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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 12, 1996 (May 31, 1996)
AMERICAN TECHNOLOGY CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 0-24248 87-0361799
(State or other jurisdiction of (Commission (I.R.S. Empl. Ident. No.)
incorporation or organization) File Number)
12725 Stowe Drive, Poway. California 92064
(Address of principal executive offices) (Zip Code)
(619) 679-2114
(Registrant's telephone number, including area code)
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ITEM 5. OTHER EVENTS
Effective on May 31, 1996 the Company offered and sold for cash an aggregate of
$220,000 of unsecured 8% Convertible Subordinated Promissory Notes due May 31,
1999 ("Notes") to a limited number of investors. The principal amount of each
Note may at the election and proper notice of the Note holder be converted one
or more times into fully paid and nonassessable shares of common stock, $.00001
par value, of the Company, at the price of $1.00 per share. Purchasers of Notes
received one Common Stock Purchase Warrant ("Warrant") for every $1.00 invested
in Notes. Each Warrant entitles the holder until May 31, 1998, after proper
notice, to purchase one share of the Company's common stock at the price of
$1.00 per share. These securities were offered and sold without registration
under the Securities Act of 1933, as amended, upon the exemption provided by
Rule 903 of Regulation S thereunder and an appropriate legend was placed on the
Notes and Warrants. The sale was effected without the aid of an underwriter and
no sales commission was paid.
Proceeds of $220,000 from the sale of the Notes is intended to reduce debt owed
to Elwood G. Norris, the Company's Chairman and major shareholder, by
approximately $50,000, to finance the development, patenting, prototyping and
testing of certain technologies, and to provide working capital for consumer
electronic product sales. Current research projects include efforts directed at
the Company's portable Global Positioning System (GPS) technology and the
Company's sound reproduction technology. There can be no assurance that the
Company can successfully develop or exploit its various technologies.
In connection with the above transaction, the Company on June 4, 1996 paid
$50,788 to Elwood G. Norris reducing the balance of a note due and payable on
October 1, 1996 to $100,000. Mr. Norris then converted and extended the due date
on the $100,000 by executing a new note on terms similar to the investors
described above. Accordingly the Company executed a new unsecured 8% Convertible
Subordinated Promissory Note due May 31, 1999 payable to Mr. Norris for
$100,000. The principal amount of the note may at the election of the holder be
converted one or more times into shares of the Company's common stock at the
price of $1.00 per share. Mr. Norris was also granted warrants to purchase up to
100,000 of the Company's common shares until May 31, 1998 at an exercise price
of $1.00 per share.
The notes described above aggregating $320,000 are convertible into 320,000
common shares and the warrants described above are exercisable into 320,000
common shares at an exercise price of $1.00 per share. The Company presently has
7,541,228 common shares issued and outstanding.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial statements of businesses acquired.
None
(b) Pro forma financial information.
None
(c) Exhibits
4.2 Form of 8% Convertible Subordinated Promissory Note due May
31, 1999 aggregating $220,000 granted to investors
4.3 Form of Stock Purchase Warrant dated as of May 31, 1996,
exercisable to purchase 220,000 common shares at $1.00 per
share until May 31, 1998, granted to investors
4.4 8% Convertible Subordinated Promissory Note due May 31, 1999
payable to Elwood G. Norris for $100,000
4.5 Stock Purchase Warrant exercisable to purchase 100,000 common
shares at $1.00 per share until May 31, 1998 granted to
Elwood G. Norris
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
AMERICAN TECHNOLOGY CORPORATION
Date: June 12, 1996 By: /s/ ROBERT PUTNAM
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Robert Putnam
President and CEO
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AMERICAN TECHNOLOGY CORPORATION
EXHIBIT 4.2
Form of 8% Convertible Subordinated Promissory Note
due May 31, 1999 aggregating $220,000
(Individual Notes differ as to amount and Payee)
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AMERICAN TECHNOLOGY CORPORATION
8% CONVERTIBLE SUBORDINATED PROMISSORY NOTE
Due May 31, 1999
May 31, 1996 US$___________. 00
Poway, California
FOR VALUE RECEIVED, American Technology Corporation, the
undersigned Delaware corporation (together with all successors,
"Borrower"), hereby promises to pay to the order of
Payee:
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or his, her or its successors or assigns
(collectively, "Noteholder") at
Address:
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or at such other address or addresses as Noteholder may subsequently
designate in writing to Borrower, the full and true sum of Dollars
($ .00), due and payable in one (1) installment on or before May 31,
1999, unless sooner accelerated ("Maturity Date"), plus simple
interest thereon at the rate of eight percent (8.00%) per annum, in
lawful monies of the United States of America. Interest shall be
payable in four (4) quarterly installments, each respectively due on
November 30th, February 28th, May 31st and August 31st of each year
during the term of this Note. If the Maturity Date should fall on a
weekend or national holiday, payment shall be due on the following
business day.
