**Exhibit 10.45**

 

**AMERICANSCIENCE AND ENGINEERING, INC.**

**NON-STATUTORYSTOCK OPTION AGREEMENT**

**FOR DIRECTORS**

 

AGREEMENT made as of the Grant Date (as defined below),by and between AMERICAN SCIENCE AND ENGINEERING, INC., a corporation dulyorganized under the laws of The Commonwealth of Massachusetts (the “Company”),and the Director (as defined below).

 

NOW, THEREFORE, for and in consideration of the mutualcovenants hereinafter set forth and for other good and valuable consideration,it is agreed as follows:

 

**DEFINITIONS**

 
| ** “Grant Date”**       |                                                                                                                                                                                                                 |   |
|----------------------------------------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|
| ** **                             |                                                                                                                                                                                                                 |   |
| ** “Director”**         |                                                                                                                                                                                                                 |   |
| ** **                             |                                                                                                                                                                                                                 |   |
| ** “Options Granted”**  |                                                                                                                                                                                                                 |   |
| ** **                             |                                                                                                                                                                                                                 |   |
| ** “Exercise Price”**   |                                                                                                                                                                                                                 |   |
| ** **                             |                                                                                                                                                                                                                 |   |
|                                   | **All of the Options granted shall vest on the first anniversary of the  Grant Date provided that the Director remains in office and continues  to serve as a Director on the first anniversary of the Grant Date.** |
| ** “Vesting Schedule”** |

 

1.  GRANT OFOPTION.  The Company hereby grants tothe Director a non-statutory stock option (the “Option”) to purchase the numberof shares of its common stock equal to the number of Options Granted at theExercise Price, the Exercise Price being 100% of the closing price of thecommon stock on the NASDAQ National Market on the date hereof.  The Director’s right to purchase said stockshall be exercised in the manner and subject to the terms and conditionshereinafter provided.  The Company shall,at all times while the Option is in force, reserve such number of shares ofcommon stock as will be sufficient to satisfy the requirements of thisAgreement.

 

2.  TIME OFEXERCISE OF THE OPTION.   The Optionshall vest, and may be exercised, in accordance with the Vesting Schedule Setout above.  The Option shall terminateand shall no longer be exercisable on and after the tenth anniversary of  the Grant Date.

 

3.  METHOD OF EXERCISE.

 

(a)   TheOption may be exercised in whole or in part from time to time by written noticeto the Company stating the number of shares with respect to which the Option isbeing exercised.  Stock purchased underthe Option shall at the time of exercise be paid 

 

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in full.  The Company shall deliver to the Director theshares exercised as soon as reasonably practicable.  The Company shall, without transfer or issuetax to the Director (or other person entitled to exercise the Option), deliverto the Director (or other person entitled to exercise the Option) at the mainoffice of the Company, or such other place as shall be mutually acceptable, acertificate or certificates for such shares (as the number of such shares maybe reduced subject to subsection (c) below) out of theretofore authorizedbut unissued shares or reacquired shares of its common stock, as the Companymay elect, against payment of the Option price in full for the number of sharesto be delivered by certified or bank cashier’s check or the equivalent thereofacceptable to the Company (including, but not limited to, shares of capitalstock of the Company); provided, however, that the time of such delivery may bepostponed by the Company for such period as may be required for it with reasonablediligence to comply with any applicable listing requirements of any nationalsecurities exchange.  If the Director (orother person entitled to exercise the Option) fails to accept delivery of andpay for all or any part of the number of shares specified in such notice upontender of delivery thereof, his right to exercise the Option with respect tosuch undelivered shares may be terminated by the Board.

 

(b)  Promptly upon receipt of the written notice provided for in subsection (a) above,the Board shall, with the assistance of appropriate employees of the Company,determine if any portion of such intended exercise (the “Disallowance Portion”)may reasonably be expected to result in receipt of compensation by the Directoras to which the Company will not be allowed to claim a deduction in respect ofthe Company’s taxable year during which such exercise occurs, when the amountof remuneration attributable to such exercise is taken together with theDirector’s base salary and the reasonably likely cash and stock bonuses payableto him in respect of such taxable year, pursuant to Section 162(m) ofthe Internal Revenue Code of 1986, as amended, and the regulations thereunder.

 

(c)   TheBoard shall promptly notify the Director of its determination as to the DisallowancePortion, and, the exercise contemplated by the written notice in subsection (a) shallbe deemed to be reduced by the number of shares in the Disallowance Portion.

 

4.  TERMINATIONOF DIRECTORSHIP.  The Director may,at any time within thirty-six (36) months after the date of termination of hisservice as a Director of the Company for any reason other than cause (asallowed under the 2005 Equity and Incentive Plan), but not later than the dateof expiration of the Option, exercise the Option to the extent he was entitledto do so on the date of termination.  TheDirector may, at any time within three (3) months after the date oftermination of his service as a Director of the Company for cause, but notlater than the date of expiration of the Option,  exercise the Option to the extent he wasentitled to do so on the date of termination. If the Option or any portion of the Option is not so exercised, or ifthe Director shall be deemed not to be entitled to exercise it or any portionthereof, the Option or portion thereof shall terminate.

 

Nothing in this Agreement shall confer on the Directorany right to continue as a Director of the Company or be deemed a waiver ormodification of any provision contained in any agreement between the Directorand the Company.

