As filed with the Securities and Exchange Commission on June 27, 2003
Registration No. 333-106138
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3/A
AMENDMENT NO. 1 TO
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 of (I.R.S. employer
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, Salt Lake City, Utah 84111
zip code, and telephone number Ph: (801) 328-3131
including area code for agent of service Fax: (801) 578-6999
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: [ ]
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.
4,029,588 Common Shares
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This prospectus relates to the offering and sale of 4,029,588 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, 2,050,504 are currently owned by the selling
shareholders and the remaining 1,979,084 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 June 24, 2003,
the closing sale price of a common share, as reported by the Nasdaq SmallCap
Market, was $1.09 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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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 June 25, 2003
TABLE OF CONTENTS
RISK FACTORS...............................................................2
FORWARD-LOOKING STATEMENTS................................................11
USE OF PROCEEDS...........................................................11
DILUTION..................................................................11
SELLING SHAREHOLDERS......................................................12
PLAN OF DISTRIBUTION......................................................17
DESCRIPTION OF OFFERED SECURITIES.........................................19
LEGAL MATTERS.............................................................19
EXPERTS...................................................................19
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE...........................19
WHERE YOU CAN FIND MORE INFORMATION.......................................20
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 March 31, 2003, we have generated $288,318 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 and 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 March 31, 2003, we had $296,148 in cash, and a working capital
deficit. Although we have raised additional capital since March 31, 2003, 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 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;
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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, options and other convertible
securities outstanding and may issue a significant number of additional shares
upon exercise or conversion 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.
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 accrued on March 1, 2003 and may
accrue on each of 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.
To date, we have issued 924,613 common shares as a result of the
exercise of conversion rights that accrued on March 1, 2003 and, subject to
shareholder approval of our transactions with the noteholder at our annual
meeting in June 2003, are obligated to issue an additional 47,608 common shares
with respect to the conversion rights that accrued on March 1, 2003. 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 between September
1, 2003 and March 1, 2004, the following table sets forth how many additional
common shares would be issued upon the exercise of such conversion rights if
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, and
(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
Greater $0.50 $0.25 $0.10
Shares Issuable(1) 840,000 2,400,000 4,800,000 12,000,000
Percentage of Outstanding(2)
Common Shares 2.2% 6.1% 11.5% 24.4%
(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 37,113,412 common shares outstanding on June 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.
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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 pledged substantial assets to secure the Second Amended and Restated
Secured Term Note.
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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, principal amount outstanding as of June
23, 2003 of $853,711 and a due date of March 31, 2004. Altair Nanomaterials,
Inc. owns and operates the titanium and nanoparticle 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
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.
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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.
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 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.
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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, 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
wholly-owned subsidiary. 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.
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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 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:
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 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 book value per common share immediately following this offering
will likely be substantially less than the price you pay per common share.
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We may be unable to exploit the 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 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 may receive some significant one-time payments in various stages of
the testing and evaluation of the pharmaceutical application of our technology,
we do not 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, however, 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 license, 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
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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 we may be unable to customize our titanium dioxide nanoparticle
products to meet the distinct needs of potential customers;
o the development of products potentially using our nanoparticle
products, most of which are in the development stage, may not be
completed, or no market may exist for such end products;
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 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 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 the coming year and have determined to focus most of our limited
resources on the titanium and nanoparticle 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.
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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 o attempting to secure financing
for any proposed full-scale mining facility.
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Our test production at the pilot plant, economic analysis and additional
exploration activities may indicate any of the following:
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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 March 31, 2003 was $2,917,642,
or approximately $.09 per each of the 32,755,941 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 $.09
per share.
As of June 1, 2003, there were outstanding warrants and options to
purchase up to 16,426,786 common shares. In addition, under the terms of our
$1,400,000 Second Amended and Restated Secured Term Note conversions right may
accrue with respect to an indeterminable number of common shares beginning on
September 1, 2003. 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.
