-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, QL9EphU5ZaBZl4U6PrT+VFohVzhQFsgLsCZSqJz7Hd6SL5fOI0OZ9t3SPN4CfjV3 UB01Xc/V+GqYuokXvbGcJA== 0000931731-04-000180.txt : 20040730 0000931731-04-000180.hdr.sgml : 20040730 20040730164424 ACCESSION NUMBER: 0000931731-04-000180 CONFORMED SUBMISSION TYPE: S-3/A PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20040730 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ALTAIR NANOTECHNOLOGIES INC CENTRAL INDEX KEY: 0001016546 STANDARD INDUSTRIAL CLASSIFICATION: MISCELLANEOUS CHEMICAL PRODUCTS [2890] IRS NUMBER: 870372759 STATE OF INCORPORATION: A6 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-117125 FILM NUMBER: 04942773 BUSINESS ADDRESS: STREET 1: 204 EDISON WAY STREET 2: N/A CITY: RENO STATE: NV ZIP: 89502 BUSINESS PHONE: (775) 858-3744 MAIL ADDRESS: STREET 1: 204 EDISON WAY STREET 2: N/A CITY: RENO STATE: NV ZIP: 89502 FORMER COMPANY: FORMER CONFORMED NAME: ALTAIR INTERNATIONAL INC DATE OF NAME CHANGE: 19970529 FORMER COMPANY: FORMER CONFORMED NAME: ALTAIR INTERNATIONAL GOLD INC DATE OF NAME CHANGE: 19960611 S-3/A 1 altair-s3amend2.txt ALTAIR S-3 AMEND #2 As filed with the Securities and Exchange Commission on July 30, 2004 Registration No. 333-117125 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Amendment No. 2 to FORM S-3* REGISTRATION STATEMENT Under the Securities Act of 1933 Altair Nanotechnologies Inc. ------------------------------------------------------ (Exact name of registrant as specified in its charter) Canada 33-1084375 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) Rudi E. Moerck Copies to: President Altair Nanotechnologies Inc. Bryan T. Allen, Esq. 204 Edison Way Brian G. Lloyd, Esq. Reno, Nevada 89502 Stoel Rives LLP (775) 858-3750 201 South Main Street, Suite 1100 (Name, address, including zip code, Salt Lake City, Utah 84111 and telephone number, including area code, (801) 328-3131 of agent for service) Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this Registration Statement as determined by market conditions. If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: [ ] If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: [X] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering: [ ] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering: [ ] If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box: [ ] ================================================================================ *This amendment No. 2 on Form S-3 is substantively identical to Amendment No. 1 on Form 3 filed earlier today, except that it is marked (against this initial Form S-3 filed on July 2, 2004) in a manner that permits the SEC to detect changes. ================================================================================ 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. 3,600,000 Common Shares ------------------ This prospectus relates to the offering and sale of 3,600,000 common shares of Altair Nanotechnologies Inc., without par value. All of the offered shares are to be sold by persons who are existing security holders and identified in the section of this prospectus entitled "Selling Shareholders." Of the common shares offered hereby, 1,850,000 are currently owned by the selling shareholders and the remaining 1,750,000 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 July 26, 2004, the closing sale price of a common share, as reported by the Nasdaq SmallCap Market, was $1.53 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. ------------------------------------------- This prospectus shall not constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of these securities, in any state in which such offer, sale or solicitation would be unlawful prior to or absent qualification under the securities laws of such state. Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed on the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense. Dated July 30, 2004 TABLE OF CONTENTS RISK FACTORS.................................................................2 FORWARD-LOOKING STATEMENTS...................................................9 USE OF PROCEEDS..............................................................9 DILUTION....................................................................10 SELLING SHAREHOLDERS........................................................10 PLAN OF DISTRIBUTION........................................................12 DESCRIPTION OF OFFERED SECURITIES...........................................15 LEGAL MATTERS...............................................................15 EXPERTS.....................................................................15 INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.............................15 WHERE YOU CAN FIND MORE INFORMATION.........................................16 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 and incorporated by reference 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. - -------------------------------------------------------------------------------- To date, we have not generated substantial revenues from operations. As of March 31, 2004, we have generated $480,641 of revenues from our titanium and nanoparticle processing technology and $28,270 from the use of our centrifugal jig in consulting contracts. We have not generated any revenue from our Tennessee mineral property. We believe that our titanium and nanoparticle processing technology is the only of our lines of business that may generate significant revenues in the foreseeable future. We have no sales or other commitments with respect to substantial revenues from our titanium and nanoparticle processing technology and can provide no assurance that we will generate substantial revenues. We may continue to experience significant losses from operations. - -------------------------------------------------------------------------------- We have experienced a loss from operations in every fiscal year since our inception. Our losses from operations in 2003 were $5,785,210, and our losses from operations in the quarter ended March 31, 2004 were $1,710,757. We will continue to experience a net operating loss until, and if, one of the applications of our titanium and nanoparticle processing technology begins generating significant revenues. Even if any or all applications of the titanium and nanoparticle processing technology 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. Our patents and other protective measures may not adequately protect our proprietary intellectual property, and we may be infringing on the rights of others. - -------------------------------------------------------------------------------- We regard our intellectual property, particularly our proprietary rights in our titanium and nanoparticle processing technology, as critical to our success. We have received various patents, and filed other patent applications, for various applications and aspects of our titanium and nanoparticle processing technology and other intellectual property. In addition, we generally enter into confidentiality and invention agreements with our employees and consultants. Such patents and agreements and various other measures we take to protect our intellectual property from use by others may not be effective for various reasons, including the following: o Our pending patent applications may not be granted for various reasons, including the existence of similar patents or defects in the applications; o The patents we have been granted may be challenged, invalidated or circumvented because of the pre-existence of similar patented or unpatented intellectual property rights or for other reasons; 2 o Parties to the confidentiality and invention agreements may have such agreements declared unenforceable or, even if the agreements are enforceable, may breach such agreements; o The costs associated with enforcing patents, confidentiality and invention agreements or other intellectual property rights may make aggressive enforcement cost prohibitive; o Even if we enforce our rights aggressively, injunctions, fines and other penalties may be insufficient to deter violations of our intellectual property rights; and o Other persons may independently develop proprietary information and techniques that, although functionally equivalent or superior to our intellectual proprietary information and techniques, do not breach our patented or unpatented proprietary rights. Because the value of our company and common shares is rooted primarily in our proprietary intellectual property rights, our inability to protect our proprietary intellectual property rights or gain a competitive advantage from such rights could have a material adverse effect on our business. In addition, we may inadvertently be infringing on the proprietary rights of other persons and may be required to obtain licenses to certain intellectual property or other proprietary rights from third parties. Such licenses or proprietary rights may not be made available under acceptable terms, if at all. If we do not obtain required licenses or proprietary rights, we could encounter delays in product development or find that the development or sale of products requiring such licenses is foreclosed. We have a substantial number of warrants and options outstanding and may issue a significant number of additional shares upon exercise thereof. - -------------------------------------------------------------------------------- As of July 15, 2004, there were outstanding warrants to purchase up to 5,134,371 common shares and options to purchase up to 3,721,700 common shares. The existence of such warrants and options, and any additional warrants and options we issue in the future, may hinder future equity offerings, and the exercise of such warrants and options may further dilute the interests of all shareholders. The common shares issuable upon the exercise of substantially all of our outstanding warrants are subject to resale registration statements, and all of our options are subject to a registration statement on Form S-8. Accordingly, future resale of the common shares issuable on the exercise of such warrants and options may generally occur immediately after exercise and may have an adverse effect on the prevailing market price of the common shares. We may not be able to raise sufficient capital to meet future obligations. - -------------------------------------------------------------------------------- As of March 31, 2004, we had $11,490,218 in cash and have received additional capital since that date upon the exercise of outstanding warrants and options to purchase our common shares. We expect this capital, together with revenue we are entitled to receive under existing contracts, will be sufficient to fund our ongoing operations until at least December 31, 2005 but are uncertain about our capital needs after that date. In addition, we may use our existing capital sooner than projected in connection with an unanticipated transaction, litigation or another unplanned event. We may also use more capital than projected as we expand our research, development and marketing efforts. Unless we experience a significant increase in revenue, we will need to raise significant amounts of additional capital in the future in order to sustain our ongoing operations, continue unfinished testing and additional development work and, if certain of our products have been commercialized, produce and market such products. 3 We may not be able to obtain the amount of additional capital needed or may be forced to pay an extremely high price for capital. Factors affecting the availability and price of capital may include the following: o market factors affecting the availability and cost of capital generally; o the price, volatility and trading volume of our common shares. o our financial results, particularly the amount of revenue we are generating from operations; o the amount of our capital needs; o the market's perception of nanotechnology and/or chemicals stocks; o the economics of projects being pursued; and o the market's perception of our ability to generate revenue through the licensing or use of our nanoparticle technology for pharmaceutical, pigment production, nanoparticle production and other uses. 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. Our competitors have more resources than we do, which may give them a competitive advantage. - -------------------------------------------------------------------------------- We have limited financial, managerial 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 be able to exploit acquisition, development and joint venture opportunities more rapidly, easily or thoroughly than we can. In addition, potential customers may chose to do business with our more established competitors, without regard to the comparative quality of our products, because of their perception that our competitors are more stable, are more likely to complete various projects, are more likely to continue as a going concern and lend greater credibility to any joint venture. We may be unable to exploit any potential pharmaceutical application of our titanium and nanoparticle processing technology. - -------------------------------------------------------------------------------- We do not presently have the technical or financial resources to conduct clinical tests on, 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 a pharmaceutical company under which such company would pay a fixed or contingent 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; 4 o clinical tests conducted by such pharmaceutical company would have to indicate that the pharmaceutical use of our technology is safe, technically viable and financially viable; o such pharmaceutical company would have to apply for and obtain FDA approval of the pharmaceutical use of our technology, or any related products, which would involve extensive additional testing; and o such pharmaceutical company would have to successfully market the product incorporating our technology. As of the date of this prospectus, we have not entered into an evaluation license or similar agreement with a pharmaceutical company. We may never enter into any such license or agreement. If we do enter into such a license or similar agreement, we may receive some payments in various stages of the testing and evaluation of the pharmaceutical application of our technology. We do not, however, expect to receive significant ongoing revenue unless and until an end product incorporating the technology goes to market. We may not benefit from licenses to use our technology for titanium dioxide pigment production. - -------------------------------------------------------------------------------- Because of our relatively small size and limited resources, we do not plan to use our titanium processing technology for large-scale production of titanium dioxide pigments. We have entered into discussions with various minerals and materials companies about licensing our technology to such entities for large-scale production of titanium dioxide pigments. To date, we have entered into a