As filed with the Securities and Exchange Commission on
November 16, 2022
Registration No.
333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S‑8
REGISTRATION
STATEMENT
Under
The Securities Act of 1933
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AEHR TEST
SYSTEMS
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(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
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(I.R.S. Employer
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incorporation or organization)
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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:
Page Mailliard
Latham & Watkins LLP
140 Scott Drive
Menlo Park, California 94025
(650) 463-2600
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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☐
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Accelerated filer
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☐
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Non-accelerated filer
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☒
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Smaller reporting company
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☒
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Emerging growth company
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☐
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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. ☐
TABLE OF
CONTENTS
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, 2022 filed on August 26, 2022, 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 2022 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 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.
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 6.
Exemption from Registration Claimed.
Not applicable.
Item 7.
Exhibits.
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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 8.
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 16, 2022.
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AEHR TEST SYSTEMS |
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By: |
/s/ GAYN ERICKSON |
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Gayn Erickson |
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President and Chief Executive Officer |
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POWER OF ATTORNEY
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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President, Chief Executive Officer and Director
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/s/ GAYN ERICKSON
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(Principal Executive Officer)
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November 16, 2022 |
| Gayn Erickson |
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Vice President of Finance and Chief Financial |
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| /s/ KENNETH B.
SPINK |
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Officer (Principal Financial and Accounting Officer)
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November 16, 2022 |
| Kenneth B. Spink |
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| /s/ RHEA J.
POSEDEL |
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Chairman |
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November 16, 2022 |
| Rhea J. Posedel |
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/s/ LAURA OLIPHANT
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Director
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November 16, 2022
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Laura Oliphant
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/s/ GEOFFREY SCOTT
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Director
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November 16, 2022
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Geoffrey Scott
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/s/ MARIO M. ROSATI
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Director
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November 16, 2022
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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 16, 2022
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Howard T. Slayen
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/s/ FARIBA DANESH
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Director
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November 16, 2022
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Fariba Danesh
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