11
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) 175,000 warrants to purchase common shares
that we completed on March 5, 2003, (ii) 35,000 common shares that we completed
on March 11, 2003, (iii) 2,015,504 common shares, together with 1,007,753
warrants to purchase common shares, that we completed on or about May 22, 2003,
(iv) 200,000 common shares, together with and 200,000 warrants to purchase
common shares, that we completed on or about July 23, 2001 (which warrants were
subsequently amended on June 5, 2003) and (v) 800,000 common shares, together
with and 800,000 warrants to purchase common shares, that we completed on or
about June 19, 2001, which warrants were subsequently amended on June 5, 2003.
Of the common shares offered hereby, 2,050,504 are currently owned by
the selling shareholders and 1,979,084 are issuable upon exercise of outstanding
warrants. 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 and could
materially differ from the estimated amount depending on 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 begins on the top of the next page sets forth, as of
June 1, 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 the date of this
prospectus, are treated as outstanding for purposes of computing each selling
shareholder's percentage ownership of outstanding common shares.
12
Shares Beneficially Owned
Beneficial Ownership upon Completion of the
Prior to Offering Offering(1)
--------------------------------- -----------------------------
Number of
Number of Shares Being Number of
Beneficial Owner Shares Percent(2) Offered Shares Percent(2)
- ------------------------------ ---------------- ------------- -------------- ------------- ------------
Cranshire Capital, L.P. 3,169,361(3) 8.1% 1,569,768(4) 1,599,593(5) 4.1%
Mitchell Kopin**
Vertical Ventures, LLC 872,093(6) 2.3% 872,093(6) 0 --
Joshua Silverman**
Photon Fund Ltd. 581,396(7) 1.6% 581,396(7) 0 --
Terrence Duffy**
Louis Schnur 3,707,629 (8) 9.9% 796,331(9) 3,707,629(8) 9.9%
Ernest Pellegrino 95,000(10) * 95,000(10) 0 --
First Montauk Securities
Corp. 40,000(11) * 40,000(11) 0 --
Ernest Pellegrino**
Shrirang Jeurkar 35,000(12) * 35,000(12) 0 --
Sid L. Anderson Co. 35,000 * 35,000 0 --
Sid L. Anderson**
Angela Metelitsa 5,000(13) * 5,000(13) 0 --
All Selling Shareholders as 8,540,379(14) 18.81% 4,029,588 5,307,222 13.6%
a Group
- ---------------------
* 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) 37,113,412, which is
the number of common shares actually outstanding on June 1, 2003, and
(b) common shares subject to exercisable warrants and conversion rights
held by the person with respect to which such percentage is calculated.
(3) Includes 2,122,849 common shares issuable by us upon the exercise of
warrants held by Cranshire Capital, L.P., 523,256 of which are offered
pursuant to this prospectus.
(4) Includes 523,256 common shares issuable by us upon the exercise of
warrants held by Cranshire Capital, L.P., all of which are offered
pursuant to this prospectus.
(5) Includes 1,599,593 common shares issuable by us upon the exercise of
warrants held by Cranshire Capital, L.P., none of which are offered
pursuant to this prospectus.
(6) Includes 290,698 common shares issuable by us upon the exercise of
warrants held by Vertical Ventures, LLC, all of which are offered
pursuant to this prospectus.
13
(7) Includes 193,799 common shares issuable by us upon the exercise of
warrants held by Photon Fund Ltd., all of which are offered pursuant to
this prospectus.
(8) Includes 1,841,426 common shares issuable by us upon the exercise of
warrants held by Louis Schnur and affiliated entities, 796,331 of which
are offered pursuant to this prospectus. Does not include warrants held
by Mr. Schnur that may not be exercised as a result of a provision in
such warrant prohibiting their exercise if, following such exercise,
the holder and affiliates would beneficially own more than 9.99% of the
outstanding common shares.
(9) Includes 796,331 common shares issuable by us upon the exercise of
warrants held by Louis Schnur, all of which are offered pursuant to
this prospectus.
