As filed with the Securities and Exchange
Commission on March 18, 2021
Registration No. 333-231885
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO FORM S-1 ON FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
APPLIED ENERGETICS, INC.
(Exact Name of Registrant as Specified in
Its Charter)
Delaware
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77-0262908
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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480 W Ruthrauff Road, Suite 140Q
Tucson, AZ 85705
P 520. 628-7415
(Address, including zip code, and telephone number,
including area code, of registrant’s
principal executive offices)
Gregory J. Quarles
Chief Executive Officer
2480 W Ruthrauff Road, Suite 140Q
Tucson, AZ 85705
C 201 563-2263
(Name, address, and telephone of agent for
service)
Copies to:
Mary P. O’Hara, Esq.
Masur Griffitts Avidor LLP
65 Reade Street, Suite 3A
New York, NY 10007
(212) 209-5483
Approximate date of commencement of proposed sale to the
public: From time to time after the effective date of this registration statement.
If
the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please
check the following box. ☒
If any of the securities being registered on this form are to
be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered
only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for
an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, please check the following box and list the Securities Act registration statement number
of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to
Rule 462(e) under the Securities Act, please check the following box. ☐
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, please check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, 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
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☐
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Accelerated filer
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☐
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Non-accelerated filer
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☐
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Smaller reporting company
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þ
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Emerging growth company
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☐
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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
pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
Pursuant to Rule 429 under the Securities Act of 1933, as amended,
the prospectus contained in this Registration Statement relates to shares registered in the Registrant’s registration statement
on Form S-1 (File No. (File No. 333-231885).
The registrant hereby amends this registration statement
on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which
specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities
Act of 1933, as amended, or until the registration statement shall become effective on such date as the Securities and Exchange
Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
On May 31, 2019, the registrant filed with
the Securities and Exchange Commission (the “SEC”) a registration statement on Form S-1 (File No. 333-231885), which
was amended by Amendment Nos. 1 and 2, filed on June 17 and 18, 2019, respectively, and declared effective on June 24, 2019 (as
so amended, the “Form S–1”). The Form S–1 was filed to register the resale by the selling stockholders
named in the prospectus included in the Form S-1 of up to 48,725,534 shares of the registrant’s common stock, par value $0.001
per share (“common stock”).
Based on the closing price of the registrant’s
common stock on the OTCQB of $0.795 on February 17, 2021, the market value of the registrant’s public float has increased
since the effectiveness of the Form S-1 to an amount in excess of $75 million, which qualifies the registrant to utilize Form S-3
to register shares in an offering such as that previously registered on the Form S-1. Accordingly, this Post-Effective Amendment
No. 1 to Form S-1 on Form S-3 (this “Post-Effective Amendment”) is being filed by the registrant to convert the Form
S-1 into a registration statement on Form S-3. This Post-Effective Amendment also contains an updated prospectus. All filing fees
payable in connection with the registration of the shares covered by this Post-Effective Amendment were paid by the registrant
at the time of the initial filing of the Form S-1.
The information
in this prospectus is not complete and may be changed. These securities may not be sold until the registration statement filed
with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not
soliciting an offer to buy these securities in any jurisdiction where such offer or sale is not permitted.
PRELIMINARY PROSPECTUS
SUBJECT TO COMPLETION, DATED March 18, 2021
Applied Energetics, Inc.
41,133,333 Shares of Common Stock
This prospectus relates
to the resale of up to an aggregate of 41,133,333 outstanding shares of common stock, par value $0.001 per share, of Applied Energetics,
Inc. to be sold by selling stockholders named herein (whom we refer to as the “Selling Stockholders”). Each of the
Selling Stockholders purchased the shares in a private transaction as described herein.
The Selling Stockholders
are offering their shares at varying prices, at different times and in different ways. Information on the Selling Stockholders
and the times and manner in which they may offer and sell shares of our common stock under this prospectus is provided under “Selling
Stockholders” and “Plan of Distribution.” We are not offering any shares under this Prospectus nor will Applied
Energetics receive any of the proceeds from this offering. We expect to pay for expenses associated with the registration and offering
of the shares under this Prospectus
Shares of our common
stock trade on the OTCQB Market under the symbol “AERG”. On March 16, 2021, the closing price of our common stock was
$0.64 per share.
Investing in our
securities is speculative and involves a high degree of risk. You are urged to read this prospectus carefully, which includes important
information about our company and potential risks of an investment in our securities. Please pay particular attention to the section
entitled “Risk Factors” beginning on page 2 of this prospectus for information about the risks of this investment in
our common stock.
Neither the Securities
and Exchange Commission nor any state securities commission or other regulatory body 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
, 2021
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
Unless otherwise indicated or the context
otherwise requires, all references in this prospectus to “we,” “us,” the “Company” and “AERG”
mean Applied Energetics, Inc.
