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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 27, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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AMERICAN TECHNOLOGY CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 87-0361799
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
13114 Evening Creek Drive South
San Diego, CA 92128
(619) 679-2114
(Address, including zip code, and telephone number,
including area code, of Registrant's principal
executive offices)
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1997 STOCK OPTION PLAN
STOCK OPTIONS
(Full title of the plans)
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Cornelius J. Brosnan
President and Chief Executive Officer
AMERICAN TECHNOLOGY CORPORATION
13114 Evening Creek Drive South
San Diego, CA 92128
(619) 679-2114
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
Jeremy D. Glaser, Esq.
Michael A. Newman, Esq.
COOLEY GODWARD LLP
4365 Executive Drive
San Diego, CA 92121
(619) 550-6000
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CALCULATION OF REGISTRATION FEE
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PROPOSED
PROPOSED MAXIMUM
MAXIMUM AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED BE REGISTERED PER SHARE(1) PRICE(1) FEE
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Common Stock, $.00001 par value 670,000 $3.59375 - $5,003,137.50 $1,475.93
$16.00
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(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457. The price per share and aggregate
offering price are based upon (a) the actual exercise price for shares
subject to options previously granted under the Registrant's 1997 Stock
Option Plan (the "Plan"); (b) the average of the high and low sales price of
Registrant's Common Stock on July 23, 1998 as reported in the
over-the-counter market on the National Association of Securities Dealers
OTC Electronic Bulletin Board System for shares issuable under options
available for grant under the Plan, and (c) the actual exercise price for
shares subject to options granted outside the Plan. The following chart
shows the calculation of the registration fee.
NUMBER OF OFFERING PRICE PER AGGREGATE OFFERING
TYPES OF SHARES SHARES SHARE PRICE
--------------- -------- ------------------ ------------------
Shares issuable under 370,000 8.1875 3,029,375.00
options available for
grant
Shares subject to 30,000 3.59375 107,812.50
outstanding stock
options under the Plan 100,000 3.6875 368,750.00
Shares subject to 50,000 16.00 800,000.00
outstanding stock
options outside the
Plan 120,000 5.81 697,200.00
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by American Technology Corporation (the
"Registrant") with the Securities and Exchange Commission are incorporated by
reference into this Registration Statement:
a) The Registrant's latest annual report on Form 10-KSB filed pursuant
to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), or either (1) the Registrant's latest prospectus filed
pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the
"Securities Act"), that contains audited consolidated financial statements for
the Registrant's latest fiscal year for which such statements have been filed,
or (2) the Registrant's effective registration statement on Form 10 or 20-F
filed under the Exchange Act containing audited consolidated financial
statements for the Registrant's latest fiscal year.
b) All other reports filed pursuant to Sections 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual reports, the
prospectus or the registration statement referred to in (a) above.
c) The description of the Registrant's Common Stock which is contained
in a registration statement filed under the Exchange Act, including any
amendment or report filed for the purpose of updating such description.
All documents filed by the Registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold shall be deemed to be incorporated by
reference into this Registration Statement and to be a part hereof from the date
of filing of such documents. Any statement contained in a document incorporated
by reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by Delaware law, the Company's Certificate of Incorporation
provides that the Company will indemnify its officers, directors, employees and
agents against attorneys' fees and other expenses and liabilities they incur to
defend, settle or satisfy any civil or criminal action brought against them
arising out of their association with or activities on behalf of the Company
unless, in any such action, the are adjudged to have acted with gross negligence
or to have engaged in willful misconduct. The Company may also bear the expenses
of such litigation for any such persons upon their promise to repay such sums if
it is ultimately determined that they are not entitled to indemnification. Such
expenditures could be substantial and may not be recouped, even if the Company
is so entitled. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons controlling
the Company pursuant to the foregoing provisions, the Company has been informed
that, in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable.
