SUBSCRIPTION AGREEMENT
SUBSCRIPTION
AGREEMENT (this “Agreement” or this “Subscription Agreement”) dated as
of _________ __, 2007 between Advanced Photonix, Inc., a Delaware
corporation (the “Company”) and the undersigned investor (the “Investor” and
together with all other investors in the offering herein described, the
“Investors”).
The
Company is offering (the “Offering”) a limited number of eligible investors the
opportunity to purchase up to 786,725 units of its securities (the “Units”) at a
price equal to the Formula Price (as defined below), each Unit consisting of
(i)
four (4) shares of its Class A Common Stock, par value $.001 a share (“Common
Stock” ), and (ii) one (1) warrant to purchase a share of Common Stock
(the “2007 Series Warrants”).
The
Investor desires to participate in the Offering.
The
Investor has reviewed copies of the various documents referred to in
Schedule 1
attached
hereto (the “Disclosure Documents”).
NOW,
THEREFORE, the Company and the Investor hereby agree as follows:
| Section 1. |
Purchase
and Sale of Units; Description of 2007 Series Warrants; Use of Proceeds;
Power of Attorney
|
1.1. Purchase
of Units and Payment; Description of Warrants.
Upon
the terms and subject to the conditions contained in this Agreement, the
Investor has on or prior to this day paid to the Company, by check, by wire
transfer of immediately available funds, or by other means acceptable to the
Company, the sum of money set forth opposite the Investor’s name on the
signature page to this Agreement (the "Purchase Price"). In consideration of
such payment, by (and subject to) its acceptance of this Subscription Agreement,
the Company will issue to the Investor at the Closing (as defined below) the
number of Units determined by dividing the Purchase Price by the Formula Price
provided that no fractional shares or warrants are to be issued, but rather
the
number of shares and warrants to be issued shall be rounded down to the nearest
whole number. The “Formula Price” means the product of four (4) multiplied by
the closing price of the Company’s Common Stock on the American Stock Exchange
(“AMEX”) on the business day immediately preceding the Closing, but in no event
will be more than $6.00 a Unit or less than $5.72 a Unit. The Investor
acknowledges that the Investor’s Purchase Price is non-refundable except to the
limited extent expressly provided by the last sentence of the first paragraph
of
Section 1.5 below.
Each
2007
Series Warrant will have a term of five years (subject to earlier exercise
or
termination if the closing price of the Common Stock on the AMEX equals or
exceeds $4.50 for at least twenty (20) consecutive Business Days (as defined
in
2007 Series Warrant to Purchase Class A Common Stock)), will be exercisable
for the number of shares Common Stock stated therein at any time and from time
to time during its term at an exercise price of $1.85 per share, subject to
adjustment in certain circumstances, and will be substantially in the form
attached hereto as Exhibit
A.
The
Common Stock and the 2007
Series Warrants comprising the Units shall be immediately separable upon
issuance.
1.2. Maximum/Minimum.
The
Company will not accept subscriptions having an aggregate Purchase Price of
more
than $4,500,000 or less than $2,500,000, and the Offering will terminate and
be
of no force and effect unless the Company has received and accepted valid
subscription agreements from one or more Investors having an aggregate Purchase
Price of at least $2,500,000 (the “Minimum Condition”) on or prior to the
Closing.
1.3. Use
of
Proceeds.
The
proceeds of the Offering will provide a portion of the funds required to
discharge in full (the “Debt Retirement”) the indebtedness under the Company’s
outstanding convertible notes as provided on Schedule
1.3
(the
“Convertible Notes”). The balance of the funds required to discharge such
indebtedness is expected to be provided out of cash on hand and bank
indebtedness. In this connection, the Company has received a formal commitment
from Fifth Third Bank with respect to a proposed increase in the Company’s
existing credit facility with that bank. No assurances can be given that the
financing contemplated in such commitment letter can be consummated.
In
the
unlikely event that the outstanding Convertible Notes are converted prior to
the
Debt Retirement, the proceeds of the Offering will be used to pay down other
indebtedness of the Company and/or working capital.
1.4. Closing.
Subject
to this Section 1.4 and assuming the Minimum Condition has been met, the closing
of the Offering with respect to each individual Investor (the "Closing") shall
take place at the offices of the Company’s attorney, Xxxxxxxx Xxxxxxxxx Xxxxxxxx
& Xxxxxxxx, LLP (at the address in Section 5.8, Notices) upon the Company’s
acceptance of such Investor’s Subscription Agreement on such date as may be
determined by the Company, but which shall be no later than September 7, 2007.
