EMPLOYEE RESTRICTED STOCK AGREEMENT UNDER THE 2007 EQUITY INCENTIVE PLAN OF ADVANCED PHOTONIX, INC.
EXHIBIT
4.5
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 Xxxxxxx X. Xxxxx, President, Advanced
Photonix, Inc., 0000 Xxxxxxxxx, Xxx Xxxxx, Xxxxxxxx 00000 (e-mail:
xxxxxx@xxxxxxxxxxxxxxxx.xxx). 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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*
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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
UNDER
THE
2007 EQUITY INCENTIVE PLAN
OF
ADVANCED PHOTONIX, INC.
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Name
of Grantee:
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Type
of Award:
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Stock
Grant
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Number
of Shares Subject to Grant:
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Date
of Grant:
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Vesting
Date:
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Performance
Vesting Conditions:
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