As filed with the Securities and Exchange Commission on December 12, 1997
Registration No.________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
AMENDMENT NO. 1 TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------
ADVANCED PHOTONIX, INC.
Incorporated pursuant to the Laws of Delaware
IRS Employer Identification No. 33-0325826
1240 Avenida Acaso
Camarillo, California 93012
(805) 987-0146
Advanced Photonix, Inc.
1990 Incentive Stock Option and Non-Qualified Option Plan
Advanced Photonix, Inc.
1997 Stock Option Plan
Patrick J. Holmes, Executive Vice President
Advanced Photonix, Inc.
1240 Avenida Acaso
Camarillo, California 93012
(805) 987-0146
Copies to:
Landey Strongin, Esq.
Dornbush Mensch Mandelstam & Schaeffer, LLP
747 Third Avenue
New York, New York 10017
(212) 759-3300
<PAGE>
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Title of each Class of Proposed Proposed Proposed
Securities to be Amount of Maximum Maximum Amount of
Registered Securities to Offering Price Aggregate Registration
be Registered (2) Per Share (1) Offering Price Fee (2)
<S> <C> <C> <C> <C>
1990 Incentive Stock Option and Non-Qualified
Option Plan
Class A Common Stock, $.001 par value 500,000 $ 1.403625 $ 701,812 $ 212.67
- - ------------------------------------------------ ------------------- ------------------ ------------------- ==================
1997 Stock Option Plan
Class A Common Stock, $.001 par value 1,000,000 $ 1.585625 $ 1,585,625 $ 480.49
- - ------------------------------------------------ ------------------- ------------------ ------------------- ==================
<FN>
(1) Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee. As to shares subject to outstanding but unexercised
options under the 1990 Incentive Stock Option and Non-Qualified Option Plan
and the 1997 Stock Option Plan, the price is computed on the basis of the
weighted average exercise price. As to the remaining shares under the 1990
Incentive Stock and Non-Qualified Stock Option Plan and the 1997 Stock
Option Plan, the price is based upon the average of the high and low prices
of the Common Stock on November 21, 1997, as reported on the American Stock
Exchange.
(2) Does not include 500,000 shares covered by Registrant's Registration
Statement on Form S-8 , Registration No. 33-45463 as to which a fee of
$1,132.81 has previously been paid.
</FN>
</TABLE>
-------------------
This registration statement also constitutes Amendment No. 1 to Registrant's
Registration Statement on Form S-8, Registration No. 33-45463 (the "Prior
Registration Statement"), and pursuant to Rule 429, the prospectus used in
connection herewith includes all of the information which would currently be
required in a prospectus relating to the securities covered by the Prior
Registration Statement.
------------------------
ii
<PAGE>
P R O S P E C T U S
430,000 Shares
ADVANCED PHOTONIX, INC.
Common Stock
The shares of Common Stock, par value $.001 per share (the "Common Stock"), of
Advanced Photonix, Inc. (the "Company") offered hereby will be sold by the
Selling Shareholders. See "Selling Shareholders." The Company will not receive
any of the proceeds from the sale of the shares offered hereby.
The shares of Common Stock of the Company are listed on the American Stock
Exchange and are traded under the symbol API. On December 11, 1997, the closing
price of the Common Stock was $1.1875 per share.
THESE SECURITIES HAVE NOT BEEN APPROVED OR
DISAPPROVED BY THE SECURITIES AND EXCHANGE
COMMISSION NOR HAS THE COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
The Selling Shareholders have advised the Company that they propose to offer for
sale and sell the shares registered hereby from time to time in broker's
transactions, in negotiated transactions, or through a combination thereof, at
market prices prevailing at the time of sale or at prices otherwise negotiated.
Such shares are being offered on a continuous basis; the precise amounts and
timing of sales, if any, of the shares offered hereby will be determined by the
Selling Shareholders in their sole discretion from time to time.
