EXHIBIT 5.1
[Sheppard, Mullin, Richter and Hampton LLP Letterhead]
January 21, 2005
American Technology Corporation
13114 Evening Creek Drive South
San Diego, California 92128
Re: Registration Statement on Form S-3
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Ladies and Gentlemen:
We have acted as special counsel to American Technology
Corporation, a Delaware corporation (the "Company"), in connection with the
filing of a registration statement on Form S-3 (the "Registration Statement")
under the Securities Act of 1933, as amended, covering the offering for resale
of up to 3,959,782 shares of the Company's common stock, par value $0.00001 per
share (the "Common Stock"), by the selling stockholder named therein (the
"Selling Stockholder"), which includes (i) up to 3,684,782 shares of Common
Stock (the "Shares") which the Company may issue from time to time after the
Registration Statement becomes effective pursuant to an executed and delivered
purchase agreement (the "Purchase Agreement"); and (ii) up to 275,000 shares of
Common Stock (the "Warrant Shares") issuable upon the exercise of an issued and
outstanding warrant (the "Warrant"). This opinion is being furnished in
accordance with the requirements of Item 16 of Form S-3 and Item 601(b)(5)(i) of
Regulation S-K.
In connection with this opinion, we have reviewed the
Registration Statement, the Company's charter documents, the resolutions adopted
by the Board of Directors of the Company on December 10, 2004 (the
"Resolutions"), certificates of government officials and such other documents,
records, certificates, memoranda and other instruments as we deem necessary as a
basis for this opinion. With respect to the foregoing documents, we have assumed
the genuineness of all signatures, the authenticity of all documents submitted
to us as originals and the conformity to originals of all documents submitted to
us as certified or reproduced copies. We have also assumed that the specimen
common stock certificate submitted to us will conform to the common stock
certificates issued to represent the Shares or Warrant Shares (the "Share
Certificates"), that the Share Certificates will be duly executed by the Company
and countersigned by the transfer agent therefor in accordance with Section 158
of the Delaware General Corporation Law, that shares currently reserved will
remain available for the issuance of the Shares or Warrant Shares, and that the
Company's charter documents and Resolutions will not be amended or otherwise
modified prior to the issuance of any Shares or Warrant Shares. We have obtained
from the officers of the Company certificates as to certain factual matters and,
insofar as this opinion is based on matters of fact, we have relied on such
certificates without independent investigation.
January 21, 2005
Page 2
Based on the foregoing review, and in reliance thereon, we are
of the opinion that if, as and when the Shares and Warrant Shares are issued and
delivered by the Company in accordance with the terms of the Purchase Agreement
and Warrant, respectively, including without limitation payment in full of the
consideration therefor, the Shares and Warrant Shares will be validly issued,
fully paid and nonassessable.
We consent to the filing of this opinion letter as Exhibit 5.1
to the Registration Statement and the naming of our firm in the "Legal Matters"
portion of the prospectus included in the Registration Statement.
We express no opinion as to matters governed by any laws other
than the Delaware General Corporation Law, the applicable provisions of the
Delaware Constitution and reported decisions of the Delaware courts interpreting
these laws.
This opinion letter is rendered as of the date first written
above, and we disclaim any obligation to advise you of facts, circumstances,
events or developments which hereafter may be brought to our attention and which
may alter, affect or modify the opinion expressed herein. Our opinion is
expressly limited to the matters set forth above, and we render no opinion,
whether by implication or otherwise, as to any other matters relating to the
Company, the Shares or the Warrant Shares.
Respectfully submitted,
/s/ Sheppard, Mullin, Richter & Hampton LLP