Registration No. 333-___________
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.
Non-Qualified Stock Option issued to Bernhardt Denmark
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
CALCULATION OF REGISTRATION FEE
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Proposed Maximum Proposed
Proposed Amount of Offering Price Per Aggregate Amount of
Title of each Class of Securities to be Share(1) Maximum Offering Registration Fee
Securities to be Registered Registered Price(1)
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Non-Qualified Stock Option 400,000 Shs. $2.25 $900,000 $237.60
issued to Bernhardt Denmark
Class A Common Stock, $.001 par
value
<FN>
- -----------------------------
(1) Estimated pursuant to Rule 457(h)(1) solely for purposes of calculating the
registration fee. As all shares are subject to an outstanding but unexercised
option, the price is computed on the basis of the exercise price of such option.
</FN>
</TABLE>
<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 28, 1999.
2. The Registrant's Quarterly Reports on Form 10-Q for the fiscal
quarters ended June 29, 1999 and September 26, 1999.
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 25(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.
II-1
<PAGE>
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.
The Company's By-Laws 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.
II-2
<PAGE>
10.1 Non-Qualified Stock Option granted by Advanced Photonix, Inc. to
Bernhardt Denmark on May 16, 1995.
23.1 Consent of Arthur Andersen LLP, independent accountants.
23.2 Consent of Dornbush Mensch Mandelstam & Schaeffer, LLP - incorporated
by reference herein 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 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.
II-3
<PAGE>
(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.
PART III
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 January 21,
2000.
ADVANCED PHOTONIX, INC.
By: /s/Brock Koren
Brock Koren
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Brock Koren 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.
II-4
<PAGE>
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/Brock Koren President and Chief Executive Officer
- --------------
Brock Koren January 21, 2000
/s/ Hayden Leason Chairman of the Board
- -----------------
Hayden Leason January 21, 2000
/s/ M. Scott Fatese Director
- -------------------
M. Scott Farese January 21, 2000
/s/ P. J. Holmes Executive Vice President & Chief Financial
- ---------------- Officer (Principal Financial and Accounting
Patrick J. Holmes Officer) January 21, 2000
II-5
Exhibit 5.1
[LETTERHEAD OF DORNBUSH MENSCH MANDELSTAM & SCHAEFFER, LLP]
January 21, 2000
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 400,000 shares
(the "Shares") of the Company's Class A Common Stock, par value $.001, a
Non-Qualified Stock Option granted to Mr. Bernhart Denmark on May 16, 1995 (the
"Option").
In connection with this opinion, we have examined the Company's
Certificate of Incorporation and By-Laws, the Option, 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 Option, 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
NON-QUALIFIED STOCK OPTION
THIS NON-QUALIFIED STOCK OPTION (the "Option") is granted this 16th day of May,
1995, by ADVANCED PHOTONIX, INC., a Delaware corporation (the "Company"), to
BERNHARDT DENMARK (the "Optionee").
W I T N E S S E T H:
1. Grant. The Company hereby grants to the Optionee an Option to purchase on the
terms and conditions hereinafter set forth all or part of an aggregate of Four
Hundred Thousand (400,000) shares of the Company's Class A Common Stock, par
value $.001 per share, (the "Option Shares"), at the purchase price of $2.25 per
share (the "Option Price"), subject to adjustment as provided herein.
2. Term. The Option granted hereunder shall expire in all events five (5) years
from the date hereof.
3. Time of Exercise. The Option shall be immediately exercisable in full
commencing on the date of grant, except that the Option may in no event be
exercised (i) with respect to fractional shares or (ii) after expiration of the
Option term specified under Paragraph 2 hereof.
4. No Rights as Stockholder until Exercise.
- 1 -
<PAGE>
Optionee shall have no rights as a stockholder with respect to Shares subject to
this Agreement until a stock certificate therefor has been issued to Optionee
and is fully paid for.