The date of this Prospectus is December 12, 1997
1
<PAGE>
AVAILABLE INFORMATION
Advanced Photonix, Inc. (together with its subsidiaries herein called the
"Company") is subject to the informational requirements of the Securities
Exchange Act of 1934 ("Exchange Act") and in accordance therewith files reports,
proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy statements and other
information can be inspected and copied at the public reference facilities
maintained by the Commission at Room 1024, 450 Fifth Street, N.W., Washington,
D.C. 20549, and at its Northeast Regional Office, 7 World Trade Center, 13th
Floor, New York, New York 10048; Midwest Regional Office, Citicorp Center, Suite
1400, 500 West Madison Street, Chicago, Illinois 60661-2511; and Pacific
Regional Office, 5670 Wilshire Boulevard, 11th Floor, Los Angeles, California
90036-3648. Copies can be obtained by mail at prescribed rates. Requests should
be directed to the Commission's Public Reference Section, 450 Fifth Street,
N.W., Washington, D.C. 20549. The Commission also contains a Web Site
(http://www.sec.gov) that contains reports, proxy statements and other
information. The Company's Common Stock is traded on the American Stock
Exchange, and such material can also be inspected at such exchange, 86 Trinity
Place, New York, New York.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Advanced Photonix, Inc. (the "Company") with
the Securities and Exchange Commission pursuant to the Securities Exchange Act
of 1934 are incorporated into this Prospectus by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended March
30, 1997.
2. The Company's Quarterly Reports on Form 10-Q for the fiscal quarters ended
June 29, 1997 and September 28, 1997.
3. The description of the Company's Class A Common Stock contained in the
Company's Registration Statement on Form 8-A dated January 16, 1991, filed
under the Exchange Act, including any amendment or report filed for the
purpose of updating such description.
4. All documents filed by the Company pursuant to Section 13 (a), 13 (c), 14
and 15 (d) of the Securities Exchange Act of 1934 after the date of this
Prospectus and prior to the termination of the offering of the Class A
Shares made hereby, shall be deemed to be incorporated by reference in this
Prospectus and to be a part hereof from the date of filing such documents.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes hereof to the
extent that a statement (which also is incorporated by reference herein)
modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed to constitute a part hereof except as so
modified or superseded.
THE COMPANY
The Company is engaged in the development and manufacture of proprietary and
other solid state light and radiation detection devices. The Company believes
that its proprietary Avalanche Photodiode ("APD") technology represents a
leading-edge advancement in photodetection and imaging.
2
<PAGE>
The Company's proprietary technology extends the capability of the traditional
APD by introducing a large surface area silicon device or Large Area Avalanche
Photodiode (the "LAAPD"). The Company believes that the LAAPD is an alternative
to photomultiplier vacuum tubes ("PMTs"), which have been used for many years as
the primary technological solution for highly sensitive light detection in
certain measurement, control and monitoring applications used in industrial,
medical, military, scientific and commercial settings.
The Company is a Delaware corporation organized on June 22, 1988, and its
principal executive offices are located at 1240 Avenida Acaso, Camarillo,
California 93012 (telephone number 805-987-0146).
SELLING SHAREHOLDERS
The following persons ("Selling Shareholders") are offering an aggregate of up
to 430,000 shares of Common Stock by means of this Prospectus:
Shares owned following
Name Shares Owned Shares being Offered this Offering
================= ============ ==================== ======================
Patrick J. Holmes 200,000(1) 150,000(2) 50,000
================= ============ ==================== ======================
Robert C. King 110,000(3) 80,000(4) 30,000
================= ============ ==================== ======================
Harry Melkonian 210,000(5) 200,000(6) 10,000
================= ============ ==================== ======================
Mr. Melkonian has served as President of the Company since November 1996, as CEO
since October 1997, and served as General Manager of the Company's PIN
photodiode business from 1993 until November 1996. Mr. Holmes has served as the
Company's Vice President & Chief Financial Officer since August 1993 and as
Executive Vice President since November 1996. Mr. King has served as Vice
President of Sales and Marketing since December 1995.
