Unassociated Document


     

    

      EXHIBIT
        4.5

       

      EMPLOYEE
        RESTRICTED STOCK AGREEMENT

      UNDER
        THE
        2007 EQUITY INCENTIVE PLAN 

      OF
        ADVANCED PHOTONIX, INC.

      


      In
        consideration of services to be rendered by you (the “Grantee”) to Advanced
        Photonix, Inc., a Delaware company (the “Company”) or one of its subsidiaries,
        you have been awarded a stock grant (the “Grant”) under the Company’s 2007
        Equity Incentive Plan (the “2007 Plan”), which is incorporated herein by
        reference, covering a number of shares of Class A Common Stock of the Company,
        par value $.001 per share (the “Shares”) as listed on Exhibit A annexed hereto
        and subject to the terms and conditions of this Agreement and the 2007 Plan.
        

      


      1.  STOCK
        GRANT TERMS AND CONDITIONS.  The
        date
        of the Grant, the number of Shares subject to the Grant, the Vesting Dates,
        the
        number of Shares subject to the Grant which vest on each Vesting Date (as
        described in Paragraph 3 hereof), any performance vesting conditions, and
        the
        per Share consideration for the Grant, if any, are as set forth on Exhibit
        A
        annexed hereto.

       

      2.  STOCK
        GRANT CERTIFICATES. 
        The stock certificate(s), if any, evidencing the Shares underlying the Grant
        shall be registered on the Company’s books in the name of the Grantee as of the
        date of Grant. Physical possession or custody of any such stock certificate(s)
        shall be retained by the Company or by a bank or other institution designated
        by
        the Company until such Shares are vested or forfeited in accordance with
        the
        terms of this Agreement. While in its possession, the Company reserves the
        right
        to place a legend on such stock certificate(s) restricting the transferability
        of such certificate(s) and referring to the terms and conditions (including,
        without limitation, forfeiture) relating to the Shares represented by the
        stock
        certificate(s). If the Shares subject to the Grant have been evidenced by
        stock
        certificate(s) pursuant to this Paragraph, then as soon as practicable after
        the
        end of the applicable Restricted Period (as defined in Paragraph 3 hereof),
        the
        Company shall cause unlegended stock certificate(s) covering the requisite
        number of vested Shares registered on the Company’s books in the name of the
        Grantee (or his permitted transferee pursuant to Paragraph 5 hereof), to
        be
        delivered to such person and will cancel the legended stock certificates.
        Shares
        issued hereunder shall be fully paid and non-assessable.

       

      3.  VESTING. 
A
        number of Shares underlying the Grant (as set forth on Exhibit A) will become
        vested and non-forfeitable on the applicable vesting date set forth on Exhibit
        A
        (the “Vesting Date”), provided that on the applicable Vesting Date the Grantee
        has met the applicable time or performance based conditions (the “Condition”)
        set forth on Exhibit A. Promptly
        following each Vesting Date, the Company will release
        to the Grantee (or his permitted transferee pursuant to Paragraph 5 hereof)
        the
        number of Shares with respect to which the Condition was satisfied on such
        Vesting Date. With respect to the Shares underlying the Grant, the period
        of
        time commencing on the date of the Grant and ending on the applicable Vesting
        Date shall be referred to herein as the “Restricted Period”.

       

      4.  FORFEITURE
        OF UNVESTED SHARES
        UPON TERMINATION OF SERVICE. 
        Except with respect to Shares which have vested pursuant to Paragraph 3,
        in the
        event that the Grantee ceases to be employed by the Company or one of its
        subsidiaries for any reason during the Restricted Period, all Shares subject
        to
        the Grant shall be forfeited by the Grantee as of the date that such employment
        terminates. Any Shares covered by the Grant that are forfeited by the Grantee
        shall be retired by the Company and resume the status of treasury shares.
        Nothing in this Agreement shall confer upon the Grantee any right to be
        continued in the employ of the Company or any such subsidiary to terminate
        or
        otherwise modify the terms of the Grantee’s employment.

       

      
        
          
          

        

        
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      5.  RESTRICTIONS
        ON TRANSFER. 
        The Shares subject to the Grant shall not be transferable during the Restricted
        Period, other than by will or the laws of descent and distribution.
        Notwithstanding the foregoing, if permitted by the Committee the Grantee
        may
        transfer the Shares by gift to one or more members of the Grantee'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 Grantee wishes to transfer the Shares during the Restricted
        Period by gift as permitted by this Paragraph, the Grantee shall provide
        the
        Company a written request of such transfer in form and substance reasonably
        satisfactory to the Committee and no transferee shall have any rights in
        the
        Shares until such request has been accepted by the Committee. Transferred
        Shares
        shall be subject to all of the same terms and conditions of the 2007 Plan
        and
        this Agreement as if such Shares had not been transferred. More particularly
        (but without limiting the generality of the foregoing), during the Restricted
        Period the Shares 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 contrary to the provisions hereof, and the levy of any
        execution, attachment or similar process upon the Shares shall be null and
        void
        and without effect. 