This prospectus is part of a “shelf”
registration statement that we filed with the Securities and Exchange Commission (the “SEC”). By using a shelf registration
statement, the selling stockholders identified in this prospectus may sell an aggregate of up to 41,133,333 shares of our common
stock from time to time in one or more offerings, as described in this prospectus.
This prospectus provides you with a general
description of the securities the selling stockholders may offer. From time to time, we may issue one or more prospectus supplements.
Any such prospectus supplement or information incorporated by reference into this prospectus after the date of this prospectus
may also add, update or change information contained in this prospectus. Any such information that is inconsistent with this prospectus
will supersede the information in this prospectus. You should read both this prospectus and the accompanying prospectus supplement
together with the additional information described under the heading “Where You Can Find More Information.”
You may rely only on the information
contained in this prospectus. We have not authorized anyone to provide information or to make representations not contained in
this prospectus. This prospectus is neither an offer to sell, nor a solicitation of an offer to buy, these securities in any jurisdiction
where an offer or solicitation would be unlawful. Neither the delivery of this prospectus, nor any sale made under this prospectus,
means that the information contained in this prospectus is correct as of any time after the date of this prospectus. This prospectus
may be used only where it is legal to offer and sell these securities.
Neither the delivery of this prospectus
nor any sale made under it implies that the information in this prospectus is correct as of any date after the date of this prospectus.
You should assume that the information in this prospectus, any applicable prospectus supplement or any related free writing prospectus
is accurate only as of the date thereof and that any information incorporated by reference in this prospectus, any applicable prospectus
supplement or any related free writing prospectus is accurate only as of the date of the document incorporated by reference, regardless
of the time of delivery of this prospectus, any applicable prospectus supplement or any related free writing prospectus, or any
sale of a security.
For investors outside the United States:
We have done nothing that would permit this offering or possession or distribution of this prospectus or any free writing prospectus
we may provide to you in connection with this offering in any jurisdiction where action for that purpose is required, other than
in the United States. You are required to inform yourselves about and to observe any restrictions relating to this offering and
the distribution of this prospectus and any such free writing prospectus outside of the United States.
This prospectus contains summaries of certain
provisions contained in some of the documents described herein, but reference is made to the actual documents for complete information.
All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein
have been filed, will be filed or will be incorporated by reference as exhibits to the registration statement of which this prospectus
is a part, and you may obtain copies of those documents as described below under “Incorporation by Reference.”
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports,
proxy statements, and other information with the SEC. Such reports, proxy statements, and other information concerning us can be
read and copied at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549 or on the Internet at http://www.sec.gov.
Please call the SEC at 1-800-SEC-0330 for further information on the Public Reference Room. The
SEC also maintains a web site at http://www.sec.gov that contains reports, proxy statements and other information about issuers,
such as us, who file electronically with the SEC.
We have filed with the SEC a registration
statement on Form S-3 under the Securities Act of 1933, as amended (the “Securities Act”) with respect to the securities
covered by this prospectus. This prospectus, which is a part of the registration statement, does not contain all of the information
set forth in the registration statement or the exhibits and schedules filed therewith. For further information with respect to
us and the securities covered by this prospectus, please see the registration statement and the exhibits filed with the registration
statement. A copy of the registration statement and the exhibits filed with the registration statement may be inspected without
charge from the SEC as indicated above, or from us as indicated under “Incorporation by Reference.”
INCORPORATION BY REFERENCE
The SEC allows us to “incorporate
by reference” into this prospectus the information that we file with the SEC. This permits us to disclose important information
to you by referring to these filed documents. Any information referred to in this way is considered part of this prospectus, and
any information filed with the SEC by us after the date of this prospectus will automatically be deemed to update and supersede
this information. We incorporate by reference the following documents that have been filed with the SEC (other than, in each case,
documents or information deemed furnished and not filed in accordance with SEC rules, including pursuant to Item 2.02 or Item 7.01
or any related exhibit furnished under Item 9.01(d) of Form 8-K, and no such information shall be deemed specifically incorporated
by reference hereby):
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●
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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, 2021.
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We also incorporate by reference any future
filings (other than information in such documents that is not deemed to be filed) made with the SEC pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) until we file a post-effective
amendment which indicates the termination of the offering of the securities made by this prospectus.
Any statement contained in a document incorporated
or deemed to be incorporated by reference in this prospectus will be deemed to be modified or superseded to the extent that a statement
contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference in this
prospectus modifies or supersedes that statement. Any statement so modified or superseded will not be deemed, except as so modified
or supersede, to constitute a part of this prospectus.
Upon written or oral request, we will provide,
without charge, each person to whom a copy of this prospectus is delivered, a copy of any document incorporated by reference in
this prospectus (other than exhibits, unless such exhibits are specifically incorporated by reference in such documents). Requests
should be directed to Applied Energetics Inc. 2480 W Ruthrauff Road, Suite 140Q, Tucson, AZ 85705 Attn. Stephen McCommon, Finance
Manager.
