As filed with the Securities and Exchange Commission on November 18, 2003
Registration No. 333-110115
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1 TO FORM S-3
REGISTRATION STATEMENT
Under the
Securities Act of 1933
Altair Nanotechnologies Inc.
(Exact name of registrant as specified in its charter)
Canada None
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(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification number)
William P. Long Copies to:
Chief Executive Officer
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
(Name, address, including zip code, Salt Lake City, Utah 84111
and telephone number, including area code, (801) 328-3131
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 the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box: [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, 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 delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [ ]
---------------------------
Pursuant to Rule 429 under the Securities Act of 1933, the prospectus filed as
part of this Registration Statement will be used as a combined prospectus in
connection with this Registration Statement and registration statement No.
333-108411, pursuant to which 1,337,286 common shares were registered.
---------------------------
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.
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ALTAIR NANOTECHNOLOGIES INC.
2,791,931 Common Shares
------------------
This prospectus relates to the offering and sale of 2,791,931 common
shares of Altair Nanotechnologies Inc., without par value. All of the offered
shares are to be sold by persons who are existing security holders and
identified in the section of this prospectus entitled "Selling Shareholders." Of
the common shares offered hereby, 1,142,857 are currently owned by the selling
shareholders and the remaining 1,649,074 are issuable upon the exercise of
outstanding warrants to purchase our common shares. In addition, pursuant to
Rule 416 of the Securities Act of 1933, as amended, this prospectus, and the
registration statements of which it is a part, cover a presently indeterminate
number of common shares issuable upon the occurrence of a stock split, stock
dividend, or other similar transaction.
We will not receive any of the proceeds from the sale of the shares
offered hereunder. In the United States, our common shares are listed for
trading under the symbol ALTI on the Nasdaq SmallCap Market. On November 14,
2003, the closing sale price of a common share, as reported by the Nasdaq
SmallCap Market, was $1.27 per share. Unless otherwise expressly indicated, all
monetary amounts set forth in this prospectus are expressed in United States
Dollars.
Our principal office is located at 204 Edison Way, Reno, Nevada 89502,
and our telephone number is (775) 858-3750.
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Consider carefully the risk factors beginning on page 2 in this prospectus
before investing in the offered shares being sold with this prospectus.
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This prospectus shall not constitute an offer to sell or the solicitation of an
offer to buy, nor shall there be any sale of these securities, in any state in
which such offer, sale or solicitation would be unlawful prior to or absent
qualification under the securities laws of such state.
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 November 14, 2003
TABLE OF CONTENTS
RISK FACTORS.................................................................2
FORWARD-LOOKING STATEMENTS..................................................10
USE OF PROCEEDS.............................................................10
DILUTION....................................................................10
SELLING SHAREHOLDERS........................................................11
PLAN OF DISTRIBUTION........................................................15
DESCRIPTION OF OFFERED SECURITIES...........................................18
LEGAL MATTERS...............................................................18
EXPERTS.....................................................................18
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.............................18
WHERE YOU CAN FIND MORE INFORMATION.........................................19
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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. As
of September 30, 2003, we have generated $310,070 of revenues from our titanium
and nanoparticle processing technology and $28,270 from use of the jig in
consulting contracts. We have not completed exploration of the Tennessee mineral
property. We can provide no assurance that we will ever generate revenues from
the Tennessee mineral property or that we will generate substantial revenues
from the titanium and nanoparticle processing technology or the jig.
We may continue to experience significant losses from operations.
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We have experienced a loss from operations in every fiscal year since
our inception. Our losses from operations in 2001 were $6,021,532 and our losses
from operations in 2002 were $7,856,711. 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.
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As of September 30, 2003, we had $1,615,692 in cash. We do not expect
that this capital, when combined with projected revenues from nanoparticle
sales, will be sufficient to fund our ongoing operations in the long term.
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 and nanoparticle
processing technology into continuous operation. In addition, we will need
additional capital for 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.
We may not be able 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:
o market factors affecting the availability and cost of capital
generally;
o our financial results, particularly a continued absence of
significant revenue;
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o the amount of our capital needs;
o the market's perception of technology and/or minerals stocks;
o the economics of projects being pursued;
o the market's perception of our ability to generate revenue through
the licensing of our nanoparticle technology for pharmaceutical,
pigment production and other uses;
o the market's perception of our ability to recover 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 and options outstanding and may issue a
significant number of additional shares upon exercise thereof.