license agreement with only one such entity, Western Oil Sands, Inc. Under our license agreement with Western Oil Sands, we expect to receive a limited amount of revenue during the early testing and development phase of the agreement but will receive significant royalties only if Western Oil Sands and licensees of Western Oil Sands determine in their discretion, after testing at a demonstration plant, to construct or license the construction of a full-scale titanium pigment production facility. If we enter into other license agreements, we expect that, as with the Western Oil Sands agreement, we would not receive significant revenues from such licenses unless and until feasibility testing yielded positive results and the licensee determined, in its discretion, to construct and operate a titanium pigment production facility. We may not be able to sell nanoparticles produced using the titanium and nanoparticle processing technology. - -------------------------------------------------------------------------------- We plan to use the titanium and nanoparticle processing technology to produce titanium dioxide nanoparticles. Titanium dioxide nanoparticles and other products we intend to initially produce with the titanium and nanoparticle processing technology generally must be customized for a specific application working in cooperation with the end user. We are still testing and customizing our titanium dioxide nanoparticle products for various applications and have no long-term agreements with end users to purchase any of our titanium dioxide nanoparticle products. We may be unable to recoup our investment in the titanium and nanoparticle processing technology and titanium and nanoparticle processing equipment for various reasons, including the following: o products being developed by our potential customers that could use our nanoparticle products, most of which are in the research or 5 development stage, may not be completed or, if completed, may not be readily accepted by expected end users; o even if our potential customers complete development of and find a market for their products, such potential customers may determine to use nanoparticle products of our competitors for various reasons, including: o we may be unable to customize our titanium dioxide nanoparticle products to meet the distinct needs of potential customers; o potential customers may purchase from competitors because of perceived or actual quality or compatibility differences; and o our marketing and branding efforts may be insufficient to attract a sufficient number of customers; and o because of our limited funding, we may be unable to continue our development efforts until a strong market for nanoparticles develops. Our costs of production may be too high to permit profitability. - -------------------------------------------------------------------------------- We have not produced any pigments, nanoparticles or other products using our titanium and nanoparticle processing technology and equipment on a commercial basis. Our actual costs of production, or those of our licensees, 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 or our licensees. In addition, even if initial costs are as anticipated, the titanium and nanoparticle 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 may be unable to use, sell, license or otherwise dispose of our centrifugal jig or our Tennessee mineral property in a manner that enhances the value of our common shares. - -------------------------------------------------------------------------------- We have determined to limit our expenditures on our centrifugal jig and Tennessee mineral property to the minimum necessary to preserve their core value for the short term. We are reviewing the viability and desirability of various strategic alternatives for our centrifugal jig and our Tennessee mineral property, including their possible sale, use in a joint venture, spin-off to shareholders or abandonment. We can not provide any assurance that we will be successful in using or disposing of such assets in a manner that provides value to shareholders. In fact, costs associated with a disposition or other transaction may exceed any value achieved from such transaction. We have issued a $3,000,000 note to secure the purchase of the land and the building where our titanium and nanoparticle processing assets are located. - -------------------------------------------------------------------------------- In August 2002, we entered into a purchase and sale agreement with BHP Minerals International Inc. to purchase the land, building and fixtures in Reno, Nevada where our titanium and nanoparticle processing assets are located. In 6 connection with this transaction, 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 primary operating assets and offices, causing a significant disruption in our business. Operations using the titanium and nanoparticle processing technology, our centrifugal jig or our Tennessee mineral property may lead to substantial environmental liability. - -------------------------------------------------------------------------------- Virtually any prior or future use of the titanium and nanoparticle processing technology, our centrifugal jig or our Tennessee mineral property is 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. Certain of our experts and directors reside in Canada and may be able to avoid civil liability. - -------------------------------------------------------------------------------- We are a Canadian corporation, and three of our directors and our Canadian legal counsel are residents of Canada. As a result, investors may be unable to effect service of process upon such persons within the United States and may be unable to enforce court judgments against such persons predicated upon civil liability provisions of the U.S. securities laws. It is uncertain whether Canadian courts would (i) enforce judgments of U.S. courts obtained against us or such directors, officers or experts predicated upon the civil liability provisions of U.S. securities laws or (ii) impose liability in original actions against us or our directors, officers or experts predicated upon U.S. securities laws. We are dependent on key personnel. - -------------------------------------------------------------------------------- Our continued success will depend to a significant extent on the services of Dr. Rudi Moerck, our President, Doug Ellsworth, our Senior Vice President and the senior vice president of our new life sciences division that we intend to recruit. Our failure to recruit a competent life sciences Vice President, or the loss or unavailability of Dr. Moerck or Mr. Ellsworth could have a material adverse effect on our business and the market price of our common shares. We do not carry key man insurance on the lives of any of our personnel and do not have agreements requiring any of them to remain with our company. We may issue substantial amounts of additional shares without stockholder approval. - -------------------------------------------------------------------------------- Our articles of incorporation authorize the issuance of an unlimited number of common shares that may be issued without any action or approval by our stockholders. In addition, we have two stock option plans and a stock purchase plan that 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. 7 The market price of our common shares may increase or decrease dramatically at any time for any or no apparent reason. - -------------------------------------------------------------------------------- The market price of our common shares may be highly volatile. Our stock price may change dramatically as the result of announcements of our quarterly results, new products or innovations by us or our competitors, uncertainty regarding the viability of the titanium and nanoparticle processing technology, significant customer contracts, significant litigation or other factors or events that would be expected to affect our business, financial condition, results of operations and future prospects. In addition, the market price for our common shares may be affected by various factors not directly related to our business, including the following: o Intentional manipulation of our stock price by existing or future shareholders; o A single acquisition or disposition, or several related acquisitions or dispositions, of a large number of our shares; o The interest of the market in our business sector, without regard to our financial condition, results of operations or business prospects; o Positive or negative statements or projections about our company, or our industry, by analysts, stock gurus and other persons; o The adoption of governmental regulations or government grant programs and similar developments in the United States or abroad that may enhance or detract from our ability to offer our products and services or affect our cost structure; o Economic and other external market factors, such as a general decline in market prices due to poor economic indicators or investor distrust; and o Speculation by short sellers of our common shares or other persons who stand to profit from a rapid increase or decrease in the price of our common shares. We may be delisted from the Nasdaq SmallCap Market. - -------------------------------------------------------------------------------- Our listing on the Nasdaq SmallCap Market is conditioned upon our compliance with the NASD's continued listing requirements for such market, including the $1.00 per share minimum bid requirement. During the first nine months of 2003, the market price for our common shares fluctuated in a price range that frequently dipped below $1.00, and the market price for our common shares remained below $1.00 during much of 2002. If the market price for our common shares falls and remains below $1.00 per share for an extended period of time, we may be delisted from the Nasdaq SmallCap Market. Delisting from the Nasdaq SmallCap Market would likely have a significant negative impact on the trading price, volume and marketability of our common shares. We have never declared a cash dividend and do not intend to declare a cash dividend in the foreseeable future. - -------------------------------------------------------------------------------- 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. 8 Actions by our shareholders may harm our business or the market price of our common shares. - -------------------------------------------------------------------------------- In the past some shareholders have threatened proxy contests, made shareholder proposals, made demands of management, threatened litigation and filed press releases relating to Altair and its management. To the extent actions by shareholders merit a response, we may be required to use scarce human and capital resources responding to shareholder actions rather than pursuing our business goals. The diversion of resources would likely be substantial in the case of litigation or a proxy contest. In addition, the market price for our common shares and our ability to enter into significant business transactions may be adversely affected by the existence and content of shareholder action. We can provide no assurance that our shareholders will not take actions and make claims or representations, whether or not true, that will adversely affect our ability to conduct our business and the market price of our common shares. 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 uncertainties regarding our ability to protect and exploit our intellectual property. 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. 9 DILUTION Our unaudited net tangible book value at March 31, 2004 was $14,849,571, or approximately $0.31 per each of the 48,672,640 common shares then outstanding. Because all proceeds of this offering will be paid directly to the selling shareholders, our net tangible book value per share immediately after the offering will be the same as it was immediately before the offering. Accordingly, new investors who purchase shares may suffer an immediate dilution of the difference between the purchase price per share and approximately $0.31 per share. As of July 15, 2004, there were outstanding warrants and options to purchase up to 8,856,071 common shares. The existence of these options and warrants may hinder future equity offerings by us, and the exercise of those warrants and options may have an adverse effect on the prevailing market price of the common shares. Furthermore, the holders of the options and warrants rights may exercise them at a time when we would otherwise be able to obtain additional equity capital on terms more favorable to us. 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 (i) in a private placement of 1,750,000 common shares and 1,750,000 warrants to purchase common shares that we completed on March 31, 2003; and (ii) in a private placement of 100,000 common shares that we completed as of June 4, 2004. 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 follows sets forth, as of July 15, 2004: 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 July 15, 2004, are treated as outstanding for purposes of computing each selling shareholder's percentage ownership of outstanding common shares. 10
Shares Beneficially Owned Beneficial Ownership upon Completion of the Prior to Offering Offering(1) --------------------------------- ------------------------------ Beneficial Owner Number of Number of Shares Being Number of Shares Percent(2) Offered Shares Percent(2) - ------------------------------ ---------------- ------------- -------------- -------------- ------------ Toyota on Western, Inc. 4,659,477(3) 9.0% 3,247,058(3) 1,412,419 (3) 2.7% Louis Schnur** Alan S. Moore 329,412(4) * 58,824 270,588(4) * Gerald W. Simonson 294,118(5) * 294,118 --(5) -- All Selling Shareholders as 5,283,007 10.2% 3,600,000 1,683,007 3.3% a group
