Unassociated Document


    

      EXHIBIT
        4.6

       

      EMPLOYEE
        STOCK OPTION AGREEMENT

      UNDER
        THE
        2007 EQUITY INCENTIVE PLAN 

      OF
        ADVANCED PHOTONIX, INC.

      


      In
        consideration of services to be rendered by you (the “Optionee”) to Advanced
        Photonix, Inc., a Delaware corporation (the “Company") or one of its
        subsidiaries, you have been granted an option (the “Option”) under the Company’s
        2007 Equity Incentive Plan (the “2007 Plan”), which is incorporated herein by
        reference, to purchase from the Company a number of shares of Class A Common
        Stock of the Company (the “Shares”) at the price per Share as listed on Exhibit
        A annexed hereto and subject to the terms and conditions of this Agreement
        and
        the 2007 Plan. 

      


      1.  OPTION
        TERMS AND CONDITIONS.  The
        date
        of grant, the maximum number of Shares the Option entitles the Optionee to
        purchase, whether the Option is intended to qualify as an Incentive Stock
        Option
        (“ISO”) or as a non-incentive stock option (“non-ISO”), the Option expiration
        date, the Option exercise price per Share and the date or dates on which
        the
        Option will vest (i.e.,
        will
        become first exercisable) are as set forth on Exhibit A. 

       

      2.  TERM
        OF OPTION AND EXERCISABILITY.  Subject
        to the provisions of Paragraphs 5, 6, 7 and 8 hereof, the Option shall expire
        on
        the date specified on Exhibit A and shall become first exercisable as to
        the
        Shares covered by the Option in one or more installments on the date(s)
        specified on Exhibit A. Notwithstanding the foregoing, the Option may not
        be
        exercised as to less than 100 Shares at any time (or the remaining Shares
        covered by the Option, if less than 100 Shares); and the Option may not be
        exercised until fulfillment of all applicable conditions precedent referred
        to
        in Paragraph 9 hereof. The exercise price of the Option shall be paid in
        full in
        cash at the time of exercise or as set forth in clause (c) or (d) of Paragraph
        3
        hereof. In addition, the Option may not be exercised prior to the expiration
        of
        six months from the date of Option grant. Except as provided in Paragraphs
        5, 6,
        7 and 8 hereof, the Option may not be exercised unless the Optionee shall
        have
        been in the continuous employ of the Company or of one or more of its
        subsidiaries from the date of Option grant to the date of the exercise of
        the
        Option. 

       

      3.  METHOD
        OF EXERCISING OPTION. 
        The Option may be exercised by the Optionee (or his or her permitted transferee
        as set forth in Paragraph 10 hereof) by written notice to the Company. The
        Option exercise shall specify the number of Shares as to which the Option
        is
        being exercised. Payment of the exercise price for all of the Shares as to
        which
        the Option is being exercised may be made: (a) by wire transfer, check or
        money
        order payable to the order of the Company, (b) if permitted under the Company’s
        policies then in effect, by authorizing the Company to arrange a sale on
        behalf
        of the Optionee of some or all of the Shares to be acquired upon the exercise
        of
        the Option and the remittance to the Company of a sufficient portion of the
        sale
        proceeds to pay the exercise price for all of the Shares as to which the
        Option
        is being exercised, any withholding or employment taxes and all applicable
        fees,
        including brokerage fees,
        resulting from such exercise and sale, (c) subject to the following sentence,
        by
        delivering (either by delivering physical certificates duly endorsed in blank
        for transfer to the Company or by submitting certificates by attestation)
        Shares
        having a fair market value (as determined by the “Committee,” as defined in
        Paragraph 13 hereof) as of the day preceding the exercise date equal to the
        exercise price for all of the Shares as to which the Option is being exercised,
        or (d) by a combination of (i) cash and (ii) Shares as described in clause
        (c) above. Notwithstanding anything to the contrary contained herein, Shares
        used in payment of the exercise price of the Option must (1) have been acquired
        by the Optionee for cash in the open market at least six months prior to
        the
        Option exercise date, or (2) if acquired pursuant to a stock grant under
        any
        equity incentive plan of the Company including the 2007 Plan, must be owned
        by
        the Optionee and all conditions applicable to such Shares pursuant to the
        stock
        grant must have been satisfied at least six months prior to the Option exercise
        date, or (3) if acquired from the Company by the exercise of an option, must
        have been owned by the Optionee for a period of at least six months prior
        to the
        Option exercise date.