(10) Includes 95,000 common shares issuable by us upon the exercise of
warrants held by Ernest Pellegrino, all of which are offered pursuant
to this prospectus.
(11) Includes 40,000 common shares issuable by us upon the exercise of
warrants held by First Montauk Securities Corp., all of which are
offered pursuant to this prospectus.
(12) Includes 35,000 common shares issuable by us upon the exercise of
warrants held by Shrirang Jeurkar, all of which are offered pursuant to
this prospectus.
(13) Includes 5,000 common shares issuable by us upon the exercise of
warrants held by Angela Metelitsa, all of which are offered pursuant to
this prospectus.
(14) Includes 5,420,103 common shares issuable by us upon the exercise of
warrants held by all of the selling shareholders as a group, 1,979,084
of which are offered pursuant to this prospectus.
We believe that the selling shareholders who are individuals have sole
voting and investment power with respect to all shares shown as beneficially
owned by them. We believe that voting and investment power with respect to
shares shown as beneficially owned by selling shareholders who 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
Cranshire Capital L.P.
- ----------------------
Cranshire Capital L.P. acquired 1,046,512 common shares and 523,256
Series 2003C Warrants in a private placement to three institutional investors
that closed on May 19, 2003. Each Series 2003C Warrant permits the holder to
acquire one common share at an exercise price of $1.35 per share at any time
prior to the earlier of (a) May 27, 2008, and (b) after one year from date of
issue or anytime after the shares are registered, the 180th day following the
date the closing price of the common shares equals or exceeds $3.50 for 10 days,
whether or not consecutive. The Series 2003C 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 2003C
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 2003C Warrants.
14
Vertical Ventures LLC
----------------------
Vertical Ventures LLC acquired 581,395 common shares and 290,698 Series
2003C Warrants in a private placement to three institutional investors that
closed on May 19, 2003. Each Series 2003C Warrant permits the holder to acquire
one common share at an exercise price of $1.35 per share at any time prior to
the earlier of (a) May 27, 2008, and (b) after one year from date of issue or
anytime after the shares are registered, the 180th day following the date the
closing price of the common shares equals or exceeds $3.50 for 10 days, whether
or not consecutive. The Series 2003C 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 2003C 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 2003C Warrants.
Photon Fund Ltd.
-----------------
Photon Fund Ltd acquired 387,597 common shares and 193,799 Series 2003C
Warrants in a private placement to three institutional investors that closed on
May 19, 2003. Each Series 2003C Warrant permits the holder to acquire one common
share at an exercise price of $1.35 per share at any time prior to the earlier
of (a) May 27, 2008, and (b) after one year from date of issue or anytime after
the shares are registered, the 180th day following the date the closing price of
the common shares equals or exceeds $3.50 for 10 days, whether or not
consecutive. The Series 2003C 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 2003C 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
2003C Warrants.
Louis Schnur
-------------
Louis Schnur acquired 200,000 common shares and 200,000 warrants in a
private placement pursuant to the terms of a stock purchase agreement dated as
of July 23, 2001. The 200,000 warrants include 100,000 Series 2001A Warrants
that, as amended pursuant to an Amendment to Common Share Purchase Warrants
dated June 5, 2003, entitle the holder to purchase one common share at an
exercise price of $1.00 per share at any time prior to the earlier of (i) July
23, 2006, and (ii) the date sixty days following the fifth day (whether or not
consecutive) the closing price of the common shares equals or exceeds $3.50. The
200,000 warrants also include 100,000 Series 2001B warrants that, as amended
pursuant to an Amendment to Common Share Purchase Warrants dated June 5, 2003,
entitle the holder to purchase one common share at an exercise price of $1.00
per share at any time prior to the earlier of (i) July 23, 2006, and (ii) the
date sixty days following the fifth day (whether or not consecutive) the closing
price of the common shares equals or exceeds $4.50. The primary effect of the
Amendment to Common Share Purchase Warrants dated June 5, 2003 was to reduce the
exercise price of affected warrants to $1.00 per share.
