Blueprint
As filed
with the Securities and Exchange Commission on November 21,
2018
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)
_________________________________
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California
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94-2424084
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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400
Kato Terrace Fremont,
California
94539
(Address
of principal executive offices) (Zip Code)
_________________________________
Amended
and Restated 2006 Employee Stock Purchase Plan
(Full
title of the plan)
_________________________________
Gayn
Erickson
President
and 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, a smaller reporting
company or an emerging growth company. See the definitions of
“large accelerated filer,” “accelerated
filer,” “smaller reporting company,” and
"emerging growth company" in Rule 12b-2 of the Exchange
Act.
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Large
accelerated filer ☐
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Accelerated
filer ☐
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Non-accelerated
filer ☑
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Smaller
reporting company ☑
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Emerging
growth company ☐
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If an
emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided
pursuant to Section 7(a)(2)(B) of the Securities Act.
☐
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Calculation of Registration Fee
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Title of Securities to be Registered
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Amount to be Registered (1)
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Proposed Maximum Aggregate
Offering Price Per Share
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Proposed Maximum Aggregate Offering Price
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Amount of Registration Fee
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AMENDED
AND RESTATED 2006 EMPLOYEE STOCK PURCHASE PLAN
Common
Stock available for issuance, par value $0.01 per
share
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350,000
(2)
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$ 1.67
(3)
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$
584,500
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$
70.84
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(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.
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(2) The
350,000 shares reflect an increase to the number of shares
available for issuance under the Registrant’s Amended and
Restated 2006 Employee Stock Purchase Plan.
(3) 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 16, 2018 multiplied by 85%, which is the
percentage of trading purchase price applicable to purchases under
such plan.
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TABLE OF CONTENTS
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PART
I
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4
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PART
II
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Item 3.
Incorporation of Documents by Reference
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4
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Item 4.
Description of Securities
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4
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Item 5.
Interest of Named Experts and Counsel
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4
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Item 6.
Indemnification of Directors and Officers
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4
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Item 7.
Exemption from Registration Claimed
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5
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Item 8.
Exhibits
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5
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Item 9.
Undertakings
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6
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SIGNATURES
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7
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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.
This
Registration Statement registers shares of the Registrant’s
Common Stock to be issued pursuant to the Amended and Restated 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, 2018 filed on August 28, 2018, 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 2018 Annual Meeting of
Shareholders to the extent specifically incorporated by reference
therein;
(b) All other reports
filed pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), since the
end of the fiscal year covered by the Annual Report;
and
(c) The description of
the Registrant’s Common Stock contained in its registration
statement on Form 8-A filed with the SEC on July 29, 1997, pursuant
to Section 12(g) of the Exchange Act, including any amendment or
report filed for purpose of updating such description.
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 412,605 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 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.
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Exhibit
Number
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Description
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Amended
and Restated 2006 Employee Stock Purchase Plan*
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Opinion
of Wilson Sonsini Goodrich & Rosati, Professional Corporation,
as to the legality of the securities being registered
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| 23.1 |
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Consent of BPM LLP,
Independent Registered Public Accounting Firm |
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Consent
of Wilson Sonsini Goodrich & Rosati, Professional Corporation
(included in Exhibit 5.1)
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Power
of Attorney (see page 7)
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___________________________________________________________
*
Incorporated by reference to Exhibit 4.2 previously filed with the
Registrant's Registration Statement on Form S-8 filed November 14,
2016 (File No. 333-214589).
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.
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 21, 2018.
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AEHR
TEST SYSTEMS
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By:
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/s/ GAYN
ERICKSON
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Gayn
Erickson
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President and Chief
Executive Officer
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KNOW ALL PERSONS BY THESE PRESENTS, that
each person whose signature appears below constitutes and appoints
Gayn Erickson and Kenneth B. Spink, 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.
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Signature
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Title
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Date
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/s/ GAYN
ERICKSON
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President, Chief
Executive Officer and Director
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November 21,
2018
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Gayn
Erickson
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(Principal
Executive Officer) |
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/s/ KENNETH B.
SPINK
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Vice President of
Finance and Chief Financial
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November 21,
2018
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Kenneth B.
Spink
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Officer (Principal
Financial and Accounting Officer) |
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/s/ RHEA J.
POSEDEL
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Chairman
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November 21,
2018
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Rhea J.
Posedel
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/s/ WILLIAM W. R.
ELDER
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Director
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November 21,
2018
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William W. R.
Elder
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/s/ JOHN
SCHNEIDER
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Director
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November 21,
2018
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John
Schneider
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/s/ MARIO M.
ROSATI
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Director
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November 21,
2018
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Mario M.
Rosati
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/s/ HOWARD T.
SLAYEN
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Director
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November 21,
2018
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Howard T.
Slayen
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