- --------------------- * Represents less than one percent of the outstanding common shares. ** The individual has authority to make voting and investment decisions with respect to the securities of Altair held by the entity listed above the individual's name. (1) Assuming the sale by each selling shareholder of all of the shares offered hereunder by the 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) 48,757,974, which is the number of common shares actually outstanding on July 15, 2004, and (b) common shares subject to exercisable warrants with respect to which the percentage is calculated. (3) The shares beneficially owned by the selling shareholder prior to the offering include 2,759,022 common shares issuable by us upon the exercise of warrants held by the selling shareholder, 1,750,000 of which may be offered pursuant to this prospectus. (4) The shares beneficially owned by the selling shareholder prior to the offering include 29,412 common shares issuable by us upon the exercise of warrants held by the selling shareholder, all of which may be offered pursuant to this prospectus. (5) The shares beneficially owned by the selling shareholder prior to the offering include 147,059 common shares issuable by us upon the exercise of warrants held by the selling shareholder, all of which may be offered pursuant to this prospectus. We believe that voting and investment power with respect to shares shown as beneficially owned by selling shareholders that are entities resides with the individuals identified in the preceding table. There can be no assurance that any of the shares offered hereby will be sold. March 31, 2003 Private Placement of Shares and Warrants Toyota on Western, Inc. acquired 1,750,000 common shares and 1,750,000 Series 2003B warrants in a private placement that closed on March 31, 2003. The Series 2003 warrants were subsequently amended in order to clarify the expiration date. Each Series 2003B Warrant permits the holder to acquire one common share at an exercise price of $1.00 per share at any time prior to the 11 earlier to occur of (a) the fifth anniversary of the issue date, and (b) subsequent to the registration of the re-sale of the common shares issuable upon the exercise thereof, the 180th day following the date on which the closing price of the common shares on our principal trading market has equaled or exceeded U.S. $4.00 for 10 days, whether or not consecutive. The Series 2003B 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 2003B Warrants also include a provision prohibiting their exercise to the extent that, giving effect to the 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. Toyota on Western subsequently transferred its interest in 147,059 of the common shares and 147,059 of the Series 2003B warrants purchased on March 31, 2003 to Gerald Simonson and an additional 29,412 of the common shares and 29,412 of the Series 2003B warrants purchased on March 31, 2003 to Alan Moore. The shares that may be offered pursuant to this prospectus include all of the common shares issued in the March 31, 2003 private placement and the common shares issuable upon the exercise of all of the Series 2003B Warrants issued in the March 31, 2003 private placement. In connection with a settlement of various claims by the Toyota on Western, we agreed to register the resale of the common shares described in this paragraph under the Securities Act. June 2004 Settlement Toyota on Western acquired 100,000 common shares in a private placement on June 5, 2004 as part of a settlement of various issues and claims made on Altair, by Toyota on Western and Louis Schnur, the sole owner of Toyota on Western. The shares that may be offered pursuant to this prospectus include such common shares. As part of the settlement agreement, we agreed to register the resale of the 100,000 common shares described in this paragraph under the Securities Act. PLAN OF DISTRIBUTION Methods of Distribution The shares offered by this prospectus may be sold from time to time by the selling shareholders, who consist of the persons and entities named as "selling shareholders" above and those persons' pledgees, donees, transferees or other successors in interest. The selling shareholders may sell the offered shares on the Nasdaq SmallCap Market, or otherwise, at market prices or at negotiated prices. They may sell shares by one or a combination of the following: o a block trade in which a broker or dealer so engaged will attempt to sell the offered shares as agent, but may position and resell a portion of the block as principal to facilitate the transaction; o purchases by a broker or dealer as principal and resale by the broker or dealer for its account pursuant to this prospectus; o ordinary brokerage transactions and transactions in which a broker solicits purchasers; 12 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 be profitable only if the price of the common shares declines. Purchases to cover short sales may, however, increase the demand for the common shares and have the effect of raising or maintaining the price of the common shares. In making sales, brokers or dealers engaged by the selling shareholders may arrange for other brokers or dealers to participate. Brokers or dealers will receive commissions or discounts from such selling shareholders in amounts to be negotiated prior to the sale. Such selling shareholders and any broker-dealers that participate in the distribution may be deemed to be "underwriters" within the meaning of Section 2(11) of the Securities Act of 1933, and any proceeds or commissions received by them, and any profits on the resale of shares sold by broker-dealers, may be deemed to be underwriting discounts and commissions. If a selling shareholder notifies us that a material arrangement has been entered into with a broker-dealer for the sale of shares through a block trade, special offering, exchange distribution or secondary distribution or a purchase by a broker or dealer, we will file a prospectus supplement, if required pursuant to the Securities Act of 1933, setting forth: o the name of each of the participating broker-dealers, o the number of shares involved, o the price at which the offered shares were sold, o the commissions paid or discounts or concessions allowed to the broker-dealers, where applicable; 13 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. Determination of Offering Price The offering price of the common shares offered by this prospectus is being determined by each of the selling shareholders on a transaction-by-transaction basis based upon factors that the selling shareholder considers appropriate. The offering prices determined by the selling shareholders may, or may not, relate to a current market price but should not, in any case, be considered an indication of the actual value of the common shares. We do not have any influence over the price at which any selling shareholders offer or sell the common shares offered by this prospectus. Passive Market Making We have advised the selling shareholders that while they are engaged in a distribution of the shares offered pursuant to this prospectus, they are required to comply with Regulation M promulgated under the Securities Exchange Act of 1934, as amended. With certain exceptions, Regulation M precludes the selling shareholders, any affiliate purchasers and any broker-dealer or other person who participate in the distribution from bidding for or purchasing, or attempting to induce any person to bid for or purchase, any security that is subject to the distribution until the entire distribution is complete. Regulation M also restricts bids or purchases made in order to stabilize the price of a security in connection with the distribution of that security. We do not intend to engage in any passive market making or stabilization transactions during the course of the distribution described in this prospectus. All of the foregoing may affect the marketability of the shares offered pursuant to this prospectus. General We are paying the expenses incurred in connection with preparing and filing this prospectus and the registration statement to which it relates, other than selling commissions. In addition, in the event a selling shareholder effects a short sale of common shares, this prospectus may be delivered in connection with such short sale and the shares offered by this prospectus may be used to cover such short sale. To the extent, if any, that a selling shareholder may be considered an "underwriter" within the meaning of the Securities Act, the sale of the shares by it shall be covered by this prospectus. We have not retained any underwriter, broker or dealer to facilitate the offer or sale of the offered shares offered hereby. We will pay no underwriting commissions or discounts in connection therewith, and we will not receive any proceeds from the sale of the offered shares. We have advised the selling shareholders that, to the extent necessary to comply with governing state securities laws, the offered securities should be offered and sold in such jurisdictions only through registered or licensed brokers or dealers. In addition, we have advised the selling shareholders that the offered securities may not be offered or sold in any state unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available with respect to such offers or sales. 14 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 the common shares may be acquired by the selling shareholders, see the section entitled "Selling Shareholders" above. LEGAL MATTERS The validity of the shares being offered hereby is being passed upon for us by Goodman and Carr LLP, Ontario, Canada. EXPERTS The consolidated financial statements incorporated in this prospectus by reference from the Company's Annual Report on Form 10-K for the year ended December 31, 2003 have been audited by Deloitte & Touche LLP, independent registered public accounting firm, as stated in their report, which is incorporated herein by reference, and have been so incorporated in reliance upon the report of such firm given upon their authority as experts in accounting and auditing. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE As permitted by SEC rules, this prospectus does not contain all of the information that prospective investors can find in the Registration Statement or the exhibits to the Registration Statement. The SEC permits us to incorporate by reference into this prospectus information filed separately with the SEC. The information incorporated by reference is deemed to be part of this prospectus, except as superseded or modified by information contained directly in this prospectus or in a subsequently filed document that also is (or is deemed to be) incorporated herein by reference. This prospectus incorporates by reference the documents set forth below that we (File No. 1-12497) have previously filed with the SEC pursuant to the Securities Exchange Act of 1934, as amended. These documents contain important information about the Company and its financial condition. (a) Our Annual Report on Form 10-K for the year ended December 31, 2003, filed with the SEC on March 26, 2004. (b) Our Quarterly Report on Form 10-Q for the quarter ended March 31, 2004 filed with the SEC on May 14, 2004. (c) Our Current Report on Form 8-K filed with the SEC on May 20, 2004. 15 (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. WHERE YOU CAN FIND MORE INFORMATION We file annual, quarterly, and current reports, proxy statements, and other information with the SEC. You may read and copy any reports, statements, or other information that we file at the SEC's Public Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the Public Reference Room. The SEC also maintains an Internet site (http://www.sec.gov) that makes available to the public reports, proxy statements, and other information regarding issuers, such as us, that file electronically with the SEC. In addition, we will provide, without charge, to each person to whom this prospectus is delivered, upon written or oral request of any such person, a copy of any or all of the foregoing documents (other than exhibits to such documents which are not specifically incorporated by reference in such documents). Please direct written requests for such copies to Altair Nanotechnologies Inc. at 204 Edison Way, Reno, Nevada 89502, U.S.A., Attention: Ed Dickinson, Chief Financial Officer. Telephone requests may be directed to the office of the Chief Financial Officer at (775) 858-3750. Our common shares are quoted on the Nasdaq SmallCap Market. Reports, proxy statements and other information concerning the Company can be inspected and copied at the Public Reference Room of the National Association of Securities Dealers, 1735 K Street, N.W., Washington, D.C. 20006. 16
====================================================== ==================================================== 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 3,600,000 Common Shares securities in any jurisdiction where it is unlawful. The information in this prospectus is current as of July 29, 2004. _______________________ ALTAIR NANOTECHNOLOGIES INC. 3,600,000 COMMON SHARES --------------- Prospectus --------------- July 30, 2004 ====================================================== ====================================================
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 $1,113 NASD registration fees $1,000 Accounting fees and expenses $5,000 Legal fees and expenses $20,000 Blue Sky fees and expenses $3,000 Printing Expenses $1,000 Miscellaneous Expenses $18,887 Total: $50,000 Item 15. Indemnification of Directors and Officers - -------------------------------------------------- Our Bylaws The Registrant's Bylaws provide that, to the maximum extent permitted by law, the Registrant shall indemnify a director or officer of the Registrant, a former director or officer of the Registrant, or another individual who acts or acted at the Registrant's request as a director or officer, or an individual acting in a similar capacity, of another entity, against all costs, charges and expenses, including any amount paid to settle an action or satisfy a judgment, reasonably incurred by the individual in respect of any civil, criminal, administrative, investigative or other proceeding in which the individual is involved because of that association with the Registrant or other entity. In addition, the Registrants Bylaws require the Registrant to advance monies to an indemnifiable officer, director or similar person in connection with threatened or pending litigation. The Canada Business Corporations Act Section 124 of the Canada Business Corporations Act provides as follows with respect to the indemnification of directors and officers: (1) A corporation may indemnify a director or officer of the corporation, a former director or officer of the corporation or another individual who acts or acted at the corporation's request as a director or officer, or an individual acting in a similar capacity, of another entity, 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. II-2 (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. Other Indemnification Information Indemnification may be granted pursuant to any other agreement, bylaw, or vote of shareholders or directors. In addition to the foregoing, the Registrant maintains insurance through a commercial carrier against certain liabilities which may be incurred by its directors and officers. The foregoing description is necessarily general and does not describe all details regarding the indemnification of officers, directors or controlling persons of the Registrant. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions or otherwise, the Registrant has been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act, and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. The rights of indemnification described above are not exclusive of any other rights of indemnification to which the persons indemnified may be entitled under any bylaw, agreement, vote of stockholders or directors or otherwise. II-3 Item 16. Exhibits. The following exhibits required by Item 601 of Regulation S-K promulgated under the Securities Act have been included herewith or have been filed previously with the SEC as indicated below.
