As filed with the Securities and Exchange Commission on December 10, 2021
Registration No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Applied Energetics, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 77-0262908 | |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification Number) |
9070 S. Rita Road, Suite 1500
Tucson, AZ 85747
P 520. 628-7415
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
Applied Energetics, Inc. 2018 Incentive Stock Plan
Consulting Agreement between the Registrant and Certain Consultants
(Full title of plan)
Gregory J. Quarles
President and Chief Executive Officer
9070 S. Rita Road, Suite 1500
Tucson, AZ 85747
P 520. 628-7415
(Name, address, and telephone of agent for service)
Copies to:
Mary P. O’Hara, Esq.
Masur Griffitts Avidor LLP
180 Varick St., Suite 1214
New York, NY 10014
(212) 209-5483
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer”, “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer: | ☐ | Accelerated filer: | ☐ |
| Non-accelerated filer: | ☐ | Smaller reporting company: | ☒ |
| Emerging growth company | ☐ | ||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the exchange act. ☐
CALCULATION OF REGISTRATION FEE
| Title of Securities to be Registered | Amount to be Registered | Proposed Maximum Offering Price Per Share (2) | Proposed Maximum Aggregate Offering Price | Amount of Registration Fee | ||||||||||
| Common Stock | 71,715,000 Shares (1) | $ | 2.40 | 172,116,000.00 | $ | 15,955.15 | ||||||||
| 1. | Issued or issuable pursuant to the 2018 Incentive Stock Plan and Consulting Agreements with certain individuals. |
| 2. | Computed pursuant to Rule 457(c) of the Securities Act of 1933, as amended, solely for the purpose of calculating the registration fee and not as a representation as to any actual proposed price based upon the average of the high and the low price on the OTC Markets Group’s OTCQB Market on December 8, 2021. |
EXPLANATORY NOTE
This Registration Statement on Form S-8 (this “Registration Statement”) registers an aggregate of 71,715,000 shares of common stock, par value $0.001 per share, of Applied Energetics, Inc. 50,000,000 of such shares have been, or may be, issued and sold under the Applied Energetics, Inc. 2018 Incentive Stock Plan (“2018 Plan”), including certain shares underlying options previously granted to employees through transactions by the Registrant not involving any public offering, in accordance with the exemption under Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”). This Registration Statement also registers 21,465,000 shares issued to individuals pursuant to Consulting Agreements.
This Registration Statement includes a prospectus (the “Reoffer Prospectus”) prepared in accordance with General Instruction C of Form S-8 and in accordance with the requirements of Part I of Form S-3. This Reoffer Prospectus may be used for reofferings and resales of shares of common stock that may be deemed to be “control securities” under the Securities Act, and the rules and regulations promulgated thereunder that have been or may be acquired by certain of our “affiliates,” being the Selling Stockholders identified in the Reoffer Prospectus, pursuant to outstanding stock grants or options under our 2018 Plan. The number of shares of common stock included in the Reoffer Prospectus represents the total number of shares of common stock that may be acquired by the Selling Stockholders pursuant to stock grants and option awards made to the Selling Stockholders in accordance with Section 4(a)(2) of the Securities Act and does not necessarily represent a present intention to sell any or all such shares of Common Stock.
PART I
INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
This Registration Statement relates to two separate prospectuses as follows:
Section 10(a) Prospectus: Items 1 and 2, appearing below on this page, and the documents incorporated by reference pursuant to Part II, Item 3 of this Form S-8, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
Reoffer Prospectus: The material that follows Item 2, numbered pages 1 through 10, up to but not including Part II of this Registration Statement, constitutes a “Reoffer Prospectus,” prepared in accordance with the requirements of Part I of Form S-3 under the Securities Act. Pursuant to General Instruction C of Form S-8, the Reoffer Prospectus may be used for reoffers or resales of Shares which are deemed to be “control securities” or “restricted securities” under the Securities Act that have been acquired by the Selling Stockholders named in the Reoffer Prospectus.
Item 1. Plan Information.
The Company will provide each of the recipients (the “Recipients”) of a grant under the 2018 Plan with documents that contain information related to the 2018 Plan, and other information including, but not limited to, the disclosure required by Item 1 of Form S-8, which information is not required to be and is not being filed as a part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. The foregoing information and the documents incorporated by reference in response to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act. A Section 10(a) prospectus will be given to each Recipient who receives Shares covered by this Registration Statement, in accordance with Rule 428(b)(1) under the Securities Act.
Item 2. Registrant Information and Employee Plan Annual Information.
We will provide to each Recipient a written statement advising of the availability of documents incorporated by reference in Item 3 of Part II of this Registration Statement (which documents are incorporated by reference in this Section 10(a) prospectus) and of documents required to be delivered pursuant to Rule 428(b) under the Securities Act without charge and upon written or oral request by contacting: Applied Energetics, Inc., 9070 S. Rita Road, Suite 1500, Tucson, AZ 85747, (520) 628-7415.
REOFFER PROSPECTUS
APPLIED ENERGETICS, INC.
36,880,000 Shares of Common Stock, par value $0.001 per share
This reoffer prospectus relates to 36,880,000 shares of our common stock, par value $0.001 per share (“Common Stock”), that may be offered and resold from time to time by the selling stockholders named in this reoffer prospectus for their own account. Eligible participants in our 2018 Plan consist of employees, directors, officers and consultants of our company or its related entities. Some of the selling stockholders are “affiliates” of our company (as defined in Rule 405 under the Securities Act).
The selling stockholders may offer and sell their shares of common stock at various times and in various types of transactions, including sales in the open market, sales in negotiated transactions and sales by a combination of these methods. Shares may be sold at the market price of the common stock at the time of a sale, at prices relating to the market price over a period of time, or at prices negotiated with the buyers of shares. The shares may be sold through underwriters or dealers which the selling stockholders may select. If underwriters or dealers are used to sell the shares, we will name them and describe their compensation in a prospectus supplement. For a description of the various methods by which the selling stockholders may offer and sell their common stock described in this prospectus, see the section entitled “Plan of Distribution” of this prospectus. We will receive no part of the proceeds from sales made under this prospectus. The selling stockholders will bear all sales commissions and similar expenses. Any other expenses incurred by us in connection with the registration and offering and not borne by the selling stockholders will be borne by us.
The shares of common stock will be issued pursuant to awards granted to the selling stockholders and will be “control securities” under the Securities Act before their sale under this prospectus. This prospectus has been prepared for the purposes of registering the shares under the Securities Act to allow for future sales by selling stockholders on a continuous or delayed basis to the public without restriction. Our common stock is traded on the OTCQB Market, under the symbol “AERG.” On December 9, 2021, the closing sale price of our common stock on the OTCQB was $2.27 per share.
Investing in our securities involves a high degree of risk. You should read carefully and consider the information contained in and incorporated by reference under “Risk Factors” beginning on page 2 of this prospectus, and the risk factors contained in other documents incorporated by reference.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is December 10, 2021.
APPLIED ENERGETICS, INC.
TABLE OF CONTENTS
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS, OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, IN CONNECTION WITH THE OFFERING MADE HEREBY, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY OTHER PERSON. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OFFERED HEREBY BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
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The following is a summary of selected information contained elsewhere or incorporated by reference. It does not contain all of the information that you should consider before buying our securities. You should read this prospectus in its entirety, including the information incorporated by reference herein
Business Overview
Applied Energetics, Inc. is a corporation organized and existing under the laws of the State of Delaware. Our executive office is located at 9070 S. Rita Road, Suite 1500, Tucson, Arizona 85747 and our telephone number is (520) 628-7415.
Applied Energetics specializes in the development and manufacture of advanced high-performance lasers, high voltage electronics, advanced optical systems, and integrated guided energy systems for defense, aerospace, industrial, and scientific customers worldwide. AERG has developed, successfully demonstrated and holds all crucial intellectual property rights to a dynamic Directed Energy technology called Laser Guided Energy (“LGE®”) and Laser Induced Plasma Channel (“LIPC®”). LGE and LIPC are technologies that can be used in a new generation of high-tech weapons. The Department of Defense (DOD) previously recognized two key types of Directed Energy Weapon (“DEW”) technologies, High Energy Lasers (“HEL”), and High-Power Microwave (“HPM”). Neither the HEL nor the HPM intellectual property portfolio is owned by a single entity. The DOD then designated a third DEW technology, LGE. Applied Energetics’ LGE and LIPC technologies are wholly owned by Applied Energetics and patent protected with 26 current patents and an additional 11 Government Sensitive Patent Applications (“GSPA”). These GSPA’s are held under secrecy orders of the US government and allow the company greatly extended protection rights.
