<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement
Under The Securities Act of 1933
AMERICAN TECHNOLOGY CORPORATION
(Exact name of Registrant as specified in charter)
DELAWARE 87-0361799
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification Number)
12725 STOWE DRIVE ROBERT PUTNAM, PRESIDENT
POWAY, CALIFORNIA 92064 12725 STOWE DRIVE
(619) 679-2114 POWAY, CALIFORNIA 92064
(Address and telephone number of (619) 679-2114
registrant's principal executive offices (Name, address and telephone
and principal place of business) number of agent for service)
1992 INCENTIVE STOCK OPTION PLAN
(Full Title of the Plan)
COPIES TO:
JOHN D. BRASHER JR., ESQ.
BRASHER & COMPANY, ATTORNEYS AT LAW
90 MADISON STREET, SUITE 707, DENVER, COLORADO 80206
(303) 355-3000
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 line: X
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Proposed Proposed
Each Class Amount Maximum Maximum Amount of
of Securities Being Offering Price Aggregate Registration
Being Registered Registered Per Share Offering Price (2) Fee (3)
---------------- ---------- -------------- ------------------ ------------
<S> <C> <C> <C> <C>
Common Stock (1) 1,000,000 $2.16 $2,160,000. $744.83
</TABLE>
(1) The securities registered hereunder are shares of the registrant's common
stock, $.00001 par value, subject to issuance upon the exercise of stock
options granted under the registrant's 1992 Incentive Stock Option Plan.
(2) Estimated for purpose of calculating the registration fee.
(3) The fee with respect to these shares has been calculated pursuant to Rules
457(h) and 457(c) under the Securities Act of 1933, as amended, and based
upon the average of the bid and ask prices per share of the Registrant's
Common Stock on a date within five (5) days prior to the date of filing of
this Registration Statement, as quoted on the OTC Electronic Bulletin
Board.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference in this registration
statement of American Technology Corporation, a Delaware corporation
("Company"), and in the related Section 10(a) prospectus:
(a) The Company's annual report on Form 10-KSB for the fiscal year ended
September 30, 1995;
(b) Company's quarterly reports on Form 10-QSB for the fiscal quarters
ended December 31, 1995; March 31, 1996; and June 30, 1996;
(c) The Company's current reports on Form 8-K dated March 12, 1996 and June
12, 1996.
(d) Item 11 (Description of Securities) contained in registration statement
on Form 10-SB of the Company, SEC file No. 0-24248.
In addition, all documents filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing
of a post-effective amendment which indicates that all securities registered
hereunder have been sold and which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this registration
statement and to be a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
The authorized capital stock of the Company consists of 20,000,000 shares
of Common Stock, $.00001 par value per share. There are no preferred shares
authorized. The holders of Common Stock are entitled to one vote for each share
held. The affirmative vote of a majority of votes cast at a meeting which
commences with a lawful quorum is sufficient for approval of most matters upon
which shareholders may or must vote, including the questions presented for
approval or ratification at the Annual Meeting. However, removal of a director
from office or repeal of the certificate of incorporation in its entirety
require the affirmative vote of a majority of the total voting power for
approval, and certain other matters (such as shareholder amendment of the
bylaws, and amendment, repeal or adoption of any provision inconsistent with
provisions in the certificate of incorporation regarding indemnification of
directors, officers and others, exclusion of director liability, and the
Company's election not to be governed by statutory provisions concerning
business combinations with interested shareholders) require the affirmative vote
of two-thirds of the total voting power for approval. Common Shares do not carry
cumulative voting rights.
Holders of Common Stock are not entitled to preemptive rights, and the
Common Stock is not subject to redemption. Holders of Common Stock are entitled
to receive, pro rata, dividends when and as declared by the Board of Directors
out of funds legally available therefor. Upon liquidation, dissolution or
winding-up of the Company, holders of Common Stock are entitled to share ratably
in the Company's assets legally available for distribution to its shareholders.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
2
<PAGE> 3
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Pursuant to Article NINTH of the Company's Certificate of Incorporation,
and as permitted by Section 145 of the General Corporation Law of Delaware, the
Company may indemnify its directors and officers under certain circumstances
against reasonable expenses (including court costs and attorney's fees),
judgments, penalties, fines, and amounts paid in settlement actually and
reasonably incurred in connection with any action, suit or proceeding, whether
civil, criminal, administrative or investigative, to which any of them is a
party by reason of his being a director, officer, employee, or agent of the
Company if it is determined that he acted in accordance with the applicable
standard of conduct set forth in such statutory provisions. Thus, the
indemnification provisions will protect officers and directors from liability
only if the officer or director meets the applicable standard of conduct and the
Company has the financial ability to honor the indemnity. Insofar as
indemnification for liabilities under the Securities Act of 1933 may be
permitted to directors, officers or persons controlling the registrant pursuant
to the General Corporation Law of Delaware, the Certificate of Incorporation, or
otherwise, the registrant has been advised that, in the opinion of the
Securities and Exchange Commission, such indemnification is against public
policy as expressed in such Act, and is, therefore, unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable; no common shares of the Company registered hereunder have
been sold or issued.
ITEM 8. EXHIBITS.
5.1 Consent and opinion of Brasher & Company, counsel to the Company
10.1 1992 Incentive Stock Option Plan of the Company
23.1 Consent of BDO Seidman, LLP, independent certified public accountants
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers and sales are being made, a
post-effective amendment to this registration statement to include any material
information with respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such information 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 such 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.
(4) 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 (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
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 initial bona fide offering
thereof.
3
<PAGE> 4
(5) Insofar as indemnification for liabilities under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the 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 Act and will be governed by the final adjudication of
such issue.
4
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Poway, California, on the date below.