1. Any payment shall be deemed timely made if received by
Noteholder within ten (10) calendar days of the due date. Payments
received shall be imputed first to late or penalty charges then due,
next to interest payments then due, and next to the remaining
principal balance.
2. Borrower may not prepay the principal amount due under
this Note in full or in part without the prior written agreement of
Noteholder.
3. The entire unpaid principal balance hereunder shall become
immediately due and payable at the option of the Noteholder if
Borrower fails to pay any interest when due.
4. (a) The principal amount of this Note may, at any time and
from time to time, be converted at the option of the Noteholder into
fully paid, nonassessable shares of Common Stock of the Borrower,
$.00001 par value per share, at the price of US$1.00 per share,
subject to restrictions and limitations set forth herein. The Common
Stock of the Borrower into which principal is converted ("conversion
shares") will not be registered under the Securities Act of 1933, as
amended ("Act"), but shall be sold, issued and delivered in reliance
upon Rule 903 of Regulation S under the Act.
(b) Certificates which are issued evidencing the
conversion shares shall, unless and until removed in accordance with
applicable law, bear an appropriate restrictive legend to the effect
that the shares have not been registered under the Act but have been
offered and sold in reliance upon Regulation S and may not, during
the applicable restricted period, be offered or sold within the
United States of America or to any "U.S. Person" (as defined in Rule
902 of Regulation S).
(c) The Noteholder shall be required to give the Borrower
not less than seventy (70) days' written notice prior to any such
conversion. Conversion shall be effected, after lapse of such notice
period, by Noteholder's tender of this original Note to the Borrower,
accompanied by the Conversion Form attached to this Note or by a
writing which unequivocally expresses Noteholder's intent to effect
the conversion and the number of conversion shares being purchased.
Conversion shall be deemed to occur on the date this original Note
and such writing is presented to Borrower. Upon such conversion duly
made, Borrower shall execute a new Note of like tenor for the balance
of the principal amount of this Note not converted to common stock,
and deliver such new Note and common stock to Noteholder. Borrower
shall bear all expenses and charges of issuing and delivering the
conversion shares.
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(d) The conversion rate set forth in paragraph 4(a) will
be subject to adjustment if the Borrower is reorganized, merged,
consolidated or party to a plan of exchange with another corporation
pursuant to which shareholders of the Borrower receive any shares of
stock or other securities, or in the event of any sale or other
transfer of all or substantially all of the Borrower's assets, or in
case of any reclassification of Borrower's common stock. Noteholder
shall be entitled, after the occurrence of any such event, to receive
on conversion thereof the kind and amount of shares of stock or other
securities, cash or other property receivable upon such event by a
holder of the number of Common Shares into which the principal
balance of this Note at such time might have been converted
immediately prior to occurrence of the event. In addition, the
conversion rate set forth in paragraph 4(a) of this Note will be
appropriately adjusted if the Borrower's common stock is split or
combined.
5. In the event that this Note is placed with an attorney for
collection or that Noteholder resorts to legal process in order to
enforce any rights under this Note, Borrower shall pay all reasonable
costs, including attorneys' fees, thereby incurred by the Noteholder.
IN WITNESS WHEREOF, the undersigned Borrower has executed
this Promissory Note and has affixed hereto its corporate seal.