USE OF MARKET AND INDUSTRY DATA
This prospectus includes market and industry
data that has been obtained from third party sources, including industry publications, as well as industry data prepared by our
management on the basis of its knowledge of and experience in the industries in which we operate (including our management’s
estimates and assumptions relating to such industries based on that knowledge). Management’s knowledge of such industries
has been developed through its experience and participation in these industries. While our management believes the third-party
sources referred to in this prospectus are reliable, neither we nor our management have independently verified any of the data
from such sources referred to in this prospectus or ascertained the underlying economic assumptions relied upon by such sources.
Internally prepared and third-party market forecasts, in particular, are estimates only and may be inaccurate, especially over
long periods of time. In addition, we have not independently verified any of the industry data prepared by management or ascertained
the underlying estimates and assumptions relied upon by management. Furthermore, references in this prospectus to any publications,
reports, surveys or articles prepared by third parties should not be construed as depicting the complete findings of the entire
publication, report, survey or article. The information in any such publication, report, survey or article is not incorporated
by reference in this prospectus.
CAUTIONARY STATEMENT ON FORWARD-LOOKING
INFORMATION
This prospectus contains certain statements
relating to our future results that are considered “forward-looking statements” within the meaning of the Private Securities
Litigation Reform Act of 1995. Some of these statements can be identified by use of forward-looking words such as “believes,”
“expects,” “anticipates,” “may,” “should,” “seeks,” “approximately,”
“intends,” “plans” or “estimates,” or the negative of these words, or other comparable terminology.
The discussion of financial trends, strategy, plans or intentions may also include forward-looking statements. Actual results may
differ materially from those expressed or implied as a result of certain risks and uncertainties, including, but not limited to,
changes in political and economic conditions; interest rate fluctuation; competitive pricing pressures within our market; equity
and fixed income market fluctuation; technological change; changes in law; changes in fiscal, monetary regulatory and tax policies
as well as other risks and uncertainties detailed elsewhere in this prospectus or from time-to-time in our filings with the Securities
and Exchange Commission. Such forward-looking statements speak only as of the date on which such statements are made, and we undertake
no obligation to update any forward-looking statement to reflect events or circumstances after the date on which such statement
is made or to reflect the occurrence of unanticipated events.
You should not consider the above list to
be a complete statement of all risks and uncertainties. You are cautioned not to place undue reliance on any such forward-looking
statements, which speak only as of the date such statements were first made. Except to the extent required by federal securities
laws, we undertake no obligation to publicly release the result of any revisions to these forward-looking statements to reflect
events or circumstances after the date hereof or to reflect the occurrence of unanticipated events.
RISK FACTORS
Investing in our securities involves
a high degree of risk. Before making a decision to invest in our securities, in addition to the other information contained in
this prospectus, any accompanying prospectus supplement or any related free writing prospectus, or incorporated by reference herein
or therein, you should carefully consider the risks discussed under “Risk Factors” in
our most recent Annual Report on Form 10-K, in our Quarterly Reports on Form 10-Q, in any prospectus supplement related hereto,
and in other information contained in our publicly available SEC filings and press releases. See “Where You Can Find
Additional Information.”
USE OF PROCEEDS
The sale of the shares
of our common stock offered by this Prospectus are for the account of the Selling Stockholders, and therefore, we will not receive
any of the proceeds from the sale of these shares.
APPLIED ENERGETICS, INC.
Applied
Energetics, Inc. is a corporation organized and existing under the laws of the State of Delaware. Our executive office is located
at 2480 W Ruthrauff Road, Suite 140 Q, Tucson, Arizona, 85705 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 ownership rights to a dynamic Directed Energy technology called
Laser Guided Energy (“LGE”) and its companion, Laser Induced Plasma Channel (“LIPC”). LGE and LIPC are
technologies that can be used in a new generation of high-tech weapons. Currently, there are two key types of Directed Energy Weapon
(“DEW”) technologies, High Energy Lasers (“HEL”), and High-Power Microwave (“HPM”). Neither
HEL nor HPM is owned by a single entity. Now, there is a third DEW technology, LGE. Applied Energetics’ LGE and LIPC technologies
are owned by Applied Energetics and patent protected with 25 current patents and an additional 11 Government Sensitive Patent Applications
(“GSPA”). The GSPA’s are held under secrecy orders of the US government and allow AERG greatly extended protection
rights.
Applied
Energetics’ technology is significantly different from conventional directed energy weapons, i.e. HEL, and HPM. LGE uses
Ultra-Short Pulse (USP) technology to combine the speed and precision of lasers with the overwhelming punch of high-voltage electricity.
This advanced technology 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 moves toward the future, our business strategy reflects upon the significant value of the company’s key
intellectual properties, including LGE and LIPC, and technologies involving Advanced Ultra Short-Pulse (“AUSP”).