Applied Energetics technology is vastly different from conventional directed energy weapons, i.e. HEL, and HPM. LGE uses Ultra-Short Pulse (USP) laser technology to combine the speed and precision of lasers with the overwhelming impact on targeted threats with high-voltage electricity. This unique directed energy solution allows extremely high peak power and energy, with target and effects tenability, and is effective against a wide variety of potential targets. A key element of LGE is its novel ability to offer selectable and tunable properties that can help protect non-combatants and combat zone infrastructure.
As Applied Energetics looks toward the future, our corporate strategic roadmap builds upon the significant value of the company’s USP capabilities and key intellectual property, including LGE and LIPC, to offer our prospective partners, co-developers and system integrators a variety of next-generation Ultra Short-Pulse and frequency-agile optical sources from the ultraviolet to the far infrared portion of the electromagnetic spectrum to address numerous challenges within the military, medical device, and advanced manufacturing market sectors.
About This Offering
This offering relates to the resale by the selling stockholders of up to 36,880,000 shares of common stock, including certain unnamed non-affiliates of the Company, each of whom may sell up to 1,000 shares of common stock. The selling stockholders have acquired, or may acquire, such shares pursuant to grants made pursuant to the 2018 Plan or under one or more Consulting Agreements.
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An investment in our common stock has a high degree of risk. Before making an investment decision, you should carefully consider the risks discussed in the section titled “Risk Factors” in our most recent Annual Report on Form 10-K, as well as the risks, uncertainties and additional information set forth in our SEC reports on Forms 10-K, 10-Q and 8-K and in other documents incorporated by reference in this prospectus as updated by our subsequent filings under the Securities Exchange Act of 1934, as amended, or the Exchange Act. Our business, financial condition or results of operations could be materially adversely affected by any of these risks. The trading price of our common stock could decline due to any of these risks, and you may lose all or part of your investment.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents and information incorporated by reference in this prospectus include forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act. These statements are based on our management’s beliefs and assumptions and on information currently available to our management. Such forward-looking statements include those that express plans, anticipation, intent, contingency, goals, targets or future development and/or otherwise are not statements of historical fact.
All statements in this prospectus and the documents and information incorporated by reference in this prospectus that are not historical facts are forward-looking statements. We may, in some cases, use terms such as “anticipates,” “believes,” “could,” “estimates,” “expects,” “intends,” “may,” “plans,” “potential,” “predicts,” “projects,” “should,” “will,” “would” or similar expressions or the negative of such items that convey uncertainty of future events or outcomes to identify forward-looking statements.
Forward-looking statements are made based on management’s beliefs, estimates and opinions on the date the statements are made and we undertake no obligation to update forward-looking statements if these beliefs, estimates and opinions or other circumstances should change, except as may be required by applicable law. Although we believe that the expectations reflected in the forward-looking statements are reasonable, we cannot guarantee future results, levels of activity, performance or achievements.
We will receive no proceeds from the sale of any shares of common stock offered by the selling stockholders. We will receive proceeds from the cash exercise of options, if any. We intend to use such proceeds for general corporate purposes, including working capital.
The table below sets forth, as of December 1, 2021, (i) the name of each person who is offering shares by this prospectus and their position with us; (ii) the number of shares (and the percentage, if 1% or more) of Common Stock beneficially owned (as such term is defined in Rule 13d-3 under the Exchange Act) by each person; (iii) the number of shares that each selling stockholder may offer for sale from time to time pursuant to this prospectus, whether or not such selling stockholder has a present intention to do so; and (iv) the number of shares (and the percentage, if 1% or more) of common stock each person will own after giving effect to the offering, assuming they sell all of the shares offered. Unless otherwise indicated, beneficial ownership is direct and the person indicated has sole voting and investment power. Unless otherwise indicated, the address for each selling stockholder listed in the table below is c/o Applied Energetics, Inc., 9070 S. Rita Road, Suite 1500, Tucson, AZ 85747
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The table below has been prepared based upon the information furnished to us by the selling stockholders as of December 1, 2021, and we have not independently verified this information. The selling stockholders identified below may have sold, transferred or otherwise disposed of some or all of their shares since the date on which the information in the following table is presented in transactions exempt from or not subject to the registration requirements of the Securities Act. Information concerning the selling stockholders may change from time to time and, if necessary, we will amend or supplement this prospectus accordingly. We cannot give an estimate as to the number of shares of common stock that will actually be held by the selling stockholders upon termination of this offering because the selling stockholders may offer some or all of their common stock under the offering contemplated by this prospectus or acquire additional shares of common stock. The total number of shares that may be sold hereunder will not exceed the number of shares offered hereby. Please read the section entitled “Plan of Distribution” in this prospectus.
| Name of Selling Stockholder and Relationship to Company | Shares of Common Stock Beneficially Owned Prior to this Offering (1) | Percentage (1) | Shares of Common Stock Offered for Resale | Shares of Common Stock Beneficially Owned After this Offering | Percentage (1) | ||||||||||||||||
| Bradford T. Adamczyk, Director and Executive Chairman | 7,235,081 | (2) | 3.5 | % | 1,500,000 | 5,735,081 | 2.8 | % | |||||||||||||
| Adamczyk Family 2021 LLC | 3,500,000 | (3) | 1.7 | % | 3,500,000 | -0- | * | ||||||||||||||
| Pedro Alcaraz | 30,000 | (4) | * | 30,000 | (4) | -0- | * | ||||||||||||||
| Dan W. Baer, Consultant | 7,811,603 | (5) | 3.8 | % | 100,000 | (5) | 7,711,603 | 3.7 | % | ||||||||||||
| Jonathan Barcklow, Director and Vice President | 6,000,000 | (6) | 2.9 | % | 5,000,000 | (6) | 1,000,000 | * | |||||||||||||
| Christopher Donaghey, Consultant | 765,000 | (7) | * | 765,000 | (7) | -0- | -- | ||||||||||||||
| James Harrison, SAB Member | 2,250,000 | (8) | 1.1 | % | 2,250,000 | -0- | * | ||||||||||||||
| Stephen McCahon, Chief Scientist and Consultant | 14,677,861 | 7.15 | % | 9,000,000 | 5,677,861 | 2.7 | % | ||||||||||||||
| Elizabeth McCahon | 2,005,000 | (9) | * | 2,000,000 | 5,000 | * | |||||||||||||||
| John McCahon | 2,005,000 | (9) | * | 2,000,000 | 5,000 | * | |||||||||||||||
| William McCahon | 2,005,000 | (9) | * | 2,000,000 | 5,000 | * | |||||||||||||||
| Stephen McCommon, Finance Manager and Consultant | 2,000,000 | (10) | * | 2,000,000 | (9) | -0- | -- | ||||||||||||||
| Mary P. O’Hara | 360,000 | (11) | * | 360,000 | (10) | -0- | -- | ||||||||||||||
| Gregory J. Quarles, President and Chief Executive Officer | 7,000,000 | (12) | 3.4 | % | 7,000,000 | (11) | -0- | * | |||||||||||||
| John Schultz, Director | 4,372,624 | (13) | 2.1 | % | 2,500,000 | (12) | 1,872,624 | * | |||||||||||||
| Patrick Williams, Consultant | 1,250,000 | (14) | * | 1,250,000 | (13) | -0- | * | ||||||||||||||
| Eric Wilson | 125,000 | (15) | * | 125,000 | (14) | -0- | * | ||||||||||||||
| * | Less than 1% |
| (1) | Beneficial ownership is determined in accordance with the rules of the SEC and generally includes voting or investment power with respect to securities. Shares of Common Stock underlying options currently exercisable, or exercisable, or restricted stock units that vest, within 60 days after December 1, 2021, (as used in this section, the “Determination Date”), are deemed outstanding for purposes of computing the beneficial ownership of the person holding such options and/or restricted stock units but are not deemed outstanding for computing the beneficial ownership of any other person. Except where we had knowledge of such ownership, the number presented in this column may not include shares held in street name or through other entities over which the selling stockholder has voting and dispositive power. Percentages are based on the 207,562,471 shares of Common Stock issued and outstanding as of the Determination Date. |
| (2) | Based on information contained in a Form 4, filed with the SEC on May 20, 2020. Includes 1,563,599 shares held by Moriah Stone Global L.P., which is controlled by Mr. Adamczyk. Also includes 5,000,000 shares underlying options, 3,500,000 of which are held in the name of the Adamczyk Family 2021 LLC. |
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| (3) | All 3,500,000 shares offered hereby underly options. Bradford T. Adamczyk controls the Adamczyk Family 2021 LLC. |
| (4) | All 30,000 shares underly options which are subject to vesting over three years. |
| (5) | Includes 100,000 shares and underly options which are offered hereby. Also includes 6,661,603 shares which are being transferred to FSRN, LLC, a Nevada limited liability company which is managed by Mr. Baer. |