AMERICAN TECHNOLOGY CORPORATION
(SEAL) By /s/ ROBERT PUTNAM
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AUTHORIZED OFFICER
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AMERICAN TECHNOLOGY CORPORATION
EXHIBIT 4.3
Form of Stock Purchase Warrant dated as of May 31, 1996,
exercisable to purchase 220,000 common shares at $1.00 per share
until May 31, 1998
(Individual Warrants differ as to Warrant Holder and Number of Warrants)
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THIS WARRANT AND THE SHARES ISSUABLE UPON ITS EXERCISE HAVE NOT BEEN REGISTERED
WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION UNDER THE U.S. SECURITIES ACT
OF 1933 ("ACT"), AND THIS WARRANT MAY NOT BE EXERCISED BY OR ON BEHALF OF ANY
"U.S. PERSON" (AS DEFINED IN "REGULATION S" UNDER THE ACT) OR BY ANY PERSON IN
THE UNITED STATES OF AMERICA, UNLESS THIS WARRANT IS FIRST REGISTERED UNDER THE
ACT OR AN EXEMPTION FROM REGISTRATION UNDER THE ACT IS AVAILABLE.
STOCK PURCHASE WARRANT
RIGHT TO PURCHASE SHARES OF COMMON STOCK
THIS CERTIFIES THAT and all registered and permitted assigns
(collectively, "Holder") is entitled to purchase, on or before May 31, 1998
thousand ( ) shares of the common stock ("Common Stock") of AMERICAN
TECHNOLOGY CORPORATION (the "Corporation" or "Company") upon exercise of this
Warrant along with presentation of the full purchase price conditioned upon
prior written notice as provided herein. The purchase price of the common stock
upon exercise of this Warrant ("Warrant Shares") is equal to One Dollar ($1.00)
per share (the "Exercise Price"). This Warrant is granted to Holder for valuable
consideration received.
1. Notice of Exercise. This Warrant may only be exercised upon not less than
seventy (70) days' prior written notice prior to exercise. Exercise shall be
effected, after lapse of such notice period, by tender of this Warrant,
accompanied by the Exercise Form attached to this Warrant and payment of the
exercise price. The notice may be withdrawn upon written request prior to the
specified exercise date, thereafter any new notice will require compliance with
a new 70 day notice period. The 70 day notice may be waived by the Company in
its sole discretion.
2. Exercise of Warrant. Seventy (70) or more days after sending written notice
of exercise but in no event after the expiration date listed above, this Warrant
may be exercised in whole or in part on any business day by presentation and
surrender hereof to the Company at its principal office of the Exercise Price in
lawful money of the United States of America in the form of a wire transfer or a
check, subject to collection, for the number of Warrant Shares specified in the
exercise request. If this Warrant should be exercised in part only, the Company
shall, upon surrender of this Warrant, execute and deliver a new Warrant
evidencing the rights of the Holder thereof to purchase the balance of the
Warrant Shares purchasable hereunder. Upon receipt by the Company of this
Warrant and prior receipt of an exercise request and representations, together
with proper payment of the Exercise Price, at such office, the Holder shall be
deemed to be the holder of record of the Warrant Shares, notwithstanding that
the stock transfer books of the Company shall then be closed or that
certificates representing such Warrant Shares shall not then be actually
delivered to the Holder. The Company shall pay any and all transfer agent fees,
documentary stamp or similar issue or transfer taxes payable in respect of the
issue or delivery of the Warrant Shares.
3. Adjustment of Exercise Price and Number of Shares Deliverable Upon Exercise
of Warrant. The Exercise Price and the number of Shares purchasable upon the
exercise of this Warrant are subject to adjustment from time to time upon the
occurrence of the events enumerated in this paragraph.