- - --------
1 Includes 90,000 shares which Mr. Holmes may acquire pursuant to
presently exercisable stock options and 60,000 shares which may be
acquired pursuant to stock options which have not yet vested.
2 Comprised of 80,000 and 70,000 shares which may be acquired pursuant
to stock options granted under the 1990 and 1997 Plans, respectively.
3 Includes 40,000 shares which Mr. King may acquire pursuant to
presently exercisable stock options and 40,000 shares which may be
acquired pursuant to stock options which have not yet vested.
4 Comprised of 60,000 and 20,000 shares which may be acquired pursuant
to stock options granted under the 1990 and 1997 Plans, respectively.
5 Includes 88,000 shares which Mr. Melkonian may acquire pursuant to
presently exercisable stock options and 112,000 shares which may be
acquired pursuant to stock options which have not yet vested.
6 Comprised of 60,000 and 140,000 shares which may be acquired pursuant
to stock options granted under the 1990 and 1997 Plans, respectively.
3
<PAGE>
PLAN OF DISTRIBUTION
The Shares offered hereby are being sold by the Selling Shareholders for their
own account. The Company will not receive any of the proceeds from this
offering.
The Shares covered by this Prospectus may be sold by the Selling Shareholders or
by pledgees, donees, transferees or other successors in interest. Such sales may
be made at fixed prices that may be changed, at market prices prevailing at the
time of sale, at prices related to such prevailing market prices, or at
negotiated prices. The Shares may be sold by one or more of the following: (a)
one or more block trades in which a broker or dealer so engaged will attempt to
sell all or a portion of the Shares held by each Selling Shareholder as agent
but may position and resell a portion of the block as principal to facilitate
the transaction; (b) purchases by a broker or dealer as principal and resale by
such broker or dealer for its account pursuant to this Prospectus; and (c)
ordinary brokerage transactions and transactions in which the broker solicits
purchasers. Each Selling Shareholder may effect such transactions by selling
Shares to or through broker-dealers, and such broker-dealers will receive
compensation in negotiated amounts in the form of discounts, concessions,
commissions or fees from such Selling Shareholder and/or the purchasers of the
Shares for whom such broker-dealers may act as agent or to whom they sell as
principal, or both (which compensation to a particular broker-dealer might be in
excess of customary commissions). Such brokers or dealers or other participating
brokers or dealers may be deemed to be "underwriters" within the meaning of the
Securities Act of 1933, in connection with such sales.
Any securities covered by this Prospectus that qualify for sale pursuant to Rule
144 under the Securities Act of 1933, as amended, may be sold under Rule 144
rather than pursuant to this Prospectus.
The Company has agreed to bear the costs of registering the shares of Common
Stock offered hereby under the Securities Act of 1933, as amended.
The Selling Shareholders will deliver a Prospectus in connection with the sale
of shares of Common Stock offered hereby.
LEGAL OPINIONS
The validity of the Common Stock offered hereby is being passed upon for the
Company by Dornbush Mensch Mandelstam & Schaeffer, LLP, New York, New York.
EXPERTS
The consolidated financial statements and schedules incorporated by reference in
this Prospectus have been audited by Arthur Anderson, independent auditors, to
the extent and for the periods set forth in their reports herein incorporated by
reference and are incorporated herein in reliance upon such reports given upon
the authority of said firm as experts in auditing and accounting.
4
<PAGE>
====================================== ==========================
No dealer, salesman or any other
person has been authorized to give any
information or to make any representations
not contained in this Prospectus 430,000
in connection with the offering des-
cribed herein and, if given or made,
such information or representation must ADVANCED PHOTONIX, INC.
not be relied upon as having been
authorized by the Company or any
Underwriter. This Prospectus does not
constitute an offer of any securities
other than those specifically offered
hereby or of any of the securities
offered hereby in any jurisdiction
to any person to whom it is unlawful COMMON STOCK
to make such offer or solicitation in
such jurisdiction. Neither the delivery
of this Prospectus nor any sale made
hereunder shall, under any circumstances,
create any implication that there has
been no change in the affairs of the
Company since the date hereof.