| (6) | Based on information contained in a Form 4, filed with the SEC on December 21, 2018. Includes 5,000,000 shares underlying options which are offered hereby. |
| (7) | Includes 550,000 share underlying options and 215,000 restricted shares, 110 of which are subject to vesting. |
| (8) | Includes 750,000 shares underlying options that are currently exercisable (as to which the company has received notice of the holder’s intent to exercise) and an additional 1,500,000 that are subject to vesting based on revenue milestones. |
| (9) | All such shares were received by gift from Stephen McCahon, who is the father of each of these holders and received the shares as compensation for services. |
| (10) | Includes 111,160 shares which are subject to monthly vesting through April 1, 2022. |
| (11) | Based on information contained in a Form 3 filed with the SEC on August 28, 2021. All such shares underly options. |
| (12) | Includes 2,000,000 shares of common stock underlying options, some of which are subject to vesting. |
| (13) | Includes 500,000 shares held by Oak Tree Asset Management Ltd., which is controlled by Mr. Schultz, and 770,322 shares held by Mary Schultz, Mr. Schultz’s wife. Also includes 2,500,000 shares underlying options which are offered hereby. |
| (14) | Includes 1,000,000 shares underlying options. |
| (15) | All 125,000 shares underly options which are subject to vesting. |
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The shares of common stock covered by this reoffer prospectus are being registered by Applied Energetics for the account of the selling stockholders. The shares of common stock offered may be sold from time to time directly by or on behalf of each selling stockholder in one or more transactions on the OTCQB Market or any other stock exchange on which the common stock may be listed at the time of sale, in privately negotiated transactions, or through a combination of such methods, at market prices prevailing at the time of sale, at prices related to such prevailing market prices, at fixed prices (which may be changed) or at negotiated prices. The selling stockholders may sell shares through one or more agents, brokers or dealers or directly to purchasers. Such brokers or dealers may receive compensation in the form of commissions, discounts or concessions from the selling stockholders and/or purchasers of the shares or both. Such compensation as to a particular broker or dealer may be in excess of customary commissions.
In connection with their sales, a selling stockholder and any participating broker or dealer may be deemed to be “underwriters” within the meaning of the Securities Act, and any commissions they receive and the proceeds of any sale of shares may be deemed to be underwriting discounts and commissions under the Securities Act. We are bearing all costs relating to the registration of the shares of Common Stock. Any commissions or other fees payable to brokers or dealers in connection with any sale of the shares will be borne by the selling stockholders or other party selling such shares. Sales of the shares must be made by the selling stockholders in compliance with all applicable state and federal securities laws and regulations, including the Securities Act. In addition to any shares sold hereunder, selling stockholders may sell shares of Common Stock in compliance with Rule 144. There is no assurance that the selling stockholders will sell all or a portion of the Common Stock offered hereby. The selling stockholders may agree to indemnify any broker, dealer or agent that participates in transactions involving sales of the shares against certain liabilities in connection with the offering of the shares arising under the Securities Act. We have notified the selling stockholders of the need to deliver a copy of this reoffer prospectus in connection with any sale of the shares.
The anti-manipulation rules of Regulation M under the Exchange Act may apply to sales of our common stock and activities of the selling stockholders, which may limit the timing of purchases and sales of any of the shares of common stock by the selling stockholders and any other participating person. Regulation M may also restrict the ability of any person engaged in the distribution of the shares of Common Stock to engage in passive market-making activities with respect to the shares of Common Stock. Passive market making involves transactions in which a market maker acts as both our underwriter and as a purchaser of our Common Stock in the secondary market. All of the foregoing may affect the marketability of the shares of Common Stock and the ability of any person or entity to engage in market-making activities with respect to the shares of Common Stock.
Once sold under the registration statement of which this prospectus forms a part, the shares of common stock will be freely tradable in the hands of persons other than our affiliates.
State Securities Laws
Under the securities laws of some states, the shares of common stock may be sold in such states only through registered or licensed brokers or dealers. In addition, in some states the shares of common stock may not be sold unless the shares have been registered or qualified for sale in the state or an exemption from registration or qualification is available and is complied with.
Expenses of Registration
We are bearing all costs relating to the registration of the common stock. The selling stockholders, however, will pay any commissions or other fees payable to brokers or dealers in connection with any sale of the common stock.
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The validity of the common stock has been passed upon by Masur Griffitts Avidor LLP, New York, New York.
The consolidated financial statements of Applied Energetics, Inc. and subsidiary, as of and for the year ended December 31, 2020 and 2019, have been incorporated by reference herein in reliance upon the report of RBSM LLP, independent registered public accounting firm, and upon the authority of said firm as expert in accounting and auditing.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to “incorporate by reference” information into this prospectus, which means that we can disclose important information to you by referring you to another document filed separately with the SEC. The SEC file number for the documents incorporated by reference in this prospectus is 001-32698. The documents incorporated by reference into this prospectus contain important information that you should read about us. The following documents are incorporated by reference into this document:
| ● | our Annual Report on Form 10-K for the year ended December 31, 2020; |
| ● | our Quarterly Reports on Form 10-Q for the quarters ended March 31, June 30, and September 30, 2021; |
| ● | Current Reports on Form 8-K filed with the SEC on July 16, 18 and 19, October 31, and November 8, 2019, January 6, March 10, June 4 and 15, August 5, September 2, 3, 10 and 29, October 6 and November 12, 2020 and January 7 and February 3 and 9, March 17, April 27, July 14 and 23, August 25, and November 1, 2021. |
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We also incorporate by reference into this prospectus all documents (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on such form that are related to such items) that are filed by us with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (i) after the date of the initial filing of the registration statement of which this prospectus forms a part and prior to effectiveness of the registration statement, or (ii) after the date of this prospectus but prior to the termination of the offering. These documents include periodic reports, such as Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, as well as proxy statements.
Documents incorporated by reference are available from us, without charge. You may obtain documents incorporated by reference in this prospectus by requesting them in writing or by telephone at the following address: Applied Energetics Inc. 9070 Rita Road, Suite 1500, Tucson, AZ 85747, Attn. Stephen McCommon, Finance Manager
You also may access these filings on our Internet site at www.aergs.com. Our website and the information contained on or connected to it are not incorporated into this prospectus or the registration statement of which this prospectus is a part.
Any statement contained in this prospectus or contained in a document incorporated or deemed to be incorporated by reference into this prospectus will be deemed to be modified or superseded to the extent that a statement contained in this prospectus or any subsequently filed supplement to this prospectus, or document deemed to be incorporated by reference into this prospectus, modifies or supersedes such statement.
The information about us contained in this prospectus should be read together with the information in the documents incorporated by reference. You may request a copy of any or all of these filings, at no cost, by writing or telephoning us at:
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OF DIRECTORS AND OFFICERS
Article NINTH of our Restated Certificate of Incorporation states:
All persons who the Corporation is empowered to indemnify pursuant to the provisions of Section 145 of the General Corporation Law of the State of Delaware (or any similar provision or provisions of applicable law at the time in effect),shall be indemnified by the Corporation to the full extent permitted thereby. The foregoing right of indemnification shall not be deemed to be exclusive of any other rights to which those seeking indemnification may be entitled under any by-law, agreement, vote of stockholders or disinterested directors, or otherwise. No repeal or amendment of this Article NINTH shall adversely affect any rights of any person pursuant to this Article NINTH which existed at the time of such repeal or amendment with respect to acts or omissions occurring prior to such repeal or amendment.