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As of December 31, 2002, there were outstanding warrants to purchase up
to 9,170,171 common shares at a weighted average exercise price of $1.92 per
share and options to purchase up to 4,061,700 common shares at a weighted
average exercise price of $3.83 per share. We have issued additional options and
warrants since such date. 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.
Our competitors may be able to raise money and exploit opportunities more
rapidly, easily and thoroughly than we can.
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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 issued a $3,000,000 note to secure the purchase of the land and the
building where our titanium processing assets are located.
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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 and nanoparticle 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 and nanoparticle
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.
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Operations using the titanium and nanoparticle 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 and nanoparticle 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.
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We are a Canadian corporation, and three 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.
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Our continued success will depend to a significant extent on the
services of Dr. William P. Long, our Chief Executive Officer, and Dr. Rudi
Moerck, our President. The loss or unavailability of Dr. Long or Dr. Moerck
could have a material adverse effect on our business and the market price of our
common shares. We do not carry key man insurance on the lives of Dr. Long or Dr.
Moerck.
We may issue substantial amounts of additional shares without stockholder
approval.
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Our articles of incorporation 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 and a
stock purchase plan 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.
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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:
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o Uncertainty regarding the viability of the titanium and
nanoparticle 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 and/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 NASD's continued listing requirements for such market,
including the $1.00 per share minimum bid requirement. During the months
preceding the date of this prospectus, the market price for our common shares
fluctuated in a price range that frequently dipped below $1.00, and the market
price for our common shares remained below $1.00 during much of 2002 and early
2003. If the market price for our common shares falls and remains below $1.00
per share for an extended period of time, we may be delisted from the Nasdaq
SmallCap Market. Delisting from the Nasdaq SmallCap Market would likely 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.
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 tangible book value per common share immediately following this
offering will likely be substantially less than the price you pay per common
share.
We may be unable to exploit any potential pharmaceutical application of our
titanium and nanoparticle 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 and nanoparticle processing technology. In order for us to get any
significant, long-term benefit from any potential pharmaceutical application of
our technology, 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 fixed or contingent fee for the right to evaluate a
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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.
As of the date of this prospectus, we have not entered into an evaluation
license of similar agreement with an existing pharmaceutical company. If we do
enter into such a license or similar agreement, we may receive some significant
payments in various stages of the testing and evaluation of the pharmaceutical
application of our technology. We do not, however, expect to receive significant
ongoing 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 entered into discussions with various
minerals and materials companies about licensing our technology to such 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, would not receive
significant revenues at any time.
We may not be able to sell nanoparticles produced using the titanium and
nanoparticle processing technology.
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We plan to use the titanium and nanoparticle processing technology to
produce titanium dioxide nanoparticles. Titanium dioxide nanoparticles and other
products we intend to initially produce with the titanium and nanoparticle
processing technology generally must be customized for a specific application
working in cooperation with the end user. We are still testing and customizing
our titanium dioxide nanoparticle products for various applications and have no
long-term agreements with end users to purchase any of our titanium dioxide
nanoparticle products. We may be unable to recoup our investment in the titanium
and nanoparticle processing technology and titanium processing equipment for
various reasons, including the following:
o products utilizing our titanium dixoide nanoparticle products,
most of which are in the research or development stage, may not be
completed or, if completed, may not be readily accepted by
expected end users;
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o we may be unable to customize our titanium dioxide 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.
Our costs of production may be too high to permit profitability.
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We have not produced any mineral products using our titanium and
nanoparticle 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 us.
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.
We have not created a production model of the jig and are presently focusing our
resources on other projects.
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We have not developed a production model of any series of the Jig. In
October 2003, we entered into a technology license agreement with Bateman
Luxembourg S.A. for the manufacture, installation and operation of the Jig. Such
agreement permits Bateman to opt out after a six-month testing period. In
addition, although the agreement permits Altair to cancel the agreement if
certain production and use thresholds are not met, it does not require Bateman
to produce or utilize the Jig. There is no assurance that Bateman will ever
utilize the Jig in their projects or pay fees to Altair. We do not otherwise
expect to complete our own testing and development of the Jig in the near future
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.
7
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.
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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.
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
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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; and/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.
We cannot forecast the life of any potential mining operation located on the
Tennessee mineral property.
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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.
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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.
