus or any prospectus supplement
is accurate as of any date later than the date on the front of the prospectus or
prospectus supplement
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly, and current reports, proxy statements, and
other information with the SEC. You may read and copy any reports, statements,
or other information that we file at the SEC's Public Reference Room at 450
Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information on the Public Reference Room. The SEC
also maintains an Internet site (http://www.sec.gov) that contains reports,
proxy statements, and other information regarding issuers, including us, that
file electronically with the SEC.
Our common shares are quoted on the Nasdaq SmallCap Market. You can
inspect and copy reports, proxy statements and other information concerning us
at the Public Reference Room of the National Association of Securities Dealers,
1735 K Street, N.W., Washington, D.C. 20006.
This prospectus is a part of the registration statement that we filed
on Form S-2 with the SEC. The registration statement contains more information
about us and our common shares than this prospectus, including exhibits and
schedules. You should refer to the registration statement for additional
information about us and the common shares being offered in this prospectus.
Statements that we make in this prospectus relating to any documents filed as an
exhibit to the registration statement or any document incorporated by reference
into the registration statement may not be complete, and you should review the
referenced document itself for a complete understanding of its terms.
<
18
====================================================== ===================================================
We have not authorized any dealer, salesperson or
other person to give any information or represent
anything not contained in this prospectus. This
prospectus does not offer to sell or buy any 2,250,000 Common Shares
securities in any jurisdiction where it is unlawful. 750,000 Warrants
The information in this prospectus is current as of
January 15, 2003.
ALTAIR NANOTECHNOLOGIES INC.
-----------------------
2,250,000 COMMON SHARES
750,000 WARRANTS
---------------
Prospectus
---------------
January 15, 2003
====================================================== ====================================================
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
----------------------------------------------------
The following table sets forth the various expenses of the offering,
sale and distribution of the offered securities being registered pursuant to
this registration statement (the "Registration Statement"). All of the expenses
listed below will be borne by the Company. All of the amounts shown are
estimates except the SEC registration fees.
Item Amount
---- ------
SEC Commission registration fees $94
NASD registration fees $15,000
Accounting fees and expenses $5,000
Legal fees and expenses $20,000
Blue Sky fees and expenses $3,000
Printing Expenses $1,000
Miscellaneous Expenses $5,906
Total: $50,000
Item 15. Indemnification of Directors and Officers
--------------------------------------------------
Our Bylaws
The Registrant's Bylaws provide that, to the maximum extent permitted
by law, the Registrant shall indemnify a director or officer of the Registrant,
a former director or officer of the Registrant, or another individual who acts
or acted at the Registrant's request as a director or officer, or an individual
acting in a similar capacity, of another entity, against all costs, charges and
expenses, including any amount paid to settle an action or satisfy a judgment,
reasonably incurred by the individual in respect of any civil, criminal,
administrative, investigative or other proceeding in which the individual is
involved because of that association with the Registrant or other entity.
The Canada Business Corporations Act
Section 124 of the Canada Business Corporations Act provides as follows
with respect to the indemnification of directors and officers:
(1) A corporation may indemnify a director or officer of the
corporation, a former director or officer of the corporation or another
individual who acts or acted at the corporation's request as a director or
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officer, or an individual acting in a similar capacity, of another entity,
against all costs, charges and expenses, including an amount paid to settle an
action or satisfy a judgment, reasonably incurred by the individual in respect
of any civil, criminal, administrative, investigative or other proceeding in
which the individual is involved because of that association with the
corporation or other entity.
(2) A corporation may advance moneys to a director, officer or other
individual for the costs, charges and expenses of a proceeding referred to in
subsection (1). The individual shall repay the moneys if the individual does not
fulfill the conditions of subsection (3).
(3) A corporation may not indemnify an individual under subsection (1)
unless the individual
(a) acted honestly and in good faith with a view to the best
interests of the corporation, or, as the case may be, to the best
interests of the other entity for which the individual acted as
director or officer or in a similar capacity at the corporation's
request; and
(b) in the case of a criminal or administrative action or
proceeding that is enforced by a monetary penalty, the individual had
reasonable grounds for believing that the individual's conduct was
lawful.