Article XIX of our By-Laws states: All persons who the Corporation is empowered to indemnify pursuant to the provisions of Section 145 of the General Corporation Law of the State of Delaware (or any similar provision or provisions of applicable law at the time in effect) shall be indemnified by the Corporation to the full extent permitted thereby. The foregoing right of indemnification shall not be deemed to be exclusive of any other such rights to which those seeking indemnification from the Corporation may be entitled, including, but not limited to, any rights of indemnification to which they may be entitled pursuant to any agreement, insurance policy, other by-law or charter provision, vote of stockholders or directors, or otherwise. No repeal or amendment of this Article shall adversely affect any rights of any person pursuant to this Article which existed at the time of such repeal or amendment with respect to acts or omissions occurring prior to such repeal or amendment.
Section 145 of the Delaware General Corporation Law authorizes us to indemnify any director or officer under prescribed circumstances and subject to certain limitations against certain costs and expenses, including attorneys’ fees actually and reasonably incurred in connection with any action, suit or proceedings, whether civil, criminal, administrative or investigative, to which such person is a party by reason of being one of our directors or officers if it is determined that the person acted in accordance with the applicable standard of conduct set forth in such statutory provisions.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of Applied Energetics, Inc. pursuant to the foregoing provisions, or otherwise, we have 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.
ADDITIONAL INFORMATION AVAILABLE TO YOU
We file annual, quarterly and current reports, along with other information with the SEC. Our SEC filings are available to the public over the Internet at the SEC’s website at http://www.sec.gov.
This prospectus is part of a registration statement on Form S-8 that we filed with the SEC to register the securities offered hereby under the Securities Act. This prospectus does not contain all of the information included in the registration statement, including certain exhibits and schedules. You may obtain the registration statement and exhibits to the registration statement from the SEC’s internet site.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference into this Registration Statement the documents listed below. In addition, all documents subsequently filed pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”), 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:
| ● | our Annual Report on Form 10-K for the year ended December 31, 2020; |
| ● | our Quarterly Reports on Form 10-Q for the quarters ended March 31, June 30, and September 30, 2021; |
| ● | Current Reports on Form 8-K filed with the SEC on July 16, 18 and 19, October 31, and November 8, 2019, January 6, March 10, June 4 and 15, August 5, September 2, 3, 10 and 29, October 6 and November 12, 2020 and January 7 and February 3 and 9, March 17, April 27, July 14 and 23, August 25, and November 1, 2021. |
We also incorporate by reference into this prospectus all documents (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on such form that are related to such items) that are filed by us with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (i) after the date of the initial filing of the registration statement of which this prospectus forms a part and prior to effectiveness of the registration statement, or (ii) after the date of this prospectus but prior to the termination of the offering. These documents include periodic reports, such as Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, as well as proxy statements.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
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Item 6. Indemnification of Directors and Officers.
Under the Delaware General Corporation Law and our Articles of Incorporation, as amended, and our Bylaws, our directors will have no personal liability to us or our stockholders for monetary damages incurred as the result of the breach or alleged breach by a director of his “duty of care.” This provision does not apply to the directors’ (i) acts or omissions that involve intentional misconduct or a knowing and culpable violation of law, (ii) acts or omissions that a director believes to be contrary to the best interests of the corporation or its stockholders or that involve the absence of good faith on the part of the director, (iii) approval of any transaction from which a director derives an improper personal benefit, (iv) acts or omissions that show a reckless disregard for the director’s duty to the corporation or its stockholders in circumstances in which the director was aware, or should have been aware, in the ordinary course of performing a director’s duties, of a risk of serious injury to the corporation or its stockholders, (v) acts or omissions that constituted an unexcused pattern of inattention that amounts to an abdication of the director’s duty to the corporation or its stockholders, or (vi) approval of an unlawful dividend, distribution, stock repurchase or redemption. This provision would generally absolve directors of personal liability for negligence in the performance of duties, including gross negligence.
The effect of this provision in our Articles of Incorporation and Bylaws is to eliminate the rights of our Company and our stockholders (through stockholder’s derivative suits on behalf of our Company) to recover monetary damages against a director for breach of his fiduciary duty of care as a director (including breaches resulting from negligent or grossly negligent behavior) except in the situations described in clauses (i) through (vi) above. This provision does not limit nor eliminate the rights of our Company or any stockholder to seek non-monetary relief such as an injunction or rescission in the event of a breach of a director’s duty of care. In addition, our Bylaws provide that if the Delaware General Corporation Law is amended to authorize the future elimination or limitation of the liability of a director, then the liability of the directors will be eliminated or limited to the fullest extent permitted by the law, as amended. The Delaware General Corporation Law grants corporations the right to indemnify their directors, officers, employees and agents in accordance with applicable law.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 (the “Act” or “Securities Act”) may be permitted to directors, officers or persons controlling our Company pursuant to the foregoing provisions, or otherwise, we have 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.
Item 7. Exemption from Registration Claimed.
Not applicable.
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Item 8. Exhibits.
| EXHIBIT NUMBER |
EXHIBIT | |
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Item 9. Undertakings.
(a) 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 of 1933; |
| (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) if, in the aggregate, the changes in volume and price represent no more than 20 percent 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 the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (1)(i), and (1)(ii) do not apply if the Registration Statement is on Form S-8 and if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference 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 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.
(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 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 the initial bona fide offering thereof.
(5) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
| (A) | Each prospectus filed by a Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
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| (B) | Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which the prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. |
(6) That, for the purpose of determining liability of a Registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, each undersigned Registrant undertakes that in a primary offering of securities of an undersigned Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
| (i) | Any preliminary prospectus or prospectus of an undersigned Registrant relating to the offering required to be filed pursuant to Rule 424; |
| (ii) | Any free writing prospectus relating to the offering prepared by or on behalf of an undersigned Registrant or used or referred to by an undersigned Registrant; |
| (iii) | The portion of any other free writing prospectus relating to the offering containing material information about an undersigned Registrant or its securities provided by or on behalf of an undersigned Registrant; and |
| (iv) | Any other communication that is an offer in the offering made by an undersigned Registrant to the purchaser. |
Insofar as indemnification for liabilities arising 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 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 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act, Applied Energetics, Inc. 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 on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, on the 10th day of December, 2021.
| APPLIED ENERGETICS, INC. | ||
| By: | /s/ Gregory J. Quarles | |
| Gregory J. Quarles | ||
| Chief Executive Officer and President | ||
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed below by the following persons in the indicated capacities.
| Name/Signature | Title | Date | ||
| /s/ Gregory J. Quarles | Chief Executive Officer, | December 10, 2021 | ||
| Gregory J. Quarles | President and Director | |||
| /s/ Bradford T. Adamczyk | Chairman and Director | December 10, 2021 | ||
| Bradford T. Adamczyk | ||||
| /s/ Jonathan Barcklow | Vice President, Secretary and Director | December 10, 2021 | ||
| Jonathan Barcklow | ||||
| /s/ John Schultz | Director | December 10, 2021 | ||
| John Schultz | ||||
| /s/ Mary P. O’Hara | Director | December 10, 2021 | ||
| Mary P. O’Hara |
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Exhibit 4.2
CONSULTING AGREEMENT
This CONSULTING AGREEMENT (“Agreement”), dated as of April 24, 2020, by and between APPLIED ENERGETICS, INC., a Delaware corporation, having an address at 2480 W Ruthrauff Road, Suite 140 Q, Tucson, Arizona 85705 (the “Company”), TMC Financial Services, LLC and Stephen McCommon, an individual having an address at _____________________________ (collectively, the “Consultant”). The Company and Consultant are also referred to as either “party” or “parties” herein.
WITNESSETH:
WHEREAS the Company wishes to avail itself of the Consultant’s knowledge and expertise and to retain his services as a consultant to the Company; and
WHEREAS, the Consultant has agreed to serve as a Consultant to the Company on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants, representations and warranties set forth herein, it is hereby agreed as follows:
1. Engagement. The Company hereby engages the Consultant to perform, and Consultant agrees to perform, the services (“Services”) set forth in the Statement of Work attached hereto as Exhibit A ( the “Statement of Work”).
2. Extent of Services; Availability. The Consultant agrees to make himself available to perform the Services for the Company during the term of this Agreement to the extent necessary to perform the Services. Consultant agrees to perform the Services to the best of his ability in a diligent and conscientious manner, to devote appropriate time, energies and skill to those duties called for hereunder and to be available as deemed necessary by mutual agreement of the parties during the term of this Agreement.
