American Technology Corporation
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): December
20, 2005 (December 13, 2005)
AMERICAN
TECHNOLOGY CORPORATION
(Exact
Name of Registrant as Specified in Charter)
|
Delaware
|
000-24248
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87-0361799
|
|
(State
or Other Jurisdiction
of
Incorporation)
|
(Commission
File Number)
|
(IRS
Employer
Identification
No.)
|
|
13114
Evening Creek Drive South, San Diego, California
|
92128
|
|
(Address
of Principal Executive Offices)
|
(Zip
Code)
|
Registrant's
Telephone Number, Including Area Code: (858)
679-2114
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
o
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
o
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
o
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
Act
(17 CFR 240.14d-2(b))
o
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange
Act
(17 CFR 240.13e-4(c))
Item
1.01 Entry Into a Material Definitive Agreement.
Amendment
to Attornment Agreement
On
December 13, 2005, we entered into an amendment to the attornment agreement
dated as of August 1, 2005 between LBA Realty Fund-Holding Co. I, LLC and
us,
which attornment agreement governs the terms of the current sublease of our
executive offices and research and development facilities in San Diego,
California. The amendment is effective as of November 15, 2005. In August
2005,
we were notified that our sublease was being terminated, and that we had
the
option to continue our occupancy as a direct tenant of LBA Realty Fund-Holding
Co. through November 30, 2005, and continuing after such date on a
month-to-month basis. Pursuant to an attornment agreement dated as of August
1,
2005, we elected to continue our occupancy pursuant to the sublease, as amended
by the attornment agreement. The attornment agreement recognized the increase
in
the square footage to approximately 23,548 and corresponding cost under our
sublease to approximately $28,257 and provided that the term of the sublease
would expire on December 31, 2005, after which time it would convert to a
month-to-month tenancy. The amendment to the attornment agreement extends
the
term of our sublease to January 31, 2006, at which time the sublease will
terminate without provision for conversion to month-to-month tenancy. If
we are
not able to vacate our current space by January 31, 2006, the attornment
agreement provides that rent payments will increase to $56,515, and we will
also
be liable for other costs of the landlord due to such holdover tenancy. All
other terms of the sublease and the attornment agreement remain the
same.
Sublease
Agreement
On
December 20, 2005, we entered into a sublease agreement with Anacomp, Inc.,
as
sublandlord, to sublease approximately 23,698 rentable square feet of space
located at 15378 Avenue of Science, San Diego, California 92118 for our
principal executive offices. We will also be using such space for warehousing,
product assembly, and research and development purposes.
The
sublease is for a term commencing January 1, 2006 and expiring May 31, 2011.
We
have agreed to pay $29,622.50 per month (i.e., $1.25 per rentable square
foot)
during the term. In addition to the monthly base rental expense, we will
be
responsible for certain costs and charges specified in the sublease, including
our proportionate share of the building operating expenses and real estate
taxes.
In
addition, the sublease provides that we have a right of first refusal on
additional space in the building, which contains a total of 68,910 square
feet
including our premises. Anacomp will also provide a $10,000 tenant improvement
allowance towards the completion of lobby improvements and a $50,000 letter
of
credit in our favor which we may draw upon to the extent necessary to offset
any
increase in our rent or relocation costs that we incur due to Anacomp's failure
to maintain the lease with the master landlord for the building.
We
have
the right to terminate the sublease on or before December 27, 2005 in the
event
the master landlord fails to consent to the sublease by December 21,
2005.
Employment
of Karen Jordan as Chief Accounting Officer
On
December 16, 2005, our board of directors approved the appointment of Ms.
Jordan
as our chief accounting officer. Ms. Jordan's employment is terminable at-will
by us or by Ms. Jordan for any reason, with or without notice. Ms. Jordan's
annual salary is $140,000, and she participates in bonus, benefit and other
incentives at the discretion of the compensation committee of our board of
directors. More information about Ms. Jordan is set forth in Item 5.02 below
and
is incorporated into this Item 1.01.
Item
1.02 Termination of a Material Definitive Agreement.
Michael
A. Russell, our former chief financial officer, resigned from his employment
on
December 16, 2005. Mr. Russell's resignation on December 16, 2005 constituted
notice of termination of his employment arrangement with our company. Mr.