Exhibit No. Description Incorporated by Reference/ Filed Herewith (and Sequential Page #) - ---------------- ---------------------------------------- ------------------------------------------------------- 4.1 Articles of Continuance Incorporated by reference to the Current Report on Form 8-K filed with the SEC on July 18, 2002. 4.2 Bylaw No. 1 Incorporated by reference to the Current Report on Form 8-K filed with the SEC on July 18, 2002. 4.3 Form of Common Share Certificate Incorporated by reference to Registration Statement on Form 10-SB filed with the SEC on November 25, 1996, File No. 1-12497. 4.3 Form of Series 2003B Warrant, as Incorporated by reference to the Company's amended Registration Statement on Form S-3, File No. 333-117125, filed with the SEC on July 2, 2004. 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 SEC on November 19, between the Company and Equity 1999, File No. 1-12497. Transfer Services, Inc. 5 Opinion of Goodman and Carr LLP as to Filed herewith legality of securities offered 10.1 Settlement Agreement dated June 4, Filed herewith 2004 with Toyota On Western, Inc. and Louis Schnur [Portions of this Exhibit have been omitted pursuant to Rule 24b-2, are filed separately with the SEC and are subject to a confidential treatment request.] 10.2 Registration Rights Agreement dated Filed herewith June 4, 2004 with Toyota On Western, Inc. 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 the signature page hereof. - -----------------------
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, 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; 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 Registration Statement is on Form S-3, Form S-8 or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the 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. (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 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 of 1933 may be permitted to directors, officers and controlling persons of the Registrant, the Registrant has been advised 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 II-5 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. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Reno, State of Nevada, on July 30, 2004. ALTAIR NANOTECHNOLOGIES INC By /s/ Rudi E. Moerck ------------------------------------- Rudi E. Moerck President ADDITIONAL SIGNATURES Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ Rudi E. Moerck President and Director - ------------------------------------------------(Principal Executive Office and authorized Rudi E. Moerck representative of the Registrant in the United States) July 30, 2004 /s/ Edward Dickinson - ----------------------------------------------- Chief Financial Officer and Secretary Edward Dickinson (Principal Financial and Accounting Officer) July 30, 2004 /s/ Jon Bengtson* Chairman of the Board - ----------------------------------------------- Director July 30, 2004 Jon Bengtson /s/ Michel Bazinet* Director July 30, 2004 - ----------------------------------------------- Michel Bazinet /s/ James Golla* Director July 30, 2004 - ----------------------------------------------- James Golla /s/ George Hartman* Director July 30, 2004 - ----------------------------------------------- George Hartman /s/ Christopher Jones* Director July 30, 2004 - ----------------------------------------------- Christopher Jones
II-6
/s/ David King* Director July 30, 2004 - ----------------------------------------------- David King By: /s/ Rudi E. Moerck ---------------------------------- Rudi E. Moerck, Attorney-In-Fact
II-7 EXHIBIT INDEX The following exhibits required by Item 601 of Regulation S-K promulgated under the Securities Act have been included herewith or have been filed previously with the SEC as indicated below.
Exhibit No. Description Incorporated by Reference/ Filed Herewith (and Sequential Page #) - ---------------- ---------------------------------------- ------------------------------------------------------- 4.1 Articles of Continuance Incorporated by reference to the Current Report on Form 8-K filed with the SEC on July 18, 2002. 4.2 Bylaw No. 1 Incorporated by reference to the Current Report on Form 8-K filed with the SEC on July 18, 2002. 4.3 Form of Common Share Certificate Incorporated by reference to Registration Statement on Form 10-SB filed with the SEC on November 25, 1996, File No. 1-12497. 4.3 Form of Series 2003B Warrant, as Incorporated by reference to the Company's amended Registration Statement on Form S-3, File No. 333-117125, filed with the SEC on July 2, 2004. 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 SEC on November 19, between the Company and Equity 1999, File No. 1-12497. Transfer Services, Inc. 5 Opinion of Goodman and Carr LLP as to Filed herewith legality of securities offered 10.1 Settlement Agreement dated June 4, Filed herewith 2004 with Toyota On Western, Inc. and Louis Schnur [Portions of this Exhibit have been omitted pursuant to Rule 24b-2, are filed separately with the SEC and are subject to a confidential treatment request.] 10.2 Registration Rights Agreement dated Filed herewith June 4, 2004 with Toyota On Western, Inc. 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 the signature page hereof. - -----------------------
II-8 EX-5 2 ex-5.txt GOLDMAN CARR OPIN July 16, 2004 The Board of Directors of Altair Nanotechnologies Inc. 1725 Sheridan Avenue, Suite 140 Cody, Wyoming 82414 Dear Sirs/Mesdames: Re: Registration Statement on Form S-3 We have acted as Canadian counsel to Altair Nanotechnologies Inc., a corporation incorporated under the Canada Business Corporations Act (the "Corporation"), in connection with the preparation of the Corporation's Registration Statement on Form S-3, File No. 333-117125, (the "Registration Statement") for the registration under the Securities Act of 1933, as amended, of up to 3,600,000 common shares (the "Common Shares") of the Corporation for sale from time to time by the selling shareholders identified in the Registration Statement. In connection with the opinions hereinafter expressed, we have conducted or caused to be conducted such searches as we have considered necessary, advisable or relevant. We have also prepared or examined all such documents, corporate records of the Corporation, certificates of officers of the Corporation, and other materials as we considered advisable or relevant. We have also examined such statutes, corporate and public records and other documents including certificates or statements of public officials, and considered such matters of law, as we have deemed necessary as a basis for the opinions hereinafter expressed. For the purposes of the opinions set forth below, we have assumed, with respect to all documents examined by us, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to authentic or original documents of all documents submitted to us as certified, conformed, telecopied or photostatic copies and the legal capacity at all relevant times of any natural person signing any such document. We are solicitors qualified to carry on the practice of law in the Province of Ontario only. We express no opinion as to any laws, or matters governed by any laws, other than the laws of the Province of Ontario and the federal laws of Canada applicable to the Corporation as such laws exist on the date hereof. Based upon and subject to the foregoing, we are of the opinion that: 1. the 1,875,000 Common Shares described in the Registration Statement as being issued and outstanding have been legally issued as fully paid and non-assessable shares; and 2. assuming such Common Shares are issued in compliance with the terms and conditions of the governing warrants, including receipt of the exercise price specified in the governing warrants, 1,750,000 Common Shares described in the Registration Statement as being issuable upon the exercise of warrants to purchase common shares, will, when issued, be legally issued as fully paid and non-assessable shares. 1 We hereby consent to the reference to our firm under "Legal Matters" in the prospectus which constitutes a part of the Registration Statement and to the filing of this opinion as an exhibit to the Registration Statement. Yours very truly, /s/ Goodman and Carr LLP - ------------------------- JG:jm 2 EX-10.1 3 ex10-1.txt SETTLEMENT AGREE [Certain portions of this exhibit have been omitted pursuant to Rule 24b-2 and are subject to a confidential treatment request. Copies of this exhibit containing the omitted information have been filed separately with the Securities and Exchange Commission. The omitted portions of this document are marked with a ***.] SETTLEMENT AGREEMENT AND MUTUAL RELEASE This Settlement Agreement and Mutual Release (this "Agreement") is entered into as of June 4, 2004 (the "Effective Date"), by and among Altair Nanotechnologies, Inc., a corporation organized under the laws of Canada with principal offices in Reno, Nevada ("Altair"), on the one hand; and Louis Schnur, a natural person who is a resident of Chicago, Illinois ("Schnur"); and Toyota on Western, Inc., a corporation organized under the laws of the State of Illinois ("Toyota"), on the other hand. Schnur, Toyota and their affiliates (as defined by Rule 405 of the Securities Act of 1933, as amended) are collectively referred to herein as the "Schnur Parties." For the purpose of resolving the issues between or among the parties, Altair, Toyota and Schnur hereby agree as follows: 1. Issuance of Additional Stock. Not later than 15 days following the date of this Agreement, Altair shall issue 100,000 shares of Altair common stock to Toyota (the "Settlement Shares"). 2. Registration of Stock. Not later than 30 days following the date of this Agreement and pursuant to the terms of the Registration Rights Agreement attached as Exhibit A, Altair shall file a registration statement registering the re-sale of (1) the Settlement Shares and (2) the 1,750,000 shares of Altair common stock and also the shares of Altair common stock underlying warrants (the "Warrants") represented by Warrant Certificate Nos. 2003B-1, 2003B-2 or 2003B-3 acquired by Toyota from Altair on March 31, 2003 in a private placement and currently held by Toyota or Toyota's transferees. 3. Amendment of the Warrant. Contemporaneously with the execution of this Agreement, the parties shall execute the First Amendment to the Warrant in substantially the form attached as Exhibit B with respect to each of the Warrants. 4. *** 5. Communications. The Schnur Parties agree for a period of one year from the date of this Agreement as follows: 5.1. Except as disclosure shall be required by law, the Schnur Parties shall not, directly or indirectly, issue any Public Communication (as defined below) regarding Altair or its present or former officers, directors, or business operations. "Public Communication" means (a) any press release, Internet posting, or radio or television announcement or (b) any other written, recorded or verbal communication that is reasonably likely to be seen or heard by more than five individuals, including but not limited to mailings, facsimile distributions and email distributions. 5.2. The Schnur Parties shall not, directly or indirectly, take any steps to pursue a proxy contest for the election of any person not nominated by Altair to the Altair board of directors; 5.3. Except as disclosure may be required by law, the Schnur Parties shall not, directly or indirectly, submit any communications or complaints to the SEC or any self regulatory organization relative to Altair unless the Schnur Party seeking to submit the communication or complaint to the SEC has first reported the communication or complaint to Altair's Audit Committee and given Altair's Audit Committee 90 days to address the communication or complaint; 5.4. Except as disclosure may be required by law and subject to the notice requirement of Section 5.3 above, the Schnur Parties shall not, directly or indirectly, send faxes or other written communications to Altair's officers, directors or legal counsel more frequently than once every 90 days. 6. Confidentiality. The provisions of Exhibit C to this Agreement are incorporated herein by reference. 7. Release by Altair. 7.1. Except as otherwise provided in Section 7.4 below, Altair hereby releases and forever discharges the "Schnur Releasees" consisting of Schnur, Toyota and their current and former respective lenders, shareholders, parents, subsidiaries, affiliates, divisions, officers, directors, owners, associates, predecessors, successors, heirs, assigns, agents, partners, employees, insurers, representatives, lawyers, and all persons acting by, through, under, or in concert with them, or any of them, of and from any and all manner of action or actions, cause or causes of action, in law or in equity, and any suits, debts, liens, contracts, agreements, promises, liabilities, claims, demands, damages, losses, costs, or expenses, of any nature whatsoever, known or unknown, fixed or contingent (the "Claims"), that Altair now has or may hereafter have against the Schnur Releasees, or any of them, by reason of any matter, cause, or thing whatsoever from the beginning of time to the date hereof, including, without limitation, any and all Claims arising out of, based upon, or in any way relating to transactions with Altair, the Altair Releasees (as defined below), Christopher Dillow, Irvine Management Consulting Inc., CMGI, Equity Alert, Market Pathways, C. Van Mussher, IR Image, or Patagon Securities Corp. 7.2. Altair represents and warrants that there has been no assignment or other transfer of any interest in any Claim that it may have against the Schnur Releasees, or any of them, and Altair agrees to indemnify and hold the Schnur Releasees, and each of them, harmless from any liabilities, claims, demands, damages, costs, expenses, and attorneys' fees incurred by the Schnur Releasees, or any of them, as a result of any person asserting any such assignment or transfer. It is the intention of the parties that this indemnity does not require payment as a condition precedent to recovery by the Schnur Releasees against Altair under this indemnity. 