(a) In case the Corporation shall at any time after the date of this Warrant:
(i) Pay a dividend of its shares of its Common Stock or make a
distribution in shares of its Common Stock with respect to its
outstanding Common Stock;
(ii) Subdivide its outstanding shares of Common Stock;
(iii) Combine its outstanding shares of Common Stock; or
(iv) Issue any other shares of capital stock by reclassification of
its shares of Common Stock;
the Exercise Price in effect at the time of the record date of such dividend,
subdivision, combination, or reclassification shall be proportionately adjusted
so that Holder shall be entitled to receive the aggregate number and kind of
shares which, if this Warrant had been exercised prior to such event, Holder
would have owned upon such exercise and been entitled to receive by virtue of
such dividend, subdivision, combination, or reclassification. Such adjustment
shall be made successively whenever any event listed above shall occur.
(b) In case of any reorganization of the Corporation, or in case of any
reclassification or change of outstanding Common Stock issuable upon exercise of
this Warrant (other than a change in par value, or from par value to no par
value, or from no par value to par value, or as a result of a subdivision or
split-up or combination of the Common Stock), or in case of any consolidation or
merger of the Company with or into another entity (other than a consolidation or
merger with a subsidiary or a continuing corporation), or in case of any sale or
conveyance to another entity of all or substantially all of the property of the
Corporation, then, as a condition of such reorganization, reclassification,
change,
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consolidation, merger, sale, or conveyance, the Corporation or such successor or
purchasing entity, as the case may be, shall forthwith provide to Holder a
supplemental warrant (the "Supplemental Warrant") which will make lawful and
adequate provision whereby Holder shall have the right thereafter to receive,
upon exercise of such Supplemental Warrant, the kind and amount of shares and
other securities and property which would have been received upon such
reorganization, reclassification, change, consolidation, merger, sale, or
conveyance by a holder of a number of shares of Common Stock equal to the number
of Shares issuable upon exercise of this Warrant immediately prior to such
reorganization, reclassification, change, consolidation, merger, sale, or
conveyance. Such Supplemental Warrant shall include provisions for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this paragraph. The above provisions of this paragraph shall
similarly apply to successive reorganizations, reclassifications, and changes of
Common Stock and to successive consolidations, mergers, sales, or conveyances.
4. Representations
The Holder represents and warrants to the Company that the following things are
true and correct as of the date of Holder's execution of this Warrant and its
delivery to the Company and will be true and correct as of the date of every
exercise of this Warrant and shall be deemed repeated in full at the time of
each and every exercise of this Warrant:
(a) The Holder understands that the Warrant Shares shall be issued in reliance
upon specific exemptions from, or the non-application of, the registration and
other requirements of the U.S. federal and state securities laws, and that the
Company is relying upon the truth and accuracy of the representations,
warranties, agreements, acknowledgments and understandings of the Holder set
forth herein in order to determine the applicability of such exemptions and the
suitability of the Holder to acquire the Warrant Shares pursuant to such
exemptions. Without limiting the foregoing, the Holder understands that the
Warrant Shares have not been and will not be registered under the Securities Act
of 1993, as amended (the "Act"), in reliance upon Regulation S thereunder
(Regulation S") and cannot be offered or sold in the United States or to U. S.
Persons (as defined in Regulation S), or for the account or benefit of any U.S.
person, except upon the registration of the Securities under the Act or pursuant
to an available exemption from the registration requirements of the Act.
(b) The Holder is not a U.S. Person (as defined in Regulation S).
(c) None of the Holder, its affiliates or any person acting on behalf of the
Holder or any such affiliate has engaged, or will engage, in any "directed
selling efforts" (as defined in Regulation S) with respect to the Warrant
Shares.
(d) The exercise of the Warrant has not been pre arranged with a purchaser
located in the United States or who is a U. S. Person, and are not part of a
plan or scheme to evade the regulation requirements of the Act.
(e) The Holder has not entered, and does not presently intend to enter, into any
option, short position or similar transaction with the purpose of reducing the
Holder's market risk with respect to the exercise of the Warrant and the
ownership and holding of the Warrant Shares.
(f) The Holder understands that he shall be required to bear all personal
expenses incurred in connection with the exercise of this Warrant, however the
Company shall pay the charges and expenses of issuing and delivering Warrant
Shares and of any legal opinions that may be required.