3. Compensation and Reimbursement.
a. Cash Compensation. As compensation for the Services, the Company shall pay to Consultant a fee of $100 for each hour engaged during the Term of this Agreement (“Base Compensation”), beginning on the last day of the first month of the term. The first month of service shall start effective as of April 1, 2020 (the “Effective Date”). The Base Compensation shall be payable to TMC Financial Services, LLC.
b. The Company shall reimburse Consultant for all necessary and appropriate travel and miscellaneous expenses incurred by Consultant on behalf of the Company upon submission of documentary proof for such expenses and provided such expenses have been approved, either prior to or after, by Company management. Consultant shall render invoices for expenses to the Company, in accordance with Company’s practices, within a reasonable time after such expenses occurred.
4. Further Considerations
a. The parties acknowledge that the Company previously issued to Consultant 2,000,000 shares of its common stock (the “Shares”) as compensation for services. The Company believes it may have claims for the return or cancellation of some or all of the Shares. As further consideration for Consultant’s performance of the Services, the Company agrees that Consultant shall be entitled to retain the Shares, and the Company agrees that it will not challenge the initial issuance of the Shares to Consultant.
b. Notwithstanding the foregoing, the parties agree that 667,000 of the Shares will be subject to a lock-up on their sale and shall be released from the lock-up at a rate of 27,792 shares per month for the 24-month duration of this Agreement. Any time after the 24-month duration of this agreement, any remaining locked-up shares shall be un-locked.
c. The Company agrees that upon (a) the closing of a sale of the Company involving either a merger in which the Company is not the surviving company; (b) the closing of a merger or sale of a controlling interest in the Company following which the acquiring entity owns in excess of 50% of the Company’s outstanding equity; (c) the closing of a sale of all or substantially all of the assets of the Company; (d) a change in control of the Company; or (e) termination of this agreement either (i) by the Company without cause, (ii) due to the death or disability of Consultant under Section 9.c hereof, or (iii) by Consultant pursuant to Section 9.d hereof, any lock-up restriction on the sale of the locked-up shares in Section 4.b shall be automatically and immediately lifted.
5. Confidential Information.
a. The Consultant understands that the Consultant's relationship to the Company creates a relationship of confidence and trust with respect to any information of a confidential or secret nature that may be disclosed to the Consultant by the Company or by the business of any affiliate, customer or supplier of the Company or any other party with whom the Company agrees to hold information of such party in confidence(“Confidential Information”). Such Confidential Information includes but is not limited to plans, research, know-how, trade secrets, specifications, drawings, sketches, models, samples, data, technology, computer programs, documentation, relating to software, computer systems, source code, object code methodologies, product development, distribution plans, contractual arrangements, profits, sales, pricing policies, operational methods, technical processes, other business affairs and methods, plans for future developments and other technical and business information, including information related to inventions, which is not publicly available and can be communicated by any means whatsoever, including without limitation oral, visual, written and electronic transmission.
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b. At all times, both during the term of this Agreement and after its termination, the Consultant will keep and hold, and will take all reasonable and appropriate steps to ensure that its personnel keeps and holds, all Confidential Information in strict confidence and trust, and neither the Consultant nor any of its personnel will use or disclose any of such Confidential Information without the prior written consent of the Company, whether such Confidential Information was obtained prior to or during the term of this Agreement. Upon termination of this Agreement, the Consultant will promptly deliver to the Company all documents and materials of any nature pertaining to the Consultant's work with the Company and the Consultant will not take any documents or materials or copies thereof containing any Confidential Information. the Consultant represents and warrants that during any period prior to this Agreement in which the Consultant may have received or otherwise had access to Confidential Information, the Consultant did not disclose any such Confidential Information. The Consultant further represents and covenants that it will cause any of its personnel providing Services under this Agreement to enter into a non-disclosure agreement in favor of the Company.
c. The Consultant agrees to notify the Company immediately upon discovery of (1) any unauthorized disclosure of Confidential Information, (2) any use of Confidential Information other than in pursuit of the Consultant's business relationship with the Company, and (3) any other breach of this Agreement by the Consultant, and the Consultant will cooperate with the Company in every reasonable way to help the Company regain possession of the Confidential Information and prevent its further unauthorized use.
d. Confidential Information shall not include that information otherwise defined as Confidential Information that (1) entered the public domain without a breach by the Consultant or its personnel or affiliates of any obligation owed the Company, (2) became demonstrably known to the Consultant prior to the Company’s disclosure of such information to the Consultant, or (3) became known by or available to the Consultant from a source other than the Company subsequent to the Company’s disclosure of such information to the Consultant, without any breach of any obligation of confidentiality owed to the Company.
e. Notwithstanding anything to the contrary contained in this Agreement, the parties hereto agree and acknowledge that, pursuant to the Defend Trade Secrets Act of 2016 (the “DTSA”), no individual may be held liable for the disclosure of a trade secret that (a) is made (i) in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (b) is made in a complaint or other document filed in a lawsuit or other proceeding if such filing is made under seal. The parties further agree and acknowledge that under the DTSA, any individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose trade secrets to the attorney of the individual and use the trade secret information in the court proceeding, if the individual (y) files any document containing the trade secret under seal and (z) does not disclose the trade secret, except pursuant to the order.
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6. Company Property. During the term of this Agreement and after its termination, Consultant will not use any Company Property for any purpose other than for the benefit of the Company. Upon termination of this Agreement, or at any time at the request of the Company, Consultant will return all Company Property. Consultant will also return all copies of Company Property, and any work product derived from Company Property. "Company Property" means Confidential Information of the Company, customer lists, prospect lists, forms, manuals, records, correspondence, contracts, notes, memoranda, notebooks and other documents of the Company, software media, equipment, and other intangible and tangible property owned by the Company including, without limitation, any and all of the Assets.
7. Non-Competition. During the term of this Agreement and for a period of two years following termination of his service with the Company for any reason, Consultant will not, either alone or jointly with others or as an agent, consultant or employee of any person, firm or company, directly or indirectly, voluntarily or involuntarily, carry on or engage in any activity or business which is in competition with the business of the Company or any of its affiliates, successors or assigns.
8. Non-Solicitation. During the term of his service with the Company and thereafter for a period of one year, the Consultant will not, either alone or in association with others (i) solicit, divert, take away, encourage or attempt to divert or take away the business or patronage of any of the clients, customers or business partners of the Company which were contacted, solicited or served by the Company or any of its affiliates during the 12-month period prior to the termination or cessation of the Consultant’s service to the Company; (ii) solicit, induce or attempt to induce any employee of the Company or its affiliates to terminate their employment or other engagement with the Company or any such affiliate; (iii) hire, recruit or attempt to hire, or engage or attempt to engage as an independent contractor, any person who was employed or otherwise engaged by the Company or any of its affiliates at any time during the term of this Agreement.
9. Term; Termination.
a. The engagement of Consultant hereunder by the Company shall commence as of the Effective Date and shall continue until the end of the Engagement Period specified on Exhibit A, unless terminated previously in accordance with this Section 9.
b. Notwithstanding the foregoing, this Agreement may be terminated for cause by either Party which shall be effective immediately. For purposes of this Section 9, the term “cause” shall mean any (i) material breach of this Agreement by either Party which remains uncured for 10 days following notice thereof, (ii) breach by Consultant of any of the provisions of Section 5 of this Agreement concerning treatment of Confidential Information; (iii) gross negligence or willful misconduct by either Party in the performance of its obligations under this Agreement, (iv) any action taken by either Party which is reasonably likely to cast the other Party in an unfavorable light or bring negative publicity to the other Party or (v) the unavailability of a Party to allow for the performance of the Services hereunder.
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c. This Agreement will automatically be terminated in the event of the death or disability of Consultant. For purposes of this Section 9.c, “disability” shall mean the inability of Consultant to perform the Services as a result of physical or mental illness or incapacity for a period in excess of 120 calendar days.
d. This Agreement may be terminated by Consultant if the Company is able, in good faith, to retain another equally qualified consultant to replace the Consultant in the performance of the Services, and the Consultant has devoted sufficient time and effort to training such replacement consultant and facilitating the transition, which in any event shall be no less than 90 calendar days.