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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
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 operating revenues or profits,
uncertainties regarding the development and commercialization of the titanium
and nanoparticle 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
All proceeds from any sale of offered shares, less commissions and
other customary fees and expenses, will be paid directly to the selling
shareholders selling the offered shares. We will not receive any proceeds from
the sale of any of the offered shares.
DILUTION
Our unaudited net tangible book value at September 30, 2003 was
$5,442,361 or approximately $0.14 per each of the 40,159,921 common shares then
outstanding. Accordingly, new investors who purchase shares may suffer an
immediate dilution of the difference between the purchase price per share and
approximately $0.14 per share.
As of November 10, 2003, there were outstanding warrants and options to
purchase up to 16,808,977 common shares. The existence of such options, warrants
and conversions rights may hinder future equity offerings by us, and the
exercise of such warrants and options may have an adverse effect on the
prevailing market price of the common shares. Furthermore, the holders of such
options, warrants and conversion rights may exercise them at a time when we
would otherwise be able to obtain additional equity capital on terms more
favorable to us.
10
SELLING SHAREHOLDERS
All of the offered shares are to be sold by persons who are existing
security holders of Altair. The selling shareholders acquired their shares and
warrants in private placements of (i) 891,524 common shares and 445,762 warrants
to purchase common shares that we completed on July 31, 2003; (ii) 631,882
warrants that we completed on September 12, 2003, and (iii) 2,034,381 common
shares and 571,430 warrants to purchase common shares that we completed on
September 30, 2003. For purposes of this prospectus, we have assumed that the
number of shares issuable upon exercise of each of the warrants is the number
stated on the face thereof. The number of shares issuable upon exercise of the
warrants, and available for resale hereunder, is subject to adjustment in
connection with the occurrence of a stock split, stock dividend, or similar
transaction resulting in an adjustment in the number of shares subject to the
warrants.
Beneficial Ownership of Selling Shareholders
The table that follows sets forth, as of November 10, 2003:
o the name of each selling shareholder,
o certain beneficial ownership information with respect to the
selling shareholders,
o the number of shares that may be sold from time to time by each
selling shareholder pursuant to this prospectus, and
o the amount (and, if one percent or more, the percentage) of common
shares to be owned by each selling shareholder if all offered
shares are sold.
Beneficial ownership is determined in accordance with SEC rules and generally
includes voting or investment power with respect to securities. Common shares
that are issuable upon the exercise of outstanding options, warrants or other
purchase rights, to the extent exercisable within 60 days of November 10, 2003,
are treated as outstanding for purposes of computing each selling shareholder's
percentage ownership of outstanding common shares.
Shares Beneficially Owned
Beneficial Ownership upon Completion of the
Prior to Offering Offering(1)
--------------------------------- -----------------------------
Beneficial Owner Number of
Number of Shares Being Number of
Shares Percent(2) Offered Shares Percent(2)
------------------------------ ---------------- ------------- -------------- ------------- ------------
Vertical Ventures LLC 1,620,372(3) 3.9% 1,235,924(3) 384,448(3) *
Joshua Silverman**
Cranshire Capital, L.P. 2,287,425(4) 5.4% 631,882(4) 1,655,543(4) 4.0%
Mitchell Kopin**,
President of Downsview
Capital Inc., the General
Partner
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Omicron Master Trust(5) 660,732(6) 1.6% 566,982(6) 93,750(6) *
Lionhart Aurora Fund Limited 450,893(7) 1.1% 357,143(7) 93,750(7) *
Neill M. Ebers**
All Selling Shareholders as 5,019,422(8) 11.5% 2,791,931(8) 2,227,491(8) 5.3%
a Group
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* Represents less than one percent of the outstanding common shares.
** Such individual has authority to make voting and investment decisions
with respect to the securities of Altair held by the entity listed
above such individual's name.
(1) Assuming the sale by each selling shareholder of all of the shares
offered hereunder by such selling shareholder. There can be no
assurance that any of the shares offered hereby will be sold.
(2) The percentages set forth above have been computed assuming the number
of common shares outstanding equals the sum of (a) 40,216,839, which is
the number of common shares actually outstanding on November 10, 2003,
and (b) common shares subject to exercisable warrants and conversion
rights with respect to which such percentage is calculated.
(3) The shares beneficially owned by such selling shareholder include
1,001,325 common shares issuable by us upon the exercise of warrants
held by such selling shareholder, 616,877 of which are offered pursuant
to this prospectus. Under the two registration statements to which this
prospectus relates, an aggregate of 1,850,630 shares have been
registered for re-sale by such person. Of such shares, 6,14,703 have
been sold as of the date of this prospectus and are not included in the
"Number of Shares Being Offered."