The Holder shall certify in writing at the date of exercise that each of the
foregoing representation and warranties set forth in this Section 3 are true as
of the date thereof. If in any respect such representations and warranties shall
not be true and accurate at the date the Holder exercises this Warrant, the
Holder shall give written notice of such fact to the Company specifying which
representations and warranties are not true and accurate and the reasons
therefor, whereupon the Company may place the applicable Rule 144 restrictive
legend on the common shares issued upon exercise of the Warrant. Likewise should
there be amendments or other changes in Regulation S prior to the date of
exercise, it is possible that the exercise and issue of the Warrant Shares may
no longer qualify for the exemption and accordingly the Company may be required
to issue the Warrant Shares with the applicable legend.
However, the Company shall issue a certificate which does not contain such
legend if (i) the shares represented by such certificate are sold pursuant to a
registration statement (including a current prospectus) which has become
effective under the Act, or (ii) the Company's counsel, or other counsel
acceptable to the Company, shall have rendered an opinion satisfactory to the
Company to the effect that such shares may be issued without legend because the
original sale was pursuant to Regulation S or otherwise that the shares may be
freely sold and thereafter publicly traded without registration under the Act.
The Company may, but shall in no event be obligated to, register any securities
covered hereby pursuant to the Act.
5. Legend
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In addition to any specific restrictive legends that may be required by
applicable securities laws, the Holder agrees that a restrictive legend in
substantially the following form may be placed on the certificates representing
the Warrant Shares unless the provisions of Section 3 dictate otherwise:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN AND WILL
NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), IN RELIANCE UPON REGULATION S THEREUNDER, AND CANNOT BE OFFERED
OR SOLD IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF,
ANY U.S. PERSON, EXCEPT PURSUANT TO REGULATION S OR ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT.
The Holder understands and agrees that the Company may place, and may instruct
any transfer agent or depository for the Shares to place, a stop transfer
notation in the securities records in respect of the Shares.
6. Assignment or Loss of Warrant.
(a) The Holder of this Warrant, without obtaining the prior written consent of
the Company, shall not transfer or assign its interest in this Warrant, or any
of the Warrant Shares prior to exercise, in whole or in part to any transferee.
(b) Upon receipt of evidence satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant, and (in the case of loss, theft or
destruction) of indemnification satisfactory to the Company, and upon surrender
and cancellation of this Warrant, if mutilated, the Company shall execute and
deliver a new Warrant of like tenor and date.
7. Reservation of Shares. The Company hereby agrees that at all times there
shall be reserved for issuance and delivery upon exercise or exchange of this
Warrant all shares of its Common Stock or other shares of capital stock of the
Company from time to time issuable upon exercise or exchange of this Warrant.
All such shares shall be duly authorized and, when issued upon the exercise or
exchange of the Warrant in accordance with the terms hereof, shall be validly
issued, fully paid and nonassessable, free and clear of all liens, security
interests, charges and other encumbrances or restrictions on sale (other than as
provided in the Company's articles of incorporation and any restrictions on sale
set forth herein or pursuant to applicable federal and state securities laws)
and free and clear of all preemptive rights.
8. Arbitration. In the event that a dispute arises between the Corporation and
the holder of this Warrant as to any matter relating to this Warrant, the matter
shall be settled by arbitration in San Diego, California in accordance with the
Rules of the American Arbitration Association and the award rendered by such
arbitrator(s) shall not be subject to appeal and may be entered in any federal
or state court located in Oklahoma having jurisdiction thereof, and actions or
proceedings shall be brought in no other forum or venue.
9. Miscellaneous. By signature below, the person named in this Warrant as Holder
agrees to be bound by all the terms, conditions and provisions of this Warrant.
Every assignee, transferee, legal representative and successor of the original
Holder shall be subject to the terms, provisions and conditions of this Warrant.
IN WITNESS WHEREOF, the Corporation has caused this Warrant to be executed by
its duly authorized officers effective on this 5th day of June 1996.