The Investor understands and agrees that the Company, in its sole discretion,
has the right to reject any Subscription Agreement proffered to it by an
Investor at any time prior to the Closing, and/or to waive any of the
requirements for the purchase of the Units set forth herein with respect to
any
Investor or Investors (which waivers need not be uniform as among or between
Investors). In the event that this Subscription Agreement is not accepted by
the
Company on or before the September 7, 2007 or in the event that the Company
withdraws or terminates this Offering, the Company will promptly return to
the
undersigned Investor, without interest, all funds received from the undersigned
Investor in respect hereof.
At
the
Closing, the Company (i) shall deliver (or irrevocably instruct its transfer
agent to deliver) to the Investor, certificates representing the number of
shares of Common Stock and 2007 Series Warrants to be purchased by the Investor
hereunder, (ii) shall execute and deliver (or cause to be delivered) to the
Investor, a fully executed copy of the Registration Rights Agreement attached
hereto as Exhibit
B
and
(iii) shall execute and deliver (or cause to be delivered) to the Investor
a
signed counterpart of this Subscription Agreement. The Investor expressly
acknowledges and agrees that the certificates to be issued to him at the Closing
shall bear a legend to the following effect:
|
THE
ISSUANCE AND SALE OF THE SECURITIES REPRESENTED
BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF
1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES
MAY
NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED EXCEPT
PURSUANT TO
AN EFFECTIVE REGISTRATION UNDER THE ACT OR PURSUANT TO AN EXEMPTION
THEREFROM.
|
| Section 2. |
Representations
and Warranties
|
2.1. Representations
and Warranties of the Company.
The
Company hereby represents and warrants to the Investor as of the date hereof
and
the Closing Date that:
(a) Organization,
Good Standing and Qualification.
The
Company is a corporation duly incorporated and existing in good standing under
the General Corporation Law of the State of Delaware and has all requisite
corporate power and authority to own and operate its assets and properties,
to
conduct its business as it is currently being conducted, to execute and deliver
this Agreement and to consummate the transactions contemplated
herein.
(b) Valid
Issuance.
The
Common Stock subscribed for hereunder and issuable upon the exercise of the
2007
Series Warrants, when issued in accordance with the terms hereof and thereof,
will be duly authorized, validly issued and non-assessable and free and clear
of
all taxes, liens, options, calls, contracts, commitments, demands, charges,
security interests, encumbrances or restrictions on transfer, other than
restrictions on transfer under applicable state and federal securities
laws.
(c) Authorization.
(i) The
Company has all requisite corporate power and authority to enter into and
perform its obligations under this Agreement and the Registration Rights
Agreement (collectively, the “Transaction Documents”) and to issue the Common
Stock and Warrants in accordance with the terms hereof;
(ii) the
execution and delivery of the Transaction Documents by the Company and the
consummation by it of the transactions contemplated hereby and thereby,
including the issuance of the Common Stock and Warrants, have been duly
authorized by all necessary corporate action, and no further consent or
authorization of the Company or its Board of Directors (or any committee or
subcommittee thereof) or stockholders is required;
(iii) the
Transaction Documents have been duly executed and delivered by the Company;
(iv) the
Transaction Documents constitute valid and binding obligations of the Company
enforceable against the Company; and
(v) the
Common Stock and the Warrants, and shares of Common Stock issuable upon the
exercise of the Warrants thereof, have been duly authorized and, upon issuance
thereof and payment therefor in accordance with the terms of this Agreement,
will be validly issued, fully paid and non-assessable, free and clear of any
and
all liens, claims and encumbrances.
(d) Public
Information.
The
Disclosure Documents as at the respective dates of filing thereof:
(i) complied
as to form in all material respects with applicable accounting requirements
and
the published rules and regulations of the Securities Exchange Commission with
respect thereto;
(ii) all
financial statements included therein were prepared in accordance with generally
accepted accounting principles, consistently applied during the periods involved
(except (x) as may otherwise be disclosed or indicated in such financial
statements or the notes thereto or (y) in the case of unaudited interim
statements, to the extent they may exclude footnotes or may be condensed or
summary statements) and fairly present in all material respects the financial
position of the Company as of the dates thereof and the results of its
operations and cash flows for the periods then ended (subject, in the case
of
year end statements to normal year-end audit adjustments); and
(iii) did
not
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(e) No
Conflicts.
