AGREEMENT APPLIED ENERGETICS, INC.
Exhibit
(d)(3)
AGREEMENT
APPLIED
ENERGETICS, INC.
AGREEMENT
made as of the ____ day of 2009 (the
“Grant Date”) between Applied Energetics, Inc. (the “Company”), a Delaware
corporation, having a principal place of business in Tucson, Arizona and
________________ (the “Grantee”) residing at ____________.
WHEREAS,
the Company desires to grant to the Grantee a Non-Qualified Option to purchase
________ shares of its common stock, $.001 par value per share (the “Common
Stock”), under and for the purposes of the 2004 Stock Incentive Plan of the
Company (the “Plan”) pursuant to the terms thereof;
WHEREAS,
the Company and the Grantee understand and agree that unless otherwise defined
herein any terms used herein have the same meanings as in the Plan.
NOW,
THEREFORE, in consideration of the mutual covenants hereinafter set forth and
for other good and valuable consideration, the parties hereto agree as
follows:
1. Grant of
Option. The Company hereby grants to the Grantee the right and
option (the “Option”) to purchase all or any part of an aggregate of [ ]
shares of its Common Stock (the “Shares”) on the terms and conditions and
subject to all the limitations set forth herein and in the Plan, which is
incorporated herein by reference. The Grantee acknowledges receipt of
a copy of the Plan.
2. Purchase
Price. The purchase price of the Shares covered by the Option
(the “Purchase Price”) shall be $_________ per share.
3. Exercise of
Option. The Option granted hereby shall be exercisable in full
commencing on the Grant Date.
4. Term of
Option. The Option shall terminate three (3) years from the
date of this Agreement[, but shall be subject to earlier termination as provided
herein or in the Plan.] [The bracketed language shall be
inserted in all New Options, other than those granted to non-executive
directors].
[The remainder of this Section 4
shall be inserted in all New Options, other than those granted to non-executive
directors]. If the Grantee ceases to be employed by the
Company for any reason other than death, termination for cause, or voluntary
termination without the consent of the Company, the Option may be exercised
within ninety (90) days after the date the Grantee ceases to be an employee, or
within three (3) years from the granting of the Option, whichever is earlier,
but may not be exercised thereafter. In such event, the Option shall
be exercisable only to the extent that the right to purchase Shares under the
Plan has accrued and is in effect at the date of such cessation of
employment.
In the
event of disability of the Grantee (as determined by the Board of Directors of
the Company or the 2004 Stock Incentive Plan Committee of the Company; as the
case may be, and as to the fact and date of which the Grantee is notified by the
Board or that Committee, as the case may be, in writing), the Option shall be
exercisable within thirty (30) days after the date of such disability or, if
earlier, the term originally prescribed by this Agreement. In such
event, the Option shall be exercisable to the extent that the right to purchase
the Shares hereunder has accrued on the date the Grantee becomes disabled and is
in effect as of such determination date.
In the
event of the death of the Grantee while an employee of the Company or within
thirty (30) days after the termination of employment (other than termination for
cause or without the consent of the Company), the Option shall be exercisable to
the extent exercisable but not exercised as of the date of death and in such
event, the Option must be exercised, if at all, within one (1) year after the
date of death of the Grantee or, if earlier, within the originally prescribed
term of the Option.
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5. Non-Assignability. [The following paragraph shall be
inserted in all New Options, other than those granted to non-executive
directors.] Without the written consent of the Company, the
Option shall not be transferable by the Grantee otherwise than by will or the
laws of descent and distribution and shall be exercisable, during the Grantee’s
lifetime, only by the Grantee.
[The following language shall be
inserted in the New Options granted to non-executive
directors]. Except as set forth in this Section 5, without the
written consent of the Company (which will not be unreasonably withheld, taking
into account, among other considerations, the nature of the Company’s business),
the Option shall not be transferable by the Grantee otherwise than by will or
the laws of descent and distribution. The Grantee may transfer this
Option (i) through one or more successive gifts or a domestic relations order,
to a family member, or (ii) to an entity in which more than 50% of the voting
interests are owned by family members (or the Grantee) in exchange for an
interest in that entity. A “family member”, for purposes of this
Section 5, includes any child, stepchild, grandchild, parent, stepparent,
grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law,
father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law,
including adoptive relationships, any person sharing the employee’s household
(other than a tenant or employee), a trust in which these persons have more than
50% of the beneficial interest, a foundation in which these persons (or the
Grantee) control the management of assets, and any other entity in which these
persons (or the Grantee) own more than 50% of the voting
interests.
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6. Exercise of Option and Issue
of Shares. The Option may be exercised in whole or in part (to
the extent that it is exercisable in accordance with its terms) 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 Agreement and the Plan. 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
herewith. Except as specifically set forth herein, the Grantee or
other holder of this Option acknowledges that any income or other taxes due from
him with respect to this Option or the Shares issuable pursuant to this Option
shall be the responsibility of the holder. The holder of this Option
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.
7. Purchase for
Investment. Unless the offering and sale of the Shares to be
issued upon the particular exercise of the Option shall have 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 warrant to the Company, at the time of
such exercise, that such person(s) are acquiring such Shares for his or her 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 their option Shares issued pursuant to such
exercise:
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“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).
8. Notices. Any
notices required or permitted by the terms of this Agreement or the Plan shall
be given by registered or certified mail, return receipt requested, addressed as
follows:
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To
the Company:
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0000
Xxxx Xxxxxxxx Xxxxxx
Xxxxxx,
Xxxxxxx 00000
Attention: Chief
Executive Officer
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To
the Grantee:
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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. Either
party hereto may change the addresses to which notices hereunder may be given by
providing the other party hereto with written notice of such
change.
9. Governing
Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Delaware.
10. Benefit of
Agreement. This Agreement shall be for the benefit of and
shall be binding upon the heirs, executors, administrators and successors of the
parties hereto.
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IN
WITNESS WHEREOF, the Company has caused this Agreement to be executed by its
duly authorized officer, and the Grantee has hereunto set his hand, all as of
the day and year first above written.
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By:
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Name:
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Title:
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By:
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, Grantee
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