(4) The shares beneficially owned by such selling shareholder include
2,122,849 common shares issuable by us upon the exercise of warrants
held by such selling shareholder, 631,882 of which are offered pursuant
to this prospectus.
(5) Omicron Capital, L.P., a Delaware limited partnership ("Omicron
Capital"), serves as investment manager to Omicron Master Trust, a
trust formed under the laws of Bermuda ("Omicron"). Omicron Capital,
Inc., a Delaware corporation ("OCI"), serves as general partner of
Omicron Capital, and Winchester Global Trust Company Limited
("Winchester") serves as the trustee of Omicron. By reason of such
relationships, Omicron Capital and OCI may be deemed to share
investment power over the shares of our common stock owned by Omicron,
and Winchester may be deemed to share voting and investment power over
the shares of our common stock owned by Omicron. Omicron Capital, OCI
and Winchester disclaim beneficial ownership of such shares of our
common stock. Omicron Capital has delegated authority from the board of
directors of Winchester regarding the portfolio management decisions
with respect to the shares of common stock owned by Omicron and, as of
April 21, 2003, Mr. Olivier H. Morali and Mr. Bruce T. Bernstein,
officers of OCI, have delegated authority from the board of directors
of OCI regarding the portfolio management decisions of Omicron Capital
with respect to the shares of common stock owned by Omicron. By reason
of such delegated authority, Messrs. Morali and Bernstein may be deemed
to share investment power over the shares of our common stock owned by
Omicron. Messrs. Morali and Bernstein disclaim beneficial ownership of
such shares of our common stock and neither of such persons has any
legal right to maintain such delegated authority. No other person has
sole or shared "voting power" or "investment power" with respect to the
shares of our common stock being offered by Omicron, as those terms are
used for purposes of Regulation 13D-3 of the Securities Exchange Act of
1934, as amended. Omicron and Winchester are not "affiliates" of one
another, as that term is used for purposes of the Securities Exchange
Act of 1934, as amended, or of any other person named in this
prospectus as a selling stockholder. No person or "group" (as that term
is used in Section 13(d) of the Securities Exchange Act of 1934, as
amended, or the SEC's Regulation 13D-3) controls Omicron and
Winchester.
12
(6) The shares beneficially owned by such selling shareholder include
375,017 common shares issuable by us upon the exercise of warrants held
by such selling shareholder, 281,267 of which are offered pursuant to
this prospectus. Under the two registration statements to which this
prospectus relates, an aggregate of 843,800 shares were registered for
re-sale by such person. Of such shares, 276,818 have been sold as of
the date of this prospectus and are not included in the "Number of
Shares Being Offered."
(7) The shares beneficially owned by such selling shareholder include
212,798 common shares issuable by us upon the exercise of warrants held
by such selling shareholder, 119,048 of which are offered pursuant to
this prospectus.
(8) The shares beneficially owned by the selling shareholders as a group
include 3,711,989 common shares issuable by us upon the exercise of
warrants held by the selling shareholders as a group, 1,649,074 of
which are offered pursuant to this prospectus.
We believe that voting and investment power with respect to shares shown as
beneficially owned by selling shareholders that are entities resides with the
individuals identified in the preceding table. There can be no assurance that
any of the shares offered hereby will be sold.
Private Placement of Shares and Warrants
Vertical Ventures LLC
---------------------
Vertical Ventures LLC acquired 614,706 common shares and 307,353 Series
2003E Warrants in a private placement to two institutional investors that closed
on July 31, 2003. Each Series 2003E Warrant permits the holder to acquire one
common share at an exercise price of $1.75 per share at any time prior to the
fifth anniversary of the issue date. The Series 2003E Warrants include standard
anti-dilution provisions pursuant to which the exercise price and number of
shares issuable thereunder are adjusted proportionately in the event of a stock
split, stock dividend, recapitalization or similar transaction. The Series 2003E
Warrants also include a provision prohibiting their exercise to the extent that,
giving effect to such exercise, the number of common shares then beneficially
owned by the holder would exceed 9.999% of the then total number of issued and
outstanding common shares. The shares that may be offered pursuant to this
prospectus include such common shares and the common shares issuable upon the
exercise of such Series 2003E Warrants. In connection with the offer and sale of
such securities to the selling shareholder, we agreed to register the resale of
included common shares under the Securities Act of 1933, as amended.