The
execution, delivery and performance of the Transaction Documents by the Company
and the consummation by the Company of the transactions contemplated hereby
and
thereby and issuance of the Common Stock and Warrants, and the shares Common
Stock issuable upon exercise of the Warrants will not:
(i) result
in
a violation of the Certificate of Incorporation, any certificate of
designations, preferences and rights of any outstanding series of preferred
stock of the Company or the By-laws that would have a material adverse effect;
(ii) conflict
with, or constitute a default (or an event which with notice or lapse of time
or
both would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture or
instrument to which the Company or any of its subsidiaries is a party, or
(iii) result
in
a violation of any law, rule, regulation, order, judgment or decree (including
United States federal and state securities laws and regulations and the rules
and regulations of the American Stock Exchange (“Principal Market”) or other
principal securities exchange or trading market on which the Common Stock is
traded or listed) applicable to the Company or any of its subsidiaries or by
which any property or asset of the Company or any of its subsidiaries is bound
or affected that would have a material adverse effect.
(f) Absence
of Litigation.
There
is no action, suit, proceeding, inquiry or investigation before or by any court,
public board, government agency, self-regulatory organization or body pending
or, to the knowledge of the Company or any of its subsidiaries, threatened
against or affecting the Company, the Common Stock or any of the Company’s
subsidiaries or any of the Company’s or the Company’s subsidiaries’ officers or
directors in their capacities as such, which would be material to the Company
except as set forth in SEC Documents which were filed at least 10 days before
the date hereof.
(g) No
Integrated Offering.
Neither
the Company, nor any of its affiliates, nor any person acting on its or their
behalf has, directly or indirectly, made any offers or sales of any security
or
solicited any offers to buy any security, under circumstances that would cause
this offering of the Common Stock and Warrants to the Investors to be integrated
with prior offerings by the Company for purposes of the Securities Act of 1933,
as amended (the “1933 Act”), or any applicable stockholder approval provisions,
including, without limitation, under the rules and regulations of the Principal
Market, nor will the Company or any of its subsidiaries take any action or
steps
that would cause the offering of the Common Stock and Warrants to be integrated
with other offerings.
(h) Manner
of Sale.
Sales
of the Common Stock offered hereby will be made directly by the Company to
a
limited number of accredited investors as defined in Rule 501of Regulation
D of
the 1933 Act and no brokers or other intermediaries will be retained by the
Company in connection with the Offering.
2.2. Representations
and Warranties of the Investor.
The
Investor hereby represents and warrants to the Company as of the date hereof
and
the Closing Date that:
(a) Review
of Agreements.
The
Investor has reviewed the Disclosure Documents. The Investor acknowledges that
certain of the Disclosure Documents include “forward looking” statements that
involve a number of risks and uncertainties, including the risks and
uncertainties referred to in the Company’s Annual Report on Form 10-K most
recently filed with the Securities and Exchange Commission.
(b) Suitability
of Investment.
(i) The
Investor is acquiring the Units for the Investor’s own account, for investment
purposes only and not with a view to the resale or distribution
thereof.
(ii) The
Investor has not and will not, directly or indirectly, offer, sell, transfer,
assign, exchange or otherwise dispose of all or any part of the Units, except
in
accordance with applicable federal and state securities laws.
(iii) The
Investor has such knowledge and experience in financial, business and tax
matters that the Investor is capable of evaluating the merits and risks relating
to the Investor’s investment in the Units and making an investment decision with
respect to the Company. The Investor has independently evaluated the risks
and
merits of purchasing the Units and has independently determined that the Units
are a suitable investment for such Investor. The Investor acknowledges that
except as otherwise expressly provided herein, the Company has made no
representation or warranty to the Investor with respect to the income or other
tax consequences to the Investor under the laws of any jurisdiction with respect
to an investment in the Units.
(iv) To
the
full satisfaction of the Investor, the Investor has been given the opportunity
to obtain information and documents relating to the Company and to ask questions
of and receive answers from representatives of the Company concerning the
Company and the investment made hereby.
(v) Neither
the Investor nor any of its affiliates has engaged in any activity that would
be
deemed a “general solicitation” under the provisions of Regulation D under the
1933 Act.
(vi) The
Investor is able at this time, and in the foreseeable future, to bear the
economic risk of a total loss of its investment in the Company.
(vii) The
Investor is aware that there are substantial risks incident to an investment
in
the Company, including without limitation, those set forth in the Disclosure
Documents.