2 7.3. Altair agrees that if it hereafter commences, joins in, or in any manner seeks relief through any suit arising out of, based upon, or relating to any of the Claims released hereunder, or in any manner asserts against the Schnur Releasees, or any of them, any of the Claims released hereunder, then Altair shall pay to the Schnur Releasees, and each of them, in addition to any other damages caused to the Schnur Releasees thereby, all attorneys' fees and costs incurred by the Schnur Releasees in defending or otherwise responding to that suit or Claim. 7.4. Notwithstanding any provision contained in Sections 7.1, 7.2, and 7.3 above, the release set forth herein does not extend to releasing the Schnur Releasees, or any of them, from their responsibilities, representations, warranties, promises, obligations, covenants, and agreements contained in this Agreement or the responsibilities, representations, warranties, promises, obligations, covenants, and agreements contained within the four corners of the various unexercised warrants held by the Schnur Parties. 8. Release by Schnur Parties. 8.1. Except as otherwise provided in Section 8.4 below, the Schnur Parties hereby release and forever discharge the "Altair Releasees" consisting of Altair and its current and former respective lenders, shareholders, parents, subsidiaries, affiliates, divisions, officers, directors, owners, associates, predecessors, successors, heirs, assigns, agents, partners, employees, insurers, representatives, lawyers, and all persons acting by, through, under, or in concert with them, or any of them, of and from any Claims that the Schnur Parties now have or may hereafter have against the Altair Releasees, or any of them, by reason of any matter, cause, or thing whatsoever from the beginning of time to the date hereof, including, without limitation, any and all Claims arising out of, based upon, or in any way relating to transactions with the Schnur Parties, the Schnur Releasees, Christopher Dillow, Irvine Management Consulting Inc., CMGI, Equity Alert, Market Pathways, C. Van Mussher, IR Image, or Patagon Securities Corp. 8.2. The Schnur Parties represent and warrant that there has been no assignment or other transfer of any interest in any Claim that it may have against the Altair Releasees, or any of them, and the Schnur Parties agree to indemnify and hold the Altair Releasees, and each of them, harmless from any liabilities, claims, demands, damages, costs, expenses, and attorneys' fees incurred by the Altair Releasees, or any of them, as a result of any person asserting any such assignment or transfer. It is the intention of the parties that this indemnity does not require payment as a condition precedent to recovery by the Altair Releasees against the Schnur Parties under this indemnity. 8.3. The Schnur Parties agree that if they hereafter commence, join in, or in any manner seek relief through any suit arising out of, based upon, or relating to any of the Claims released hereunder, 3 or in any manner asserts against the Altair Releasees, or any of them, any of the Claims released hereunder, then the Schnur Parties shall pay to the Altair Releasees, and each of them, in addition to any other damages caused to the Altair Releasees thereby, all attorneys' fees and costs incurred by the Altair Releasees in defending or otherwise responding to that suit or Claim. 8.4. Notwithstanding any provision contained in Sections 8.1, 8.2, and 8.3 above, the release set forth herein does not extend to releasing the Altair Releasees, or any of them, from their responsibilities, representations, warranties, promises, obligations, covenants, and agreements contained in this Agreement or the responsibilities, representations, warranties, promises, obligations, covenants, and agreements contained within the four corners of the various unexercised warrants held by the Schnur Parties. 9. Representations, Warranties and Covenants. 9.1. Schnur and Toyota, jointly and severally, hereby covenant, represent, and warrant to the other parties to this Agreement as follows: 9.1.1. Schnur and Toyota are correctly described and named in this Agreement; 9.1.2. Before executing this Agreement, Schnur and Toyota became fully informed of the terms, contents, provisions, and effect of this Agreement and the attached exhibits; 9.1.3. This Agreement is fully and forever binding on, and enforceable against Schnur and Toyota in accordance with its terms; 9.1.4. The execution and delivery of this Agreement and any other documents, agreements, or instruments executed or delivered by Schnur and Toyota pursuant hereto and the consummation of the transactions herein or therein contemplated does not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any material agreement or instrument to which Schnur and Toyota is a party or any provision of law, statute, rule, or regulation applicable to Schnur and Toyota or any judicial or administrative order or decree by which Schnur and Toyota is bound; 9.1.5. In entering into and signing this Agreement, Schnur and Toyota have had the benefit of the advice of attorneys of their own choosing, and they enter into this Agreement freely by their own choosing and judgment, and without duress or other influence; 9.1.6. Schnur and Toyota have made an investigation to their satisfaction of all facts and reasons why it should enter into this Agreement and agree, based upon Schnur's and Toyota's knowledge, experience, and investigation, that this Agreement is fair and just; 4 9.1.7. Schnur and Toyota represent that they have not relied upon, and will not rely upon any statements, acts, or omissions by any of the other parties, other than as set forth in this Agreement, in making their decision to enter into this Agreement; 9.1.8. This Agreement is duly executed by Schnur and Toyota with full knowledge and understanding of its terms and meaning, on Schnur's and Toyota's own judgment and upon the advice of each of their attorneys and financial and tax advisors; 9.1.9. This Agreement is not and shall not be construed as an admission of wrongdoing or liability by any party, any of which wrongdoing or liability is and has been specifically denied by each party. It is expressly understood and agreed that the terms of this Agreement are contractual and not merely recitals, and that the agreements contained herein and the consideration transferred is intended to compromise doubtful and disputed claims, avoid and terminate litigation, and buy peace, and that no payments made and no release or other consideration given by any party shall be construed as an admission of wrongdoing or liability by any party, all wrongdoing or liability being expressly denied by each party; and 9.1.10. Schnur and Toyota acknowledge that their aforesaid representations are a material inducement to every other party to enter into this Agreement. 9.1.11. Investment Representations. a. Purchase for Own Account. Toyota is the sole and true party in interest, is acquiring the Settlement Shares for its own account for investment, is not purchasing the Settlement Shares for the benefit of any other person, and has no present intention of holding or managing the Settlement Shares with others or of selling, distributing or otherwise disposing of any portion of the Settlement Shares. Toyota has its principal place of business in the state of Illinois. b. Disclosure and Review of Information. Toyota acknowledges and represents that it has received and reviewed copies of Altair's Annual Report on Form 10-K for the year ended December 31, 2003 and Altair Quarterly Report on Form 10-Q for the quarter ended March 31, 2004 (the "SEC Filings"). In addition, Toyota acknowledges and represents that Toyota has been given a reasonable opportunity to review all documents, books and records of Altair pertaining to this investment, and has been supplied with all additional information concerning Altair and the Settlement Shares that has been requested by Toyota, has had a reasonable opportunity to ask questions of and receive answers from Altair or its representatives concerning this investment, and that all such questions have been answered to the full satisfaction of Toyota. Toyota has received, and acknowledges that it is receiving, no representations, written or oral, from Altair or its officers, directors, employees, attorneys or agents other than those contained in this Agreement and the SEC Filings. In making its decision 5 to purchase the Securities, Toyota has relied solely upon its review of the SEC Filings, this Agreement, and independent investigations made by it or its representatives without assistance of Altair. c. Speculative Investment. Toyota understands that (i) it must bear the economic risk of the investment in the Settlement Shares for an indefinite period of time because the Settlement Shares have not been registered under the Securities Act of 1933, as amended (the "Securities Act") or qualified under the Securities Act or the securities laws of any other jurisdiction and (ii) its investment in Altair represented by the Settlement Shares is highly speculative in nature and is subject to a high degree of risk of loss in whole or in part. Toyota has adequate means of providing for its current needs and possible contingencies, and is able to bear the high degree of economic risk of this investment, including, but not limited to, the possibility of the complete loss of Toyota's entire investment and the limited transferability of the Settlement Shares, which may make the liquidation of this investment impossible for the indefinite future. d. Accredited Schnur Parties Status. Toyota is an "accredited investor" within the meaning of Rule 501(a) promulgated under the Securities Act in that, among other reasons, all equity owners of Toyota had individual income (exclusive of any income attributable to my spouse) in excess of $200,000 in each of the most recent two years and reasonably expect to have an individual income in excess of $200,000 for the current year and/or) alimony paid, and have an individual net worth, or my spouse and I have a combined individual net worth, in excess of $1,000,000. e. Investment Experience. Toyota has experience as an investor in securities and acknowledges that it can bear the economic risk of its investment in the Securities. By reason of Toyota's business or financial experience or the business or financial experience of its professional advisors who are unaffiliated with and who are not compensated by Altair or any affiliate or selling agent of Altair, directly or indirectly, Toyota has the capacity to protect its own interests in connection with its purchase of the Securities. Toyota has not been organized solely for the purpose of acquiring the Securities. f. Restricted Securities. Toyota understands that the Settlement Shares are and will be "restricted securities" under the Securities Act inasmuch as they are being acquired from Altair in a transaction not involving a public offering, and that, under the Securities Act and applicable regulations thereunder, such securities may be resold without registration under the Securities Act only in certain limited circumstances. g. Legends. Toyota understands that the certificates evidencing the Settlement Shares will bear the legend set forth below, together with any other legends required by the laws of the Province of Ontario and any other state or province with jurisdiction: 6 THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER APPLICABLE STATE SECURITIES LAWS AND HAVE BEEN TAKEN FOR INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TO OR FOR SALE IN CONNECTION WITH ANY DISTRIBUTION THEREOF. THESE SECURITIES MAY NOT BE SOLD OR OTHERWISE TRANSFERRED UNLESS A REGISTRATION STAEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED, IS IN EFFECT WITH RESPECT TO SUCH SECURITIES OR ALTAIR HAS RECEIVED AN OPINION IN FORM AND SUBSTANCE SATISFACTORY TO ALTAIR PROVIDING THAT AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, IS AVAILABLE. h. The legend set forth above shall be removed by Altair from any certificate evidencing any of the Settlement Shares only (i) upon receipt by Altair of an opinion in form and substance satisfactory to Altair that such legend may be removed pursuant to Rule 144 promulgated under the Securities Act, or (ii) upon confirmation that a registration statement under the Securities Act is at that time in effect with respect to the legended Settlement Share and that such transfer will not jeopardize the exemption or exemptions from registration pursuant to which the respective Settlement Shares was issued. 