 

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5.  EXERCISEBY REPRESENTATIVE, ETC.  If theDirector dies while serving as a Director of the Company or within three monthsafter voluntary termination of service as a Director, the person or persons towhom the Option is transferred by will or the laws of descent and distributionmay, at any time within one year after the date of death but not later than thedate of expiration of the Option, exercise the Option to the extent theDirector was entitled to do so on the date of his death.  If the Option or any portion of the Option ofthe deceased Director is not so exercised, it shall terminate.

 

6.  NON-TRANSFERABILITYOF OPTION.  The Option may not betransferred except by will or by the laws of descent and distribution nor mayit be otherwise assigned, transferred, pledged, hypothecated or disposed of inany way (by operation of law or otherwise) and it shall not be subject toexecution, attachment or similar process. During the lifetime of the Director, the Option may be exercised only bythe Director or the Director’s duly appointed guardian or personalrepresentative.

 

7.  CHANGES INCOMMON STOCK.  In the event of anyreorganization, recapitalization, stock split, stock dividend, merger,consolidation, combination of shares or other change affecting the Company’scommon stock, the Board shall make adjustments in the number and kind ofsecurities to be subject to the Option in order to reflect as closely aspossible the intent, purpose and relative number of shares of Company commonstock covered by the Option, such adjustments to be consistent with adjustmentsmade with respect to options held by employees and other directors of theCompany.  Any such adjustment made by theBoard shall be conclusive.  ThisAgreement shall not affect the right of the Company to reclassify, recapitalizeor otherwise change its capital or debt structure or to merge, consolidate,convey any or all of its assets, dissolve, or liquidate, wind up or otherwisereorganize.

 

8.  RESTRICTIONON ISSUANCE OF SHARES.  The Companyshall not be obligated to sell or issue any shares pursuant to the Optionunless the shares with respect to which the Option is being exercised are atthat time effectively registered or exempt from registration under theSecurities Act of 1933, as amended.

 

9.  RIGHTS ASA STOCKHOLDER.  The Director shallhave no rights as a stockholder with respect to any shares covered by theOption until the date of issuance of a stock certificate to the Director forsuch shares.  No adjustment shall be madefor dividends or other rights for which the record date is prior to the datesuch stock certificate is issued.

 

10.  WITHHOLDING.  The Company shall have the right to deductany sums that federal, state or local tax law requires to be withheld withrespect to the exercise of the Option. In the alternative, the Director or other person exercising the Optionmay elect to pay such sums to the Company either by check or with capital stockof the Company by delivering written notice of that election to the Clerk ofthe Company no less than 30 days nor more than 60 days prior to exercise. Thereis no obligation hereunder that the Director be advised of the amount which theCompany will be required to withhold.

 

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11.  INTERPRETATIONOF PLAN AND OPTION.  Questions ofinterpretation and application of this Agreement shall be determined by amajority of the Board, and the determinations of such majority shall be finaland binding upon all persons.

 

12.  ACCELERATIONOF VESTING.  Notwithstanding anythingherein to the contrary, the options granted hereby shall vest immediately uponany Change in Control of the Company.  Inthe event of a Change in Control triggering immediate vesting as provided inthis Section, the Optionee may exchange his or her options for Common Stock asprovided in this Agreement and participate in the Change of Control transactionpari pasu with other stockholders of the Company.  The term “Change in Control” shall mean theoccurrence hereafter of any of the following:

 

(a)          Any Person, other than the Company or an Affiliate,becomes a beneficial owner (within the meaning of Rule 13d-3, as amended,as promulgated under the Securities Exchange Act of 1934, as amended), directlyor indirectly, in one or a series of transactions, of securities representingmore than fifty percent (50%) of the combined voting power of the Company’sthen outstanding securities;

 

(b)         The consummation of a merger orconsolidation of the Company with any other Person, other than a merger orconsolidation which would result in the voting securities of the Companyoutstanding immediately prior thereto continuing to represent (either byremaining outstanding or by being converted into voting securities of thesurviving entity) more than fifty percent (50%) of the combined voting power ofthe voting securities of the Company or such surviving entity outstandingimmediately after such merger or consolidation;

 

(c)          The closing of a sale or otherdisposition by the Company of all or substantially all of the assets of theCompany;

 

(d)         Individuals who constitute the Board ofDirectors on the date hereof (“Incumbent Directors”) cease for any reason toconstitute at least a majority of the board; provided, that any individual whobecomes a member of the Board subsequent to the date hereof, whose election ornomination for election was approved by a vote of at least two-thirds of theIncumbent Directors shall be treated as an Incumbent Director unless he or sheassumed office as a result of an actual or threatened election contest with respectto the election or removal of directors; or

 

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(e)          A complete liquidation or dissolution ofthe Company;

 

provided, in each case, that such event alsoconstitutes a “change in control event” within the meaning of TreasuryRegulation Section 1.409A-3(i)(5).

 

EXECUTED as a sealed instrument as of the Grant Date.

 

AMERICAN SCIENCE AND ENGINEERING, INC.

 

 
| By                |   |                                                                                                                                                                                                  |   |
|-------------------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|
| Authorized Person |   |                                ,  Director |

 

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