UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
_________________
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
ADVANCED
PHOTONIX, INC.
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(Exact
Name of Registrant as Specified in Its Charter)
Delaware
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(State
of Other Jurisdiction of Incorporation or Organization)
33-0325826
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(I.R.S.
Employer Identification No.)
2925
Boardwalk, Ann Arbor, Michigan 48104
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(Address
of Principal Executive Offices) (Zip
Code)
2007
EQUITY INCENTIVE PLAN
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(Full
Title of the Plan)
Richard
D. Kurtz, Chief Executive Officer and President,
Advanced
Photonix, Inc., 2925 Boardwalk, Ann Arbor, Michigan
48104
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(Name
and Address of Agent For Service)
(734)
864-5600
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Telephone
Number, Including Area Code, of Agent For Service.
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CALCULATION
OF REGISTRATION FEE
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Title
of
Each
Class of
Securities
To
Be
Registered
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Amount
To
Be
Registered(1)
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Proposed
Maximum
Offering
Price
Per
Share(2)
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Proposed
Maximum
Aggregate
Offering
Price(2)
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Amount
of
Registration
Fee(3)
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Class
A
Common
Stock
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2,500,000
shares
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$2.73
|
$6,825,000
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$209.53
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(1)
Pursuant to Rule 416(c) under the Securities Act of 1933, this Registration
Statement covers an indeterminate amount of interests to be offered or sold
pursuant to the employee benefit plan described herein.
(2)
Estimated solely for the purpose of calculating the registration fee. Pursuant
to Rule 457(h)(1) under the Securities Act of 1933, the proposed maximum
price
per share, the proposed maximum aggregate offering price and the amount of
registration fee have been computed on the basis of the average of the high
and
low prices of the Class A Common Stock reported on the American Stock Exchange
on October 23, 2007.
(3)
Calculated pursuant to Section 6(b) of the Securities Act of 1933, as
amended, as follows: $30.70 per $1 million of proposed maximum aggregate
offering price.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation
of Documents by Reference.
The
following documents filed with the Securities and Exchange Commission (the
“SEC”) are incorporated by reference into this Registration
Statement:
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(a) |
The
Annual Report of Advanced Photonix, Inc. (the "Company") for the
fiscal
year ended March 31, 2007 on Form 10-K filed pursuant to
Section 13(a) of the Securities Exchange Act of 1934 (the “Exchange
Act”), filed with the SEC on June 29,
2007.
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|
(b) |
All
other reports of the Company filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year ended
March 31, 2007.
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|
(c) |
The
description of the Company’s Class A Common Stock contained in the
Registration Statement on Form 8-A filed with the SEC on
January 16, 1991.
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All
documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then unsold, shall be deemed to be incorporated
by
reference into this Registration Statement and to be a part hereof from the
date
of filing of such documents.
Item
4. Description
of Securities.
Not
Applicable.
Item
5. Interests
of Named Experts and Counsel.
Not
Applicable.
Item
6. Indemnification
of Directors and Officers.
Section 145
of the Delaware General Corporation Law (the “DGCL”) provides that a corporation
may indemnify directors and officers as well as other employees and individuals
against expenses (including attorneys’ fees), judgments, fines and amounts paid
in settlement in connection with specified actions, suits or proceedings,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation -- a “derivative action”), if they acted
in good faith and in a manner they reasonably believed to be in or not opposed
to the best interests of the corporation and, with respect to any criminal
actions or proceedings, had no reasonable cause to believe their conduct
was
unlawful. A similar standard is applicable in the case of derivative actions,
except that indemnification only extends to expenses (including attorneys’ fees)
actually and reasonably incurred in connection with the defense or settlement
of
such action, and the DGCL requires court approval before there can be any
indemnification where the person seeking indemnification has been found liable
to the corporation. The DGCL provides that it is not exclusive of other
indemnification that may be granted by a corporation’s by-laws, disinterested
director vote, stockholder vote, agreement or otherwise. Additionally,
Section 102(b)(7) of the DGCL permits a provision in the certificate of
incorporation of each corporation organized thereunder, such as the Company,
eliminating or limiting, with certain exceptions, the personal liability
of a
director to the corporation or its stockholders for monetary damages for
breach
of fiduciary duty as a director.
The
Company’s Charter and Bylaws provide for indemnification of officers and
directors for claims that arise in connection with their performance of services
as officers and directors to the fullest extent permitted by the DGCL. The
right
to indemnification includes the right to be paid by the Company for expenses
incurred in defending any such proceeding in advance of its final disposition.
The right to indemnification under the Company’s By-laws and Certificate of
Incorporation is not exclusive of any other right that any person may have
or
may acquire under any statute, agreement or otherwise.