5. Transfers. The Option is not transferable by the Optionee otherwise than by
will or pursuant to the laws of descent and distribution in the event of the
Optionee's death, in which event the Option may be exercised for the term of
this agreement by the heirs or legal representatives of the Optionee. The Option
may be exercised during the lifetime of the Optionee only by the Optionee. Any
attempt at assignment, transfer, pledge or disposition of the Option contrary to
the provisions hereof or the levy of an execution, attachment or similar process
upon the Option shall be null and void and without effect. Any exercise of the
Option by a person other than the Optionee shall be accompanied by appropriate
proofs of the right of such person to exercise the Option.
6. Method of Exercise and Payment. When exercisable under Paragraph 3, the
Option may be exercised by written notice, pursuant to Paragraph 13, to the
Company's Secretary or Treasurer specifying the number of Option Shares to be
purchased and, unless the Option Shares are covered by a then current
registration statement or a Notification under Regulation A under
- 2 -
<PAGE>
the Securities Act of 1933 (the "Act"), containing the Optionee's
acknowledgement, in form and substance satisfactory to the Company, certifying
that the Optionee (a) is purchasing such Option Shares for investment purposes
only and not for distribution or resale (other than a distribution or resale
which, in the opinion of counsel satisfactory to the Company, may be made
without violating the registration provisions of the Act) and (b) has been
advised and understands that (i) the Option Shares have not been registered
under the Act and are "restricted securities" within the meaning of Rule 144
under the Act and are subject to restrictions on transfer; and (ii) except as
expressly provided herein, the Company is under no obligation to register the
Option Shares under the Act or to take any action which would make available to
the Optionee any exemption from such registration. The notice shall be
accompanied by payment in full of the Option Price of the Option Shares being
purchased. Payment shall be in cash or by certified or cashiers check. Such
exercise shall be effective upon the actual receipt by the Company's Secretary
or Treasurer of such written notice and payment.
7. Adjustment on Changes in Common Stock. In the event, that prior to the
delivery by the Company of all of the
- 3 -
<PAGE>
Option Shares in respect of which the Option is granted, there shall be an
increase or decrease in the number of issued shares of Common Stock of the
Company as a result of a subdivision or consolidation of shares or other capital
adjustment, or the payment of a stock dividend or other increase or decrease in
such shares, effected without receipt of consideration by the Company, the
remaining number of Option Shares still subject to the Option and the Option
Price therefor shall be adjusted in a manner determined by the Board of
Directors of the Company so that the adjusted number of Option Shares and the
adjusted Option Price shall be the substantial equivalent of the number of
Option Shares subject to the Option and the Option Price therefor immediately
prior to such change. For purposes of this Paragraph, no adjustment shall be
made as a result of the issuance of Common Stock upon the conversion of other
securities of the Company which are convertible into the Common Stock. The
decision of the Board of Directors shall be final and binding.
8. Reorganization, Consolidation, Mergers. In case of any reorganization of the
Company, or any other corporation the stock or securities of which are at the
time deliverable on the exercise of this Option, or in case the Company or such
other corporation shall consolidate with or merge into another
- 4 -
<PAGE>
corporation, the Optionee, upon the exercise of this Option thereafter and upon
payment of the Option Price, shall be entitled to receive, in lieu of the Option
Shares called for hereby, the securities and/or other property (including cash)
to which the Optionee would have been entitled upon the consummation of such
reorganization, consolidation or merger if the Optionee had purchased the Option
Shares called for hereby immediately prior thereto, and in such case, the
provisions of this Option shall be applicable to the securities and/or other
property thereafter deliverable upon the exercise of this Option.
9. Legal Requirements. If the listing, registration or qualification of the
Option Shares upon any securities exchange or under any federal or state law, or
the consent or approval of any governmental regulatory body is necessary as a
condition of or in connection with the purchase of such Option Shares, the
Company shall not be obligated to issue or deliver the certificates representing
the Option Shares as to which the Option has been exercised unless and until
such listing, registration, qualification, consent or approval shall have been
effected or obtained. If registration is considered unnecessary by the Company
or its counsel, the Company may place a legend on the Option Shares being
issued, calling attention to the fact
- 5 -
<PAGE>
that they have been acquired for investment and have not been registered.
