Registration No. 333- _____________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_________________________________________
ADVANCED PHOTONIX, INC.
(Exact Name of Issuer as specified in its Charter)
Delaware 33-0325826
(State of other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1240 Avenida Acaso
Camarillo, California 93012
(Address of principal executive offices)
_________________________________________
ADVANCED PHOTONIX, INC.
2000 STOCK OPTION PLAN
_________________________________________
(Full title of the plan)
Richard D. Kurtz
Chief Executive Officer
Advanced Photonix, Inc.
1240 Avenida Acaso
Camarillo, California 93012
(Name and address for agent for service)
(805) 987-0146
Telephone Number, including area code, of agent for service
copies to:
Landey Strongin, Esq.
Dornbush Schaeffer Strongin & Weinstein, LLP
747 Third Avenue
New York, New York 10017
Calculation of Registration Fee
=========================================================================================================================
Proposed
Title of Amount to Proposed Maximum
Securities be Maximum Aggregate Amount of
to be Registered Price Per Offering Registration
registered (1) Share(2)(3) Price(2)(3) Fee
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Class A Common Stock, $.001
par value 1,000,000 shares $2.055 $2,055,000 $241.87
=========================================================================================================================
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein.
(2) Pursuant to Rule 457(h)(1) under the Securities Act of 1933, the proposed
maximum price per share, the proposed maximum aggregate offering price and the
amount of registration fee have been computed on the basis of the average of the
high and low prices of the Common Stock reported on the New York Stock Exchange
on April 29, 2005.
(3) Estimated solely for the purpose of calculating the registration fee.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange Commission
are incorporated herein by reference:
(a) The Annual Report on Form 10-KSB of Advanced Photonix, Inc. (the
"Company") for the fiscal year ended March 28, 2004 filed pursuant to
Section 13(a) of the Securities Exchange Act of 1934.
(b) All other reports of the Company filed pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 since the end of the fiscal
year ended March 28, 2004.
(c) The description of the Company's Class A Common Stock contained in
the Registration Statement on Form 8-A filed with the Securities and
Exchange Commission on January 16, 1991.
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All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior to
the filing of a post-effective amendment indicating that all securities offered
hereby have been sold or deregistering all such securities then unsold, shall be
deemed to be incorporated by reference into this Registration Statement and to
be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
None.
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.
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Item 8. Exhibits.
Exhibit No. Exhibit
___________ _______
4.1 Relevant portion of the Company's Certificate of Incorporation,
as amended, defining the rights of holders of the Company's
Common Stock. (Incorporated herein by reference to Exhibit 3.1
to the Company's Registration Statement on Form S-1, filed on
November 23, 1990.)
5.1 Opinion of Dornbush Schaeffer Strongin & Weinstein, LLP as to
the legality of the securities issued under the 2000 Plan, as
amended.
23.1 Consent of Farber & Hass, LLP, independent registered public
accounting firm.
23.2 Consent of Dornbush Schaeffer Strongin & Weinstein, LLP, counsel
to the Company - contained in Exhibit 5.1.
99.1 The 2000 Stock Option Plan, as amended by Stockholders on
August 27, 2004. (Incorporated herein by reference to Annex A
to the Company's Proxy Statement relating to its 2004 Annual
Meeting of Stockholders.)
Item 9. Undertakings.
(a) The undersigned Company 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 Company hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Company'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 the initial bona fide
offering thereof.
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(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers, and
controlling persons of the Company pursuant to the foregoing provisions, or
otherwise, the Company has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
payment by the Company of expenses paid or incurred by a director, officer
or controlling person of the Company 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
Company 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 and State of California, on the 5th day of
May, 2005.
ADVANCED PHOTONIX, INC.
By: /s/Richard D. Kurtz
--------------------------------
Richard D. Kurtz
Chairman, Chief Executive
Officer and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard D. Kurtz and Paul D. Ludwig, and
each of them, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this registration statement and all documents relating thereto,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and 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 each might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them or their substitutes may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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SIGNATURE TITLE DATE
--------- ----- ----
PRINCIPAL EXECUTIVE OFFICER:
/s/Richard D. Kurtz Chairman, Chief May 5, 2005
------------------------- Executive Officer
Richard D. Kurtz and Director
PRINCIPAL FINANCIAL AND
ACCOUNTING OFFICER:
/s/Richard D. Kurtz Chairman, Chief May 5, 2005
------------------------- Executive Officer
Richard D. Kurtz and Director
DIRECTORS:
/s/Paul D. Ludwig President and Director May 5, 2005
-------------------------
Paul D. Ludwig
/s/M. Scott Farese Director May 5, 2005
-------------------------
M. Scott Farese
/s/Ward Harper Director May 5, 2005
-------------------------
Ward Harper
/s/Stephen P. Soltwedel Director May 5, 2005
-------------------------
Stephen P. Soltwedel