We will pay for
the expenses of this offering, except that the selling stockholders will pay any broker discounts or commissions or equivalent
expenses and expenses of selling stockholder legal counsel applicable to any sale of the shares.
SELLING STOCKHOLDERS
The following table
sets forth the information as to the ownership of our securities by the Selling Stockholders on March 11, 2021, at which time 197,775,149
shares of our common stock were outstanding. Unless otherwise indicated, it is assumed that each Selling Stockholder
listed below possesses sole voting and investment power with respect to the shares owned as of such date by the Selling Stockholder,
Selling Stockholder (2)
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Shares of Common Stock Owned Before the Offering
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Total Number of Shares of Common Stock to be Offered (1) (2)
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Shares of Common Stock to be Beneficially Owned After the Offering (2)
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Percentage of Common Stock Beneficially Owned After the Offering
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Dan W. Baer
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8,227,733
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4,333,333
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3,894,400
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2
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2
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%
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Jonathan Barcklow(3)
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6,000,000
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(3)
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1,000,000
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5,000,000
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2.1
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3
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%
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Thomas R. Brown
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500,000
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500,000
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-0-
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—
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|
|
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--
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Rene R. Carlis
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300,000
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300,000
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-0-
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|
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—
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|
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--
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Christopher H. Daly
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1,265,846
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500,000
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765,846
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*
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*
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S. Preston Dillard
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1,000,000
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1,000,000
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-0-
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—
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--
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Elizabeth P. Vaughan - CPVTrust
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2,000,000
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(4)
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2,000,000
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-0-
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—
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--
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Douglas M Faris
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7,425,000
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2,500,000
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4,925,000
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1.8
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2
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%
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Scott Preston Harrison
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1,000,000
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1,000,000
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-0-
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—
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--
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Charles M. Johnson
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3,584,977
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3,333,333
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251,644
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—
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*
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Robert V. Katherman
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7,282,131
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1,500,000
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5,782,131
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1.7
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3
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%
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Ryan Keelin
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3,572,577
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1,666,667
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1,905,910
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*
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1
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%
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Alexander C. McAree
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2,666,667
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1,000,000
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1,666,667
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|
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—
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*
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Kevin T. McFadden
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12,100,000
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12,000,000
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100,000
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|
|
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—
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*
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Moriah Stone Global LP (5)
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1,563,599
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(5)
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1,000,000
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|
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563,599
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|
|
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—
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Robert Harris
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3,600,000
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1,000,000
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2,600,000
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1.2
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1.5
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%
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E. Lee Pinney, Jr.
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5,028,160
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3,500,000
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1,528,160
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*
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*
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Michael Kevin Rowe
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701,125
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500,000
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201,125
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|
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*
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*
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Khang Ting
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500,000
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500,000
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-0-
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|
|
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|
|
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--
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Alan Porter Vaughan
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1,762,500
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(6)
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1,500,000
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262,500
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*
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Watson Howell Wright
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1,254,987
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500,000
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|
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754,987
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*
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TOTAL
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71,335,302
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41,133,333
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30,201,969
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|
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● Less
than 1%.
(1) Represents
the shares held by the selling stockholders which we have agreed to include in this Prospectus.
(2) Assumes
all of the shares being offered under this Prospectus will be sold by the Selling Stockholders. However, we are unable to determine
the exact number of shares that will actually be sold hereunder.
(3) Includes
5,000,000 share underlying employee options. Mr. Barcklow is Vice President, Secretary and a director of the Company.
(4) Shares not
included in those owned by Alan Vaughan who is the beneficiary of a 25% interest in the Elizabeth P. Vaughan - CPVTrust. See note
6.
(5) Moriah Stone
Global LP is beneficially owned by Bradford T. Adamczyk, our Chairman and a director. As such, Mr. Adamczyk is deemed to beneficially
own shares held by Moriah Stone Global LP. Mr. Adamczyk also holds in his own name 671,486 shares of common stock and 5,000,000
share underlying employee options.
(6) Includes
1,750,000 shares held directly by Mr. Vaughan, 12,500 shares underlying warrants but does not include 2 million shares held by
Elizabeth P. Vaughan CPV Trust, of which Mr. Vaughan is one of four beneficiaries. Also does not include 171,096 shares held by
ProspectBlue Ventures LLC, of which Mr. Vaughan is the Managing Partner.
The information set
forth above is based upon information obtained from the selling stockholders and upon information in our possession regarding the
issuance of shares of common stock and warrants to the selling stockholders in connection with private placement transactions.
The percentages of shares beneficially owned after completion of the offering are based on 197,775,149 shares of our common stock
outstanding as of March 11, 2021. None of the selling stockholders has within the past three years had any position, office or
other material relationship with us or any of our subsidiaries other than as a holder of shares of our common stock or warrants.
