-----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, GvzzLe8L1UySEh373cqzes3DF2ObrwctTbXV/dA+5CZYlIclzX/uJ5V4rJyHzzor i77mxLqGxlmuLA5iUJVoMg== 0000936392-97-000391.txt : 19970325 0000936392-97-000391.hdr.sgml : 19970325 ACCESSION NUMBER: 0000936392-97-000391 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19970324 EFFECTIVENESS DATE: 19970324 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: AMERICAN TECHNOLOGY CORP /DE/ CENTRAL INDEX KEY: 0000924383 STANDARD INDUSTRIAL CLASSIFICATION: RADIO & TV BROADCASTING & COMMUNICATIONS EQUIPMENT [3663] IRS NUMBER: 870361799 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-23845 FILM NUMBER: 97561773 BUSINESS ADDRESS: STREET 1: 12725 STOWE DR CITY: POWAY STATE: CA ZIP: 92064 BUSINESS PHONE: 6196792114 S-8 1 FORM S-8 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 (Name, address and telephone number offices and principal place of business) of agent for service) 1997 EMPLOYEE STOCK COMPENSATION 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
==================================================================================================================== 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) - -------------------------------------------------------------------------------------------------------------------- Common Stock (1) 100,000 $3.875 $387,500 $117.43 ====================================================================================================================
(1) The securities registered hereunder are shares of the registrant's common stock, $.00001 par value, subject to award to persons defined as employees (excludes executive officers and directors) under the registrant's 1997 Employee Stock Compensation 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. ================================================================================ 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, 1996; (b) Company's quarterly report on Form 10-QSB for the fiscal quarter ended December 31, 1996; (c) 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. 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 2 3 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 10.11 1997 Employee Stock Compensation Plan of the Company dated March 10, 1997 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. (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. 3 4 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: March 24, 1997 AMERICAN TECHNOLOGY CORPORATION By /s/ ROBERT PUTNAM 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.
Signature Title Date --------- ----- ---- /s/ ROBERT PUTNAM Director, President 03/24/97 ROBERT PUTNAM Chief Executive Officer Chief Financial Officer /s/ RICHARD M. WAGNER Director, Secretary 03/24/97 RICHARD M. WAGNER /s/ ELWOOD G. NORRIS Director 03/24/97 ELWOOD G. NORRIS
4 5 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. 5.1 Consent and opinion of Brasher & Company, counsel to the Company (1) 10.11 1997 Employee Stock Compensation Plan of the Company dated March 10, 1997 (1) 23.1 Consent of BDO Seidman, LLP, independent certified public accountants (1) (1) Exhibit filed as part of this Registration Statement on Form S-8. 5 EX-5.1 2 EXHIBIT 5.1 1 American Technology Corporation Form S-8 EXHIBIT 5.1 Consent and Opinion of Brasher & Company 6 2 BRASHER & COMPANY Attorneys At Law 90 Madison Street, Suite 707 Denver, Colorado 80209 Telephone Facsimile (303) 355-3000 303-355-3063 March 20, 1997 Board of Directors AMERICAN TECHNOLOGY CORPORATION 12725 Stowe Drive Poway, California 92064 Re: Registration Statement on Form S-8 1997 Employee Stock Compensation 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 100,000 shares of the Company's common stock, $.00001 par value ("Shares"), which may be issued pursuant to the Company's 1997 Employee Stock Compensation 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. 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. 7 3 BRASHER & COMPANY Board of Directors AMERICAN TECHNOLOGY CORPORATION March 20, 1997 Page 2 of 2 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 JR. JOHN D. BRASHER JR. for the Firm 8 EX-10.11 3 EXHIBIT 10.11 1 American Technology Corporation Form S-8 EXHIBIT 10.11 1997 Employee Stock Compensation Plan 9 2 1997 EMPLOYEE STOCK COMPENSATION PLAN AMERICAN TECHNOLOGY CORPORATION 1. PURPOSE OF THE PLAN. This 1997 Employee Stock Compensation Plan ("Plan") is intended to further the growth and advance the best interests of AMERICAN TECHNOLOGY CORPORATION, a Delaware corporation (the "Company"), and Affiliated Corporations, by supporting and increasing the Company's ability to attract, retain and compensate persons of experience and ability and whose services are considered valuable, to encourage the sense of proprietorship in such persons, and to stimulate the active interest of such persons in the development and success of the Company and Affiliate Corporations. This Plan provides for stock compensation through the award of the Company's Common Stock. 