15
Mr. Schnur acquired 800,000 common shares and 800,000 warrants in a
private placement pursuant to the terms of a stock purchase agreement dated as
of June 19, 2001. The 800,000 warrants include 400,000 Series 2001A Warrants
that, as amended pursuant to an Amendment to Common Share Purchase Warrants
dated June 5, 2003, entitle the holder to purchase one common share at an
exercise price of $1.00 per share at any time prior to the earlier of (i) June
19, 2006, and (ii) the date sixty days following the fifth day (whether or not
consecutive) the closing price of the common shares equals or exceeds $3.50. The
800,000 warrants also include 400,000 Series 2001 B Warrants that, as amended
pursuant to an Amendment to Common Share Purchase Warrants dated June 5, 2003,
entitle the holder to purchase one common share at the exercise price of $1.00
per share at any time prior to the earlier of (i) June 19, 2006, and (ii) the
date sixty days following the fifth day (whether or not consecutive) the closing
price of the common shares equals or exceeds $4.50. Of these 400,000 Series
2001B Warrants, 203,669 have previously been exercised by the holder, leaving
196,331 of such Series 2001B Warrants unexercised. The primary effect of the
Amendment to Common Share Purchase Warrants dated June 5, 2003 was to reduce the
exercise price of affected warrants to $1.00 per share.
The Series 2001A and Series 2001B 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 2001A
and Series 2001B 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 2001A Warrants and the remaining unexercised 396,331 Series 2001B
Warrants. The shares that may be offered pursuant to this prospectus do not
include any common shares purchased together with such warrants on June 19, 2001
and July 23, 2001 or any common shares issued upon exercise of the 203,669
Series 2001B Warrants exercised prior to the date of this prospectus.
Ernest Pellegrino, First Montauk Securities Corp., Shrirang Jeukar and Angela
Metelitsa
--------------------------------------------------------------------------------
Pursuant to an Advisory and Consultant Agreement dated March 5, 2003
with First Montauk Securities Corp., we granted to First Montauk Securities
Corp. and certain of its affiliates, in exchange for consulting services, an
aggregate of 175,000 Series 2003D Warrants in a private placement. Of such
Series 2003D Warrants, 95,000 were granted to Ernest Pellegrino, 40,000 were
granted to First Montauk Securities Corp., 35,000 were granted to Shrirang
Jeurkar and 5,000 were granted to Angela Metelitsa. Each Series 2003D Warrant
permits the holder to acquire one common share at an exercise price of $0.45 per
share at any time prior to March 5, 2008. The 2003D 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 shares that
may be offered pursuant to this prospectus include the common shares issuable
upon the exercise of such Series 2003D Warrants.
16
Sid L. Anderson
Pursuant to an Advisory Services Contract dated January 29, 2003 with
The Sid L. Anderson Company, we granted The Sid L. Anderson Company 35,000
common shares. The shares that may be offered pursuant to this prospectus
include such common shares.
PLAN OF DISTRIBUTION
The Shares. The shares offered by this prospectus may be sold from time
to time by the selling shareholders, who consist of the persons 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;
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.
17
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.
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.
In order to comply with the securities laws of certain states, if
applicable, the selling shareholders have agreed that offered securities will be
sold in such jurisdictions only through registered or licensed brokers or
dealers. In addition, in certain states the offered shares may not be sold
unless they have been registered or qualified for sale in the applicable state
or an exemption from the registration or qualification requirement is available.
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.
18
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, 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 (the "Exchange Act"). 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.
(c) Our Current Report on Form 8-K filed with the SEC on May 28, 2003.
(d) 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.
19
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 the Company files 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 the Company, 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.
20
II-7
====================================================== ====================================================
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 4,029,588 Common Shares
securities in any jurisdiction where it is unlawful.
The information in this prospectus is current as of
June 25, 2003.