9.2. Altair hereby covenants, represents, and warrants to the other parties to this Agreement as follows: 9.2.1. Altair is correctly described and named in this Agreement; 9.2.2. Before executing this Agreement, Altair became fully informed of the terms, contents, provisions, and effect of this Agreement and the attached exhibits; 9.2.3. This Agreement is fully and forever binding on, and enforceable against Altair in accordance with its terms; 9.2.4. The execution and delivery of this Agreement and any other documents, agreements, or instruments executed or delivered by Altair pursuant hereto and the consummation of the transactions herein or therein contemplated does not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any material agreement or instrument to which Altair is a party or any provision of law, statute, rule, or regulation applicable to Altair or any judicial or administrative order or decree by which Altair is bound; 9.2.5. In entering into and signing this Agreement, Altair has had the benefit of the advice of attorneys of its own choosing, and enter into this Agreement freely by their own choosing and judgment, and without duress or other influence; 7 9.2.6. Altair has made an investigation to its satisfaction of all facts and reasons why it should enter into this Agreement and agree, based upon Altair's knowledge, experience, and investigation, that this Agreement is fair and just; 9.2.7. Altair represents that it has not relied upon, and will not rely upon any statements, acts, or omissions by any of the other parties, other than as set forth in this Agreement, in making its decision to enter into this Agreement; 9.2.8. This Agreement is duly executed by Altair with full knowledge and understanding of its terms and meaning, on Altair's own judgment and upon the advice of its attorneys and financial and tax advisors; 9.2.9. This Agreement is not and shall not be construed as an admission of wrongdoing or liability by any party, any of which wrongdoing or liability is and has been specifically denied by each party. It is expressly understood and agreed that the terms of this Agreement are contractual and not merely recitals, and that the agreements contained herein and the consideration transferred is intended to compromise doubtful and disputed claims, avoid and terminate litigation, and buy peace, and that no payments made and no release or other consideration given by any party shall be construed as an admission of wrongdoing or liability by any party, all wrongdoing or liability being expressly denied by each party; and 9.2.10. Altair acknowledges that its aforesaid representations are a material inducement to every other party to enter into this Agreement. 10. Successors and Assigns. This Agreement shall inure to the benefit of, and shall be binding upon, the successors and assigns of the parties to this Agreement, and each of them. This Agreement is intended to release, and inure to the benefit of, each of the parties' respective related parties. 11. Miscellaneous Terms. Each of the parties to this Agreement further agrees as follows: 11.1. Modifications. No modification, amendment or waiver of any of the provisions contained in this Agreement, or any future representations, promise, or condition in connection with the subject matter of this Agreement, shall be binding upon any party to this Agreement unless made in writing and signed by such party or by a duly authorized officer or agent of such party. 11.2. Severability. In the event any non-material provision of this Agreement or the application of any such provision is held to be void, voidable, unlawful or for any reason unenforceable in any jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability; but, the remaining provisions of this Agreement shall remain in full force and effect, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such non-material provision in any other 8 jurisdiction. In good faith, the parties shall use their best efforts, or if such efforts are unsuccessful, the parties agree that a court or arbitrator may reform such provision, to replace the provision that is contrary to law with a legal one approximating to the extent possible the original intent of the parties. 11.3. No Representations. Except for statements expressly set forth in this Agreement, no party has made any statement or representation to any other party regarding a material fact relied upon by any other party in entering into this Agreement and no party has relied upon any statement, representation, or promise of any other party, or of any representative or attorney for any other party, in executing this Agreement or in making the settlement provided for in this Agreement. 11.4. Independent Advice From Counsel. Each of the parties has received prior independent legal advice from legal counsel of its choice with respect to the advisability of making the settlement provided for in this Agreement and with respect to the advisability of executing this Agreement. All parties agree and acknowledge that, with respect to this Agreement and the agreements described herein, Altair has been represented solely by Stoel Rives LLP, and the Schnur Parties have been represented solely by Jenkens & Gilchrist, A Professional Corporation. Each party represents and warrants that his or its attorney has reviewed the Agreement, and that his or its attorney has approved the Agreement as to form and substance. 11.5. Knowing and Voluntary Consent; Adequate Investigation. Each of the parties has read this Agreement carefully, knows and understands the Agreement's content, and has investigated all facts and matters pertaining to the subject matter of this Agreement as such party deems necessary or desirable. This Agreement shall be final and binding upon the parties regardless of any claims of mistake of fact or law, or any other circumstances whatsoever, and may not be set aside for any reason whatsoever. 11.6. Attorneys' Fees. In the event of any dispute, controversy, litigation or other proceedings (including proceedings in bankruptcy) concerning or related to the enforcement of an arbitration award under this Agreement, the prevailing party shall be entitled to reimbursement of all of its costs, including reasonable attorney and expert witnesses fees and costs, and court or arbitration fees and costs. 11.7. Governing Law. The parties agree that the laws of the State of Nevada shall govern the interpretation and enforcement of this Agreement, without giving effect to its choice of law rules. 11.8. Dispute Resolution. Any controversy or claim arising out of or relating to this Agreement or the breach of this Agreement (other than claims in which the sole remedy sought is specific performance of one or more provisions set forth in this Agreement, which claims may be brought in state or federal court located in Reno, Nevada) shall be settled through an arbitration proceeding Reno, Nevada administered by the American Arbitration Association under its Commercial Arbitration Rules. With respect to any such 9 arbitration, within 15 days after the commencement of arbitration as given in the American Arbitration Association's Commercial Arbitration Rules, each party shall select one person to act as arbitrator and the two selected shall select a third arbitrator within 10 days of their appointment. Each party may select an arbitrator from the list of arbitrators provided by the American Arbitration Association or either party may appoint any other qualified individual to serve as arbitrator. If the arbitrators selected by the parties are unable or fail to agree upon the third arbitrator, the third arbitrator shall be selected by the American Arbitration Association. The arbitrators will have no authority to award punitive or other damages not measured by the prevailing party's actual damages, except as may be required by statute. The arbitrators, in their sole discretion, may include an injunction or a direction to any party in their decision. The arbitration shall be governed by the Commercial Dispute Resolution Procedures of the American Arbitration Association in effect at the time the dispute is filed for arbitration. Any party to an arbitration under this Section may commence an action in a court of competent jurisdiction to enforce an arbitration award and/or to remedy a refusal to arbitrate. 11.9. Authority. Each party represents that all necessary corporate proceedings have been taken by it to authorize the settlement and mutual releases contemplated by this Agreement and the agreements contemplated hereby, and that this Agreement and the agreements contemplated hereby have been executed by each party, and shall constitute valid and binding agreements. 11.10. Execution in Counterparts. This Agreement may be executed and delivered in any number of counterparts or copies by the parties to this Agreement. When each party has signed and delivered at least one counterpart to each other party to this Agreement, each counterpart shall be deemed an original and, taken together, shall constitute one and the same Agreement, which shall be binding and effective as to the parties to this Agreement. 11.11. Notices. All notices and other communications under this Agreement shall be in writing, shall specifically refer to this Agreement, and shall be delivered or transmitted by facsimile, reliable overnight courier or other reliable delivery service, and shall be addressed as follows: If to the Schnur Parties: Louis Schnur Toyota On Western 6941 South Western Avenue Chicago, Illinois 60636 Facsimile: (773) 776-4584 With a copy to: Jenkens & Gilchrist, A Professional Corporation 600 Congress Avenue, Suite 2200 Austin, Texas 78701 Attn: J. Rowland Cook Facsimile: (512) 404-3520 10 If to Altair: Altair Nanotechnologies, Inc. 204 Edison Way Reno, Nevada 89502 Attn: Corporate Secretary Facsimile: (775) 856-1619 With a copy to: Stoel Rives LLP 201 S. Main Street, Suite 1100 Salt Lake City, Utah 84111 Attn: Bryan T. Allen Facsimile: (801) 578-6999 Such notices and other communications shall be deemed given on the day on which received. Any party may change his or its address for receipt of notices and requests hereunder by notice duly given to the other party in accordance with these provisions. (Remainder of page intentionally left blank; signature page follows) 11 IN WITNESS WHEREOF, the parties hereto have executed this Settlement Agreement and Mutual Release to be effective as of the date written above. ALTAIR NANOTECHNOLOGIES, INC. By: /s/ Rudi E. Moerck ------------------------------------- Name: Rudi E. Moerck ------------------------------------- Title: President ------------------------------------- /s/ Louis Schnur ---------------------------------------------- LOUIS SCHNUR, Individually TOYOTA ON WESTERN, INC. By: /s/ Louis Schnur ------------------------------------- Name: Louis Schnur ------------------------------------- Title: President ------------------------------------- 12 EXHIBIT A (Registration Rights Agreement) 13 EXHIBIT B (First Amendment to Warrant Certificate No. 2003B-1) 14 EXHIBIT C Confidentiality The provisions of this Exhibit C are incorporated by reference into the Settlement Agreement and Mutual Release dated June 4, 2004 among Altair, Schnur and Toyota (the "Settlement Agreement"). Terms not otherwise defined in this Exhibit C have the meanings given those terms in the Settlement Agreement. *** Altair, Schnur and Toyota shall keep the provisions of this Exhibit C and the provisions of Section 4 confidential to the maximum extent allowed by law. If the Settlement Agreement is filed with the SEC, the party filing the Settlement Agreement shall use its best reasonable efforts to obtain confidential treatment from the SEC for Section 4 and this Exhibit C to the maximum extent allowed by the SEC. 15 EX-10.2 4 ex10-2.txt REG RIGHTS AGREE REGISTRATION RIGHTS AGREEMENT This Registration Rights Agreement (this "Agreement") is entered into as of June 4, 2004 between Altair Nanotechnologies, Inc., a corporation organized under the laws of Canada (the "Company"), and Toyota on Western, Inc., a Illinois corporation ("Toyota"), in connection with that certain Settlement and Mutual Release Agreement dated as of June 4, 2004 among the Company and Toyota and Louis Schnur (the "Settlement Agreement"). The parties hereby agree as follows: 1. Certain Definitions. As used in this Agreement, the following terms have the following meanings: "Affiliate" means, with respect to any person, any other person that directly or indirectly Controls, is Controlled by, or is under common Control with, that person. "Business Day" means a day, other than a Saturday or Sunday, on which banks in Reno, Nevada are open for the general transaction of business. "Common Stock" means the Company's common stock and any securities into which those shares may subsequently be reclassified. "Control" (including the terms "controlling", "controlled by" or "under common control with") means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. "Investors" means Toyota and any Affiliate or permitted transferee of Toyota who is or becomes a party to this Agreement and holds Registrable Securities. "Prospectus" means the prospectus included in any Registration Statement, as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Registrable Securities covered by such Registration Statement and by all other amendments and supplements to the prospectus, including post-effective amendments and all material incorporated by reference in that prospectus. "Register," "registered" and "registration" means a registration made by preparing and filing a Registration Statement or similar document in compliance with the 1933 Act (as defined below) and the declaration or ordering of effectiveness of the Registration Statement or document. "Registrable Securities" means (1) the Settlement Shares and (2) the 1,750,000 shares of Common Stock issued to Toyota on March 31, 2003 in a private placement and currently held by Toyota or its transferees and (3) the Warrant Shares. "Registration Statement" means a registration statement of the Company filed under the 1933 Act that covers the resale of the Registrable Securities pursuant to the provisions of this Agreement, amendments and supplements to that Registration Statement, including post-effective amendments, all exhibits and all material incorporated by reference in that Registration Statement. "Required Investors" means the Investors holding a majority of the Registrable Securities. "SEC" means the U.S. Securities and Exchange Commission. "Settlement Shares" means the 100,000 shares of the Company's common stock issued to Toyota pursuant to the Settlement Agreement. "1933 Act" means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder. "1934 Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. "Warrants" means the warrants represented by Warrant Certificate Nos. 2003B-1, 2003B-2 and 2003B-3 that were acquired by Toyota from the Company on March 31, 2003 in a private placement and currently held by Toyota or Toyota's transferees. "Warrant Shares" means the shares of Common Stock issuable upon the exercise of the Warrants. 