TABLE OF CONTENTS
Page
Available Information . . . . . . 2 PROSPECTUS
Incorporation of Certain Docu-
ments by Reference . . . . . . 2 December 12, 1997
The Company . . . . . . . . . . . 2
Selling Shareholders . . . . . . 3
Plan of Distribution. . . . . . . 4
Legal Opinions . . . . . . . . . 4
Experts . . . . . . . . . . . . . 4
====================================== ==========================
5
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
---------------------------------------
The following documents filed by Advanced Photonix, Inc. (the "Registrant") with
the Securities and Exchange Commission pursuant to the Securities Exchange Act
of 1934 are incorporated into this registration statement by reference:
1. The Registrant's Annual Report on Form 10-K for the fiscal year ended March
30, 1997.
2. The Registrant's Quarterly Reports on Form 10-Q for the fiscal quarters
ended June 29, 1997 and September 28, 1997.
3. The description of the Company's Class A Common Stock contained in the
Company's Registration Statement on Form 8-A dated January 16, 1991, filed
under the Exchange Act, including any amendment or report filed for the
purpose of updating such description.
4. All documents filed by the Registrant pursuant to Section 13 (a), 13 (c),
14 and 15 (d) of the Securities Exchange Act of 1934 after the date of this
registration statement and prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all
securities offered hereby have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this registration statement and to be a part hereof from the
date of filing such documents. Any statement contained in a document
incorporated by reference herein shall be deemed to be modified or
superseded for purposes hereof to the extent that a statement (which also
is incorporated by reference herein) modifies or supersedes such statement.
Any statement so modified or superseded shall not be deemed to constitute a
part hereof except as so modified or superseded.
Item 4. Description of Securities
-------------------------
Not applicable
Item 5. Interests of Named Expert and Counsel
-------------------------------------
Not applicable
Item 6. Indemnification of Directors and Officers
-----------------------------------------
The Company's Certificate of Incorporation contains a provision permitted by
Delaware law that generally eliminates the personal liability of directors for
monetary damages for breaches of their fiduciary duty, including breaches
involving negligence or gross negligence in business combinations, unless the
director has breached his duty of loyalty, failed to act in good faith, engaged
in intentional misconduct or a knowing violation of law, paid a dividend or
approved a stock repurchase in violation of the Delaware General Corporation Law
or obtained an improper personal benefit. This provision does not alter a
director's liability under the federal securities laws. Also, this provision
does not affect the availability of equitable remedies, such as an injunction or
rescission, for breach of fiduciary duty.
I
<PAGE>
The Company's Bylaws also provide that directors and officers shall be
indemnified against liabilities arising from their service as directors or
officers to the fullest extent permitted by law, which generally requires that
the individual act in good faith and in a manner he or she reasonably believes
to be in or not opposed to the Company's best interests.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not applicable
Item 8. Exhibits
--------
The following exhibits are filed as part of this Registration Statement.