PLAN OF DISTRIBUTION
Each Selling Stockholder
(the “Selling Stockholders”) of the securities and any of their pledgees, assignees and successors-in-interest
may, from time to time, sell any or all of their securities covered hereby on the OTCQB or any other stock exchange, market or
trading facility on which the securities are traded or in private transactions. These sales may be at fixed or negotiated prices.
A Selling Stockholder may use any one or more of the following methods when selling securities:
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ordinary brokerage transactions and transactions in
which the broker-dealer solicits purchasers;
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block trades in which the broker-dealer will attempt
to sell the securities as agent but may position and resell a portion of the block as principal to facilitate the transaction;
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purchases by a broker-dealer as principal and resale
by the broker-dealer for its account;
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an exchange distribution in accordance with the rules
of the applicable exchange;
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privately negotiated transactions;
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settlement of short sales entered into after the effective
date of the registration statement of which this prospectus is a part;
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in transactions through broker-dealers that agree with
the Selling Stockholders to sell a specified number of such securities at a stipulated price per security;
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through the writing or settlement of options or other
hedging transactions, whether through an options exchange or otherwise;
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a combination of any such methods of sale; or
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any other method permitted pursuant to applicable law.
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The Selling Stockholders
may also sell securities under Rule 144 under the Securities Act of 1933, as amended (the “Securities Act”),
if available, rather than under this prospectus.
Broker-dealers engaged
by the Selling Stockholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions
or discounts from the Selling Stockholders (or, if any broker-dealer acts as agent for the purchaser of securities, from the purchaser)
in amounts to be negotiated, but, except as set forth in a supplement to this Prospectus, in the case of an agency transaction,
not in excess of a customary brokerage commission in compliance with FINRA Rule 2440; and in the case of a principal transaction
a markup or markdown in compliance with FINRA IM-2440.
In connection with
the sale of the securities or interests therein, the Selling Stockholders may enter into hedging transactions with broker-dealers
or other financial institutions, which may in turn engage in short sales of the securities in the course of hedging the positions
they assume. The Selling Stockholders may also sell securities short and deliver these securities to close out their short positions,
or loan or pledge the securities to broker-dealers that in turn may sell these securities. The Selling Stockholders may also enter
into option or other transactions with broker-dealers or other financial institutions or create one or more derivative securities
which require the delivery to such broker-dealer or other financial institution of securities offered by this prospectus, which
securities such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended
to reflect such transaction).
We will pay all of
the expenses incident to the registration, offering, and sale of the shares to the public other than commissions or discounts of
underwriters, broker-dealers, or agents. Any commissions, discounts or other fees payable to brokers-dealers in connection with
any sale of the shares of common stock will be borne by the selling stockholders, the purchasers participating in such transaction,
or both.
The Selling Stockholders
and any broker-dealers or agents that are involved in selling the securities may be deemed to be “underwriters” within
the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers
or agents and any profit on the resale of the securities purchased by them may be deemed to be underwriting commissions or discounts
under the Securities Act. We know of no existing arrangements between the selling stockholders, any other shareholder, broker,
dealer, underwriter, or agent relating to the sale or distribution of the shares offered by this prospectus. In no event shall
any broker-dealer receive fees, commissions and markups which, in the aggregate, would exceed eight percent (8%).
Because Selling Stockholders
may be deemed to be “underwriters” within the meaning of the Securities Act, they will be subject to the prospectus
delivery requirements of the Securities Act including Rule 172 thereunder. In addition, any securities covered by this Prospectus
which qualify for sale pursuant to Rule 144 under the Securities Act may be sold under Rule 144 rather than under this Prospectus.
We agreed to keep this
Prospectus effective until the earlier of (i) the date on which the securities may be resold by the Selling Stockholders without
registration and without regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for
the Company to be in compliance with the current public information under Rule 144 under the Securities Act or any other rule of
similar effect or (ii) all of the securities have been sold pursuant to this prospectus or Rule 144 under the Securities Act or
any other rule of similar effect. The resale securities will be sold only through registered or licensed brokers or dealers if
required under applicable state securities laws. In addition, in certain states, the resale securities covered hereby may not be
sold unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
Under applicable rules and regulations
under the Exchange Act, any person engaged in the distribution of the resale shares may not simultaneously engage in market making
activities with respect to the common stock for the applicable restricted period, as defined in Regulation M, prior to the commencement
of the distribution. In addition, the Selling Stockholders will be subject to applicable provisions of the Exchange Act and the
rules and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of shares of the common
stock by the Selling Stockholders or any other person. We will make copies of this Prospectus available to the Selling Stockholders
and have informed them of the need to deliver a copy of this Prospectus to each purchaser at or prior to the time of the sale (including
by compliance with Rule 172 under the Securities Act).