2. Registration. (a) Registration Statement. Not later than 30 days following the date of the Settlement Agreement (the "Filing Deadline"), the Company shall prepare and file with the SEC one Registration Statement on Form S-3 (or, if Form S-3 is not then available to the Company, on a form of registration statement that is then available to effect a registration for resale of the Registrable Securities) covering the resale of the Registrable Securities in an amount at least equal to the number of Registrable Securities. That Registration Statement will cover, to the extent allowable under the 1933 Act (including Rule 416), such indeterminate number of additional shares of Common Stock resulting from stock splits, stock dividends or similar transactions with respect to the Registrable Securities. If the Registration Statement is not filed with the SEC on or prior to the Filing Deadline, the Company will make payments to each Investor (pro rata based upon the number of Registrable Securities), as liquidated damages and not as a penalty, 525 shares per day for each day following the date by which the Registration Statement should have been filed for which no Registration Statement is filed. Those payments shall be in lieu of any other monetary damages the Investors may seek or obtain as a result of the respective delay; provided, however, nothing in this Agreement will prohibit the Investors from seeking specific performance of the Company's obligations under this Agreement. (b) Expenses. The Company shall pay all expenses associated with the registration of the Registrable Securities, including filing and printing fees, the Company's counsel and accounting fees and expenses, fees and expenses (including reasonable counsel fees) associated with clearing the Registrable Securities for sale under applicable state securities or "blue sky" laws, listing fees, transfer taxes, fees of transfer agents and registrars, and fees. The Company shall not be required to pay any other fees or expenses of the 2 Schnur Parties in connection with the registration, including, without limitation, discounts, commissions, fees of counsel, fees of underwriters, selling brokers, dealer managers or similar securities industry professionals with respect to the Registrable Securities being sold. (c) Effectiveness. The Company shall use its best efforts to have the Registration Statement declared effective as soon as practicable. The Company shall notify the Investors by facsimile or email as promptly as practicable after any Registration Statement is declared effective and shall simultaneously provide the Investors with copies of any related Prospectus. If (A) a Registration Statement covering the Registrable Securities is not declared effective by the SEC within 120 days after the Filing Deadline (the "Effectiveness Deadline") then the Company shall make to each Investor (pro rata based upon the number of Registrable Securities held by such Investor), as liquidated damages and not as a penalty, 525 shares per day for each day following the date by which such Registration Statement should have been effective. Those payments will be in lieu of any other monetary damages the Investors may seek or obtain as a result of the respective delay; provided, however, nothing in this Agreement will prohibit an Investor from seeking specific performance of the Company's obligations under this Agreement. (d) Underwritten Offering. If the company elects, in its discretion, to engage an underwriter with respect to any offering pursuant to a Registration Statement, the Company is entitled to select an investment banker and manager to administer the offering, which investment banker or manager will be reasonably satisfactory to the Required Investors. 3. Company Obligations. The Company shall use its best efforts to effect the registration of the Registrable Securities in accordance with the terms hereof, and the Company will, as expeditiously as possible, (a) use its best efforts to cause the Registration Statement to become effective and to remain continuously effective for a period (the "Effectiveness Period") that will terminate upon the earlier of (i) the date on which all Registrable Securities covered by the Registration Statement, as amended from time to time, have been sold and (ii) the date on which the Settlement Shares may be sold pursuant to Rule 144(k); (b) prepare and file with the SEC the amendments and post-effective amendments to the Registration Statement and the Prospectus as may be necessary to keep the Registration Statement effective for the period specified in Section 3(a) and to comply with the provisions of the 1933 Act and the 1934 Act with respect to the distribution of all of the Registrable Securities; (c) (i) provide copies to and permit a single counsel designated by the Investor holding the largest amount of Registrable Securities (which shall be Jenkens & Gilchrist unless the Company is otherwise notified) to review the initial Registration Statement no fewer than four Business Days prior to the filing of the initial Registration Statement with the SEC and (ii) provide to that single counsel copies of all post-effective amendments and supplements to the Registration Statement. (d) furnish to the Investors and their legal counsel (which may be by email or portable document format (PDF) file) (i) one copy of any Registration Statement and any amendment thereto and each preliminary prospectus 3 and Prospectus and each amendment or supplement thereto and (ii) the reasonably requested number of copies of a Prospectus, including a preliminary prospectus, and all amendments and supplements thereto; (e) in the event the Company selects an underwriter for the offering, the Company shall enter into and perform its reasonable obligations under an underwriting agreement, in usual and customary form, including, without limitation, customary indemnification and contribution obligations, with the underwriter of the offering; (f) use its commercially reasonable efforts to (i) prevent the issuance of any stop order or other suspension of effectiveness and (ii) if an order is issued, obtain the withdrawal of the order at the earliest possible moment; (g) prior to any public offering of Registrable Securities, use commercially reasonable efforts to register or qualify or cooperate with the Investors and their counsel in connection with the registration or qualification of the Registrable Securities for offer and sale under the securities or blue sky laws of the jurisdictions requested by the Investors and do any and all other acts or things necessary or advisable to enable the distribution in those jurisdictions of the Registrable Securities covered by the Registration Statement; provided, however, that the Company is not required to (i) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(g), (ii) subject itself to general taxation in any jurisdiction where it would not otherwise be so subject but for this Section 3(g), or (iii) file a general consent to service of process in any jurisdiction; (h) if applicable, list all Registrable Securities covered by a Registration Statement to be listed on each securities exchange, interdealer quotation system or other market on which similar securities issued by the Company are then listed; (i) immediately notify the Investors, at any time when a Prospectus relating to Registrable Securities is required to be delivered under the 1933 Act, upon discovery that, or upon the happening of any event as a result of which, the Prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, and at the request of any Investor, promptly prepare and furnish to that Investor a reasonable number of copies of a supplement to or an amendment of the Prospectus as may be necessary so that, as thereafter delivered to the purchasers of the Registrable Securities, that Prospectus does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements in the Registration Statement not misleading in light of the circumstances then existing; (j) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC under the 1933 Act and the 1934 Act and take other actions as may be reasonably necessary to facilitate the registration of the Registrable Securities hereunder; and (k) with a view to making available to the Investors the benefits of Rule 144 (or its successor rule) and any other rule or regulation of the SEC that may at any time permit the Investors to sell shares of Common Stock 4 to the public without registration, the Company covenants and agrees to (i) make and keep public information available, as those terms are understood and defined in Rule 144, until the earlier of (A) six months after the date that all of the Settlement Shares may be resold pursuant to Rule 144(k) or any other rule of similar effect or (B) the date that the Registrable Securities shall have been resold; (ii) file with the SEC in a timely manner all reports and other documents required of the Company under the 1934 Act; and (iii) furnish to each Investor upon request, as long as that Investor owns any Registrable Securities, (A) a written statement by the Company that it has complied with the reporting requirements of the 1934 Act, (B) a copy of the Company's most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) other information as may be reasonably requested in order to avail the Investor of any rule or regulation of the SEC that permits the selling of those Registrable Securities without registration. 4. Due Diligence Review; Information. The Company shall make available, during normal business hours, for inspection and review by the Investors, advisors to and representatives of the Investors, all financial and other records, all SEC filings and all other corporate documents and properties of the Company as may be reasonably necessary for the purpose of the review, and cause the Company's officers, directors and employees, within a reasonable time period, to supply all information reasonably requested by the Investors or any representative, advisor or underwriter in connection with the Registration Statement (including, without limitation, in response to all questions and other inquiries reasonably made or submitted by any of them), prior to and from time to time after the filing and effectiveness of the Registration Statement for the sole purpose of enabling the Investors and the representatives, advisors and underwriters and their respective accountants and attorneys to conduct initial and ongoing due diligence with respect to the Company and the accuracy of the Registration Statement. Except for disclosures to any Investor whose representative or Affiliate occupies a seat or has observation rights with respect to the board of directors of the Company or any of its subsidiaries, the Company shall not disclose material nonpublic information to the Investors, or to advisors to or representatives of the Investors, unless prior to disclosure of the information the Company identifies the information as being material nonpublic information and provides the Investors, the advisors and representatives with the opportunity to accept or refuse to accept that material nonpublic information for review and any Investor wishing to obtain that information enters into an appropriate confidentiality agreement with the Company with respect thereto. 5. Obligations of the Investors. (a) Each Investor shall furnish in writing to the Company the information regarding itself, the Registrable Securities held by it and the intended method of disposition of the Registrable Securities held by it, as shall be reasonably required to effect the registration of the Registrable Securities and shall execute the documents in connection with the registration as the Company may reasonably request. At least seven Business Days prior to the first anticipated filing date of any Registration Statement, the Company shall notify each Investor of the information the Company requires from that Investor if that Investor elects to have any of the Registrable Securities included in the Registration Statement. An Investor shall provide that information to the Company at least five Business Days prior to the first anticipated filing date 5 of the Registration Statement if that Investor elects to have any of the Registrable Securities included in the Registration Statement. (b) Each Investor, by its acceptance of the Registrable Securities, agrees to cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of a Registration Statement hereunder. (c) In the event the Company, at the request of the Investors, decides to engage the services of an underwriter, each Investor agrees to enter into and perform its obligations under an underwriting agreement, in usual and customary form, including, without limitation, customary indemnification and contribution obligations, with the managing underwriter of the offering and take other actions as are reasonably required in order to expedite or facilitate the dispositions of the Registrable Securities. The scope of any indemnification in favor of an underwriter shall be limited to the same extent as the indemnity provided in Section 6(b) hereof. (d) Each Investor agrees that, upon receipt of any notice from the Company of the happening of an event pursuant to Section 3(i), the Investor shall immediately discontinue disposition of Registrable Securities pursuant to the Registration Statement covering the Registrable Securities, until the Investor's receipt of the copies of the supplemented or amended prospectus filed with the SEC and until any related post-effective amendment is declared effective and, if so directed by the Company, the Investor shall deliver to the Company (at the expense of the Company) or destroy (and deliver to the Company a certificate of destruction) all copies in the Investor's possession of the Prospectus covering the Registrable Securities current at the time of receipt of that notice. (e) No Investor may participate in any third party underwritten registration hereunder unless it (i) agrees to sell the Registrable Securities on the basis provided in any underwriting arrangements in usual and customary form entered into by the Company, (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of the underwriting arrangements, and (iii) agrees to pay its pro rata share of all underwriting discounts and commissions. Notwithstanding the foregoing, no Investor shall be required to make any representations to the underwriter, other than those with respect to itself and the Registrable Securities owned by it, including its right to sell the Registrable Securities, and any indemnification in favor of the underwriter by the Investors shall be several and not joint. The scope of any indemnification in favor of an underwriter shall be limited to the same extent as the indemnity provided in Section 6(b) hereof. 