Vertical Ventures LLC acquired 619,047 common shares and 309,524 Series
2003F Warrants in a private placement to three institutional investors that
closed on September 30, 2003. Each Series 2003F Warrant permits the holder to
acquire one common share at an exercise price of $2.00 per share at any time
prior to the fifth anniversary of the issue date. The Series 2003F Warrants
include standard anti-dilution provisions pursuant to which the exercise price
and number of shares issuable thereunder are adjusted proportionately in the
event of a stock split, stock dividend, recapitalization or similar transaction.
The Series 2003F Warrants also include a provision prohibiting their exercise to
the extent that, giving effect to such exercise, the number of common shares
then beneficially owned by the holder would exceed 9.999% of the then total
number of issued and outstanding common shares. The shares that may be offered
pursuant to this prospectus include such common shares, and the common shares
13
issuable upon the exercise of such Series 2003F Warrants. In connection with the
offer and sale of such securities to the selling shareholder, we agreed to
register the resale of included common shares under the Securities Act of 1933,
as amended.
Cranshire Capital, L.P.
-----------------------
Cranshire Capital, L.P. acquired 631,882 Series 2003E Warrants in a
private placement to a single institutional investor that closed on September
12, 2003. Each Series 2003E Warrant permits the holder to acquire one common
share at an exercise price of $1.75 per share at any time prior to the fifth
anniversary of the issue date. The Series 2003E Warrants include standard
anti-dilution provisions pursuant to which the exercise price and number of
shares issuable thereunder are adjusted proportionately in the event of a stock
split, stock dividend, recapitalization or similar transaction. The Series 2003E
Warrants also include a provision prohibiting their exercise to the extent that,
giving effect to such exercise, the number of common shares then beneficially
owned by the holder would exceed 9.999% of the then total number of issued and
outstanding common shares. The shares that may be offered pursuant to this
prospectus include the common shares issuable upon the exercise of such Series
2003E Warrants. In connection with the offer and sale of such securities to the
selling shareholder, we agreed to register the resale of included common shares
under the Securities Act of 1933, as amended.
Omicron Master Trust
--------------------
Omicron Master Trust acquired 276,818 common shares and 138,409 Series
2003E Warrants in a private placement to two institutional investors that closed
on July 31, 2003. Each Series 2003E Warrant permits the holder to acquire one
common share at an exercise price of $1.75 per share at any time prior to the
fifth anniversary of the issue date. The Series 2003E Warrants include standard
anti-dilution provisions pursuant to which the exercise price and number of
shares issuable thereunder are adjusted proportionately in the event of a stock
split, stock dividend, recapitalization or similar transaction. The Series 2003E
Warrants also include a provision prohibiting their exercise to the extent that,
giving effect to such exercise, the number of common shares then beneficially
owned by the holder would exceed 9.999% of the then total number of issued and
outstanding common shares. The common shares acquired by Omicron Master Trust in
such offering have been re-sold under a re-sale registration statement. The
shares that may be offered pursuant to this prospectus include the common shares
issuable upon the exercise of such Series 2003E Warrants. In connection with the
offer and sale of such securities to the selling shareholder, we agreed to
register the resale of included common shares under the Securities Act of 1933,
as amended.
Omicron Master Trust acquired 285,715 common shares and 142,858 Series
2003F Warrants in a private placement to three institutional investors that
closed on September 30, 2003. Each Series 2003F Warrant permits the holder to
acquire one common share at an exercise price of $2.00 per share at any time
prior to September 30, 2008. The Series 2003F Warrants include standard
anti-dilution provisions pursuant to which the exercise price and number of
shares issuable thereunder are adjusted proportionately in the event of a stock
split, stock dividend, recapitalization or similar transaction. The Series 2003F
14
Warrants also include a provision prohibiting their exercise to the extent that,
giving effect to such exercise, the number of common shares then beneficially
owned by the holder would exceed 9.999% of the then total number of issued and
outstanding common shares. The common shares acquired by Omicron Master Trust in
such offering have been re-sold under a re-sale registration statement. The
shares that may be offered pursuant to this prospectus include the common shares
issuable upon the exercise of such Series 2003F Warrants. In connection with the
offer and sale of such securities to the selling shareholder, we agreed to
register the resale of included common shares under the Securities Act of 1933,
as amended.