2. DEFINITIONS. Whenever used in this Plan, except where the context might clearly indicate otherwise, the following terms shall have the meanings set forth in this section: a. "Act" means the U.S. Securities Act of 1933, as amended. b. "Affiliated Corporation" means any Parent or Subsidiary of the Company. c. "Award" or "grant" means any grant or sale of Common Stock made under this Plan. d. "Board of Directors" means the Board of Directors of the Company. The term "Committee" is defined in Section 4 of this Plan. e. "Code" means the Internal Revenue Code of 1986, as amended. f. "Common Stock" or "Common Shares" means the common stock, $.00001 par value per share, of the Company, or in the event that the outstanding Common Shares are hereafter changed into or exchanged for different shares of securities of the Company, such other shares or securities. g. "Date of Grant" means the day the Committee authorizes the grant of Common Stock or such later date as may be specified by the Committee as the date a particular award will become effective. h. "Employee" means any person or entity that renders bona fide services to the Company, including, without limitation, (i) a person employed by the Company or an affiliated Corporation; (ii) a person or company engaged by the Company or an Affiliated Corporation as a consultant, advisor or agent; and (iii) a lawyer, law firm, accountant or accounting firm, or other professional or professional firm engaged by the Company or an Affiliated Corporation; but specifically excluding persons who are directors or executive officers of the Company or any Affiliated Corporation. i. "Parent" means any corporation owning 50% or more of the total combined voting stock of all classes of the Company or of another corporation qualifying as a Parent within this definition. j. "Participant" means an Employee to whom an Award of Plan Shares has been made. k. "Plan Shares" means shares of Common Stock from time to time subject to this Plan l. "Subsidiary" means a corporation more than 50% of whose total combined capital stock of all classes is held by the Company or by another corporation qualifying as a Subsidiary within this definition. l. "Subsidiary" means a corporation more than 50% of whose total combined capital stock of all classes is held by the Company or by another corporation qualifying as a Subsidiary within this definition. 3. EFFECTIVE DATE OF THE PLAN. The effective date of this Plan is March 10, 1997. No Plan shares may be issued after March 9, 2000. 4. ADMINISTRATION OF THE PLAN. The Employee Stock Compensation Committee of the Board of Directors ("Committee"), and in default of the appointment or continued existence of such Committee, the Board of Directors, will be responsible for the administration of this Plan, and will have sole power to award Common Shares under this Plan. Subject to the express provisions of this Plan, the Committee shall have full authority and sole and absolute discretion to interpret this Plan, to prescribe, amend and rescind rules and regulations relating to it, and to make all other determinations which it believes to be necessary or advisable in administering this Plan. The determination of those eligible to receive an award of Plan Shares shall rest in the sole discretion of the Committee, subject to the provisions of this Plan. Awards of Plan Shares may be made as compensation for services rendered, directly or in lieu of other compensation payable, as a bonus in recognition of past service or performance or may be sold to an Employee as herein provided. The Committee may correct any defect, supply any omission or reconcile any inconsistency in this Plan in such manner and to such extent it shall deem necessary to carry it into effect. Any decision made, or action taken, by the Committee arising out of or in connection with the interpretation and administration of this Plan shall be final and conclusive. 10 3 5. STOCK SUBJECT TO THE PLAN. The maximum number of Plan Shares which may be awarded under this Plan is 100,000 shares. 6. PERSONS ELIGIBLE TO RECEIVE AWARDS. Awards may be granted only to Employees (as herein defined). 