       

      
        
          
          

        

        
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      Promptly
        following the Option exercise, the Company will instruct the Company’s transfer
        agent and stock registrar to deliver for the account of the Optionee (or
        his or
        her permitted transferee) the number of Shares with respect to which the
        Option
        was exercised, less the number of Shares sold for purposes of payment pursuant
        to clause (b) above and less the number of Shares delivered to the Company
        by
        attestation pursuant to clause (c) or (d) above. The Optionee shall not have
        any
        of the rights of a stockholder with respect to the Shares issuable upon exercise
        of the Option until the Shares shall have been issued. In the event the Option
        shall be exercised (if permitted hereunder) by a person other than the Optionee,
        such permitted transferee shall provide appropriate proof of his or her right
        to
        exercise the Option to the Company in accordance with its policies and
        procedures. Shares issued upon the exercise of the Option as provided herein
        shall be fully paid and non-assessable. 

       

      4.  EMPLOYMENT. 
        In
        consideration of the granting of the Option and regardless of whether the
        Option
        shall be exercised, the Optionee will fulfill all the duties and obligations
        of
        his or her employment by the Company or its subsidiary. Nothing in this
        Agreement shall confer upon the Optionee any right to similar option grants
        in
        future years or any right to be continued in the employ of the Company or
        its
        subsidiaries or shall interfere in any way with the right of the Company
        or any
        such subsidiary to terminate or otherwise modify the terms of the Optionee's
        employment. 

       

      5.  TERMINATION
        OF EMPLOYMENT. 
        Except as otherwise provided in Paragraph 6, 7 or 8 hereof, in the event
        that
        the employment of the Optionee by the Company or its subsidiary terminates,
        the
        Option shall be exercisable (to the extent that the Option was vested and
        therefore exercisable at the time of the Optionee’s termination of employment)
        for three months following such termination of employment, but no later than
        the
        expiration date specified on Exhibit A; provided, however, if the Option
        is a
        non-ISO and if the Optionee continues to provide services to the Company
        as a
        consultant or non-employee director following the termination of his or her
        employment by the Company or its subsidiary, then the Optionee shall not
        be
        deemed to have terminated his or her employment for purposes of this sentence
        during the period of such consultancy or while so serving as a non-employee
        director. Notwithstanding anything to the contrary in this Agreement or the
        2007
        Plan, if the Optionee’s employment is terminated by the Company or any of its
        subsidiaries for gross misconduct, including without limitation, violations
        of
        applicable Company policies or legal or ethical standards, all rights under
        the
        Option (including vested rights) shall terminate on the employment termination
        date. In addition, this Agreement may be terminated by the Company, and upon
        any
        such termination the Option underlying this Agreement (to the extent then
        unexercised) shall be null and void as of the date of such termination, upon
        a
        breach by the Optionee of any of his or her obligations to the Company pursuant
        to any written agreement between the Optionee and the Company, including
        without
        limitation, any agreement relating to confidentiality, intellectual property
        or
        restrictions on competition and solicitation. 

       

      6.  DEATH
        OF OPTIONEE. 
In
        the event of the Optionee’s death while serving as an employee of the Company or
        its subsidiary or following termination of the Optionee's employment with
        the
        Company or its subsidiary as a result of the Optionee's “Disability” (as defined
        in Paragraph 7 hereof), then provided the Option was granted to the Optionee
        at
        least one year prior to the Optionee’s employment termination date, the then
        unvested portion of the Option shall vest and become immediately exercisable
        as
        of such employment termination date and the Option shall remain exercisable
        until the expiration date specified on Exhibit A.

       

      7.  DISABILITY
        OF OPTIONEE.  In
        the
        event the employment of the Optionee by the Company or its subsidiary terminates
        as a result of the Optionee's Disability, then provided the Option was granted
        to the Optionee at least one year prior to the Optionee's employment termination
        date, the then unvested portion of the Option (if any) shall continue to
        vest
        (i.e., continue to become first exercisable) and the Option shall remain
        exercisable in accordance with the terms set forth on Exhibit A as if the
        Optionee's employment by the Company or its subsidiary had not terminated.
        The
        term “Disability” as used in this Agreement shall have the meaning set forth in
        Section 22(e)(3) of the Internal Revenue Code of 1986, as amended. 

       

      
        
          
          

        

        
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      8.  RETIREMENT
        OF OPTIONEE. 
In
        the event of a termination of the Optionee’s employment by the Company or its
        subsidiary as a result of his or her “Retirement”, then provided the Option was
        granted to the Optionee at least one year prior to the Optionee's employment
        termination date, the portion of the Option which has vested and thus is
        exercisable as of the Optionee’s employment termination date shall remain
        exercisable until the expiration date specified on Exhibit A. The term
“Retirement” as used in this Agreement means the termination of the Optionee's
        employment with the Company or its subsidiary on or after (a) the Optionee’s
        65th
        birthday
        or (b) the Optionee’s 55th
        birthday
        if the Optionee has completed ten years of service with the Company or any
        of
        its subsidiaries.

