As filed with the Securities and Exchange Commission on November 14, 2011
Registration No. 333-_______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
AEHR TEST SYSTEMS
(Exact name of Registrant as specified in its charter)
California 94-2424084
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
400 Kato Terrace
Fremont, California 94539
(Address of principal executive offices) (Zip Code)
2006 Equity Incentive Plan
2006 Employee Stock Purchase Plan
(Full title of the plan)
Rhea J. Posedel
Chief Executive Officer
400 Kato Terrace
Fremont, California 94539
(510) 623-9400
(Name and address including zip code and telephone number,
including area code, of agent for service)
Copy to:
Mark L. Reinstra, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304
(650) 493-9300
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer or a smaller reporting
company. See definitions of "large accelerated filer", "accelerated filer",
and "smaller reporting company" in Rule 12b-2 of the Exchange Act:
Large accelerated filer Accelerated filer
--- ---
Non-accelerated filer Smaller reporting company x
--- ---
(Do not check if a smaller reporting company)
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Calculation of Registration Fee
=====================================================================================
Proposed
Maximum Proposed
Aggregate Maximum Amount of
Title of Securities to Amount to be Offering Price Aggregate Registration
be Registered Registered (1) Per Share Offering Price Fee
-------------------------- -------------- -------------- -------------- ------------
2006 EQUITY INCENTIVE PLAN
Common Stock available for
issuance, par value $0.01
per share 1,199,344(2) $0.89(4) $1,067,416 $122.33
2006 EMPLOYEE STOCK
PURCHASE PLAN
Common Stock available for
issuance, par value $0.01
per share 350,000(3) $0.76(5) $ 266,000 $30.48
TOTAL 1,549,344 $1,333,416 $152.81
=====================================================================================
(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended
(the "Securities Act"), this Registration Statement shall also cover
any additional shares of the Registrant's Common Stock that become
issuable under the plans by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without receipt
of consideration that increases the number of outstanding shares of
Registrant's Common Stock.
(2) The 1,199,344 shares reflect an increase to the already existing 2006
Equity Incentive Plan of (i) 900,000 shares as a result of provisions
in the 2006 Equity Incentive Plan that allow for increases of Common
Stock available for issuance under such plan as approved by the
Registrant's Board of Directors and shareholders and (ii) 299,344
shares returned to the 2006 Equity Incentive Plan due to cancellation
of options under the 1996 Equity Incentive Plan as a result of
provisions in the 2006 Equity Incentive Plan. Such additional
1,199,344 shares are covered by this Registration Statement.
(3) The 350,000 shares reflect an increase to the already existing 2006
Employee Stock Purchase Plan as a result of provisions in the 2006
Employee Stock Purchase Plan that allow for increases of Common Stock
available for issuance under such plan as approved by the Registrant's
Board of Directors and shareholders. Such additional 350,000 shares
are covered by this Registration Statement.
(4) Estimated in accordance with Rule 457(c) under the Securities Act
solely for the purpose of calculating the registration fee, based on
the average of the high and low price per share of the Registrant's
Common Stock as reported on the NASDAQ Capital Market on November 8,
2011.
(5) Estimated in accordance with Rule 457(c) under the Securities Act
solely for the purpose of calculating the registration fee, based on
the average of the high and low price per share of the Registrant's
Common Stock as reported on the NASDAQ Capital Market on November 8,
2011 multiplied by 85%, which is the percentage of trading purchase
price applicable to purchases under such plan.
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TABLE OF CONTENTS
PART I
PART II
Item 3. Incorporation of Documents by Reference 4
Item 4. Description of Securities 4
Item 5. Interest of Named Experts and Counsel 4
Item 6. Indemnification of Directors and Officers 4
Item 7. Exemption from Registration Claimed 5
Item 8. Exhibits 5
Item 9. Undertakings 6
SIGNATURES 7
Index to Exhibits 9
Exhibit 4.1
Exhibit 4.2
Exhibit 5.1
Exhibit 23.1
Exhibit 24.1
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I will be
sent or given to employees as specified by Rule 428(b)(1) of the Securities
Act of 1933, as amended (the "Securities Act"). Such documents are not being
filed with the Securities and Exchange Commission (the "SEC") either as part
of this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 of the Securities Act. Such documents and the documents
incorporated by reference in this Registration Statement pursuant to Item 3
of Part II hereof, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Statement under General Instruction E - Registration of Additional
Securities:
Pursuant to General Instruction E of Form S-8, the contents of the
Registration Statement on Form S-8 previously filed by the Registrant with
the SEC (File No. 333-138249) in connection with the 2006 Equity Incentive
Plan and the 2006 Employee Stock Purchase Plan are incorporated by reference
into this Registration Statement. This Registration Statement registers
additional shares of the Registrant's Common Stock to be issued pursuant to
the 2006 Equity Incentive Plan and the 2006 Employee Stock Purchase Plan, and
the following subsequent periodic reports and information contained therein
are hereby incorporated by reference into this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended May 31, 2011, as filed pursuant to Section 13(a) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), including portions of
the Registrant's Proxy Statement for the 2011 Annual Meeting of Shareholders
to the extent specifically incorporated by reference therein;
(b) The Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended August 31, 2011; and
(c) The Registrant's Current Reports on Form 8-K filed on June 7,
2011, July 5, 2011, August 30, 2011, October 27, 2011 and November 7, 2011.
All documents filed by us pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act, on or after the date of this Registration
Statement and prior to the filing of a post-effective amendment which
indicates that all securities offered herein 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 of such documents. Any statement contained in
a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in
any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
Members of Wilson Sonsini Goodrich & Rosati, Professional
Corporation, may be deemed to beneficially own 239,633 shares of the
Registrant's Common Stock.
Item 6. Indemnification of Directors and Officers.