7. GRANTS OR AWARDS OF PLAN SHARES. Except as otherwise provided herein, the Committee shall have complete discretion to determine when and to which Employees Plan Shares are to be granted, and the number of Plan Shares to be awarded to each Employee. A grant to an Employee may be made for cash, property, services rendered or other form of payment constituting lawful consideration under applicable law; Plan Shares awarded other than for services rendered shall be sold at not less than the fair value thereof on the date of grant. No grant will be made if, in the judgment of the Committee, such a grant would constitute a public distribution with the meaning of the Act or the rules and regulations promulgated thereunder. 8. DELIVERY OF STOCK CERTIFICATES. As promptly as practicable after authorizing an award of Plan Shares, the Company shall deliver to the person who is the recipient of the award, a certificate or certificates registered in that person's name, representing the number of Plan Shares that were granted. Unless the Plan Shares have been registered under the Act, each certificate evidencing Plan Shares shall bear a legend to indicate that such shares represented by the certificate were issued in a transaction which was not registered under the Act, and may only be sold or transferred in a transaction that is registered under the Act or is exempt from the registration requirements of the Act. In the absence of registration under the Act, any person awarded Plan Shares may be required to execute and deliver to the Company an investment letter, satisfactory in form and substance to the Company, prior to issuance and delivery of the shares. An award may be made under this Plan wherein the Plan Shares may be issued only after registration under the Act. 9. ASSIGNABILITY. An award of Plan Shares may not be assigned. Plan Shares themselves may be assigned only after such shares have been awarded, issued and delivered, and only in accordance with law and any transfer restrictions imposed at the time of award. 10. EMPLOYMENT NOT CONFERRED. Nothing in this Plan or in the award of Plan Shares shall confer upon any Employee the right to continue in the employ of the Company or Affiliated Corporation nor shall it interfere with or restrict in any way the lawful rights of the Company or any Affiliated Corporation to discharge any Employee at any time for any reason whatsoever, with or without cause. 11. LAWS AND REGULATIONS. The obligation of the Company to issue and deliver Plan Shares following an award under this Plan shall be subject to the condition that the Company be satisfied that the sale and delivery thereof will not violate the Act or any other applicable laws, rules or regulations. 12. WITHHOLDING OF TAXES. If subject to withholding tax, the Company or any Affiliated Corporation may require that the Employee concurrently pay to the Company the entire amount or a portion of any taxes which the Company or Affiliated Corporation is required to withhold by reason of granting Plan Shares, in such amount as the Company or Affiliated Corporation in its discretion may determine. In lieu of part or all of any such payment, the Employee with the consent of the Committee may elect to have the Company or Affiliated Corporation withhold from the Plan Shares issued hereunder a sufficient number of shares to satisfy withholding obligations. If the Company or Affiliated Corporation becomes required to pay withholding taxes to any federal, state or other taxing authority as a result of the granting of Plan Shares, and the Employee fails to provide the Company or Affiliated Corporation with the funds with which to pay that withholding tax, the Company or Affiliated Corporation may withhold up to 50% of each payment of salary or bonus to the Employee (which will be in addition to any required or permitted withholding), until the Company or Affiliated Corporation has been reimbursed for the entire withholding tax it was required to pay in respect of the award of Plan Shares. 11 4 13. RESERVATION OF SHARES. The stock subject to this Plan shall at all times, consist of authorized but unissued Common Shares, or previously issued shares of Common Stock reacquired or held by the Company or an Affiliated Corporation equal to the maximum number of shares the Company may be required to issue as stated in Section 5 of this Plan, and such number of Common Shares hereby is reserved for such purpose. The Committee may decrease the number of shares subject to this Plan, but only the Board of Directors may increase such number, except as a consequence of a stock split or other reorganization or recapitalization affecting all Common Shares. 