-----------------------
ALTAIR NANOTECHNOLOGIES INC.
4,029,588 COMMON SHARES
---------------
Prospectus
---------------
June 25, 2003
====================================================== ====================================================
II-1
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 $379
NASD registration fees $17,500
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 $3,121
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 Registrant has submitted to its shareholders for
approval at a June 27, 2003 special and annual meeting a By-law Amendment which
will make it mandatory (rather than permissive) for the Registrant to advanced
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,
II-1
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 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 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 Form of Series 2003C Warrant Incorporated by reference to the Company's Current
Report on Form 8-K filed with the Commission on May
28, 2003, File No. 1-12497.
4.3 Form of Series 2003D Warrant Incorporated by reference to the Company's Registration
Statement on Form S-3, File No. 333-106138, filed with
the Commission on June 16, 2003.
4.4 Form of Registration Rights Agreement Incorporated by reference to the Company's Current
(May 2003 private placement) Report on Form 8-K filed with the Commission on May
28, 2003, File No. 1-12497.
4.5 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.
4.6 Form of Series 2001A Warrant Incorporated by reference to the Company's Quarterly
Report on Form 10-Q filed with the Commission on
August 14, 2001, File No. 1-12497.
4.7 Form of Series 2001B Warrant Incorporated by reference to the Company's Quarterly
Report on Form 10-Q filed with the Commission on
August 14, 2001, File No. 1-12497.
4.8 Amendment to Common Share Purchase Incorporated by reference to the Company's Registration
Warrants dated June 5, 2003 Statement on Form S-3, File No. 333-106138, filed with
the Commission on June 16, 2003.
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 Company's Current
(May 2003 private placement) Report on Form 8-K filed with the Commission on May
28, 2003, File No. 1-12497.
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 Company's Registration
Statement on Form S-3, File No. 333-106138, filed with
the Commission on June 16, 2003.
II-4
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;
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 Company 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) he undersigned Company hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Company'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 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.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Company 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 June 25, 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.
Signature Title Date
--------- ----- ----
/s/ William P. Long Chief Executive Officer, and Director June 25, 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 June 25, 2003
------------------------------------- (Principal Financial Officer and Principal
Edward H. Dickinson Accounting Officer)
/s/ James I. Golla** Director June 25, 2003
--------------------------------------
James I. Golla
Director
-------------------------------------
George E. Hartman
/s/ Robert Sheldon** Director June 25, 2003
-------------------------------------
Robert Sheldon
** By: /s/ William P. Long
-------------------------------------
William P. Long, Attorney-in-Fact
II-6
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 Form of Series 2003C Warrant Incorporated by reference to the Company's Current
Report on Form 8-K filed with the Commission on May
28, 2003, File No. 1-12497.
4.3 Form of Series 2003D Warrant Incorporated by reference to the Company's Registration
Statement on Form S-3, File No. 333-106138, filed with
the Commission on June 16, 2003.
4.4 Form of Registration Rights Agreement Incorporated by reference to the Company's Current
(May 2003 private placement) Report on Form 8-K filed with the Commission on May
28, 2003, File No. 1-12497.
4.5 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.
4.6 Form of Series 2001A Warrant Incorporated by reference to the Company's Quarterly
Report on Form 10-Q filed with the Commission on
August 14, 2001, File No. 1-12497.
4.7 Form of Series 2001B Warrant Incorporated by reference to the Company's Quarterly
Report on Form 10-Q filed with the Commission on
August 14, 2001, File No. 1-12497.
4.8 Amendment to Common Share Purchase Incorporated by reference to the Company's Registration
Warrants dated June 5, 2003 Statement on Form S-3, File No. 333-106138, filed with
the Commission on June 16, 2003.
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 Company's Current
(May 2003 private placement) Report on Form 8-K filed with the Commission on May
28, 2003, File No. 1-12497.
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 Company's Registration
Statement on Form S-3, File No. 333-106138, filed with
the Commission on June 16, 2003.
-----------------------