       

      9.  CONDITION
        PRECEDENT TO EXERCISE OF OPTION.  In
        the
        event that the exercise of the Option or the issuance of the Shares upon
        exercise thereof shall be subject to, or shall require, any prior exchange
        listing, stockholder approval or other condition or act, pursuant to the
        applicable laws, regulations or policies of any stock exchange, federal,
        state
        or local government or its agencies, then the Option shall not be exercisable
        until the fulfillment of such condition.

       

      10.  NON-TRANSFERABILITY. 
        The Option shall not be transferable otherwise than by will or the laws of
        descent and distribution and is exercisable during the lifetime of the Optionee
        only by him or her or his or her guardian or legal representative and following
        his or her death will be exercisable by the Optionee’s estate, upon presentation
        to the Company of letters testamentary or other documentation satisfactory
        to
        the Company. Notwithstanding the foregoing, if the Option is a non-ISO, if
        permitted by the Committee the Option shall be transferable by gift during
        the
        Optionee’s life to one or more members of the Optionee's immediate family,
        including trusts for the benefit of such family members and partnerships
        or
        limited liability companies in which such family members are the only owners.
        In
        the event the Optionee wishes to transfer his or her rights in the Option
        by
        gift as permitted by this Paragraph, the Optionee shall provide the Company
        a
        written request for such transfer in form and substance reasonably satisfactory
        to the Committee. No transferee shall have any rights in the Option until
        such
        request has been accepted by the Committee. A transferred non-ISO shall be
        subject to all of the same terms and conditions of the 2007 Plan and this
        Agreement as if such Option had not been transferred. More particularly (but
        without limiting the generality of the foregoing), Options may not be assigned,
        transferred (except as provided above), pledged or hypothecated in any way,
        shall not be assignable by operation of law and shall not be subject to
        execution, attachment, pledge, hypothecation or other disposition and the
        levy
        of any execution, attachment or similar process upon the Option shall be
        null
        and void and without effect.

       

      11.  EFFECT
        ON OTHER BENEFITS.  In
        no
        event shall the value of the Shares covered by the Option granted under this
        Agreement at any time be included as compensation or earnings for purposes
        of
        determining any other compensation, retirement benefit or other benefit offered
        to employees of the Company or its subsidiaries under any benefit plan of
        the
        Company unless otherwise specifically provided for in such benefit
        plan.

       

      12.  AVAILABLE
        SHARES; LEGAL COMPLIANCE. 
        The Company shall at all times during the term of the Option reserve and
        keep
        available such number of Shares as will be sufficient to satisfy the
        requirements of this Agreement, shall pay all original issue and transfer
        taxes
        with respect to the issuance of such Shares and all other fees and expenses
        necessarily incurred by the Company in connection therewith and will from
        time
        to time use its best efforts to comply with all laws and regulations which,
        in
        the opinion of counsel for the Company, shall be applicable
        thereto.

       

      
        
          
          

        

        
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      13.  ADMINISTRATION. 
        The
        Compensation Committee (the “Committee”) shall have full authority and
        discretion, subject only to the express terms of the 2007 Plan, to decide
        all
        matters relating to the administration and interpretation of the 2007 Plan
        and
        this Agreement, and the Optionee agrees to accept all such Committee
        determinations as final, conclusive and binding. The Company may retain a
        third-party plan administrator or may designate an internal department to
        assist
        in the administration of the 2007 Plan.

       

      14.  COSTS. 
        The Company shall not charge the Optionee for any part of the Company’s cost to
        administer and operate the 2007 Plan. If the Company decides to hire a
        third-party plan administrator to assist in the administration of the 2007
        Plan,
        the Optionee may be charged fees by such third-party plan administrator in
        connection with the Optionee’s exercise of the Option, sale of Shares or other
        transactions which he or she effects through such third-party plan
        administrator.

       

      15.  AMENDMENT. 
        This Agreement shall be subject to the terms of the 2007 Plan, as may be
        amended
        by the Company from time to time, except that no amendment of the 2007 Plan
        adopted after the date of this Agreement shall adversely affect the Optionee’s
        rights hereunder without his or her consent. In addition to the foregoing,
        this
        Agreement may be amended by the Committee, provided that no such amendment
        shall
        adversely affect the Optionee’s rights hereunder without his or her consent.


       

      16.  TAXES. 
        The Optionee must pay the Company upon demand any and all amounts due for
        the
        purpose of satisfying the Company’s liability, if any, to withhold federal,
        state or local income tax or employment tax (plus interest or penalties thereon,
        if any, caused by a delay in making such payment) incurred by reason of the
        Optionee’s exercise of the Option or the sale of Shares in connection therewith.
        If permitted under the 2007 Plan or the Company’s policies then in effect, the
        Optionee may satisfy his or her obligation hereunder by authorizing the Company
        to arrange a sale on behalf of the Optionee of an appropriate number of Shares
        being issued on exercise of the Option and the remittance to the Company
        of
        sufficient proceeds to cover the Optionee’s obligations hereunder. In addition,
        the Company shall, to the extent permitted by law, have the right to deduct
        such
        amount from any payment of any kind otherwise due to the Optionee. 