The
Company carries directors’ and officers’ liability insurance that covers certain
liabilities and expenses of the Company’s directors and officers.
Item
7.
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Exemption
from Registration Claimed.
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|
Not
Applicable.
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Item
8.
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Exhibits.
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Exhibit
No.
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Exhibit
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4.1
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The
Company's Certificate of Incorporation, as amended, defining
the rights of
holders of the Company's Common Stock. (Incorporated herein by
reference
to Exhibit 3.1 to the Registration Statement on Form S-1 dated
November
23, 1990 and amendment to the Certificate of Incorporation from
Annual
Report on Form 10-K dated March 31, 1996.)
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4.2
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The
Company’s By-Laws, as amended defining the rights of holders of the
Company’s Common Stock. (Incorporated herein by reference to Exhibit
3(ii)
to the Current Report on Form 8-K dated June 8, 2005.)
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4.3
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The
2007 Equity Incentive Plan approved by Stockholders on August
24, 2007.
(Incorporated herein by reference to Exhibit A to the Company’s Proxy
Statement relating to its 2007 Annual Meeting of Stockholders
filed June
16, 2007 on Form 14A.)
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4.4
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Form
of Director Restricted Stock Agreement under the 2007 Equity
Incentive
Plan.
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4.5
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Form
of Employee Restricted Stock Agreement under the 2007 Equity
Incentive
Plan.
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4.6
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Form
of Employee Stock Option Agreement under the 2007 Equity Incentive
Plan.
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5.1
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Opinion
of Dornbush Schaeffer Strongin & Venaglia, LLP as to the legality of
the securities issued under the 2007 Equity Incentive Plan.
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23.1
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Consent
of Farber Hass Hurley & McEwen, LLP, independent certified public
accountants to the Company.
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23.2
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Consent
of Dornbush Schaeffer Strongin & Venaglia, LLP, counsel to the Company
(contained in Exhibit 5.1).
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24.1
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Power
of Attorney (included on the signature pages of this Registration
Statement)
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Item 9.
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Undertakings.
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(a)
The
undersigned Company hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i)
to include any prospectus required by Section 10(a)(3) of the Securities
Act of 1933, 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;
(ii)
to reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent post-effective
amendment hereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the Registration Statement;
(iii)
to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement; provided,
however,
that
paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required
to
be included in a post-effective amendment by those paragraphs is contained
in
periodic reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in the Registration Statement.
(2)
That, for the purpose of determining any liability under the Securities Act
of
1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona
fide offering thereof.
(3)
To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(b)
The
undersigned Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company's
annual
report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange
Act of 1934) that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c)
Insofar
as indemnification for liabilities arising under the Securities Act of 1933
may
be permitted to directors, officers, and controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company has been
advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than payment by the Company of expenses paid or incurred
by a director, officer or controlling person of the Company 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 Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication
of
such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Company certifies
that it
has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this Registration Statement to be
signed
on its behalf by the undersigned, thereunto duly authorized, in the City
of Ann
Arbor and State of Michigan, on the 30th day of October 2007.
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ADVANCED
PHOTONIX,
INC. |
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By: |
/s/Richard
D.
Kurtz |
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Richard
D. Kurtz, |
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Chairman
of the Board,
Chief
Executive Officer,
President
and Director
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POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS,
that
each person whose signature appears below constitutes and appoints Richard
D.
Kurtz and Robin F. Risser, and each of them, his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement and all documents relating thereto, and to
file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority
to do
and perform each and every act and thing requisite and necessary to be done
in
and about the premises, as fully to all intents and purposes as each might
or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them or their substitutes may lawfully
do
or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities and on the dates
indicated.
SIGNATURE
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TITLE
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DATE
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PRINCIPAL
EXECUTIVE OFFICER:
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/s/Richard
D. Kurtz
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Chairman
of the Board,
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October
30,
2007
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Richard
D. Kurtz
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Chief
Executive Officer,
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President
and Director
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PRINCIPAL
FINANCIAL AND
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ACCOUNTING
OFFICER:
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/s/Robin
F. Risser
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Chief
Financial Officer
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October
30, 2007
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Robin
F. Risser
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and
Director
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DIRECTORS:
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/s/Lance
Brewer
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Director
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October
30, 2007
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Lance
Brewer
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/s/M.
Scott Farese
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Director
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October
30, 2007
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M.
Scott Farese
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/s/Donald
Pastor
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Director
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October
30, 2007
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Donald
Pastor
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/s/Stephen
P. Soltwedel
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Director
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October
30, 2007
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Stephen
P. Soltwedel
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