(viii) The
Investor understands that, unless he, she or it notifies the Company in writing
to the contrary at or before the Closing, all the undersigned’s representations
and warranties contained in this Agreement will be deemed to have been
reaffirmed and confirmed as of the Closing, taking into account all information
received by the undersigned Investor.
(ix) The
Investor is an “accredited investor” within the meaning of that term as set
forth in Rule 501(a) under the 1933 Act, and the Investor has completed the
Investor Certificate attached as Annex
A
hereto
to indicate the qualifications that make the Investor such an accredited
investor.
(c) American
Stock Exchange Investor Questionnaire.
The
Investor has completed and returned to the Company the AMEX Investor
Questionnaire if applicable.
(d) Accuracy
of Information.
The
information concerning the Investor (and its executive officers, directors
and
owners, if applicable) which is set forth in the Investor Certificate and the
AMEX Investor Questionnaire, is true and correct on the date of the Investor’s
execution and delivery of this Agreement and the Investor will promptly notify
the Company of any event which would cause the same not to be true and
correct.
(e) Authorization.
All
action on the part of the Investor necessary for the authorization, execution
and delivery of this Agreement and for the performance of all obligations of
the
Investor hereunder has been taken. This Agreement has been duly executed and
delivered by the Investor and constitutes the valid and binding obligation
of
the Investor, enforceable against the Investor in accordance with its
terms.
(f) Trading
in Common Stock.
Since
August 1, 2007 the Investor has not executed, and during the period between
August 1, 2007 and the Closing the Investor will not execute, any purchase
or
sale of the Common Stock or any short sales. For purposes of this clause (g),
the term short sale means all types of direct and indirect stock pledges,
forward sale contacts, options, puts, calls, short sales, swaps (including
on a
total return basis), and any other similar transactions whether or not having
the effect of hedging any position in the Common Stock.
| Section 3. |
Indemnification
|
3.1. Company
Indemnification.
The
Company covenants and agrees to defend, indemnify and save and hold harmless
the
Investor, together with its officers, directors, partners, members, employees,
trustees, and affiliates, attorneys and representatives, from and against any
and all losses, costs, expenses, liabilities, claims or legal damages
(including, without limitation, reasonable fees and disbursements of counsel
and
accountants and other costs and expenses incident to any actual or threatened
claim, suit, action or proceeding, whether incurred in connection with a claim
against the Company or a third party claim) (collectively, “Investor Losses”) up
to the amount of the Purchase Price arising out of or resulting from: (i) any
inaccuracy in or breach of any representation, warranty, covenant or agreement
made by the Company in this Agreement; or (ii) the failure of the Company to
perform or observe fully any covenant, agreement or provision to be performed
or
observed by it pursuant to this Agreement. Investor Losses resulting directly
from the gross negligence or willful misconduct of the Investor or any of its
respective officers, directors, employees, affiliates and attorneys are not
covered under this Section.
3.2. Investor
Indemnification. The Investor covenants and agrees to defend, indemnify and
save and hold harmless the Company, its officers, directors, partners, members,
employees, trustees, affiliates, attorneys and representatives, from and against
any and all losses, costs, expenses, liabilities, claims or legal damages
(including, without limitation, reasonable fees and disbursements of counsel
and
accountants and other costs and expenses incident to any actual or threatened
claim, suit, action or proceeding, whether incurred in connection with a claim
against the Investor or a third party claim) (collectively, “Company Losses”),
relating to violations of 1933 Act or other applicable law arising out of or
resulting from: (i) any inaccuracy in or breach of any representation, warranty,
covenant or agreement made by the Investor in this Agreement; or (ii) the
failure of the Investor to perform or observe fully any covenant, agreement
or
provision to be performed or observed by it pursuant to this Agreement.
Notwithstanding the foregoing, the Investor shall only be liable to make any
indemnification pursuant to this Section 3.2 to the extent of the aggregate
dollar amount invested by the Investor pursuant to the offering. Company Losses
resulting directly from the gross negligence or willful misconduct of the
Company or any of its respective officers, directors, employees, affiliates
and
attorneys are not covered under this Section.
3.3. Indemnification
Procedure.
