As filed with the Securities and Exchange Commission on August 29, 2003
Registration No. 333-[_______]
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under the
Securities Act of 1933
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ALTAIR NANOTECHNOLOGIES INC.
(Exact name of registrant as specified in its charter)
Canada None
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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204 Edison Way
Reno, Nevada 89502
Telephone: (775) 858-3750
(Address of Principal Executive Offices,
including Zip Code)
Altair Nanotechnologies Inc. 2003 Employee Stock Purchase Plan
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(Full title of the plan)
William P. Long Copy to:
Chief Executive Officer Bryan T. Allen
Altair Nanotechnologies Inc. Stoel Rives LLP
204 Edison Way 201 South Main Street, Suite 1100
Reno, Nevada 89502 Salt Lake City, Utah 84111
(775) 858-3750 (801) 578-6908
(Name, address and telephone
number, including area code,
of agent for service)
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CALCULATION OF REGISTRATION FEE
======================================= ================= =================== ====================== ===================
Proposed Maximum Proposed Maximum Amount of
Amount to be Offering Price Aggregate Offering Registration
Title of Securities to be Registered Registered(1) per Share(2) Price(2) Fee(2)
--------------------------------------- ----------------- ------------------- ---------------------- -------------------
Common Shares, without par value 500,000 $0.86 $430,000 $35
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(1) This Registration Statement shall also cover any additional common
shares which become issuable under the 2003 Employee Stock Purchase
Plan by reason of any stock dividend, stock split, recapitalization or
other similar transaction effected without the receipt of consideration
which results in an increase in the number of outstanding common shares
of Altair Nanotechnologies Inc.
(2) Calculated solely for purposes of this offering under Rule 457(h) of
the Securities Act of 1933, as amended, on the basis of the average of
the high and low price per common share of Altair Nanotechnologies Inc.
as reported on the Nasdaq National Market on August 25, 2003.
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SaltLake-207856.2 0040781-00009
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
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Item 2. Registrant Information and Employee Plan Annual Information.*
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* Information required by Part I to be contained in the Section
10(a) prospectus is omitted from this Registration Statement
in accordance with Rule 428 under the Securities Act of 1933,
as amended (the "Securities Act"), and the Note to Part I of
Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents filed by Altair Nanotechnologies Inc. (the
"Registrant") with the Securities and Exchange Commission (the "SEC") are hereby
incorporated by reference in this Registration Statement:
(1) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 2002 filed with the SEC on March 17, 2003;
Amendment No. 1 on Form 10-K/A filed with the SEC on April 29,
2003.
(2) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2003 filed with the SEC on May 14, 2003.
(3) The Registrant's Current Report on Form 8-K filed with the SEC
on May 28, 2003.
(4) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 2003 filed with the SEC on August 13, 2003.
(5) The description of the Common Stock contained in the
Registrant's registration statement on Form 10-SB, File No.
0-24372, as amended by the Current Report on Form 8-K filed
with the SEC on July 18, 2002.
In addition, all documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated by reference herein shall be deemed to be modified or
superseded for purposes hereof to the extent that a statement contained herein
(or in any other subsequently filed document which also is incorporated by
reference herein) modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed to constitute a part hereof except as
so modified or superseded.
Item 4. Description of Securities.
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
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Our Bylaws
The Registrant's Bylaws provide that, to the maximum extent permitted
by law, the Registrant shall indemnify and advance expenses to a director or
officer of the Registrant, a former director or officer of the Registrant, or
another individual who acts or acted at the Registrant's request as a director
or officer, or an individual acting in a similar capacity, of another entity,
against all costs, charges and expenses, including any amount paid to settle an
action or satisfy a judgment, reasonably incurred by the individual in respect
of any civil, criminal, administrative, investigative or other proceeding in
which the individual is involved because of that association with the Registrant
or other entity.
The Canada Business Corporations Act
Section 124 of the Canada Business Corporations Act provides as follows
with respect to the indemnification of directors and officers:
(1) A corporation may indemnify a director or officer of the
corporation, a former director or officer of the corporation or another
individual who acts or acted at the corporation's request as a director or
officer, or an individual acting in a similar capacity, of another entity,
against all costs, charges and expenses, including an amount paid to settle an
action or satisfy a judgment, reasonably incurred by the individual in respect
of any civil, criminal, administrative, investigative or other proceeding in
which the individual is involved because of that association with the
corporation or other entity.
(2) A corporation may advance moneys to a director, officer or other
individual for the costs, charges and expenses of a proceeding referred to in
subsection (1). The individual shall repay the moneys if the individual does not
fulfill the conditions of subsection (3).