(4) A corporation may with the approval of a court, indemnify an
individual referred to in subsection (1), or advance moneys under subsection
(2), in respect of an action by or on behalf of the corporation or other entity
to procure a judgment in its favor, to which the individual is made a party
because of the individual's association with the corporation or other entity as
described in subsection (1) against all costs, charges and expenses reasonably
incurred by the individual in connection with such action, if the individual
fulfills the conditions set out in subsection (3).
(5) Despite subsection (1), an individual referred to in that
subsection is entitled to indemnity from the corporation in respect of all
costs, charges and expenses reasonably incurred by the individual in connection
with the defense of any civil, criminal, administrative, investigative or other
proceeding to which the individual is subject because of the individual's
association with the corporation or other entity as described in subsection (1),
if the individual seeking indemnity
(a) was not judged by the court or other competent authority
to have committed any fault or omitted to do anything that the
individual ought to have done; and
(b) fulfills the conditions set out in subsection (3).
(6) A corporation may purchase and maintain insurance of the benefit of
an individual referred to in subsection (1) against any liability incurred by
the individual
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(a) in the individual's capacity as a director or officer of
the corporation; or
(b) in the individual's capacity as a director or officer, or
similar capacity, of another entity, if the individual acts or acted in
that capacity at the corporation's request.
(7) A corporation, an individual or an entity referred to in subsection
(1) may apply to a court for an order approving an indemnity under this section
and the court may so order and make any further order that it sees fit.
(8) An applicant under subsection (7) shall give the Director notice of
the application and the Director is entitled to appear and be heard in person or
by counsel.
(9) On an application under subsection (7) the court may order notice
to be given to any interested person and the person is entitled to appear and be
heard in person or by counsel.
Employment Agreements With Certain Officers
Pursuant to an employment agreement with William P. Long, the Chief
Executive Officer and a director of the Registrant, the Registrant has agreed to
assume all liability for and to indemnify, protect, save, and hold Dr. Long
harmless from and against any and all losses, costs, expenses, attorneys' fees,
claims, demands, liability, suits, and actions of every kind and character which
may be imposed upon or incurred by Dr. Long on account of, arising directly or
indirectly from, or in any way connected with or related to Dr. Long's
activities as an officer and member of the board of directors of the Registrant,
except as arise as a result of fraud, felonious conduct, gross negligence or
acts of moral turpitude on the part of Dr. Long. In addition, Mineral Recovery
Systems, Inc. ("MRS"), a wholly-owned subsidiary of the Registrant, has agreed
to assume all liability for and to indemnify, protect, save, and hold harmless
Patrick Costin (Vice President of the Registrant and President of MRS) from and
against any and all losses, costs, expenses, attorneys' fees, claims, demands,
liabilities, suits and actions of every kind and character which may be imposed
on or incurred by Mr. Costin on account of, arising directly or indirectly from,
or in any way connected with Mr. Costin's activities as manager, officer, or
director of MRS or the Registrant.
Other Indemnification Information
Indemnification may be granted pursuant to any other agreement, bylaw,
or vote of shareholders or directors. In addition to the foregoing, the
Registrant maintains insurance through a commercial carrier against certain
liabilities which may be incurred by its directors and officers. The foregoing
description is necessarily general and does not describe all details regarding
the indemnification of officers, directors or controlling persons of the
Registrant.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions or otherwise, the Registrant has
been informed that in the opinion of the SEC such indemnification is against
public policy as expressed in the Securities Act, and is, therefore,
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unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
The rights of indemnification described above are not exclusive of any
other rights of indemnification to which the persons indemnified may be entitled
under any bylaw, agreement, vote of stockholders or directors or otherwise.
Item 16. Exhibits.
The following exhibits required by Item 601 of Regulations S-K
promulgated under the Securities Act have been included herewith or have been
filed previously with the SEC as indicated below.
Exhibit No. Description Incorporated by Reference/
Filed Herewith (and Sequential Page #)
---------------- ---------------------------------------- -------------------------------------------------------
4.1 Form of Common Stock Certificate Incorporated by reference to Registration Statement
on Form 10-SB filed with the Commission on November
25, 1996, File No. 1-12497.
4.2 Amended and Restated Shareholder Incorporated by reference to the Company's Current
Rights Plan dated October 15, 1999, Report on Form 8-K filed with the Commission on
between the Company and Equity November 19, 1999, File No. 1-12497.