Each
party entitled to be indemnified pursuant to Section 3.1 and 3.2 (each, an
“Indemnified Party”) shall notify the other party (the “Indemnifying Party”) in
writing of any action against such Indemnified Party in respect of which the
other party is or may be obligated to provide indemnification pursuant to
Section 3.1 or 3.2, promptly after the receipt of notice or knowledge of the
commencement thereof. The omission of any Indemnified Party so to notify the
other party of any such action shall not relieve the Indemnifying Party from
any
liability which it may have to such Indemnified Party except to the extent
the
Indemnifying Party shall have been prejudiced by the omission of such
Indemnified Party so to notify it, pursuant to this Section 3.3. In case any
such action shall be brought against any Indemnified Party, the Indemnifying
Party shall be entitled to participate therein and, to the extent that the
Indemnifying Party may wish, to assume the defense thereof, with counsel
reasonably satisfactory to such Indemnified Party, and after notice from it
to
such Indemnified Party of its election so to assume the defense thereof, the
Indemnifying Party will not be liable to such Indemnified Party for any legal
or
other expense subsequently incurred by such Indemnified Party in connection
with
the defense thereof nor for any settlement thereof entered into without the
consent of the Indemnifying Party; provided,
however,
that
(i) if the Indemnifying Party shall elect not to assume the defense of such
claim or action or (ii) if the Indemnified Party reasonably determines (x)
that
there is a substantial actual conflict between the positions of the Indemnifying
Party and of the Indemnified Party in defending such claim or action or (y)
that
there may be legal defenses available to such Indemnified Party different from
or in addition to those available to the Indemnifying Party, then separate
counsel for the Indemnified Party shall be entitled to participate in and
conduct the defense, and the Indemnifying Party shall be liable for any
reasonable legal or other expenses incurred by the Indemnified Party in
connection therewith.
3.4. Indemnification
Exclusive.
The
foregoing indemnification provisions are exclusive, and in lieu of any
statutory, equitable or common law remedy any party may have for breach of
representation, warranty, covenant or agreement, all of which are hereby
irrevocably waived and relinquished to the maximum legal effect.
Section
4. Registration
Rights.
The
Investor is aware that except as set forth below, the Company does not intend
(and is not required) to register the offer or sale of the Common Stock and
2007
Series Warrants offered hereby under the Securities Act of 1933, as amended
or
under any similar law of any other jurisdiction (the “Act”), that such offer and
sale are intended to be exempt from registration under the Acts, and that the
Acts may prohibit or severely limit the Investor’s ability to sell, assign,
transfer or otherwise dispose of the Common Stock and 2007 Series Warrants
to be
purchased hereunder unless and until any such registration is completed.
Notwithstanding the foregoing, at
the
Closing the Investor and the Company shall enter into the Registration Rights
Agreement providing, among other things, that the Company will (i) file a
registration statement covering the resale of the shares of Common Stock of
the
Investor purchased hereunder and issuable upon exercise of the 2007 Series
Warrants with the Securities Exchange Commission not later than December 7,
2007
(the “Filing Deadline”) and (ii) cause such registration statement to become
effective not later than 120 days following the Filing Deadline, in each case
as
more fully provided and subject to the terms and conditions of such Registration
Rights Agreement, provided that if there
is
a full review of the Registration Statement by the Securities and Exchange
Commission, 150 days after the Filing Deadline.
| Section 5. |
Miscellaneous
|
5.1. Survival
of Warranties and Covenants.
The
representations, warranties and rights to indemnification set forth in Section
2
shall survive indefinitely except as limited by applicable laws.
5.2. Successors
and Assigns.
This
Agreement may not be assigned by the Investor without the prior written consent
of the Company. Nothing in this Agreement, express or implied, is intended
to
confer upon any party, other than the parties hereto or their respective
successors and permitted assigns, any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
5.3. Waiver
and Amendment.
Neither
this Agreement nor any provisions hereof shall be modified, amended, discharged
or terminated, except by an instrument in writing, signed by the party against
whom any modification, amendment, discharge or termination is sought. Any term
or condition of this Agreement may be waived at any time by the party that
is
entitled to the benefit thereof, but no such waiver shall be effective unless
set forth in a written instrument duly executed by or on behalf of the party
waiving such term or condition. No waiver by any party of any term or condition
of this Agreement, in any one or more instances, shall be deemed to be or
construed as a waiver of the same or any other term or condition of this
Agreement on any future occasion. All remedies, either under this Agreement
or
by law or otherwise afforded, will be cumulative and not
alternative.
5.4. Submission
to Jurisdiction.
Each of
the Investor and the Company hereby submits to the exclusive jurisdiction of
the
courts of the State of New York and the federal courts of the United States
located in the State of New York, for purposes of all legal proceedings arising
out of or relating to this Agreement and the transactions contemplated hereby.