3.1 Certificate of Incorporation of the Registrant, as amended. -
incorporated by reference to Exhibit 3.1 to the Registrant's
Registration Statement on Form S-1, filed with the Securities and
Exchange Commission on November 23, 1990
3.1.1 Amendment to Certificate of Incorporation of the Registrant, dated
October 29, 1992 - incorporated by reference to the Registrant's March
31, 1996 Annual Report on Form 10-K
3.1.2 Amendment to Certificate of Incorporation of the Registrant, dated
September 9, 1992 - incorporated by reference to the Registrant's
March 31, 1996 Annual Report on Form 10-K
3.2 By-laws of the Registrant, as amended - incorporated by reference to
the Registrant's March 31, 1996 Annual Report on Form 10-K
5.1 Opinion of Dornbush Mensch Mandelstam & Schaeffer, LLP
10.2 Advanced Photonix, Inc. 1990 Incentive Stock Option and Non-Qualified
Option Plan - incorporated by reference to Exhibit 10.11 to the
Registrant's Registration Statement on Form S-1, filed with the
Securities and Exchange Commission on November 23, 1990
10.13 Advanced Photonix, Inc. 1997 Stock Option Plan - incorporated by
reference to the Registrant's March 30, 1997 Annual Report on Form
10-K
23.1 Consent of Arthur Andersen LLP, independent accountants
23.2 Consent of Dornbush Mensch Mandelstam & Schaeffer, LLP - incorporated
herein by reference to Exhibit 5.1
24. Powers of Attorney - (included in Part II to Registration Statement).
Item 9. Undertakings
------------
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective
II
<PAGE>
amendment to this Registration Statement 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.
(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 Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant'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 an 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 Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission 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 Act and will
be governed by the final adjudication of such issue.
III
<PAGE>
SIGNATURES AND POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, Advanced Photonix,
Inc. 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 Camarillo, State of California, on December 12, 1997.
ADVANCED PHOTONIX, INC.
By: /s/ Harry Melkonian
Harry Melkonian
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Harry Melkonian and Patrick J. Holmes,
and each of them, his true and lawful place and stead, in any and all
capacities, to sign any and all amendments to this Registration Statement, and
to file the same, with all exhibits thereto, and other documents in connection
herewith, with 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 he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitutes, may
lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933 this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Dated
/s/ Jon B. Victor
Jon B. Victor Chairman of the Board, Director December 12, 1997
/s/ James A. Gordon
James A. Gordon Director December 12, 1997
/s/ Hayden Leason
Hayden Leason Director December 12, 1997
/s/ Patrick J. Holmes Executive Vice President December 12, 1997
Patrick J. Holmes & Chief Financial Officer
(Principal Financial and Accounting
Officer)
IV
EXHIBIT 5.1
[Letterhead of Dornbush Mensch Mandelstam & Schaeffer, LLP]
December 11, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Advanced Photonix, Inc.
Registration Statement on Form S-8
Gentlemen:
We have been requested by Advanced Photonix, Inc., a Delaware
corporation (the "Company"), to furnish you with our opinion as to the matters
hereinafter set forth in connection with the above-captioned registration
statement (the "Registration Statement") covering an aggregate of 1,500,000
shares (the "Shares") of the Company's Class A Common Stock, par value $.001,
500,000 of which may be issued by the Company pursuant to the Company's 1990
Incentive Stock Option and Non-Qualified Option Plan (the "1990 Plan") which was
approved by the stockholders of the Company at its Annual Meeting of
Stockholders held October 29, 1992, and 1,000,000 of which may be issued
pursuant to the Company's 1997 Employee Stock Option Plan (the "1997 Plan")
which was approved by the stockholders of the Company at its Annual Meeting held
August 21, 1997.
In connection with this opinion, we have examined the Company's
Certificate of Incorporation and By-laws, the 1990 Plans, 1997 Plan, copies of
the records of corporate proceedings of the Company, and such other documents as
we have deemed necessary to enable us to render the opinion hereinafter
expressed.
Based upon and subject to the foregoing, we are of the opinion that the
Shares, when issued and paid for in accordance with the 1990 and 1997 Plans,
respectively, will be legally issued, fully paid and non-assessable.
We render no opinion as to the laws of any jurisdiction other than the
internal laws of the State of New York and the internal corporate law of the
State of Delaware.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Dornbush Mensch Mandelstam & Schaeffer, LLP
DORNBUSH MENSCH MANDELSTAM & SCHAEFFER, LLP
Exhibit 23.1
(Letterhead of Arthur Andersen)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated May 23, 1997
included in Advanced Photonix, Inc.'s Form 10-K for each of the three years in
the period ended March 30, 1997 and to all references to our Firm included in
this registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Los Angeles, California
December 11, 1997