10. Effect of Termination. The parties agree that in the event of (a) a breach of this Agreement by the Company which results in early termination, or termination of Consultant’s services; (b) termination of this Agreement by the Company without cause; or (c) termination of this Agreement pursuant to Section 9.c or 9.d hereof, the Company shall pay to the Consultant any unpaid Base Compensation due through the date of termination; any remaining restrictions on the Consultant’s Shares shall be lifted; and the Company shall pay the Consultant for any unpaid expenses.
11. No Conflicting Obligations; No Breach. Consultant represents and warrants that Consultant is, and at all times during the term of engagement under this Agreement will be, under no obligation to any third party that would interfere with or restrict Consultant’s rendering to the Company of the Services hereunder. Consultant represents that Consultant's performance of all the terms of this Agreement will not breach any work product assignment, proprietary information or other agreement with any former or current employer or other party.
12. Independent Contractor. In performing Services for the Company pursuant to this Agreement, Consultant shall act in the capacity of an independent contractor with respect to the Company and not as an agent or employee of the Company.
13. Compliance with Legal Requirements. The Company shall not provide workers’ compensation, disability insurance, Social Security or unemployment compensation coverage nor any other statutory benefit to Consultant or any of its personnel.
14. Compliance with Standards. Consultant’s performance under this Agreement shall be conducted with due care and in full compliance with the highest professional standards of practice applicable to the Services. Consultant shall comply with all applicable Company rules and policies in the course of performing the Services.
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15. Limitation on Liability. Neither party shall be liable with respect to any subject matter of this agreement, under any contract, negligence, strict liability or other theory, for any indirect, incidental, special, exemplary or consequential damages, including without limitation, any loss of revenues or profits.
16. Governing Law; Jurisdiction. This Agreement will be governed and interpreted in accordance with the internal laws of the State of Arizona without regard to or application of choice of law rules or principles. The Parties submit to the exclusive jurisdiction, and venue shall be deemed proper, in the courts in the State of Arizona, located in the County of Pima.
17. Notices. All notices required to be given under the terms of this Agreement or which any of the Parties desire to give hereunder shall be in writing and personally delivered, sent by registered or certified mail, return receipt requested, or by overnight courier, in each case, to the address first set forth above. Any party may designate a change of address at any time by giving written notice thereof to the other parties.
18. Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision hereof, which shall remain in full force and effect.
19. No Waiver. None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of the Company, its agents, employees or Consultant, but only by an instrument in writing signed by an authorized officer of the Company or Consultant. No waiver of any provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision on another occasion.
20. Entire Agreement. This document and its related attachments contain the entire agreement between Consultant and the Company regarding the terms of Consultant' engagement by the Company and supersede any and all prior or simultaneous agreements of understandings between the parties and any amounts due or accrued thereunder are hereby waived. Any amendment to the terms of this Agreement must be in writing and must be signed by Consultant and the Company.
21. Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement may not be assigned by Consultant without the prior written consent of Company (any purported assignment hereof in violation of this provision being null and void). This Agreement may be assigned by the Company in its sole discretion.
22. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.
23. Survival. Sections 4, 5, 6, 7-9 and 16-18 shall survive termination of this Agreement.
[Signature page follows.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| Company: | The Consultant: | |||
| APPLIED ENERGETICS, INC. | TMC FINANCIAL SERVICES, LLC | |||
| By: | /s/ Bradford T. Adamczyk | By: | /s/ Stephen McCommon | |
| Name: | Bradford T. Adamczyk | Stephen McCommon | ||
| Title: | Title: | |||
| /s/ Stephen McCommon | ||||
| Stephen McCommon | ||||
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Exhibit A
STATEMENT OF WORK
General Duties and Tasks: Consultant shall provide general accounting, bookkeeping and controlling services to the Company, including maintaining the general ledger, communicating and reconciling records with the Company’s transfer agent, compiling information for the Company’s reports to the Securities and Exchange Commission, coordinating with the Company’s auditors and advising and reporting to management all necessary issues with respect to the foregoing.
Engagement Period: 24 months commencing on the Effective Date unless earlier terminated; renewable for periods of one year thereafter by mutual agreement of the parties.
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Exhibit 4.6
APPLIED ENERGETICS, INC
PERFORMANCE STOCK OPTION GRANT AGREEMENT
This STOCK OPTION GRANT AGREEMENT (this “Grant”) is made as of the _____ day of ____________ (the “Grant Date”) by and between Applied Energetics (the “Company”), a Delaware corporation, having a principal place of business in Tucson, AZ, and __________________ (the “Holder and Consultant”) residing at __________________________.
1. Grant of Option. The Company, pursuant to a Consulting Agreement dated March 16, 2017 between the Company and Consultant, hereby grants to the Holder the right and option (the “Performance Option”) to purchase all or any part to the extent vested of an aggregate of _____________________ (___________________) shares (the “Shares”) of its common stock, $.001 par value per share (the “Common Stock”), on the terms and conditions and subject to all the limitations set forth herein.
2. Purchase Price. The purchase price of the Shares covered by the Option (the “Purchase Price”) shall be $_____ per Share.
3. Vesting of Performance Option. The Performance Option granted hereby shall vest provided the Agreement is in effect to the extent of ______________ shares on the date the Company achieves $______________ of cumulative revenues (the “Performance Option Vesting Date”). Vested Performance Options are exercisable upon vesting.
4. Tenn of Performance Option. The Performance Option shall terminate five (5) years from the Grant Date. Termination of the performance of Services by Consultant pursuant to the Agreement shall cause unexercised and unvested Performance Options to expire on the termination date.
5. Exercise of Performance Option and Issue of Shares.
(a) The Performance Option may be exercised in whole or in part by the Holder or the Holder’s heirs, successors or assigns (the term “Holder” being hereinafter defined to include any of the Holder’s heirs, successors or assigns) by giving written notice to the Company, together with the tender of the Purchase Price of the Shares covered by the Option. Such written notice shall be signed by the person exercising the Option, shall state the number of Shares with respect to which the Option is being exercised, shall contain any warranty required by Section 7 below and shall otherwise comply with the terms and conditions of this Grant. The Company shall pay all original issue taxes with respect to the issue of the Shares pursuant hereto and all other fees and expenses necessarily incurred by the Company in connection therewith. Except as specifically set forth herein, any income or other taxes due from the Holder with respect to this Option or the Shares issuable pursuant to this Option shall be the responsibility of the Holder. The Holder shall have rights as a stockholder only with respect to any Shares covered by the Option after due exercise of the Option and tender of the full Purchase Price for the Shares being purchased pursuant to such exercise.
(b) The Holder may, at the Holder’s option, exchange the options represented by this Option, in whole or in part (a “Option Exchange”), into the number of Shares determined in accordance with this Section 6(b) by surrendering this Option at the principal office of the Company or at the office of the transfer agent, accompanied by a notice stating such Holder’s intent to effect such exchange, the number of Shares to be exchanged and the date on which the Holder requests that such Option Exchange occur (the “Notice of Exchange”). The Option Exchange shall take place on the date specified in the Notice of Exchange or, if later, the date the Notice of Exchange is received by the Company (the “Exchange Date”). Certificates for the Shares issuable upon such Option Exchange and, if applicable, a new Option Certificate (a “Remainder Option Certificate”) of like tenor evidencing the Option which were subject to the surrendered Option and not included in the Option Exchange, shall be issued as of the Exchange Date and delivered to the Holder. In connection with any Option Exchange, the Holder’s Option shall represent the right to subscribe for and acquire (I) the number of Shares (rounded to the next highest integer) equal to (A) the number of Shares specified by the Holder in the Holder’s Notice of Exchange (the “Total Share Number”) less (B) the number of Shares equal to the quotient obtained by dividing (i) the product of the Total Share Number and the existing Purchase Price per Share by (ii) the current Market Price (as hereinafter defined) of a share of Common Stock, and (II) a Remainder Option Certificate representing an option to purchase a number of Shares equal to the number of Shares covered by this Option minus the Total Share Number, if applicable. “Market Price” at any date shall be deemed to be the closing sale price for the trading day immediately prior to such date (X) as officially reported by the reporting securities exchange on which the Common Stock is listed or admitted to trading or as reported by the Nasdaq Stock Market, or (Y) if the Common Stock is not listed or admitted to trading on any national securities exchange or quoted on the Nasdaq Stock Market, the closing sale price as furnished by the National Association of Securities Dealers, Inc. through Nasdaq or similar organization if Nasdaq is no longer reporting such information, or (Z) if the Company detennines that none of the foregoing apply, the fair market value of the Common Stock as determined in good faith by resolution of the independent directors of the Company, based on the best information available for the day immediately preceding the Exchange Date and the day of the Exchange Date; provided, however, that the Holder shall pay all expenses incurred by the independent directors of the Company in making their good faith determination of the fair market value of the Common Stock, including but not limited to the fees and expenses of any valuation finn engaged such independent directors.