       

      6.  TAXES. 
        The Grantee 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
        receipt of the Grant (including any such taxes incurred as a result of the
        Grantee’s election pursuant to Paragraph 7 hereof) or by reason of the vesting
        of the Shares in accordance with the terms of this Agreement. By accepting
        this
        Grant, the Grantee consents and directs that the Company may, but is not
        obligated to, withhold the number of Shares having an aggregate fair market
        value (as determined by the Committee) as of the date preceding the withholding
        that is sufficient to satisfy the Grantee’s obligations hereunder and to deliver
        such Shares to the Company. 

       

      7.  TAX
        ELECTION. 
        The
        Grantee hereby agrees to deliver to the Company a signed copy of any documents
        he or she may file with the Internal Revenue Service evidencing an election
        under Section 83(b) of the Internal Revenue Code of 1986 as amended, which
        copy
        shall be delivered to the Company within five (5) days after the date on
        which
        any such election is made. 

       

      8.  CONDITION
        PRECEDENT TO GRANT.  In
        the
        event that the award of the Grant shall be subject to, or shall require,
        any
        prior exchange listing, shareholder approval or other condition or act, pursuant
        to the applicable laws, regulations or policies of any stock exchange, federal
        or local government or its agencies or representatives, then the Grant hereunder
        shall not be deemed awarded until the fulfillment of such
        condition.

       

      9.  RIGHTS
        AS A STOCKHOLDER.  Subject
        to the terms and conditions of this Agreement and the 2007 Plan, including,
        without limitation, the restrictions on transfer and the risk of forfeiture
        applicable to the Shares covered by the Grant during the Restricted Period,
        from
        and after the date of Grant, the Grantee shall have all the rights of a
        stockholder of the Company with respect to the Shares covered by the Grant,
        including the right to vote the Shares and the right to receive dividends
        or
        other distributions paid thereon, provided that any dividends in the form
        of
        Shares will be subject to the terms and conditions of the 2007 Plan and this
        Agreement. 

       

      10.  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 Grantee 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.

       

      
        
          
          

        

        
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      11.  COSTS. 
        The Company shall not charge the Grantee 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 Grantee may be charged fees by such third-party plan administrator in
        connection with any transactions which the Grantee effects through such
        third-party plan administrator. 

       

      12.  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 Grantee’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 Grantee’s rights
        hereunder without his or her consent. 

       

      13.  DATA
        PRIVACY. 
By
        entering into this Agreement, the Grantee (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 award of Grants and the
        administration of the 2007 Plan; (b) waives any data privacy rights the Grantee
        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.

       

      14.  NOTICES. 
        All
        notices and communications by the Grantee in connection with this Agreement
        or
        the Shares 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 Grantee (or his or her permitted transferee) in connection with this
        Agreement shall be given in writing and shall be delivered electronically
        to the
        Grantee's e-mail address appearing on the records of the Company, or by
        nationally recognized overnight courier or certified mail, postage prepaid
        to
        the Grantee's residence or to such other address as may be designated in
        writing
        by the Grantee. 

       

      15.  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. 

       

      16.  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. 

       

      17.  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.

       

      18.  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 Grant or any provision hereof.

      


      *
        *
        *

       

      
        
          
          

        

        
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      By
        my
        signature below (i) I am accepting the stock grant described on Exhibit A,
        subject to the terms and conditions contained in this Employee Restricted
        Stock
        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
        RESTRICTED STOCK AGREEMENT

      UNDER
        THE
        2007 EQUITY INCENTIVE PLAN

      OF
        ADVANCED PHOTONIX, INC.

      


       

      
        	
                 

                Name
                  of Grantee:

                 

              	 
	
                 

                Type
                  of Award:

                 

              	
                 

                Stock
                  Grant

              
	
                 

                Number
                  of Shares Subject to Grant:

                 

              	 
	
                 

                Date
                  of Grant:

                 

              	 
	
                 

                Vesting
                  Date:

                 

              	 
	
                 

                Performance
                  Vesting Conditions:

                 

              	 


      

      


      
        
          
          

        

        
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