AMERICAN TECHNOLOGY CORPORATION
BY /s/ ROBERT PUTNAM
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Its President
BY /s/ RICHARD M. WAGNER
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Its Secretary
ACKNOWLEDGEMENT OF REPRESENTATIONS:
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AMERICAN TECHNOLOGY CORPORATION
EXHIBIT 4.4
8% Convertible Subordinated Promissory Note due May 31, 1999
payable to Elwood G. Norris for $100,000
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AMERICAN TECHNOLOGY CORPORATION
8% Convertible Subordinated Promissory Note due May 31, 1999
May 31, 1996 US$100,000. 00
Poway, California
FOR VALUE RECEIVED, American Technology Corporation, the
undersigned Delaware corporation (together with all successors,
"Borrower"), hereby promises to pay to the order of ELWOOD G. NORRIS,
or his successors or assigns (collectively, "Noteholder") at 13824
San Sebastian, Poway, California 92064 or at such other address or
addresses as Noteholder may subsequently designate in writing to
Borrower, the full and true sum of One Hundred Thousand and NO/100
Dollars ($100,000.00), due and payable in one (1) installment on or
before May 31, 1999, unless sooner accelerated ("Maturity Date"),
plus simple interest thereon at the rate of eight percent (8.00%) per
annum, in lawful monies of the United States of America. Interest
shall be payable in four (4) quarterly installments, each
respectively due on November 30th, February 28th, May 31st and August
31st of each year during the term of this Note. If the Maturity Date
should fall on a weekend or national holiday, payment shall be due on
the following business day.
1. Any payment shall be deemed timely made if received by
Noteholder within ten (10) calendar days of the due date. Payments
received shall be imputed first to late or penalty charges then due,
next to interest payments then due, and next to the remaining
principal balance.
2. Borrower may not prepay the principal amount due under
this Note in full or in part without the prior written agreement of
Noteholder.
3. The entire unpaid principal balance hereunder shall become
immediately due and payable at the option of the Noteholder if
Borrower fails to pay any interest when due.
4. (a) The principal amount of this Note may, at any time and
from time to time, be converted at the option of the Noteholder into
fully paid, nonassessable shares of Common Stock of the Borrower,
$.00001 par value per share, at the price of US$1.00 per share,
subject to restrictions and limitations set forth herein. The Common
Stock of the Borrower into which principal is converted ("conversion
shares") will not be registered under the Securities Act of 1933, as
amended ("Act"), but shall be sold, issued and delivered in reliance
upon Section 4(2) under the Act. Certificates which are issued
evidencing the conversion shares shall, unless and until removed in
accordance with applicable law, bear a customary investment legend to
the effect that the shares have not been registered under the Act and
are restricted securities and may not be resold or otherwise
transferred or hypothecated except pursuant to registration under the
Act or pursuant to an available exemption from the registration
requirements of the Act.
(b) Conversion shall be effected by Noteholder's tender of
this original Note to the Borrower, accompanied by the Conversion
Form attached to this Note or by a writing which unequivocally
expresses Noteholder's intent to effect the conversion and the number
of conversion shares being purchased. Conversion shall be deemed to
occur on the date this original Note and such writing is presented to
Borrower. Upon such conversion duly made, Borrower shall execute a
new Note of like tenor for the balance of the principal amount of
this Note not converted to common stock, and deliver such new Note
and common stock to Noteholder. Borrower shall bear all expenses and
charges of issuing and delivering the conversion shares.
(c) The conversion rate set forth in paragraph 4(a) will
be subject to adjustment if the Borrower is reorganized, merged,
consolidated or party to a plan of exchange with another corporation
pursuant to which shareholders of the Borrower receive any shares of
stock or other securities, or in the event of any sale or other
transfer of all or substantially all of the Borrower's assets, or in
case of any reclassification of Borrower's common stock. Noteholder
shall be entitled, after the occurrence of any such event, to receive
on conversion thereof the kind and amount of shares of stock or other
securities, cash or other property receivable upon such event by a
holder of the number of Common Shares into which the principal
balance of this Note at such time might have been converted
immediately prior to occurrence of the event. In addition, the
conversion rate set forth in paragraph 4(a) of this Note will be
appropriately adjusted if the Borrower's common stock is split or
combined.