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6. Purchase for Investment. Unless the offering and sale of the Shares to be issued upon the particular exercise of the Performance Option shall have been effectively registered under the Securities Act of 1933, as now in force or hereafter amended, or any successor legislation (the “Act”), the Company shall be under no obligation to issue the Shares covered by such exercise unless and until the following conditions have been fulfilled:
(a) The person(s) who exercise the Option shall be deemed to warrant to the Company, at the time of such exercise, that such person(s) are acquiring such Shares for each such person’s own account, for investment and not with a view to, or for sale in connection with, the distribution of any such Shares, in which event the person(s) acquiring such Shares shall be bound by the provisions of the following legend or a substantially similar legend which shall be endorsed upon the ce1tificate(s) evidencing the Shares issued pursuant to such exercise:
“The shares represented by this certificate have not been registered under the Securities Act of 1933, as amended (the “Act”). Such shares may not be sold, transferred or otherwise disposed of unless they have first been registered under the Act or, unless, in the opinion of counsel satisfactory to the Company’s counsel, such registration is not required.”
(b) If deemed necessary by the Company, it shall have received an opinion of its counsel that the Shares may be issued upon such particular exercise in compliance with the Act without registration thereunder. Without limiting the generality of the foregoing, the Company may delay issuance of the Shares until completion of any action or obtaining of any consent, which the Company deems necessary under any applicable law (including without limitation state securities or “blue sky” laws).
3
7. Capital Adjustments. The number of Shares as to which the Option has not been exercised, the Purchase Price, and the type of consideration to be received on exercise of the Option shall be equitably adjusted or changed by the Company to reflect such events as stock dividends, split-ups, spin-offs, recapitalizations, reclassifications, combinations or exchanges of shares, mergers, consolidations, liquidations, or the like, of or by the Company. Any adjustment determined to be appropriate by the Company shall be conclusive and shall be binding on the Holder.
8. Notices. Any notices required or permitted by the terms of this Grant shall be given by registered or certified mail, return receipt requested, addressed as follows:
To the Company:
Applied Energetics, Inc.
2480 W Ruthrauff Road
Tucson, AZ 85705
E-mail: Smccommon@appliedenergetics.net
To the Holder:
As listed for the Purchaser
below the Purchaser’s
signature block on the
signature page hereto.
or to such other address or addresses of which notice in the same manner has previously been given. Any such notice shall be deemed to have been given when mailed in accordance with the foregoing provisions. The Company and the Holder may each change the addresses to which notices hereunder may be given by providing the other with written notice of such change.
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6. Arbitration of Certain Claims. Any dispute or controversy between the Holder and the Company or Borislow or among such persons arising in connection with any assignment restrictions imposed hereunder or the valuation required under Section 5(b)(Z) above shall be settled exclusively by arbitration in New York, New York in accordance with the rules of the American Arbitration Association then in effect. Such arbitration shall be limited to the determination ofreasonableness with respect to Section 5 and the determination of fair market value with respect to Section 5(b)(Z). Damages shall not be considered or awarded in the arbitration. Such arbitration must commence on a mutually agreeable date within 180 days of a notice of dispute given by the Holder. The decision of the arbitrator shall be final, conclusive, non-appealable and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court of competent jurisdiction. The Company and the Holder shall each pay one-half of the costs and expenses of such arbitration, and shall separately pay their own respective counsel fees and expenses.
7. Governing Law. This Grant shall be construed and enforced in accordance with the laws of the State of Delaware.
8. Successors. The terms and conditions of this Grant shall apply to the heirs, executors, administrators and successors and assigns of the Holder and the Company.
[signatures follow]
5
Exhibit 4.7
APPLIED ENERGETICS, INC
STOCK OPTION
GRANT AGREEMENT
This STOCK OPTION GRANT AGREEMENT (this "Grant") is made as of the ___________ day of ___________ (the "Grant Date") by and between Applied Energetics (the "Company"), a Delaware corporation, having a principal place of business in Tucson, AZ, and ___________________ (the "Holder and Consultant") residing atl _____________________.
1. Grant of Option. The Company, pursuant to a Consulting Agreement dated___________, 2017 between the Company and Consultant, hereby grants to the Holder the right and option (the "Option") to purchase all or any part to the extent vested of an aggregate of _________________ (______________) shares (the "Shares") of its common stock, $.001 par value per share (the "Common Stock"), on the terms and conditions and subject to all the limitations set forth herein.
2. Purchase Price. The purchase price of the Shares covered by the Option (the "Purchase Price") shall be $__________ per Share.
3. Vesting of Option. The Option granted hereby shall vest provided the Agreement is in effect to the extent of ______________ shares on the first anniversary of the Grant Date (the "Initial Vesting Date") and thereafter vest to the extent of ___________ shares per month during the 24 months immediately following the Initial Vesting Date. Vested options are exercisable upon vesting.
4. Term of Option. The Option shall terminate five (5) years from the Grant Date. Termination of the performance of Services by Consultant pursuant to the Agreement shall cause unexercised and unvested Options to expire on the termination date.
5. Exercise of Option and Issue of Shares.
(a) The Option may be exercised in whole or in part by the Holder or the Holder's heirs, successors or assigns (the term "Holder" being hereinafter defined to include any of the Holder's heirs, successors or assigns) by giving written notice to the Company, together with the tender of the Purchase Price of the Shares covered by the Option. Such written notice shall be signed by the person exercising the Option, shall state the number of Shares with respect to which the Option is being exercised, shall contain any warranty required by Section 7 below and shall otherwise comply with the terms and conditions of this Grant. The Company shall pay all original issue taxes with respect to the issue of the Shares pursuant hereto and all other fees and expenses necessarily incurred by the Company in connection therewith. Except as specifically set f01th herein, any income or other taxes due from the Holder with respect to this Option or the Shares issuable pursuant to this Option shall be the responsibility of the Holder. The Holder shall have rights as a stockholder only with respect to any Shares covered by the Option after due exercise of the Option and tender of the full Purchase Price for the Shares being purchased pursuant to such exercise.
(b) The Holder may, at the Holder's option, exchange the options represented by this Option, in whole or in part (a "Option Exchange"), into the number of Shares determined in accordance with this Section 6(b) by smTendering this Option at the principal office of the Company or at the office of the transfer agent, accompanied by a notice stating such Holder's intent to effect such exchange, the number of Shares to be exchanged and the date on which the Holder requests that such Option Exchange occur (the "Notice of Exchange"). The Option Exchange shall take place on the date specified in the Notice of Exchange or, if later, the date the Notice of Exchange is received by the Company (the "Exchange Date"). Certificates for the Shares issuable upon such Option Exchange and, if applicable, a new Option Certificate (a"Remainder Option Certificate") of like tenor evidencing the Option which were subject to the surrendered Option and not included in the Option Exchange, shall be issued as of the Exchange Date and delivered to the Holder. In connection with any Option Exchange, the Holder's Option shall represent the right to subscribe for and acquire (I) the number of Shares (rounded to the next highest integer) equal to (A) the number of Shares specified by the Holder in the Holder's Notice of Exchange (the "Total Share Number") less (B) the number of Shares equal to the quotient obtained by dividing (i) the product of the Total Share Number and the existing Purchase Price per Share by (ii) the current Market Price (as hereinafter defined) of a share of Common Stock, and (II) a Remainder Option Certificate representing an option to purchase a number of Shares equal to the number of Shares covered by this Option minus the Total Share Number, if applicable. "Market Price" at any date shall be deemed to be the closing sale price for the trading day immediately prior to such date (X) as officially reported by the reporting securities exchange on which the Common Stock is listed or admitted to trading or as reported b the Nasdaq Stock Market, or (Y) if the Common Stock is not listed or admitted to trading on any national securities exchange or quoted on the Nasdaq Stock Market, the closing sale price as furnished by the National Association of Securities Dealers, Inc. through Nasdaq or similar organization if Nasdaq is no longer reporting such information, or (Z) if the Company determines that none of the foregoing apply, the fair market value of the Common Stock as determined in good faith by resolution of the independent directors of the Company, based on the best information available for the day immediately preceding the Exchange Date and the day of the Exchange Date; provided, however, that the Holder shall pay all expenses incurred by the independent directors of the Company in making their good faith determination of the fair market value of the Common Stock, including but not limited to the fees and expenses of any valuation firm engaged such independent directors.