Lionhart Aurora Fund Limited
----------------------------
Lionhart Aurora Fund Limited acquired 238,095 common shares and 119,048
Series 2003F Warrants in a private placement to three institutional investors
that closed on September 30, 2003. Each Series 2003F Warrant permits the holder
to acquire one common share at an exercise price of $2.00 per share at any time
prior to the fifth anniversary of the issue date. The Series 2003F Warrants
include standard anti-dilution provisions pursuant to which the exercise price
and number of shares issuable thereunder are adjusted proportionately in the
event of a stock split, stock dividend, recapitalization or similar transaction.
The Series 2003F Warrants also include a provision prohibiting their exercise to
the extent that, giving effect to such exercise, the number of common shares
then beneficially owned by the holder would exceed 9.999% of the then total
number of issued and outstanding common shares. The shares that may be offered
pursuant to this prospectus include such common shares, and the common shares
issuable upon the exercise of such Series 2003F Warrants. In connection with the
offer and sale of such securities to the selling shareholder, we agreed to
register the resale of included common shares under the Securities Act of 1933,
as amended.
PLAN OF DISTRIBUTION
Methods of Distribution
The shares offered by this prospectus may be sold from time to time by
the selling shareholders, who consist of the persons and entities named as
"selling shareholders" above and those persons' pledgees, donees, transferees or
other successors in interest. The selling shareholders may sell the offered
shares on the Nasdaq SmallCap Market, or otherwise, at market prices or at
negotiated prices. They may sell shares by one or a combination of the
following:
o a block trade in which a broker or dealer so engaged will attempt
to sell the offered shares as agent, but may position and resell a
portion of the block as principal to facilitate the transaction;
o purchases by a broker or dealer as principal and resale by the
broker or dealer for its account pursuant to this prospectus;
o ordinary brokerage transactions and transactions in which a broker
solicits purchasers;
o an exchange distribution in accordance with the rules of such
exchange;
o privately negotiated transactions;
15
o if such a sale qualifies, in accordance with Rule 144 promulgated
under the Securities Act rather than pursuant to this prospectus;
or
o any other method permitted pursuant to applicable law.
The selling shareholders may also sell shares by means of short sales.
Short sales involve the sale by a selling shareholder, usually with a future
delivery date, of common shares that the seller does not own. Covered short
sales are sales made in an amount not greater than the number of shares subject
to the short seller's warrant, exchange right or other right to acquire common
shares. A selling shareholder may close out any covered short position by either
exercising its warrants or exchange rights to acquire common shares or
purchasing shares in the open market. In determining the source of shares to
close out the covered short position, a selling shareholder will likely
consider, among other things, the price of common shares available for purchase
in the open market as compared to the price at which it may purchase common
shares pursuant to its warrants or exchange rights.
Naked short sales are any sales in excess of the number of shares
subject to the short seller's warrant, exchange right or other right to acquire
common shares. A selling shareholder must close out any naked position by
purchasing shares. A naked short position is more likely to be created if a
selling shareholder is concerned that there may be downward pressure on the
price of the common shares in the open market.
The existence of a significant number of short sales generally causes
the price of the common shares to decline, in part because it indicates that a
number of market participants are taking a position that will profitable only if
the price of the common shares declines. Purchases to cover short sales may,
however, increase the demand for the common shares and have the effect of
raising or maintaining the price of the common shares.
In making sales, brokers or dealers engaged by the selling
shareholders may arrange for other brokers or dealers to participate. Brokers or
dealers will receive commissions or discounts from such selling shareholders in
amounts to be negotiated prior to the sale. Such selling shareholders and any
broker-dealers that participate in the distribution may be deemed to be
"underwriters" within the meaning of Section 2(11) of the Securities Act of
1933, and any proceeds or commissions received by them, and any profits on the
resale of shares sold by broker-dealers, may be deemed to be underwriting
discounts and commissions. If a selling shareholder notifies us that a material
arrangement has been entered into with a broker-dealer for the sale of shares
through a block trade, special offering, exchange distribution or secondary
distribution or a purchase by a broker or dealer, we will file a prospectus
supplement, if required pursuant to the Securities Act of 1933, setting forth:
o the name of each of the participating broker-dealers,
o the number of shares involved,
o the price at which the offered shares were sold,
o the commissions paid or discounts or concessions allowed to the
broker-dealers, where applicable;
o a statement to the effect that the broker-dealers did not conduct
any investigation to verify the information set out or
incorporated by reference in this prospectus, and
o any other facts material to the transaction.