       

      17.  DATA
        PRIVACY. 
By
        entering into this Agreement, the Optionee (a) authorizes the Company (and
        its
        subsidiaries) or any agent of the Company providing recordkeeping services
        for
        the 2007 Plan to disclose to each other such information and data as either
        of
        them shall request in order to facilitate the grant of options and the
        administration of the 2007 Plan; (b) waives any data privacy rights the Optionee
        may have with respect to such information; and (c) authorizes the Company
        or any
        agent of the Company providing recordkeeping services for the 2007 Plan to
        store
        and transmit such information in electronic form.

       

      18.  NOTICES. 
        All notices and communications by the Optionee (or his or her permitted
        transferee), including executive officers or directors of the Company who
        are
        deemed reporting persons under Section 16 of the Securities Exchange Act,
        in
        connection with this Agreement or the exercise of the Option granted hereunder
        shall be delivered to the Company in writing by electronic mail, nationally
        recognized overnight courier or certified mail, postage prepaid to the attention
        of Richard D. Kurtz, President, Advanced Photonix, Inc., 2925 Boardwalk,
        Ann
        Arbor, Michigan 48104 (e-mail: rkurtz@advancedphotonix.com). All notices
        and
        communications by the Company to the Optionee (or his or her permitted
        transferee) in connection with this Agreement shall be given in writing and
        shall be delivered electronically to the Optionee’s e-mail address appearing on
        the records of the Company, or by nationally recognized overnight courier
        or
        certified mail, postage prepaid to the Optionee’s residence or to such other
        address as may be designated in writing by the Optionee. 

       

      
        
          
          

        

        
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      19.  ENTIRE
        AGREEMENT AND WAIVER.  This
        Agreement and the 2007 Plan contain the entire understanding of the parties
        and
        supersede any prior understanding and agreements between them representing
        the
        subject matter hereof. To the extent that there is an inconsistency between
        the
        terms of the 2007 Plan and this Agreement, the terms of the 2007 Plan shall
        control. There are no other representations, agreements, arrangements or
        understandings, oral or written, between the parties hereto relating to the
        subject matter hereof which are not fully expressed herein or in the 2007
        Plan.
        Any waiver or any right or failure to perform under this Agreement shall
        be in
        writing signed by the party granting the waiver and shall not be deemed a
        waiver
        of any subsequent failure to perform. 

       

      20.  SEVERABILITY
        AND VALIDITY.  The
        various provisions of this Agreement are severable and any determination
        of
        invalidity or unenforceability of any one provision shall have no effect
        on the
        remaining provisions. 

       

      21.  GOVERNING
        LAW.  The
        interpretation, enforceability and validity of this Agreement shall be governed
        by the substantive laws (but not the choice of law rules) of the State of
        Michigan.

       

      22.  HEADINGS. 
        Paragraph and other headings contained in this Agreement are for reference
        purposes only and are in no way intended to describe, interpret, define or
        limit
        the scope, extent or intent of the Option or any provision hereof.

       

      23.  SUBSIDIARY. 
        As
        used
        herein, the term “subsidiary” shall mean any present or future corporation which
        would be a “subsidiary corporation” of the Company, as that term is defined in
        Section 424(f) of the Internal Revenue Code of 1986, as amended.

       

      *
        *
        *

       

      By
        my
        signature below (i) I am accepting the stock option described on Exhibit
        A,
        subject to the terms and conditions contained in this Employee Stock Option
        Agreement and the 2007 Plan, and (ii) I acknowledge receipt of a copy of
        the
        Advanced Photonix, Inc. 2007 Equity Incentive Plan and of the Plan Information
        relating thereto. 

      


      Dated:
        [__________]

      


      


      Accepted:

      


      


      


      ___________________________________

      Name:
        [Employee
        Name]

       

      
        
          
          

        

        
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      EXHIBIT
        A


      TO
        THE

      EMPLOYEE
        STOCK OPTION AGREEMENT

      UNDER
        THE
        2007 EQUITY INCENTIVE PLAN

      OF
        ADVANCED PHOTONIX, INC.

      


      


      
        	
                 

                Name
                  of Optionee:

                 

              	 
	
                 

                Type
                  of Award (IS0 or Non-ISO):

                 

              	 
	
                 

                Number
                  of Shares Subject to Option:

                 

              	 
	
                 

                Date
                  of Grant:

                 

              	 
	
                 

                Expiration
                  Date:

                 

              	 
	
                 

                Exercise
                  Price (per Share):

                 

              	 
	
                 

                Vesting
                  Schedule:

                 

                 

              	 


      

      


      
        
          
          

        

        
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