Section 317 of the California General Corporations Law (the "CGCL")
authorizes a court to award, or a corporation's board of directors to grant,
indemnity to directors and officers who are parties or are threatened to be
made
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parties to any proceeding (with certain exceptions) by reason of the fact
that the person is or was an agent of the corporation, against expenses,
judgments, fines, settlements and other amounts actually and reasonably
incurred in connection with the proceeding if that person acted in good faith
and in a manner the person reasonably believed to be in the best interests of
the corporation, and in the case of a criminal proceeding, had no reasonable
cause to believe the conduct of the person was unlawful.
Section 204 of the CGCL provides that a corporation's articles of
incorporation may not limit the liability of directors (i) for acts or
omissions that involve intentional misconduct or a knowing and culpable
violation of law, (ii) for acts or omissions that a director believes to be
contrary to the best interests of the corporation or its shareholders or that
involve the absence of good faith on the part of the director, (iii) for any
transaction from which a director derived an improper personal benefit, (iv)
for acts or omissions that show a reckless disregard for the director's duty
to the corporation or its shareholders in circumstances in which the director
was aware, or should have been aware, in the ordinary course of performing a
director's duties, of a risk of a serious injury to the corporation or its
shareholders, (v) for acts or omissions that constitute an unexcused pattern
of inattention that amounts to an abdication of the director's duty to the
corporation or its shareholders, (vi) under Section 310 of the CGCL
(concerning transactions between corporations and directors or corporations
having interrelated directors) or (vii) under Section 316 of the CGCL
(concerning directors' liability for distributions, loans, and guarantees).
Section 204 further provides that a corporation's articles of
incorporation may not limit the liability of directors for any act or
omission occurring prior to the date when the provision became effective or
any act or omission as an officer, notwithstanding that the officer is also a
director or that his or her actions, if negligent or improper, have been
ratified by the directors. Further, Section 317 has no effect on claims
arising under federal or state securities laws and does not affect the
availability of injunctions and other equitable remedies available to a
corporation's shareholders for any violation of a director's fiduciary duty
to the corporation or its shareholders.
In accordance with Section 317, the Restated Articles of
Incorporation, as amended (the "Articles"), of the Registrant limit the
liability of a director to the fullest extent permissible under California
law. The Articles further authorize the Registrant to provide
indemnification to its agents (including officers and directors), subject to
the limitations set forth above. The Articles and the Registrant's By-Laws
(the "By-Laws") further provide for indemnification of corporate agents to
the maximum extent permitted by the CGCL.
Pursuant to the authority provided in the Articles and By-Laws, the
Registrant has entered into indemnification agreements with its executive
officers and directors, indemnifying them against certain potential
liabilities that may arise as a result of their service to the Registrant,
and providing for certain other protection.
The foregoing summaries are necessarily subject to the complete text
of the statute, the Articles, the By-Laws and the agreements referred to
above and are qualified in their entirety by reference thereto.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description
-------- -------------------------------------------------------------------
4.1* 2006 Equity Incentive Plan
4.2* 2006 Employee Stock Purchase Plan
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation, as to the legality of the securities being registered
23.1 Consent of Burr Pilger Mayer, Inc., Independent Registered Public
Accounting Firm
24.1 Power of Attorney (see page 7)
___________________________________________________________
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* Incorporated by reference to the exhibits previously filed with the
Registrant's Registration Statement on Form S-8 filed October 27, 2006 (File
No. 333-138249).
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:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range may
be reflected in the form of prospectus filed with the SEC pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent no
more than a 20 percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the effective
registration statement; and
(iii) 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.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this
section do not apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in reports filed with or
furnished to the SEC by the Registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference in this registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act 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 SEC, 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
Securities 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
registrant 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 Fremont, State of California, on
November 14, 2011.
AEHR TEST SYSTEMS
By: /s/ RHEA J. POSEDEL
--------------------------------
Rhea J. Posedel
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Rhea J. Posedel and Gary L. Larson, and
each of them, his attorneys-in-fact, each with the power of substitution, for
him and in his name, 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 in all 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 he might or could do in
person, hereby ratifying and confirming all that such attorneys-in-fact and
agents or any of them, or his or their substitute or 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 below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
----------------------- ----------------------------------- -----------------
/s/ RHEA J. POSEDEL Chief Executive Officer and November 14, 2011
----------------------- Chairman of the Board of Directors -----------------
Rhea J. Posedel (Principal Executive Officer)
/s/ GARY L. LARSON Vice President of Finance and November 14, 2011
----------------------- Chief Financial Officer (Principal -----------------
Gary L. Larson Financial and Accounting Officer)
/s/ ROBERT R. ANDERSON Director November 14, 2011
----------------------- -----------------
Robert R. Anderson
/s/ WILLIAM W. R. ELDER Director November 14, 2011
----------------------- -----------------
William W. R. Elder
/s/ MUKESH PATEL Director November 14, 2011
----------------------- -----------------
Mukesh Patel
/s/ MARIO M. ROSATI Director November 14, 2011
----------------------- -----------------
Mario M. Rosati
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/s/ HOWARD T. SLAYEN Director November 14, 2011
----------------------- -----------------
Howard T. Slayen
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Index to Exhibits
Exhibit
Number Description
-------- ------------------------------------------------------------------
4.1* 2006 Equity Incentive Plan
4.2* 2006 Employee Stock Purchase Plan
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation, as to the legality of the securities being registered
23.1 Consent of Burr Pilger Mayer, Inc., Independent Registered Public
Accounting Firm
24.1 Power of Attorney (see page 7)
___________________________________________________________
* Incorporated by reference to the exhibits previously filed with the
Registrant's Registration Statement on Form S-8 filed October 27, 2006 (File
No. 333-138249).
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