16
Determination of Offering Price
The offering price of the common shares offered by this prospectus is
being determined by each of the selling shareholders on a
transaction-by-transaction basis based upon factors that the selling shareholder
considers appropriate. The offering prices determined by the selling
shareholders may, or may not, relate to a current market price but should not,
in any case, be considered an indication of the actual value of the common
shares. We do not have any influence over the price at which any selling
shareholders offer or sell the common shares offered by this prospectus.
Passive Market Making
We have advised the selling shareholders that while they are engaged
in a distribution of the shares offered pursuant to this prospectus, they are
required to comply with Regulation M promulgated under the Securities Exchange
Act of 1934, as amended. With certain exceptions, Regulation M precludes the
selling shareholders, any affiliate purchasers and any broker-dealer or other
person who participate in the distribution from bidding for or purchasing, or
attempting to induce any person to bid for or purchase, any security that is
subject to the distribution until the entire distribution is complete.
Regulation M also restricts bids or purchases made in order to stabilize the
price of a security in connection with the distribution of that security. We do
not intend to engage in any passive market making or stabilization transactions
during the course of the distribution described in this prospectus. All of the
foregoing may affect the marketability of the shares offered pursuant to this
prospectus.
General
We are paying the expenses incurred in connection with preparing and
filing this prospectus and the registration statement to which it relates, other
than selling commissions. In addition, in the event a selling shareholder
effects a short sale of common shares, this prospectus may be delivered in
connection with such short sale and the shares offered by this prospectus may be
used to cover such short sale. To the extent, if any, that a selling shareholder
may be considered an "underwriter" within the meaning of the Securities Act, the
sale of the shares by it shall be covered by this prospectus.
We have not retained any underwriter, broker or dealer to facilitate
the offer or sale of the offered shares offered hereby. We will pay no
underwriting commissions or discounts in connection therewith, and we will not
receive any proceeds from the sale of the offered shares.
We have advised the selling shareholders that, to the extent necessary
to comply with governing state securities laws, the offered securities should be
offered and sold in such jurisdictions only through registered or licensed
brokers or dealers. In addition, we have advised the selling shareholders that
the offered securities may not be offered or sold in any state unless they have
been registered or qualified for sale in the applicable state or an exemption
from the registration or qualification requirement is available with respect to
s
17
DESCRIPTION OF OFFERED SECURITIES
For a description of the common shares offered hereunder, please refer
to the description of our common shares provided in the Current Report on Form
8-K filed with the SEC on July 18, 2002. For a description of the warrants
pursuant to which certain of such common shares may be acquired by the selling
shareholders, see the section entitled "Selling Shareholders" above.
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, as amended by Form
10-K/A, for the year ended December 31, 2002 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.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
As permitted by SEC rules, this prospectus does not contain all of the
information that prospective investors can find in the Registration Statement or
the exhibits to the Registration Statement. The SEC permits us to incorporate by
reference into this prospectus information filed separately with the SEC. The
information incorporated by reference is deemed to be part of this prospectus,
except as superseded or modified by information contained directly in this
prospectus or in a subsequently filed document that also is (or is deemed to be)
incorporated herein by reference.
This prospectus incorporates by reference the documents set forth below
that we (File No. 1-12497) have previously filed with the SEC pursuant to the
Securities Exchange Act of 1934, as amended. These documents contain important
information about the Company and its financial condition.
(a) Our Annual Report on Form 10-K for the year ended December 31,
2002, filed with the SEC on March 17, 2003, as amended by
Amendment No. 1 on Form 10-K/A filed with the SEC on April 29,
2003.
(b) Our Quarterly Report on Form 10-Q for the quarter ended March 31,
2003 filed with the SEC on May 14, 2003.
18
(c) Our Current Report on Form 8-K filed with the SEC on May 28, 2003.
(d) Our Quarterly Report on Form 10-Q for the quarter ended June 30,
2003 filed with the SEC on August 13, 2003.
(e) Our Quarterly Report on Form 10-Q for the quarter ended September
30, 2003 filed with the SEC on November 14, 2003.
(f) The description of the common shares contained in our Current
Report on Form 8-K filed with the SEC on July 18, 2002.
We hereby incorporate by reference all reports and other documents
filed by us pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
after the date of this prospectus and prior to the termination of this offering.
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 makes available to the
public reports, proxy statements, and other information regarding issuers, such
as us, that file electronically with the SEC.