Penny Stock Rules
Our shares of common
stock are subject to the “penny stock” rules of the Exchange Act. In general terms, “penny stock” is defined
as any equity security that has a market price less than $5.00 per share, subject to certain exceptions. The rules provide that
any equity security is considered to be a penny stock unless that security is registered and traded on a national securities exchange
meeting specified criteria set by the SEC, authorized for quotation from the NASDAQ stock market, issued by a registered investment
company, and excluded from the definition on the basis of price (at least $5.00 per share), or based on the issuer’s net
tangible assets or revenues. In the last case, the issuer’s net tangible assets must exceed $3,000,000 if in continuous operation
for at least three years or $5,000,000 if in operation for less than three years, or the issuer’s average revenues for each
of the past three years must exceed $6,000,000.
Trading in shares of
penny stock is subject to additional sales practice requirements for broker-dealers who sell penny stocks to persons other than
established customers and accredited investors. Accredited investors, in general, include individuals with assets in excess of
$1,000,000 or annual income exceeding $200,000 (or $300,000 together with their spouse), and certain institutional investors. For
transactions covered by these rules, broker-dealers must make a special suitability determination for the purchase of the security
and must have received the purchaser’s written consent to the transaction prior to the purchase. Additionally, for any transaction
involving a penny stock, the rules require the delivery, prior to the first transaction, of a risk disclosure document relating
to the penny stock. A broker-dealer also must disclose the commissions payable to both the broker-dealer and the registered representative,
and current quotations for the security. Finally, monthly statements must be sent disclosing recent price information for the penny
stocks. These rules may restrict the ability of broker-dealers to trade or maintain a market in our common stock, to the extent
it is penny stock, and may affect the ability of stockholders to sell their shares.
DESCRIPTION OF SECURITIES
The following description
of our capital stock being registered herein is a summary only and is qualified in its entirety by reference to our Articles of
Incorporation, as amended, and Amended and Restated Bylaws, which are included as Exhibits 3.1 through 3.7 of the Company’s
Annual Report on Form 10-K (incorporating such documents by reference to prior reports on file with the SEC by the Company).
Common Stock
We are authorized to
issue up to 500,000,000 shares of common stock, $0.001 par value per share. Holders of our common stock are entitled to receive
dividends when and as declared by our board of directors out of funds legally available. Holders of our common stock are entitled
to one vote for each share on all matters voted on by stockholders, including the election of directors. Holders of our common
stock do not have any conversion, redemption or preemptive rights. In the event of our dissolution, liquidation or winding up,
holders of our common stock are entitled to share ratably in any assets remaining after the satisfaction in full of the prior rights
of creditors and the aggregate liquidation preference of any preferred stock then outstanding. The rights, preferences and privileges
of the holders of our common stock are subject to, and may be adversely affected by, the rights of the holders of shares of any
series of preferred stock that we may designate and issue in the future.
Preferred Stock
As of December 31,
2019 and 2018, there were 13,602 shares of Series A Redeemable Convertible Preferred Stock (the “Series A Preferred Stock”)
outstanding. The company has not paid the dividends commencing with the quarterly dividend due August 1, 2013. Dividend arrearages
as of December 31, 2019 and February 1, 2020 were approximately $221,000 and $230,000, respectively. Our Board of Directors suspended
the declaration of the dividend, commencing with the dividend payable as of February 1, 2015 since we did not have a surplus (as
such term is defined in the Delaware general corporation Law) as of December 31, 2014, until such time as we have a surplus or
net profits for a fiscal year.
Our Series A Preferred
Stock has a liquidation preference of $25.00 per Share. The Series A Preferred Stock bears dividends at the rate of 6.5% of the
liquidation preference per share per annum, which accrues from the date of issuance, and is payable quarterly. Dividends may be
paid in: (i) cash, (ii) shares of our common stock (valued for such purpose at 95% of the weighted average of the last sales prices
of our common stock for each of the trading days in the ten trading day period ending on the third trading day prior to the applicable
dividend payment date), provided that the issuance and/or resale of all such shares of our common stock are then covered by an
effective registration statement and the company’s common stock is listed on a U.S. national securities exchange or the Nasdaq
Stock Market at the time of issuance or (iii) any combination of the foregoing. If the company fails to make a dividend payment
within five business days following a dividend payment date, the dividend rate shall immediately and automatically increase by
1% from 6.5% of the liquidation preference per offered share of Series A preferred stock to 7.5% of such liquidation preference.
If a payment default shall occur on two consecutive dividend payment dates, the dividend rate shall immediately and automatically
increase to 10% of the liquidation preference for as long as such payment default continues and shall immediately and automatically
return to the Initial dividend rate at such time as the payment default is no longer continuing.
Transfer Agent and Registrar
The transfer agent
and registrar for our common stock is Continental Stock Transfer & Trust Company.
LEGAL MATTERS
Unless otherwise stated in an accompanying
prospectus supplement, Masur Griffitts Avidor LLP, New York, New York, will provide
us with an opinion as to the legality of the securities offered under this prospectus.