(3) A corporation may not indemnify an individual under subsection (1)
unless the individual
(a) acted honestly and in good faith with a view to the best
interests of the corporation, or, as the case may be, to the best
interests of the other entity for which the individual acted as
director or officer or in a similar capacity at the corporation's
request; and
(b) in the case of a criminal or administrative action or
proceeding that is enforced by a monetary penalty, the individual had
reasonable grounds for believing that the individual's conduct was
lawful.
(4) A corporation may with the approval of a court, indemnify an
individual referred to in subsection (1), or advance moneys under subsection
(2), in respect of an action by or on behalf of the corporation or other entity
to procure a judgment in its favor, to which the individual is made a party
because of the individual's association with the corporation or other entity as
described in subsection (1) against all costs, charges and expenses reasonably
incurred by the individual in connection with such action, if the individual
fulfills the conditions set out in subsection (3).
(5) Despite subsection (1), an individual referred to in that
subsection is entitled to indemnity from the corporation in respect of all
costs, charges and expenses reasonably incurred by the individual in connection
with the defense of any civil, criminal, administrative, investigative or other
proceeding to which the individual is subject because of the individual's
association with the corporation or other entity as described in subsection (1),
if the individual seeking indemnity
(a) was not judged by the court or other competent authority
to have committed any fault or omitted to do anything that the
individual ought to have done; and
(b) fulfills the conditions set out in subsection (3)
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(6) A corporation may purchase and maintain insurance of the benefit of
an individual referred to in subsection (1) against any liability incurred by
the individual
(a) in the individual's capacity as a director or officer of
the corporation; or
(b) in the individual's capacity as a director or officer, or
similar capacity, of another entity, if the individual acts or acted in
that capacity at the corporation's request.
(7) A corporation, an individual or an entity referred to in subsection
(1) may apply to a court for an order approving an indemnity under this section
and the court may so order and make any further order that it sees fit.
(8) An applicant under subsection (7) shall give the Director notice of
the application and the Director is entitled to appear and be heard in person or
by counsel.
(9) On an application under subsection (7) the court may order notice
to be given to any interested person and the person is entitled to appear and be
heard in person or by counsel.
Employment Agreements With Certain Officers
Pursuant to an employment agreement with Dr. 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.
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Item 7. Exemption from Registration Claimed.
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Not applicable.
Item 8. Exhibits.
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Exhibit No. Description Incorporated by Reference/
Filed Herewith (and Sequential Page #)
---------------- ---------------------------------------- -------------------------------------------------------
Incorporated by reference to Registration Statement
4.1 Form of Common Stock Certificate on Form 10-SB filed with the Commission on November
25, 1996, File No. 1-12497.
Amended and Restated Shareholder
Rights Plan dated October 15, 1999, Incorporated by reference to the Registrant's Current
4.2 between the Registrant and Equity Report on Form 8-K filed with the Commission on
Transfer Services, Inc. November 19, 1999, File No. 1-12497.
4.3 2003 Employee Stock Purchase Plan Filed herewith
5 Opinion of Goodman and Carr LLP Filed herewith
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 Included on page 7 hereof
Item 9. Undertakings.
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(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 of 1933;
(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;
(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) shall 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
Securities Exchange Act of 1934 that are incorporated by reference in
this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
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(b) 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Cody State of Wyoming on this 28th day of August
2003.
ALTAIR NANOTECHNOLOGIES INC.
By /s/ William P. Long
------------------------------------------------
William P. Long, Chief Executive Officer
ADDITIONAL SIGNATURES AND POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose signature to this
Registration Statement appears below hereby constitutes and appoints William P.
Long and Edward H. Dickinson, and each of them, as his true and lawful
attorney-in-fact and agent, with full power of substitution, to sign on his
behalf individually and in the capacity stated below and to perform any acts
necessary to be done in order to file all amendments and post-effective
amendments to this Registration Statement, and any and all instruments or
documents filed as part of or in connection with this Registration Statement or
the amendments thereto and each of the undersigned does hereby ratify and
confirm all that said attorney-in-fact and agent, or his substitutes, shall do
or cause to be done by virtue hereof.
Signature Title Date
/s/ William P. Long Chief Executive Officer and Director August 28, 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 August 28, 2003
------------------------------------ (Principal Financial Officer and Principal
Edward H. Dickinson Accounting Officer)
/s/ James I. Golla Director August 28, 2003
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James I. Golla
/s/ George E. Hartman Director August 28, 2003
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George E. Hartman
Director
------------------------------------
Robert Sheldon
Director
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Jon Bengtson
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