Transfer Services, Inc.
4.3 Form of Series 2003A Warrant To be filed by amendment.
5 Opinion of Goodman and Carr LLP as to To be filed by amendment.
legality of securities offered
10.1 Employment Agreement between Altair Incorporated by reference to the Company's Annual
International Inc. and William P. Long Report on Form 10-K filed with the Commission on
dated January 1, 1998 March 31, 1998, as amended by Amendment No. 1 to
Annual Report on Form 10-K/A filed on May 15, 1998.
10.2 Employment Agreement between Fine Gold Incorporated by reference to Registration Statement
Recovery Systems Inc. and C. Patrick on Form 10-SB filed with the Commission on November
Costin dated August 15, 1994 25, 1996.
10.3 Altair International Inc. Stock Option Incorporated by reference to the Company's
Plan adopted by shareholders on May Registration Statement on Form S-8 filed with the
10, 1996 Commission on July 11, 1997.
10.4 1998 Altair International Inc. Stock Incorporated by reference to the Company's Definitive
Option Plan adopted by Shareholders on Proxy Statement on Form 14A filed with the Commission
June 11, 1998 on May 12, 1998.
10.5 Form of Mineral Lease Incorporated by reference to the Company's Annual
Report on Form 10-K filed with the Commission on
March 31, 1998, as amended by Amendment No. 1 to
Annual Report on Form 10-K/A filed on May 15, 1998.
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10.6 Lease dated November 15, 1999, between Incorporated by reference to the Company's Current
the Company and BHP Minerals Report on Form 8-K filed with the Commission on
International Inc. November 19, 1999.
10.7 Note Amendment Agreement dated Incorporated by reference to the Company's Current
November 21, 2002 Report on Form 8-K filed with the Commission on
November 27, 2002.
10.8 Edison Way Security Agreement To be filed by amendment.
10.9 Stock Pledge Agreement dated Incorporated by reference to the Company's Current
December 15, 2000 (Mineral Report on Form 8-K filed with the Commission on
Recovery Systems common stock). December 26, 2000.
10.10 Stock Pledge Agreement dated Incorporated by reference to the Company's Current
December 15, 2000 (Altair Technologies Report on Form 8-K filed with the Commission on
common stock). December 26, 2000.
10.11 First Amendment to Stock Pledge Incorporated by reference to the Company's Current
Agreement Report on Form 8-K filed with the SEC on January 4,
2002.
10.12 Second Amended and Restated Secured Incorporated by reference to the Company's Amendment
Term Note dated November 21, 2002 No. 1 to Current Report on Form 8-K filed with the
Commission on December 4, 2002, File No. 1-12497.
10.13 Edison Way Purchase Agreement To be filed by amendment.
23.1 Consent of Deloitte & Touche LLP Filed herewith.
23.2 Consent of Goodman and Carr LLP To be filed by amendment.
24 Powers of Attorney Included on the signature page hereof.
-----------------------
Item 17. Undertakings.
----------------------
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made
of the securities registered hereby, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of this registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this Registration Statement;
notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
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(b) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company, the Company has been informed that in the opinion of the SEC
such indemnification is against public policy as expressed in the Securities
Act, and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or controlling person of the
Company in the successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with the
securities being registered, the Company will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-2 and has duly caused this Registration
Statement on Form S-2 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Cody, State of Wyoming, on January 17, 2003.
ALTAIR NANOTECHNOLOGIES INC.
By /s/ William P. Long
---------------------------------
William P. Long
Chief Executive Officer
ADDITIONAL SIGNATURES AND POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose signature to this
Registration Statement appears below hereby constitutes and appoints William P.
Long and Edward H. Dickinson, and each of them, as his true and lawful
attorney-in-fact and agent, with full power of substitution, to sign on his
behalf individually and in the capacity stated below and to perform any acts
necessary to be done in order to file all amendments and post-effective
amendments to this Registration Statement, and any and all instruments or
documents filed as part of or in connection with this Registration Statement or
the amendments thereto and each of the undersigned does hereby ratify and
confirm all that said attorney-in-fact and agent, or his substitutes, shall do
or cause to be done by virtue hereof.
