EMPLOYEE STOCK OPTION AGREEMENT UNDER THE 2007 EQUITY INCENTIVE PLAN OF ADVANCED PHOTONIX, INC.
EXHIBIT
4.6
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.
1
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.
2
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.
3
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 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President, Advanced Photonix, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (e-mail: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇). 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.
4
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]
5
EXHIBIT
A
TO
THE
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:
|
6