10. Registration Rights.
(a) During the period commencing on the date hereof and ending on the tenth
anniversary of the date hereof, the Company shall give the Optionee thirty (30)
days prior written notice of its intention to engage in a registration of Common
Stock under the Federal securities laws (other than a registration of Common
Stock in connection with any stock plan, stock purchase plan, savings or similar
plan, or an acquisition, merger or exchange of stock), and shall offer to
include the Option Shares (which, for purposes of this Paragraph 10, shall
include shares issued as a stock dividend or stock split on the Option Shares)
in such registration. At the written request of the Optionee, the Company shall
include the Option Shares (or such portion of the Option Shares as may be
requested by the Optionee) in the registration statement; provided, however,
that if, in the reasonable judgment of the managing underwriter, if any (which
underwriter shall be in all cases a nationally recognized underwriting firm),
the inclusion of the Option Shares would materially adversely affect the public
offering of the Common Stock, the number of Option Shares to be registered shall
- 6 -
<PAGE>
be reduced, pro rata, together with the shares of other shareholders to whom a
similar registration right also has been granted by the Company, so that the
public offering shall not be materially adversely affected.
(b) During the period commencing on the date hereof and ending on the tenth
anniversary of the date hereof, the Optionee shall have the right to request
that the Company register the Option Shares (or such portion of the Option
Shares as may be requested by the Optionee) under the Federal securities laws by
giving written notice of such request to the Company. Upon the receipt of such
request, and provided that sufficient financial statements are available, the
Company shall promptly, but no later than 120 days after receipt of the
Optionee's request, cause a registration statement to be filed with the
Securities and Exchange Commission, and shall commence to use its best efforts
to case such registration statement to be declared effective. The right granted
to the Optionee under this subparagraph 10(b) to request registration shall be
exercisable only on one occasion unless the registration statement covering the
Option Shares is for whatever reason not declared effective by the Securities
and Exchange Commission, in which case the undersigned shall be entitled to
exercise his right to request
- 7 -
<PAGE>
registration hereunder until a registration statement with
respect to the Option Shares is declared effective.
(c) The Company shall bear the costs and expenses of any registration of the
Option Shares under subparagraphs 10(a) and 10(b) on such number of occasions
during the period that such registration may be sought by the Optionee;
provided, however, that the Optionee shall bear the cost of fees for the
Optionee's counsel, and any registration fees, transfer taxes or underwriting
discounts and commissions applicable to the Option Shares sold hereunder.
(d) Whenever the Company shall register any of the Option Shares pursuant to any
of the provisions of this Paragraph 10, the Company shall also be obligated,
with the cost of performing such obligation to be incurred by the Company, to do
the following:
(i) Prepare for filing with the Securities and Exchange Commission such
amendments and supplements to said registration statement and the prospectus
used in connection therewith as may be necessary to keep said registration
statement effective and to comply with the provisions of the Act with respect to
the sale of the Option Shares covered by said registration statement for the
period necessary to complete the
- 8 -
<PAGE>
proposed offering of the Option Shares, which period shall be no greater than
one year from the date of effectiveness of the registration statement;
(ii) Furnish to the Optionee such copies of preliminary and final prospectuses
and such other documents as the Optionee may reasonably request to facilitate
the offering of the Option Shares;
(iii) Use reasonable efforts to register or qualify the Option Shares covered by
the registration statement under the securities or blue sky laws of such
jurisdictions as the Optionee may reasonably request and at the Optionee's
expense; provided, however, that the Company will not be required to (A) qualify
generally to do business in any jurisdiction where it would not be required but
for this clause (iii); (B) subject itself to taxation in such jurisdiction; (C)
consent to general service of process in jurisdiction; (D) register in any state
requiring as a condition to such registration, escrow or surrender or any
securities of any security holder; and (E) incur expenses in excess of $2,000 in
connection with such registration or qualification;
(iv) Furnish to the Optionee an opinion of counsel for the Company for inclusion
as an exhibit to the
- 9 -
<PAGE>
registration statement pursuant to the requirements of the Act and a letter or
letters of the independent certified public accountants of the Company in form
and substance customary for similar offerings;
(v) Permit the Optionee or the Optionee's counsel or other authorized
representatives to inspect and copy such corporate documents and records as may
be reasonably requested by the Optionee;
(vi) Furnish the Optionee with a copy of all documents filed and all
correspondence to or from the Securities and Exchange Commission in connection
with the offering.