In addition, 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 Altair
Nanotechnologies Inc. 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 Chief Financial Officer at (775) 858-3750.
Our common shares are quoted on the Nasdaq SmallCap Market. Reports,
proxy statements and other information concerning the Company can be inspected
and copied at the Public Reference Room of the National Association of
Securities Dealers, 1735 K Street, N.W., Washington, D.C. 20006.
19
II-2
====================================================== ====================================================
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 2,791,931 Common Shares
securities in any jurisdiction where it is unlawful.
The information in this prospectus is current as of
November 14, 2003.
-----------------------
ALTAIR NANOTECHNOLOGIES INC.
2,791,931 COMMON SHARES
---------------
Prospectus
---------------
November 14, 2003
====================================================== ====================================================
20
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 $230
NASD registration fees $22,500
Accounting fees and expenses $5,000
Legal fees and expenses $15,000
Blue Sky fees and expenses $3,000
Printing Expenses $1,000
Miscellaneous Expenses $3,270
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. In
addition, the Registrants Bylaws require the Registrant to advance monies to an
indemnifiable officer, director or similar person in connection with threatened
or pending litigation.
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
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
II-1
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 for the benefit
of an individual referred to in subsection (1) against any liability incurred by
the individual
(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.
II-2
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,
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.
II-3
Item 16. Exhibits
-----------------
The following exhibits required by Item 601 of Regulation 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 Form of Series 2003E Warrant Incorporated by reference to the Registration
Statement on Form S-3, File No. 333-110115, filed
with the Commission on October 31, 2003.
4.3 Form of Series 2003F Warrant Incorporated by reference to the Registration
Statement on Form S-3, File No. 333-110115, filed
with the Commission on October 31, 2003.
4.4 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.
5 Opinion of Goodman and Carr LLP as to Filed herewith
legality of securities offered
10.1 Form of Registration Rights Agreement Incorporated by reference to the Registration
Statement on Form S-3, File No. 333-110115, filed
with the Commission on October 31, 2003.
23.1 Consent of Deloitte & Touche LLP Filed herewith
23.2 Consent of Goodman and Carr LLP Included in Exhibit No. 5.
24 Powers of Attorney Incorporated by reference to the Registration
Statement on Form S-3, File No. 333-110115, filed
with the Commission on October 31, 2003.
-----------------------
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
II-4
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;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the 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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the Registration Statement
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.
(c) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant, 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, 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.
II-5
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-3 and has duly caused this Amendment
No. 1 to Registration Statement on Form S-3 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cody, State of Wyoming,
on November 14, 2003.
ALTAIR NANOTECHNOLOGIES INC
By /s/ William P. Long
---------------------------------
William P. Long
Chief Executive Officer
ADDITIONAL SIGNATURES
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.
Signature Title Date
--------- ----- ----
/s/ William P. Long Chief Executive Officer and Director November 14, 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 November 14, 2003
--------------------------- (Principal Financial Officer and Principal
Edward H. Dickinson Accounting Officer)
/s/ James I. Golla Director November 14, 2003
---------------------------
James I. Golla
/s/ George E. Hartman* Director November 14, 2003
---------------------------
George E. Hartman
/s/ Robert Sheldon* Director November 14, 2003
---------------------------
Robert Sheldon
--------------------------- Director
Jon Bengtson
*By: /s/ William P. Long
--------------------------------------
William P. Long, Attorney-In-Fact
II-6
EXHIBIT INDEX
The following exhibits required by Item 601 of Regulation 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 Form of Series 2003E Warrant Incorporated by reference to the Registration
Statement on Form S-3, File No. 333-110115, filed
with the Commission on October 31, 2003.
4.3 Form of Series 2003F Warrant Incorporated by reference to the Registration
Statement on Form S-3, File No. 333-110115, filed
with the Commission on October 31, 2003.
4.4 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.
5 Opinion of Goodman and Carr LLP as to Filed herewith
legality of securities offered
10.1 Form of Registration Rights Agreement Incorporated by reference to the Registration
Statement on Form S-3, File No. 333-110115, filed
with the Commission on October 31, 2003.
23.1 Consent of Deloitte & Touche LLP Filed herewith
23.2 Consent of Goodman and Carr LLP Included in Exhibit No. 5.
24 Powers of Attorney Incorporated by reference to the Registration
Statement on Form S-3, File No. 333-110115, filed
with the Commission on October 31, 2003.
-----------------------
II-7