14. AMENDMENT AND TERMINATION OF THE PLAN. The Committee may suspend or terminate this Plan at any time or from time to time but no such action shall adversely affect the rights of a person granted an Award under this Plan prior to that date. Otherwise, this Plan shall terminate on the earlier of the terminal date stated in Section 3 of this Plan or the date when all Plan Shares have been issued. The Committee shall have absolute discretion to amend this Plan, subject only to those limitations expressly set forth herein; however, the Committee shall have no authority to extend the term of this Plan, to increase the number of Plan Shares subject to award under this Plan or to amend the definition of "Employee" to include executive officers or directors of the Company or any Affiliated Corporation. 15. DELIVERY OF PLAN. A copy or synopsis (for which copy the prospectus will serve) or description of this Plan shall be delivered to every person to whom an award of Plan Shares is made. The Secretary of the Company may, but is not required to, also deliver a copy of the resolution or resolutions of the Committee authorizing the award. 16. LIABILITY. No member of the Board of Directors, the Committee or any other committee of directors, or officers, employees or agents of the Company or any Affiliated Corporation shall be personally liable for any action, omission or determination made in good faith in connection with this Plan. 17. MISCELLANEOUS PROVISIONS. The place of administration of this Plan shall be in the State of California (or subsequently, wherever the Company's principal executive offices are located), and the validity, construction, interpretation and effect of this Plan and of its rules, regulations and rights relating to it, shall be determined solely in accordance with the laws of the State of Delaware. Without amending this Plan, the Committee may issue Plan Shares to employees of the Company who are foreign nationals or employed outside the United States, or both, on such terms and conditions different from those specified in this Plan but consistent with the purpose of this Plan, as it deems necessary and desirable to create equitable opportunities given differences in tax laws in other countries. All expenses of administering this Plan and issuing Plan Shares shall be borne by the Company. 18. REORGANIZATIONS AND RECAPITALIZATIONS OF THE COMPANY. (a) The shares of Common Stock subject to this Plan are shares of the Common Stock of the Company as currently constituted. If, and whenever, the Company shall effect a subdivision or consolidation of shares or other capital readjustment, the payment of a Common Stock dividend, a stock split, combination of shares (reverse stock split) or recapitalization or other increase or reduction of the number of shares of the Common Stock outstanding without receiving compensation therefor in money, services or property, then the number of shares of Common Stock subject to this Plan shall (i) in the event of an increase in the number of outstanding shares, be proportionately increased; and (ii) in the event of a reduction in the number of outstanding shares, be proportionately reduced. (b) Except as expressly provided above, the Company's issuance of shares of Common Stock of any class, or securities convertible into shares of Common Stock of any class, for cash or property, or for labor or services either upon direct sale or upon the exercise of rights or warrants to subscribe therefor, or upon conversion of shares or obligations of the Company convertible into or exchangeable for shares of Common Stock or other securities, shall not affect, and no adjustment by reason thereof shall be made with respect to, the number of shares of Common Stock subject to this Plan. By signature below, the undersigned officers of the Company hereby certify that the foregoing is a true and correct copy of the 1997 Employee Stock Compensation Plan of the Company. 12 5 DATED: March 10, 1997 AMERICAN TECHNOLOGY CORPORATION By /s/ ROBERT PUTNAM -------------------------------- Robert Putnam President and CEO ATTEST: By /s/ RICHARD WAGNER -------------------------------- Richard Wagner Secretary 13 EX-23.1 4 EXHIBIT 23.1 1 American Technology Corporation Form S-8 EXHIBIT 23.1 Consent of BDO Seidman, LLP 14 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 19, 1996 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, 1996. /s/ BDO SEIDMAN, LLP BDO SEIDMAN, LLP Denver, Colorado March 21, 1997 15 -----END PRIVACY-ENHANCED MESSAGE-----