(e) In connection with the registration of the Option Shares, the Optionee shall
furnish the Company with appropriate information as may be necessary to be
included in the registration statement covering the Option Shares.
(f) The Company shall indemnify the Optionee against all losses, claims,
damages, liabilities, expenses or actions in respect thereof (whether under the
Act, common law or otherwise) caused by any untrue statement or alleged untrue
statement of a material fact relating to the Company contained in any
registration statement under which the Option Shares are registered under the
Act, any preliminary or final prospectus
- 10 -
<PAGE>
contained therein, or any amendment or supplement thereto, or caused by any
omission or alleged omission required to be stated therein or necessary to make
the statements therein not misleading; and will reimburse the Optionee for any
legal or out- of-pocket expenses reasonably incurred by the Optionee in
connection with the investigation or defense against such loss, claim, damage,
liability or action; provided, however, that if such losses, claims, damages,
liabilities or expenses are caused by any untrue statement or omission contained
in information furnished in writing to the Company by the Optionee expressly for
use therein, the indemnification provided above shall be afforded to the Company
by the Optionee. The Company further agrees that, in connection with any
underwritten public offering, it will also enter into customary contribution
arrangement with the Optionee, and, if, and to the extent requested by any
underwriters or broker-dealers through whom the Option Shares may be sold, then,
with such underwriters or broker-dealers.
11. Withholding Taxes. Optionee hereby agrees that the Company may withhold from
Optionee's compensation the appropriate amount of federal, state and local
withholding taxes attributable to Optionee's exercise of this Option. At the
Company's
- 11 -
<PAGE>
discretion, the amount required to be withheld may be withheld in cash from
wages, fees or other amounts due from the Company to the Optionee or (with
respect to compensation income attributable to the exercise of this Option) in
kind from the Shares otherwise deliverable to Optionee on exercise of this
Option.
12. Governing Law. The interpretation and construction of this Agreement, and
all matters relating hereto, shall be governed by the laws of the State of
California applicable to agreements executed and to be performed solely within
the state.
13. Notices. Any notice to be given to the Company shall be addressed to the
Secretary or Treasurer of the Company at its principal executive office, and any
notice to be given to the Optionee shall be addressed to the Optionee at the
address then appearing on the corporate records of the Company, or at such other
address as either party hereafter may designate in writing to the other. Any
such notice shall be deemed to have been duly given when deposited in the United
States Mail, addressed as aforesaid, registered or certified mail, and with
proper postage and registration or certification fees prepaid.
- 12 -
<PAGE>
14. Miscellaneous. In no event shall this Option be deemed to be an "incentive"
option as such term is defined under Section 422A of the Code.
IN WITNESS WHEREOF, the Company has granted this option on the day and year
first above written.
ADVANCED PHOTONIX, INC.
By: /s/ James W. Ward
-----------------
James W. Ward, President
ACCEPTANCE BY:
By: /s/ Bernhardt Denmark
----------------------
Bernhardt Denmark
- 13 -
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 5, 1999 included in Advanced Photonix, Inc.'s Form 10-K for each of the
three years in the period ended March 28, 1999 and to all references to our Firm
included in this Registration Statement.
/s/ Arthur Andersen LLP
Arthur Andersen LLP