EXPERTS
The consolidated financial statements of
Applied Energetics, Inc. and subsidiary, as of and for the year ended December 31, 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.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following is a statement of the estimated
expenses (other than underwriting discounts and commissions) to be borne by Applied Energetics, Inc. in connection with the issuance
and distribution of the securities registered under this registration statement. Except
for the SEC registration fee, all amounts are estimates.
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SEC registration fee
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$
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*
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Legal fees and expenses
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6,000.00
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Accounting fees and expenses
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7,500.00
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Miscellaneous
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1,000.00
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Total
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$
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14,500
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*
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The SEC registration fee associated with this filing was
paid in connection with the original filing of the Form S-1 which is amended by this Registration Statement on Form S-1.
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Item 15. Indemnification of Directors and Officers
The Company’s Certificate of Incorporation
and Bylaws provide for indemnification of officers and directors of the Company and certain other persons to the full extent permitted
by law, as now in effect or later amended, against liabilities and expenses incurred by any of them in certain stated proceedings
and under certain stated conditions.
The Company may maintain insurance for the
benefit of its directors, officers, employees, agents and certain other persons, insuring such persons against any expense, liability
or loss, including liability under the securities laws. In addition, the Company has entered into indemnification agreements with
our directors and executive officers that require us to indemnify these persons for claims made against each of these persons because
he or she is, was or may be deemed to be a director, officer, employee or agent of the Company or any of our subsidiaries. We are
obligated to pay the expenses of these persons in connection with any claims that are subject to the agreement.
Section 102 of the DGCL allows a corporation
to eliminate the personal liability of directors of a corporation to the corporation or its stockholders for monetary damages for
a breach of fiduciary duty as a director, except where the director breached his duty of loyalty, failed to act in good faith,
engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase
in violation of the DGCL or obtained an improper personal benefit.
Section 145 of the DGCL provides, among
other things, that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding (other than an action by or in the right of the corporation) by reason of the fact
that the person is or was a director, officer, agent or employee of the corporation or is or was serving at the corporation’s
request as a director, officer, agent, or employee of another corporation, partnership, joint venture, trust or other enterprise,
against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred
by the person in connection with such action, suit or proceeding. The power to indemnify applies (1) if such person is successful
on the merits or otherwise in defense of any action, suit or proceeding, or (2) if such person acted in good faith and in a manner
he or she reasonably believed to be in the best interest, or not opposed to the best interest, of the corporation, and with respect
to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. The power to indemnify
applies to actions brought by or in the right of the corporation as well, but only to the extent of defense expenses (including
attorneys’ fees but excluding amounts paid in settlement) actually and reasonably incurred and not to any satisfaction of
judgment or settlement of the claim itself, and with the further limitation that in such actions no indemnification shall be made
in the event of any adjudication of negligence or misconduct in the performance of his or her duties to the corporation, unless
the court believes that in the light of all the circumstances indemnification should apply.
Section 174 of the DGCL provides, among
other things, that a director, who willfully or negligently approves of an unlawful payment of dividends or an unlawful stock purchase
or redemption, may be held liable for such actions. A director who was either absent when the unlawful actions were approved or
dissented at the time may avoid liability by causing his or her dissent to such actions to be entered in the books containing the
minutes of the meetings of the board of directors at the time such action occurred or immediately after such absent director receives
notice of the unlawful acts.
Item 16. Exhibits
EXHIBIT
NUMBER
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DESCRIPTION
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2.1
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Amended and Restated Plan and Agreement of Merger entered into as of March 17, 2004, by and among U.S. Home & Garden, Inc. (“USHG”), Ionatron Acquisition Corp., a wholly-owned subsidiary of USHG, Robert Kassel (for purposes of Sections 5.9, 6.2(d), 6.2(j), 9.4 and 10.10 only), Fred Heiden (for purposes of Section 9.4 only), and Ionatron, Inc. and Robert Howard, Stephen W. McCahon, Thomas C. Dearmin and Joseph C. Hayden (incorporated by reference to the comparable exhibit filed with the Registrant’s Form 8-K filed with the SEC on March 24, 2004).
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3.1
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Certificate of Incorporation, as amended, (incorporated by reference to the comparable exhibit filed with the Registrant’s Form 10-KSB for the fiscal year ended June 30, 1995).
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3.2
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Certificate of Amendment of Certificate of Incorporation of the Registrant filed with the Secretary of State of the State of Delaware on April 29, 2004 (incorporated by reference to the comparable exhibit filed with the Registrant’s Form 10-Q for the quarterly period ended March 31, 2004).
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3.3
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Certificate of Elimination of the 10% Series A Convertible Preferred Stock of the Registrant (incorporated by reference to the comparable exhibit filed with the Registrant’s Form 8-K filed with the SEC on October 28, 2005).