Each of the Investor and the Company irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of the venue of any such proceeding brought in such a court and any claim that
any such proceeding brought in such a court has been brought in an inconvenient
forum.
5.5. Waiver
of Jury Trial.
Each
party hereto hereby waives its rights to a jury trial of any claim or cause
of
action based upon or arising out of this Agreement. The scope of this waiver
is
intended to be all-encompassing of any and all disputes that may be filed in
any
court and that relate to the subject matter of this transaction, including,
without limitation, contract claims, tort claims, breach of duty claims and
all
other common law and statutory claims. Each party hereto hereby further warrants
and represents that such party knowingly and voluntarily waives its jury trial
rights following consultation with legal counsel. This waiver is irrevocable,
meaning that it may not be modified either orally or in writing, and this waiver
shall apply to any subsequent amendments, supplement or modifications to (or
assignments of) this Agreement. In the event of litigation, this Agreement
may
be filed as a written consent to a trial (without a jury) by the
court.
5.6. Section
and Other Headings.
The
section and other headings contained in this Agreement are for reference
purposes only and shall not affect the meaning or interpretation of this
Agreement.
5.7. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which when
so
executed and delivered shall be deemed to be an original and all of which
together shall be deemed to be one and the same agreement. The Parties agree
that facsimile signatures of this Agreement shall be deemed a valid and binding
execution of this Agreement.
5.8. Notices.
Unless
otherwise provided, any notice or other communication required or permitted
to
be given or effected under this Agreement shall be in writing and shall be
deemed effective upon personal or facsimile delivery to the party to be notified
or three business days after deposit with an internationally recognized courier
service, delivery fees prepaid, and addressed to the party to be notified at
the
following respective addresses, or at such other addresses as may be designated
by written notice; provided,
however,
that
any notice of change of address shall be deemed effective only upon
receipt:
|
If
to the Company:
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Advanced
Photonix, Inc.
|
|
0000
Xxxxxxxxx
Xxx
Xxxxx, XX 00000
Attention:
President
|
|
With
a copy to:
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Dornbush
Xxxxxxxxx Xxxxxxxx & Xxxxxxxx, LLP
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|
000
Xxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Xxxxxx Xxxxxxxx, Esq.
|
|
If
to the Investor:
|
At
the address of the Investor indicated on the signature page
hereof.
|
5.9. Entire
Agreement.
This
Agreement, including the Schedules and Exhibits attached hereto, supersedes
all
prior discussions and agreements among the parties hereto with respect to the
subject matter hereof and contains the sole and entire agreement among the
parties hereto with respect to the subject matter hereof.
5.10. Expenses;
Attorneys’ Fees.
The
Company shall pay reasonable legal costs not to exceed $10,000 incurred by
Investors in connection with the Offering including directly related
post-Closing matters, and review of any registration statement filed pursuant
to
Section 4 above.
5.11. Further
Assurances.
Each
party hereto shall execute and deliver such additional documents as may
reasonably be necessary or desirable to consummate the transactions contemplated
by this Agreement.
5.12. Severability.
Whenever possible, each provision of this Agreement shall be interpreted in
such
a manner as to be effective and valid under applicable law, but if any provision
of this Agreement shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Agreement.
5.13. Money
Laundering.
The
Investor acknowledges that due to money laundering laws and regulations that
may
be applicable to the operation of the Company and its business, the Company
may
require such proof of identity or other documentation as may be required to
comply with such laws and regulations before this Agreement can be processed
and
the Company and its directors, officers, employees, and agents shall be held
harmless and indemnified against any loss ensuing due to the failure of the
Investor to truthfully provide any such proof as may be so
required.
IN
WITNESS WHEREOF, the undersigned has executed this Agreement on this
_____ day of __________, 2007.
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Name
of Investor:
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Aggregate
Purchase Price:
$________________________________________
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_________________________________________
By:
Name:
Title:
Witness’
Signature: _________________________________________
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Number
and Street
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City,
State and Zip
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Subscriber’s
Social Security or Taxpayer Identification Number:
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If
Fiduciary or Corporation, check one:
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o Trust
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o Estate
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o Power
of Attorney
|
o
Corporation
|
ALL
INVESTORS MUST COMPLETE THE QUESTIONNAIRE
ATTACHED
AS ANNEX A
Accepted
by:
ADVANCED
PHOTONIX, INC.
By:
_____________________________________________
Xxxxxxx
X. Xxxxx,
Chief Executive Officer and President Dated:
_______ ___, 2007