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6. Purcjiase for Investment. Unless the offering and sale of the Shares to be issued upon the particular exercise of the Option shall have been effectively registered under the Securities Act of 1933, as now in force or hereafter amended, or any successor legislation (the "Act"), the Company shall be under no obligation to issue the Shares covered by such exercise unless and until the following conditions have been fulfilled:
(a) The person(s) who exercise the Option shall be deemed to warrant to the Company, at the time of such exercise, that such person(s) are acquiring such Shares for each such person's own account, for investment and not with a view to, or for sale in connection with, the distribution of any such Shares, in which event the person(s) acquiring such Shares shall be bound by the provisions of the following legend or a substantially similar legend which shall be endorsed upon the certificate(s) evidencing the Shares issued pursuant to such exercise:
"The shares represented by this certificate have not been registered lmder the Securities Act of 1933, as amended (the "Act"). Such shares may not be sold, transferred or otherwise disposed of unless they have first been registered under the Act or, unless, in the opinion of counsel satisfactory to the Company's counsel, such registration is not required."
(b) If deemed necessary by the Company, it shall have received an opinion of its counsel that the Shares may be issued upon such particular exercise in compliance with the Act without registration thereunder. Without limiting the generality of the foregoing, the Company may delay issuance of the Shares until completion of any action or obtaining of any consent, which the Company deems necessary under any applicable law (including without limitation state securities or "blue sky" laws).
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7. Capital Adjustments. The number of Shares as to which the Option has not been exercised, the Purchase Price, and the type of consideration to be received on exercise of the Option shall be equitably adjusted or changed by the Company to reflect such events as stock dividends, split-ups, spin-offs, recapitalizations, reclassifications, combinations or exchanges of shares, mergers, consolidations, liquidations, or the like, of or by the Company. Any adjustment determined to be appropriate by the Company shall be conclusive and shall be binding on the Holder.
8. Notices. Any notices required or permitted by the terms of this Grant shall be given by registered or certified mail, return receipt requested, addressed as follows:
To the Company:
Applied Energetics,
Inc.
2480 W Ruthrauff Road
Tucson, AZ 85705
E-mail: Smccommon@appliedenergetics.net
To the Holder:
As listed for the Purchaser
below the
Purchaser's
signature block on the
signature page hereto.
or to such other address or addresses of which notice in the same manner has previously been given. Any such notice shall be deemed to have been given when mailed in accordance with the foregoing provisions. The Company and the Holder may each change the addresses to which notices hereunder may be given by providing the other with written notice of such change.
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6. Arbitration of Certain Claims. Any dispute or controversy between the Holder and the Company or Borislow or among such persons arising in connection with any assignment restrictions imposed hereunder or the valuation required under Section 5(b)(Z) above shall be settled exclusively by arbitration in New York, New York in accordance with the rules of the American Arbitration Association then in effect. Such arbitration shall be limited to the determination of reasonableness with respect to Section 5 and the determination of fair market value with respect to Section 5(b)(Z). Damages shall not be considered or awarded in the arbitration. Such arbitration must commence on a mutually agreeable date within 180 days of a notice of dispute given by the Holder. The decision of the arbitrator shall be final, conclusive, non-appealable and binding on the parties to the arbitration. Judgment may be entered on the arbitrator's decision in any court of competent jurisdiction. The Company and the Holder shall each pay one-half of the costs and expenses of such arbitration, and shall separately pay their O\\·n respective counsel fees and expenses.
7. Law. This Grant shall be constrned and enforced in accordance with the laws of the State of Delaware.
8. Successors. The terms and conditions of this Grant shall apply to the heirs, executors, administrators and successors and assigns of the Holder and the Company.
[signatures follow]
5
IN WITNESS WHEREOF, the parties have executed this Common Stock Purchase Agreement as of the day and year first written above.
| Applied Energetics, Inc. | |||
| By: | |||
| Name: | |||
| Title: | |||
| Holder | |||
| Name: | |||
Exhibit 5.1
MASUR GRIFFITTS AVIDOR, LLP
180 Varick Street, Suite 1214
New York, NY 10014
December 10, 2021
To the Board of Directors
Applied Energetics, Inc.
9070 S. Rita Road, Suite 1500
Tucson, AZ 85747
| Re: | Applied Energetics, Inc. | |
| Registration Statement on Form S-8 |
Ladies and Gentlemen:
We are acting as counsel to Applied Energetics, Inc., a Delaware corporation (the "Company"), in connection with the filing with the Securities and Exchange Commission (the "Commission"), under the Securities Act of 1933, as amended (the "Securities Act"), of a Registration Statement on Form S-8 the "Registration Statement"), relating to the offer and sale of up to (i) 50,000,000 shares of common stock, par value $0.001 per share, of the Company (the “Common Stock”) reserved for issuance under the Company’s 2018 Incentive Stock Plan (the “Plan”), 19,915,000 of which underly options which have been issued under the Plan and are included in a reoffer prospectus in the Registration Statement and (ii) 21.465,000 shares of Common Stock issued, or underlying options (the “Options”) issued, pursuant to consulting agreements for services rendered to the Company (collectively, the “Securities”).
You have requested our opinion as to the matters set forth below in connection with the issuance of the Shares. For purposes of rendering this opinion, we are familiar with the Registration Statement, and we have examined the Company's Certificate of Incorporation, as amended to date, the Company's By-laws, as amended to date, and corporate actions of the Company that provided for the issuances of the Shares. We have also examined such other documents, certificates, instruments and corporate records, and such statutes, decisions and questions of law as we have deemed necessary or appropriate for the purpose of this opinion. We have examined and relied upon certificates of public officials and, as to certain matters of fact that are material to our opinion, we have also relied on statements of an officer of the Company.
In such examination, we have assumed: (i) the authenticity of original documents and the genuineness of all signatures; (ii) the conformity to the originals of all documents submitted to us as copies; (iii) the truth, accuracy and completeness of the information, representations and warranties contained in the instruments, documents, certificates and records we have reviewed; (iv) that the Registration Statement, and any amendments thereto (including post-effective amendments), will have become effective under the Act and no stop order suspending the effectiveness of the Registration Statement will have been issued, and no proceeding for that purpose has been instituted or threatened by the Commission; (v) that the Registered Shares will be issued and sold in compliance with applicable U.S. federal and state securities laws and in the manner stated in the Registration Statement; and (vi) the legal capacity of all natural persons. As to any facts material to the opinions expressed herein that were not independently established or verified, we have relied upon oral or written statements and representations of officers and other representatives of the Company.
Based upon and subject to the foregoing, it is our opinion that
| (i) | the 17,215,000 shares of Common Stock currently outstanding and listed in the Registration Statement are validly issued, fully paid and non-assessable, |
| (ii) | the 24,165,000 shares of Common Stock underlying the Options, when issued and upon full payment of the exercise price therefor, will be, validly issued, fully paid and non-assessable; and |
| (iii) | the shares of Common Stock to be issued under the Plan are duly authorized, and, when issued by the Company in accordance with the terms of the Plan, will be validly issued, fully paid and non-assessable. |
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of our name under the heading "Experts" in the prospectus constituting a part thereof.
Very truly yours,
/s/Masur Griffitts Avidor LLP
MASUR GRIFFITTS AVIDOR LLP
2
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this registration statement on Form S-8 of our report dated April 12, 2021, which includes an explanatory paragraph regarding the substantial doubt about the Company’s ability to continue as a going concern, relating to the financial statements of Applied Energetics, Inc. (the “Company”), appearing in the Annual Report on Form 10-K of the Company for the year ended December 31, 2020, and to the reference to us under the heading “Experts” in the Prospectus, which is part of this Registration Statement.
/s/ RBSM LLP
Henderson, Nevada
December 10, 2021