DATED: July 31, 1996
AMERICAN TECHNOLOGY CORPORATION
/s/ Robert Putnam
By______________________________________
ROBERT PUTNAM, CHIEF EXECUTIVE OFFICER
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 respectively indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Robert Putnam
----------------------- Director, President 07/31/96
ROBERT PUTNAM Chief Executive Officer
Chief Financial Officer
/s/ Richard M. Wagner
----------------------- Director, Secretary 07/31/96
RICHARD M. WAGNER
/s/ David G. Norris
----------------------- Director 07/31/96
DAVID G. NORRIS
/s/ Elwood G. Norris
----------------------- Director 07/31/96
ELWOOD G. NORRIS
</TABLE>
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<PAGE> 6
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement
Under The Securities Act of 1933
EXHIBITS
AMERICAN TECHNOLOGY CORPORATION
(Exact name of registrant as specified in its charter)
EXHIBIT INDEX
The following exhibits are included as part of this registration
statement, except those marked as having previously been filed with the
Securities and Exchange Commission and which are incorporated by reference to
another registration statement, report or form. References to the "Company" in
this Exhibit Index mean AMERICAN TECHNOLOGY CORPORATION, a Delaware corporation.
<TABLE>
<S> <C> <C>
5.1 Consent and opinion of Brasher & Company, counsel to the Company ............................................ 2
10.1 1992 Incentive Stock Option Plan of the Company ............................................................. 1
23.1 Consent of BDO Seidman, LLP, independent certified public accountants ....................................... 2
</TABLE>
1 Incorporated by reference to Exhibit 6.8 to the Company's report on
Form 10-SB.
2 Exhibit filed herewith this Registration Statement on Form S-8.
6
<PAGE> 1
AMERICAN TECHNOLOGY CORPORATION
FORM S-8
EXHIBIT 5.1
CONSENT AND OPINION
OF
BRASHER & COMPANY
<PAGE> 2
[BRASHER & COMPANY LETTERHEAD]
July 26, 1996
Board of Directors
AMERICAN TECHNOLOGY CORPORATION
12725 Stowe Drive
Poway, California 92064
Re: Registration Statement on Form S-8
1992 Incentive Stock Option Plan
Gentlemen:
We have acted as counsel to AMERICAN TECHNOLOGY CORPORATION, a Delaware
corporation ("Company"), in connection with the preparation and filing with the
U.S. Securities and Exchange Commission ("Commission") under the Securities Act
of 1933, as amended ("Act"), of the Company's registration statement on Form S-8
(together with all amendments, supplements and exhibits, the "Registration
Statement"). This Registration Statement relates to the registration under the
Act of 1,000,000 shares of the Company's common stock, $.00001 par value
("Shares"), which may be issued pursuant to the Company's 1992 Incentive Stock
Option Plan ("Plan").
In connection with the opinions herein expressed, we have reviewed the
Plan and the Registration Statement and included prospectus, and have examined
and relied upon, as to factual matters, originals or certified or photostatic
copies of such corporate records, including, without limitation, minutes of the
Board of Directors and other instruments, certificates of corporate officers and
such other documents as we have deemed necessary or appropriate for the opinions
expressed herein. In making such examinations, we have assumed the genuineness
of all signatures, the legal capacity of natural persons, the authenticity of
documents submitted to us as originals, the conformity to original documents of
documents submitted to us as certified or photostatic copies, and the
authenticity of originals of such photostatic copies.
We have examined and relied upon, as to matters of law, such statutes,
rules and judicial precedents and such other considerations of law as we, in our
judgment, have deemed necessary or appropriate for the purposes of rendering the
opinions expressed herein.
<PAGE> 3
[BRASHER & COMPANY LETTERHEAD]
Board of Directors
AMERICAN TECHNOLOGY CORPORATION
July 26, 1996
Page 2 of 2
Based upon and in reliance upon the foregoing, and subject to the
qualifications and limitations herein set forth, we are of the opinion that,
when the Registration Statement shall have become effective pursuant to the
rules and regulations of the Commission, and the Shares have been sold and
issued as contemplated in the Registration Statement, such Shares will be
legally issued, fully paid and nonassessable.
This opinion is limited to the laws of the United States of America and
the laws of the State of Delaware, and we express no opinion with respect to the
laws of any other jurisdiction.
We consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement and to all references made to our firm in
the Registration Statement. However, in rendering this opinion, we do not hereby
admit that we are acting within the category of persons whose consent is
required under Section 7 of the Act or the rules and regulations of the
Commission under the Act.
This opinion is being delivered and is intended for use solely in
regard to the transactions contemplated by the Registration Statement and may
not be used, circulated, quoted in whole or in part or otherwise referred to for
any purpose without our prior written consent and may not be relied upon by any
person or entity other than the Company, its successors and assigns. This
opinion is based upon our knowledge of law and facts as of its date. We assume
no duty to communicate to you with respect to any matter which comes to our
attention hereafter.
Very truly yours,
BRASHER & COMPANY
/S/ John D. Brasher
JOHN D. BRASHER JR.
for the Firm
<PAGE> 1
AMERICAN TECHNOLOGY CORPORATION
FORM S-8
EXHIBIT 23.1
CONSENT
OF
BDO SEIDMAN, LLP
<PAGE> 2
CONSENT OF
INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
American Technology Corporation
Poway, California
We hereby consent to the incorporation by reference in this Registration
Statement of our report dated November 8, 1995 relating to the financial
statements of American Technology Corporation, appearing in the Company's
Annual Report on Form 10-KSB for the year ended September 30, 1995.
/s/ BDO SEIDMAN, LLP
BDO SEIDMAN, LLP
Denver, Colorado
July 30, 1996