Russell was employed under the terms of a letter agreement dated June 15,
2004.
Mr. Russell's annual base salary at the time of resignation was $185,000,
and he
was entitled to an annual performance bonus of up to 25% of his base salary,
as
determined by the compensation committee. Mr. Russell's employment was
terminable at-will by us or Mr. Russell for any reason, with or without notice.
No bonus will be paid to Mr. Russell.
Item
2.02 Results of Operation and Financial Condition.
On
December 15, 2005, we issued a press release announcing estimated results
of
operation for the fiscal year ended September 30, 2005. A copy of the press
release is attached hereto as Exhibit 99.1.
In
accordance with General Instruction B.2. of Form 8-K, the information in
Item
2.02 of this Current Report on Form 8-K, including Exhibit 99.1, shall not
be
deemed “filed” for purposes of Section 18 of the Securities Exchange Act of
1934, as amended (the “Exchange Act”), or otherwise subject to the liability of
that section, nor shall it be deemed incorporated by reference in any filing
under the Securities Act of 1933, as amended, or the Exchange Act, except
as
expressly set forth by specific reference in such a filing.
Item
5.02 Departure of Director or Principal Officer; Appointment of Principal
Officer.
Departure
of Chief Financial Officer and Appointment of Interim Chief Financial
Officer
On
December 16, 2005, our board of directors appointed John R. Zavoli as our
interim chief financial officer to replace Mr. Michael A. Russell, whose
duties
in that position ceased on December 16, 2005. Mr. Russell will continue as
an
employee of our company to assist with the completion of our company's audit
for
the fiscal year ended September 30, 2005. Mr. Zavoli is currently our president
and chief operating officer. Mr. Zavoli, age
46, was appointed as president and chief operating officer on October 17,
2005,
commencing November 1, 2005. Mr. Zavoli was appointed to our board of directors
on June 14, 2005. Information on Mr. Zavoli's background and experience,
and the
terms of his employment with our company are described in a Form 8-K filed
October 21, 2005. Mr. Zavoli's employment terms will not change as a result
of
this appointment.
Except
as
described above and in the Form 8-K filed October 21, 2005, there are no
transactions between Mr. Zavoli and our company in which Mr. Zavoli has a
direct
or indirect material interest which we are required to
report.
Appointment
of Chief Accounting Officer
On
December 16, 2005, Karen Jordan was appointed as our chief accounting officer.
Ms. Jordan, age 35, joined American Technology Corporation in November 2005
as
director of finance. From July 2003 to November 2005, Ms. Jordan was a
self-employed bankruptcy executive, managing the Estates of LCS Management,
Inc.
and LCS West, Inc. From January 2001 to July 2003, Ms. Jordan was corporate
controller with LifeCare Solutions, Inc., a provider of integrated home
healthcare products and services. From June 1996 to January 2001, Ms. Jordan
held various positions with Quidel Corporation, a developer and manufacturer
of
diagnostic tests for detection of a variety of medical conditions and illnesses.
At the time Ms. Jordan left Quidel Corporation, she held the position of
assistant controller. Ms. Jordan is a Fellow Chartered Accountant in Ireland.
Ms. Jordan received her Associate Chartered Accountant license from the
Institute of Chartered Accountants in Ireland.
There
were no arrangements or understandings between Ms. Jordan and any other
person pursuant to which Ms. Jordan was selected as an executive officer.
There
are no family relationships between Ms. Jordan and any of our directors and
executive officers. Except as described above in Item 1.01, there are no
transactions between Ms. Jordan and American Technology Corporation in which
Ms.
Jordan has a direct or indirect material interest which we are required to
report.
Item
9.01 Financial Statements and Exhibits.
(d)
Exhibits.
Exhibit
No. Description
99.1 Press
Release dated December 15, 2005
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.
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AMERICAN
TECHNOLOGY CORPORATION |
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| Date: December
20, 2005 |
By: |
/s/ John
R.
Zavoli |
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John
R.
Zavoli
President and Chief Operating Officer and
Interim Chief
Financial Officer |
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