6. Indemnification. (a) Indemnification by the Company. The Company will indemnify and hold harmless each Investor and its officers, directors, members, employees and agents, successors and assigns, and each other person, if any, who controls that Investor within the meaning of the 1933 Act, against any losses, claims, damages or liabilities, joint or several, to which they may become subject under the 1933 Act or otherwise, insofar as those losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in any Registration Statement, any preliminary prospectus or final 6 prospectus contained therein, or any amendment or supplement thereof; (ii) any blue sky application or other document executed by the Company specifically for that purpose or based upon written information furnished by the Company filed in any state or other jurisdiction in order to qualify any or all of the Registrable Securities under the securities laws thereof (any such application, document or information herein called a "Blue Sky Application"); (iii) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; or (iv) any violation by the Company or its agents of any rule or regulation promulgated under the 1933 Act applicable to the Company or its agents and relating to action or inaction required of the Company in connection with the registration and will reimburse the Investor, and each officer, director, member, employee or agent and each controlling person for any legal or other expenses reasonably incurred by them in connection with investigating or defending any loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any case if and to the extent that the loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission so made in conformity with information furnished by that Investor or the controlling person in writing specifically for use in the Registration Statement or Prospectus. (b) Indemnification by the Investors. In connection with any registration pursuant to the terms of this Agreement, each Investor will furnish to the Company in writing the information as the Company reasonably requests concerning the holders of Registrable Securities or the proposed manner of distribution for use in connection with any Registration Statement or Prospectus and agrees, severally but not jointly, to indemnify and hold harmless, to the fullest extent permitted by law, the Company, its directors, officers, employees and each person who controls the Company (within the meaning of the 1933 Act) against any losses, claims, damages, liabilities and expense (including reasonable attorney fees) resulting from any untrue statement of a material fact or any omission of a material fact required to be stated in the Registration Statement or Prospectus or preliminary prospectus or amendment or supplement thereto or necessary to make the statements therein not misleading, to the extent, but only to the extent that the untrue statement or omission is contained in any information furnished by the Investor to the Company specifically for inclusion in the Registration Statement or Prospectus or amendment or supplement thereto. (c) Conduct of Indemnification Proceedings. Any person entitled to indemnification hereunder shall (i) give prompt notice to the indemnifying party of any claim with respect to which it seeks indemnification and (ii) permit the indemnifying party to assume the defense of the claim with counsel reasonably satisfactory to the indemnified party; provided that any person entitled to indemnification hereunder shall have the right to employ separate counsel and to participate in the defense of the claim, but the fees and expenses of that counsel shall be at the expense of that person unless (a) the indemnifying party has agreed to pay those fees or expenses, or (b) the indemnifying party shall have failed to assume the defense of the claim and employ counsel reasonably satisfactory to that person or (c) in the reasonable judgment of that person, based upon written advice of its counsel, a conflict of interest exists between that person and the indemnifying party with respect to the claims (in which case, if the person notifies the indemnifying party in writing that the person elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of the claim on behalf of that person); and provided, further, that 7 the failure of any indemnified party to give notice promptly as provided herein shall not relieve the indemnifying party of its obligations hereunder, except to the extent that the failure to give notice promptly shall materially adversely affect the indemnifying party in the defense of the claim or litigation. It is understood that the indemnifying party shall not, in connection with any proceeding in the same jurisdiction, be liable for fees or expenses of more than one separate firm of attorneys at any time for all the indemnified parties. No indemnifying party will, except with the consent of the indemnified party, not to be unreasonably withheld, consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the giving by the claimant or plaintiff to the indemnified party of a release from all liability in respect of the claim or litigation. (d) Contribution. If for any reason the indemnification provided for in the preceding paragraphs (a) and (b) is unavailable to an indemnified party or insufficient to hold it harmless, other than as expressly specified therein, then the indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in that proportion as is appropriate to reflect the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations. No person guilty of fraudulent misrepresentation within the meaning of Section 11(f) of the 1933 Act shall be entitled to contribution from any person not guilty of the fraudulent misrepresentation. In no event shall the contribution obligation of a holder of Registrable Securities be greater in amount than the dollar amount of the net proceeds (net of all expenses paid by that holder in connection with any claim relating to this Section 6 and the amount of any damages the holder has otherwise been required to pay by reason of the untrue or alleged untrue statement or omission or alleged omission) received by it upon the sale of the Registrable Securities giving rise to the contribution obligation (or that could be received by the Investor upon the sale of the Registrable Securities included in the Registration Statement at fair market value on the date of determination of liability to the extent any Registrable Securities remain unsold). 7. Miscellaneous. (a) Amendments and Waivers. This Agreement may be amended only by a writing signed by the Company and the Required Investors. The Company may take any action herein prohibited, or omit to perform any act herein required to be performed by it, only if the Company shall have obtained the written consent to the amendment, action or omission to act, of the Required Investors. (b) Notices. All notices and other communications provided for or permitted hereunder shall be in writing, shall specifically refer to this Agreement, and shall be delivered or transmitted by reliable overnight courier or other reliable delivery service, and shall be addressed to the party at the address set forth on the signature page hereof. (c) Assignments and Transfers by Investors. The provisions of this Agreement shall be binding upon and inure to the benefit of the Investors and their respective successors and assigns. An Investor may transfer or assign, in whole or from time to time in part, to one or more persons its rights hereunder in connection with the transfer of Registrable Securities by that Investor to that person, provided that that Investor complies with all laws applicable thereto, provides written notice of assignment to the Company promptly after the assignment is effected and the assignee executes a counterpart to this Agreement assuming all rights and obligations of an Investor hereunder. 8 (d) Assignments and Transfers by the Company. This Agreement may not be assigned by the Company without the prior written consent of the Required Investors, provided, however, that the Company may assign its rights and delegate its duties hereunder to any surviving or successor corporation in connection with a merger or consolidation of the Company with another corporation, or a sale, transfer or other disposition of all or substantially all of the Company's assets to another corporation, without the prior written consent of the Required Investors, after notice duly given by the Company to each Investor; provided that such successor corporation assumes the Company's obligations hereunder. (e) Benefits of the Agreement. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective permitted successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement. (f) Counterparts; Faxes. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may also be executed via facsimile, which shall be deemed an original. (g) Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. (h) Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of that prohibition or unenforceability without invalidating the remaining provisions hereof but shall be interpreted as if it were written so as to be enforceable to the maximum extent permitted by applicable law, and the prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable that provision in any other jurisdiction. To the extent permitted by applicable law, the parties hereby waive any provision of law that renders any provisions hereof prohibited or unenforceable in any respect. (i) Further Assurances. The parties shall execute and deliver all further instruments and documents and take all other actions as may reasonably be required to carry out the transactions contemplated hereby and to evidence the fulfillment of the agreements herein contained. (j) Entire Agreement. This Agreement is intended by the parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein. This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter. 9 (k) Governing Law; Consent to Jurisdiction; Waiver of Jury Trial. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Nevada without regard to the choice of law principles thereof. Each of the parties hereto irrevocably submits to the exclusive jurisdiction of the state and federal courts of the State of Nevada for the purpose of any suit, action, proceeding or judgment relating to or arising out of this Agreement and the transactions contemplated hereby. Service of process in connection with any such suit, action or proceeding may be served on each party hereto anywhere in the world by the same methods as are specified for the giving of notices under this Agreement. Each of the parties hereto irrevocably consents to the jurisdiction of any such court in any such suit, action or proceeding and to the laying of venue in such court. Each party hereto irrevocably waives any objection to the laying of venue of any such suit, action or proceeding brought in such courts and irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER. [Remainder of page intentionally blank; signature page follows] 10 IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement or caused their duly authorized officers to execute this Registration Rights Agreement as of the date first above written. ALTAIR NANOTECHNOLOGIES, INC. By: /s/ Edward Dickinson --------------------------------------------- Name: Edward Dickinson --------------------------------------------- Title: Chief Financial Officer --------------------------------------------- Address: Altair Nanotechnologies, Inc. 204 Edison Way Reno, Nevada 89502 Attn: Corporate Secretary Facsimile: (775) 856-1619 TOYOTA ON WESTERN, INC. By: /s/ Louis Schnur --------------------------------------------- Name: Louis Schnur --------------------------------------------- Title: President --------------------------------------------- Address: Toyota On Western 6941 South Western Avenue Chicago, Illinois 60636 Facsimile: (773) 776-4584 11 EX-23 5 ex23.txt CONSENT - D&T INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM CONSENT We consent to the incorporation by reference in this Amendment No. 2 to Registration Statement No. 333-117125 of Altair Nanotechnologies Inc. and subsidiaries on Form S-3 of our report dated March 10, 2004, appearing in the Annual Report on Form 10-K of Altair Nanotechnologies Inc. and subsidiaries for the year ended December 31, 2003 and to the reference to us under the heading "Experts" in the Prospectus, which is part of this Registration Statement. /s/ Deloitte & Touche - --------------------------- Salt Lake City, Utah July 30, 2004 -----END PRIVACY-ENHANCED MESSAGE-----