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Pursuant to the General Corporation Law of Delaware, the Company's
Certificate of Incorporation excludes personal liability on the part of its
directors to the Company for monetary damages based upon any violation of their
fiduciary duties as directors, except as to liability for any breach of the duty
of loyalty, acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, acts in violation of Section 174 of
the General Corporation Law of Delaware, or any transaction from which a
director receives an improper personal benefit. This exclusion of liability does
not limit any right which a director may have to be indemnified and does not
affect any director's liability under federal or applicable state securities
laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit No. Description
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4.1 Registrant's Certificate of Incorporation (1)
4.2 Certificate of Amendment to the Certificate of Incorporation (2)
4.3 Registrant's Bylaws (1)
4.4 Specimen Stock Certificate
5.1 Opinion of Cooley Godward LLP
10.1 1997 Stock Option Plan
10.2 Special Stock Option Agreement dated October 2, 1997 between the
Company and Cornelius J. Brosnan
10.3 Stock Option Agreement dated September 1, 1997 between the
Company and Dale Williams (3)
10.4 Amendment to Stock Option Agreement between Dale Williams and
the Company dated as of June 12, 1998 (4)
23.1 Consent of BDO Seidman, LLP
23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
24.1 Power of Attorney. Reference is made to page 5.
(1) Previously filed as an exhibit to the Registrant's Form 10-SB effective
August 1, 1994, and incorporated herein by reference.
(2) Previously filed as an exhibit to the Registrant's Form 10-QSB dated
March 31, 1997, and incorporated herein by reference.
(3) Previously filed as an exhibit to the Registrant's Form 10-KSB dated
September 30, 1997, and incorporated herein by reference.
(4) Previously filed as an exhibit to the Registrant's Form 8-K dated June
29, 1998, and incorporated herein by reference.
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ITEM 9. UNDERTAKINGS.
(a) Rule 415 Offering.
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;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the 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 the
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) (Section 230.424(b)
of this chapter) 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 the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if this
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 Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, 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) Filings Incorporating Subsequent Exchange Act Documents By
Reference.
The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(h) Request for Acceleration of Effective Date or Filing of
Registration Statement on Form S-8.
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 advised that in the opinion of the Commission 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
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or controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Diego, State of California, on July 23,
1998.
AMERICAN TECHNOLOGY CORPORATION
By /s/ CORNELIUS J. BROSNAN
_________________________________
Cornelius J. Brosnan
Chairman, President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Cornelius J. Brosnan and Robert Putnam
and each of them, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, or any of
them, or his substitutes or substitute, may lawfully do or cause to be done by
virtue hereof.
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
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/S/ CORNELIUS J. BROSNAN
- ------------------------------- Chairman, President and Chief Executive July 23, 1998
Cornelius J. Brosnan Officer (Principal Executive Officer)
/S/ ROBERT PUTNAM
- ------------------------------- Vice President, Treasurer and Assistant July 23, 1998
Robert Putnam Secretary (Acting Principal Financial
and Accounting Officer)
/S/ RICHARD M. WAGNER
- ------------------------------- Director and Secretary July 23, 1998
Richard M. Wagner
/S/ ELWOOD G. NORRIS
- ------------------------------- Director and Chief Technology Officer July 23, 1998
Elwood G. Norris
- ------------------------------- Director July __, 1998
Joel A. Barker
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
Exhibit No. Description
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4.1 Registrant's Certificate of Incorporation (1)
4.2 Certificate of Amendment to the Certificate of Incorporation (2)
4.3 Registrant's Bylaws (1)
4.4 Specimen Stock Certificate
5.1 Opinion of Cooley Godward LLP
10.1 1997 Stock Option Plan
10.2 Special Stock Option Agreement dated October 2, 1997 between the
Company and Cornelius J. Brosnan
10.3 Stock Option Agreement dated September 1, 1997 between the
Company and Dale Williams (3)
10.4 Amendment to Stock Option Agreement between Dale Williams and
the Company dated as of June 12, 1998 (4)
23.1 Consent of BDO Seidman, LLP
23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
24.1 Power of Attorney. Reference is made to page 5.
(1) Previously filed as an exhibit to the Registrant's Form 10-SB effective
August 1, 1994, and incorporated herein by reference.
(2) Previously filed as an exhibit to the Registrant's Form 10-QSB dated
March 31, 1997, and incorporated herein by reference.
(3) Previously filed as an exhibit to the Registrant's Form 10-KSB dated
September 30, 1997, and incorporated herein by reference.
(4) Previously filed as an exhibit to the Registrant's Form 8-K dated June
29, 1998, and incorporated herein by reference.