Signature Title Date
--------- ----- ----
/s/ William P. Long Chief Executive Officer and Director January 17, 2003
------------------------------------ (Principal Executive Officer and authorized
William P. Long representative of the Company in the United States)
/s/ Edward H. Dickinson Chief Financial Officer and Director January 17, 2003
------------------------------------ (Principal Financial Officer and Principal
Edward H. Dickinson Accounting Officer)
/s/ James I. Golla Director January 17, 2003
------------------------------------
James I. Golla
/s/ George E. Hartman Director January 17, 2003
------------------------------------
George E. Hartman
/s/ Robert Sheldon Director January 17, 2003
------------------------------------
Robert Sheldon
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EXHIBIT INDEX
The following exhibits required by Item 601 of Regulations S-K
promulgated under the Securities Act have been included herewith or have been
filed previously with the SEC as indicated below.
Exhibit No. Description Incorporated by Reference/
Filed Herewith (and Sequential Page #)
---------------- ---------------------------------------- -------------------------------------------------------
4.1 Form of Common Stock Certificate Incorporated by reference to Registration Statement
on Form 10-SB filed with the Commission on November
25, 1996, File No. 1-12497.
4.2 Amended and Restated Shareholder Incorporated by reference to the Company's Current
Rights Plan dated October 15, 1999, Report on Form 8-K filed with the Commission on
between the Company and Equity November 19, 1999, File No. 1-12497.
Transfer Services, Inc.
4.3 Form of Series 2003A Warrant To be filed by amendment.
5 Opinion of Goodman and Carr LLP as to To be filed by amendment.
legality of securities offered
10.1 Employment Agreement between Altair Incorporated by reference to the Company's Annual
International Inc. and William P. Long Report on Form 10-K filed with the Commission on
dated January 1, 1998 March 31, 1998, as amended by Amendment No. 1 to
Annual Report on Form 10-K/A filed on May 15, 1998.
10.2 Employment Agreement between Fine Gold Incorporated by reference to Registration Statement
Recovery Systems Inc. and C. Patrick on Form 10-SB filed with the Commission on November
Costin dated August 15, 1994 25, 1996.
10.3 Altair International Inc. Stock Option Incorporated by reference to the Company's
Plan adopted by shareholders on May Registration Statement on Form S-8 filed with the
10, 1996 Commission on July 11, 1997.
10.4 1998 Altair International Inc. Stock Incorporated by reference to the Company's Definitive
Option Plan adopted by Shareholders on Proxy Statement on Form 14A filed with the Commission
June 11, 1998 on May 12, 1998.
10.5 Form of Mineral Lease Incorporated by reference to the Company's Annual
Report on Form 10-K filed with the Commission on
March 31, 1998, as amended by Amendment No. 1 to
Annual Report on Form 10-K/A filed on May 15, 1998.
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10.6 Lease dated November 15, 1999, between Incorporated by reference to the Company's Current
the Company and BHP Minerals Report on Form 8-K filed with the Commission on
International Inc. November 19, 1999.
10.7 Note Amendment Agreement dated Incorporated by reference to the Company's Current
November 21, 2002 Report on Form 8-K filed with the Commission on
November 27, 2002.
10.8 Edison Way Security Agreement To be filed by amendment.
10.9 Stock Pledge Agreement dated Incorporated by reference to the Company's Current
December 15, 2000 (Mineral Report on Form 8-K filed with the Commission on
Recovery Systems common stock). December 26, 2000.
10.10 Stock Pledge Agreement dated Incorporated by reference to the Company's Current
December 15, 2000 (Altair Technologies Report on Form 8-K filed with the Commission on
common stock). December 26, 2000.
10.11 First Amendment to Stock Pledge Incorporated by reference to the Company's Current
Agreement Report on Form 8-K filed with the SEC on January 4,
2002.
10.12 Second Amended and Restated Secured Incorporated by reference to the Company's Amendment
Term Note dated November 21, 2002 No. 1 to Current Report on Form 8-K filed with the
Commission on December 4, 2002, File No. 1-12497.
10.13 Edison Way Purchase Agreement To be filed by amendment.
23.1 Consent of Deloitte & Touche LLP Filed herewith.
23.2 Consent of Goodman and Carr LLP To be filed by amendment.
24 Powers of Attorney Included on the signature page hereof.
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