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5. In the event that this Note is placed with an attorney for
collection or that Noteholder resorts to legal process in order to
enforce any rights under this Note, Borrower shall pay all reasonable
costs, including attorneys' fees, thereby incurred by the Noteholder.
IN WITNESS WHEREOF, the undersigned Borrower has executed
this Promissory Note and has affixed hereto its corporate seal.
AMERICAN TECHNOLOGY CORPORATION
(SEAL) By. /s/ ROBERT PUTNAM
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AUTHORIZED OFFICER
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AMERICAN TECHNOLOGY CORPORATION
EXHIBIT 4.5
Stock Purchase Warrant exercisable to purchase 100,000 common shares
at $1.00 per share until May 31, 1998 granted to Elwood G. Norris
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THIS WARRANT AND THE SHARES ISSUABLE UPON ITS EXERCISE HAVE NOT BEEN REGISTERED
WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION UNDER THE U.S. SECURITIES ACT
OF 1933 ("ACT"), AND THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT
TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO RULE
144 OF SUCH ACT.
STOCK PURCHASE WARRANT
RIGHT TO PURCHASE 100,000 SHARES OF COMMON STOCK
THIS CERTIFIES THAT ELWOOD G. NORRIS and all registered and permitted assigns
(collectively, "Holder") is entitled to purchase, on or before May 31, 1998 one
hundred thousand (100,000) shares of the common stock ("Common Stock") of
AMERICAN TECHNOLOGY CORPORATION (the "Corporation" or "Company") upon exercise
of this Warrant along with presentation of the full purchase price. The purchase
price of the common stock upon exercise of this Warrant ("Warrant Shares") is
equal to the One Dollar ($1.00) per share (the "Exercise Price"). This Warrant
is granted to Holder for valuable consideration received.
1. Exercise of Warrant. This Warrant may be exercised in whole or in part on any
business day on or before the expiration date listed above by presentation and
surrender hereof to the Company at its principal office of an exercise request
and the Exercise Price in lawful money of the United States of America in the
form of a wire transfer or check, subject to collection, for the number of
Warrant Shares specified in the exercise request. If this Warrant should be
exercised in part only, the Company shall, upon surrender of this Warrant,
execute and deliver a new Warrant evidencing the rights of the Holder thereof to
purchase the balance of the Warrant Shares purchasable hereunder. Upon receipt
by the Company of this Warrant and an exercise request and representations,
together with proper payment of the Exercise Price, at such office, the Holder
shall be deemed to be the holder of record of the Warrant Shares,
notwithstanding that the stock transfer books of the Company shall then be
closed or that certificates representing such Warrant Shares shall not then be
actually delivered to the Holder. The Company shall pay any and all transfer
agent fees, documentary stamp or similar issue or transfer taxes payable in
respect of the issue or delivery of the Warrant Shares.
2. Adjustment of Exercise Price and Number of Shares Deliverable Upon Exercise
of Warrant. The Exercise Price and the number of Shares purchasable upon the
exercise of this Warrant are subject to adjustment from time to time upon the
occurrence of the events enumerated in this paragraph.
(a) In case the Corporation shall at any time after the date of this Warrant:
(i) Pay a dividend of its shares of its Common Stock or make a
distribution in shares of its Common Stock with respect to its
outstanding Common Stock;
(ii) Subdivide its outstanding shares of Common Stock;
(iii) Combine its outstanding shares of Common Stock; or
(iv) Issue any other shares of capital stock by reclassification of
its shares of Common Stock;
the Exercise Price in effect at the time of the record date of such dividend,
subdivision, combination, or reclassification shall be proportionately adjusted
so that Holder shall be entitled to receive the aggregate number and kind of
shares which, if this Warrant had been exercised prior to such event, Holder
would have owned upon such exercise and been entitled to receive by virtue of
such dividend, subdivision, combination, or reclassification. Such adjustment
shall be made successively whenever any event listed above shall occur.