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3.4
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Certificate of Designation of the 6.5% Series A Redeemable Convertible Preferred Stock of the Registrant (incorporated by reference to the comparable exhibit filed with the Registrant’s 8-K filed with the SEC on October 28, 2005).
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3.5
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Certificate of Ownership and Merger of Applied Energetics, Inc. into Ionatron, Inc. (incorporated by reference to the comparable exhibit filed with the Registrant’s Form 8-K filed with the SEC on February 20, 2008).
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3.6
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Amended and Restated By-laws of the Registrant (incorporated by reference to Exhibit 3 of the Registrant’s Form 10-Q for the Quarter ended June 30, 2007.
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3.7
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Certificate of Amendment to Certificate of Incorporation filed with the Secretary of State of the State of Delaware on September 10, 2007. (incorporated by reference to Exhibit 3.7 to Amendment No. 1 to the Registrant’s Registration Statement on Form S-1 filed on June 17, 2019).
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4.1
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Form of certificate evidencing Common Stock, $.001 par value, of the Registrant (incorporated by reference to Exhibit 4.1 of the Registrant’s Registration Statement on Form S-1 (Registration No. 333-38483)).
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5.1
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Opinion of Masur Griffitts Avidor LLP*
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10.1
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2018 Incentive Stock Plan (incorporated by reference to Exhibit 10.1 to the Registrant’s Form 10-K for the fiscal year ended December 31, 2018).
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10.2
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Consulting and Advisory Services Agreement, effective as of February 15, 2019, by and between the Registrant and WCC Ventures, LLC (incorporated by reference to Exhibit 99 to Form 8-K filed with the SEC on February 22, 2019).
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10.3
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Advisory Board Agreement by and between registrant and Christopher Donaghey (Previously filed).
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10.4
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Executive Employment Agreement, dated as of April 18,2019, by and between the Registrant and Gregory J. Quarles (Previously filed).
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10.5
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Scientific Advisory Board Agreement, by and between the Registrant and Charles Hale (Previously filed.)
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10.6
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Consulting Agreement, by and between the Registrant and SWM Consulting, LLC (incorporated by reference to comparable exhibit filed with the Registrant’s Form 8-K filed with the SEC on May 31, 2019)
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10.7
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Asset Purchase Agreement, by and between the Registrant and Applied Optical Sciences, Inc. LLC (incorporated by reference to comparable exhibit filed with the Registrant’s Form 8-K filed with the SEC on May 31, 2019)
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10.8
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Contract/Order for Supplied and Services with the Department of the Army, dated as of March 3, 2020 (incorporated by reference to the comparable exhibit filed with the Registrant’s Form 10-K for the year ended December 31, 2019).
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10.9
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Lease Agreement, dated as of March 15, 2021 by and between the Registrant and Campus Research Corporation (incorporated by reference to Exhibit 10.1 to the Registrant’s Form 8-K filed with the SEC on March 17, 2021).
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21
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Subsidiaries (incorporated by reference to the comparable exhibit filed with the Registrant’s Form 10-K for the year ended December 31, 2006)
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23.1
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Consent of RBSM LLP
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99.1
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Compensation Committee Charter (incorporated by reference to the comparable exhibit filed with the Registrant’s Form 10-K for the year ended December 31, 2010)
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99.2
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Corporate Governance and Nominating Committee Charter (incorporated by reference to the comparable exhibit filed with the Registrant’s Form 10-K for the year ended December 31, 2009)
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99.3
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Audit Committee Charter (incorporated by reference to the comparable exhibit filed with the Registrant’s Form 10-K for the year ended December 31, 2009)
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*Previously filed.
Item 17. 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;
(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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% 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 (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) shall not apply 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 SEC by the registrant pursuant to Section
13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement, or is contained in a
form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining
any liability under the Securities Act, 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 the purpose of determining
liability under the Securities Act to any purchaser:
(a) Each prospectus filed by the 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
(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 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 that 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.
(c)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing
of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) 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.
(d)
Insofar as indemnification for liabilities arising under the Securities Act 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 SEC 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 Securities Act and will
be governed by the final adjudication of such issue.
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-3 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 18th day of March, 2021.
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APPLIED ENERGETICS, INC.
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By:
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/s/ Gregory J. Quarles
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Gregory J. Quarles
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Chief Executive Officer and President
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Pursuant to the requirements of the Securities
Act, this Registration Statement has been signed below by the following persons in the capacities and on the 18th day
of March, 2021.
Name/Signature
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Title
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Date
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/s/ Gregory J. Quarles
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Chief Executive Officer, President and Director
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March 18, 2021
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Gregory J. Quarles
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/s/ Bradford T. Adamczyk
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Chairman and Director
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March 18, 2021
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Bradford T. Adamczyk
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/s/ Jonathan Barcklow
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Vice President, Secretary and Director
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March 18, 2021
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Jonathan Barcklow
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/s/ John Schultz
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Director
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March 18, 2021
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John Schultz
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13
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