(b) In case of any reorganization of the Corporation, or in case of any
reclassification or change of outstanding Common Stock issuable upon exercise of
this Warrant (other than a change in par value, or from par value to no par
value, or from no par value to par value, or as a result of a subdivision or
split-up or combination of the Common Stock), or in case of any consolidation or
merger of the Company with or into another entity (other than a consolidation or
merger with a subsidiary or a continuing corporation), or in case of any sale or
conveyance to another entity of all or substantially all of the property of the
Corporation, then, as a condition of such reorganization, reclassification,
change, consolidation, merger, sale, or conveyance, the Corporation or such
successor or purchasing entity, as the case may be, shall forthwith provide to
Holder a supplemental warrant (the "Supplemental Warrant") which will make
lawful and adequate provision whereby Holder shall have the right thereafter to
receive, upon exercise of such Supplemental Warrant, the kind and amount of
shares and other securities and property which would have been received upon
such reorganization, reclassification, change, consolidation, merger, sale, or
conveyance by a holder of a number of shares of Common Stock equal to the number
of Shares issuable upon exercise of this Warrant immediately prior to such
reorganization, reclassification, change, consolidation, merger, sale, or
conveyance. Such Supplemental Warrant shall include provisions for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
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<PAGE> 3
provided for in this paragraph. The above provisions of this paragraph shall
similarly apply to successive reorganizations, reclassifications, and changes of
Common Stock and to successive consolidations, mergers, sales, or conveyances.
3. Representations
Holder has been advised and understands that the Warrants and the Shares
purchasable thereby are characterized as "restricted securities" under the
federal securities laws because they are being acquired from Company in a
transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under
the Act only in certain limited circumstances.Holder further understands that
the certificates evidencing the Shares will bear the following legend: "These
securities have not been registered under the Securities Act of 1933. They may
not be sold, offered for sale, pledged or hypothecated in the absence of a
registration statement in effect with respect to the securities under such Act
or an opinion of counsel satisfactory to the Company that such registration is
not required or unless sold pursuant to Rule 144 of such Act."
The Holder understands that the Company may place, and may instruct any transfer
agent or depository for the Shares to place, a stop transfer notation in the
securities records in respect of the Shares.
4. Assignment or Loss of Warrant.
(a) The Holder of this Warrant, without obtaining the prior written consent of
the Company, shall not transfer or assign its interest in this Warrant, or any
of the Warrant Shares prior to exercise, in whole or in part to any transferee.
(b) Upon receipt of evidence satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant, and (in the case of loss, theft or
destruction) of indemnification satisfactory to the Company, and upon surrender
and cancellation of this Warrant, if mutilated, the Company shall execute and
deliver a new Warrant of like tenor and date.
5. Reservation of Shares. The Company hereby agrees that at all times there
shall be reserved for issuance and delivery upon exercise or exchange of this
Warrant all shares of its Common Stock or other shares of capital stock of the
Company from time to time issuable upon exercise or exchange of this Warrant.
All such shares shall be duly authorized and, when issued upon the exercise or
exchange of the Warrant in accordance with the terms hereof, shall be validly
issued, fully paid and nonassessable, free and clear of all liens, security
interests, charges and other encumbrances or restrictions on sale (other than as
provided in the Company's articles of incorporation and any restrictions on sale
set forth herein or pursuant to applicable federal and state securities laws)
and free and clear of all preemptive rights.
6. Arbitration. In the event that a dispute arises between the Corporation and
the holder of this Warrant as to any matter relating to this Warrant, the matter
shall be settled by arbitration in San Diego, California in accordance with the
Rules of the American Arbitration Association and the award rendered by such
arbitrator(s) shall not be subject to appeal and may be entered in any federal
or state court located in Oklahoma having jurisdiction thereof, and actions or
proceedings shall be brought in no other forum or venue.
IN WITNESS WHEREOF, the Corporation has caused this Warrant to be executed by
its duly authorized officers effective on this 4th day of June 1996.
AMERICAN TECHNOLOGY CORPORATION
BY /s/ ROBERT PUTNAM
--------------------------------------
Its President
BY /s/ RICHARD M. WAGNER
--------------------------------------
Its Secretary
ACKNOWLEDGEMENT OF REPRESENTATIONS:
/s/ ELWOOD G. NORRIS
- -------------------------
ELWOOD G. NORRIS
16
